Opinion
INDEX NO. 502859/2017
09-12-2019
SEMEN GEUNDLER, Plaintiff, v. NATALIA GENDLER AKA NATALIA SHEVELEVA, Defendants.
NYSCEF DOC. NO. 88 Motion Date: 8-5-19
Motion Calendar No.: 28
DECISION/ORDER
MS #05
XMG
The following papers numbered 1 to 2 were read on this motion:
| Papers Numbered | |
|---|---|
| Notice of Motion/Affirmations/Affidavits/Exhibits | 1 |
| Answering Affirmations/Affidavits/Exhibits | 2 |
| Replying Affidavits/Affirmations/Exhibits |
Upon the foregoing papers, the motion is decided as follows:
In this action for a declaratory judgment and related relief, the defendant NATALIA GENDLER aka NATALIA SHEVELEVA seeks an order dismissing the complaint pursuant to: CPLR 3211(a)(2) on jurisdictional grounds; CPLR 3211(a)(5) on the grounds of collateral estoppel and statute of limitations; CPLR 3211(a)(7) for failing to state a cause of action; and CPLR 327(a) based upon forum non conveniens. The plaintiff SEMEN GEUNDLER opposes dismissal.
Relevant Background
This action commenced on February 12, 2017 seeks damages on the basis that: i) the defendant allegedly improperly ran up credit card debt on joint credit card accounts; and ii) the defendant defamed the plaintiff in the Russian Federation. Following the defendant's default in failing to timely answer the complaint, the Clerk of the Court entered a default judgment against defendant in the sum of $96,150.00. The within motion is identical to an earlier motion [e-filed on May 9, 2017]. The prior motion to vacate her default in answering was denied in a decision/order dated August 7, 2017 on the ground that defendant failed to demonstrate a reasonable excuse for the default or the existence of a meritorious defense. The Clerk of the Court awarded plaintiff a default judgment in the sum of $96,150.00 based solely upon the papers submitted. Since neither of plaintiff's claims was for a sum certain, pursuant to CPLR 3215(a), the judgment for $96,150.00 entered on default was deemed a nullity. The Court permitted the judgment to stand as security with execution stayed until the entry of a new judgment following an assessment of damages was determined at an inquest. As the defendant's default had not been vacated, the motion to dismiss had not previously been addressed. By order dated November 13, 2017, after argument, the defendant's default was vacated. Thus the Court may now consider the motion to dismiss in light of the defendant's Answer with Affirmative Defenses.
Plaintiff states that he commenced an action for divorce in Kings County, NY on or around January 2011 and the parties were divorced in the Russian Federation on October 10, 2013.
Discussion
In deciding a motion to dismiss a complaint for failure to state a cause of action, the court must accept the facts alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference, and determine only whether the factual allegations fit within any cognizable legal theory (see CPLR 3211(a)(7)). The elements of a cause of action to recover damages for fraud are (1) a misrepresentation or a material omission of fact which was false, (2) knowledge of its falsity, (3) an intent to induce reliance, (4) justifiable reliance by the plaintiff, and (5) damages (see Swartz v. Swartz, 145 AD3d 818 [2d Dept 2016]; Ginsburg Dev. Cos., LLC v. Carbone, 134 AD3d 890, 892 [2d Dept 2015]). Pursuant to CPLR 3016(b), the "circumstances constituting the wrong" must be "stated in detail," including "specific dates and items" (see Qureshi v. Vital Transportation, Inc., 173 AD3d 1076 [2d Dept 2019]; Orchid Constr. Corp. v. Gottbetter, 89 AD3d 708, 710 [2d Dept 2011] [internal quotation marks omitted]).
Fraud
In the complaint and his affidavit in opposition, plaintiff contends that he opened up multiple credit cards in both parties' names during their marriage. He claims the defendant left him with over $70,000 in credit card and various other debt which he learned about after returning to the United States on an unspecified date, after a serious illness, subsequent to the parties' divorce in the Russian Federation. To support his contentions, plaintiff's counsel points to exhibit D (see Aff in Op) which contains a single page from a checking account in the defendant's name from an unidentified bank. The statement appears to show that some payments were made towards American Express and Paypal during December 2010 and a $70,000 withdrawal was made on 1/3/11. Plaintiff alleges, "[t]he defendant made false representations to the Plaintiff, when opening up the joint cards she was also personally liable to pay them." The document referenced by Counsel shows deductions made durin g [emphasis added] the parties' marriage. Plaintiff does not identify the "many joint credit cards", the dates charges were made or the amounts allegedly charged by the defendant both during and after commencement [of the divorce] as he stated in the complaint. Nor does plaintiff identify any of the other debt allegedly incurred by defendant without his knowledge and consent for which he seeks a damages award. Affording the complaint a liberal construction, accepting the facts alleged therein to be true, and granting the plaintiff the benefit of every possible favorable inference, the Court finds the complaint fails to plead with the requisite particularity a cause of action for fraud and this cause of action is dismissed.
Plaintiff does not provide the date the divorce action was commenced in the Russian Federation. Nor does the plaintiff state whether financial matters related to the marriage were resolved by the Russian Federation court. Generally, credit card debt incurred prior to the commencement of a matrimonial action constitutes marital debt and is subject to the principles of equitable distribution, while debt incurred after commencement of a matrimonial action typically is the responsibility of the party who incurred the debt (see Minervini v. Minervini, 152 AD3d 666 [2d Dept 2017]; Sawin v. Sawin, 128 Ad3d 663 [2d Dept 2017]; Rizzo v. Rizzo, 120 AD3d 1400 [2d Dept 2014]). It is a well settled principle that "[c]ourts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end" (Mahoney-Buntzman v. Buntzman, 12 NY3d 415, 421 [2009]).
Slander , Libel , Defamation
A cause of action alleging defamation is governed by a one-year statute of limitations, and accrues when the allegedly defamatory statements are originally uttered (see CPLR 215(3)). Similarly, a cause of action to recover for libel (written publication to a third person) or slander (oral utterance to a third person) accrued, and the one-year statute of limitations begins to run, when the allegedly defamatory statements were made (see CPLR 215(3)).
Here, the plaintiff alleges the defendant filed a false police report against him on or about December 18 , 2014 , [emphasis added] "during the course of a bitter matrimonial dispute in the Russian Federation" (see Aff in Opp, ¶ 23). Since this action was commenced over one year after the alleged defamation, the second cause of action in the complaint is time-barred and is dismissed.
Accordingly,
It is hereby ORDERED, the defendant's motion dismissing the complaint is GRANTED in its entirety; and it is further
ORDERED, the judgment in favor of plaintiff and against the defendant in the amount of $96,150.00 is hereby VACATED.
This is the order of this court. Date: September 12, 2019
/s/ _________
PETER P. SWEENEY, J.S.C.