Opinion
No. 22589/11.
2012-06-22
Jack L. GLASSER, Esq., David Harris, Esq. and Augstin Tella, Esq., Plaintiffs, v. Karen MORROW, 718–4Landlords, Inc. and Lisa Doe, Defendants.
ROBERT J. McDONALD, J.
The following papers numbered 1 to 13 read on this motion by defendant Lisa Scirocco s/h/a Lisa Doe pursuant to CPLR 3211 to dismiss plaintiffs' complaint as against Lisa Scirocco, a State employee with the Unified Court System of the Civil Court of the City of New York, Queens County, Landlord & Tenant Part, on the grounds that the Court does not have subject matter jurisdiction and on this cross motion by plaintiffs for leave to serve and file their annexed proposed amended complaint and to deem the amended complaint to be served and filed in this action, and to grant plaintiffs a preliminary injunction during the pendency of this lawsuit enjoining and restraining defendant Lisa Scirocco from referring the public coming to the courthouse to defendants Karen Morrow and 718–4 Landlords, Inc. for any assistance at any time whatsoever.
+-----------------------------------------------------+ ¦Papers ¦Numbered ¦ +------------------------------------------+----------¦ ¦Notice of Motion–Affidavits–Exhibits ¦1–5 ¦ +------------------------------------------+----------¦ ¦Notice of Cross Motion–Affidavits–Exhibits¦6–9 ¦ +------------------------------------------+----------¦ ¦Reply Affidavits ¦10–13 ¦ +-----------------------------------------------------+
Upon the foregoing papers it is ordered that the motion and cross motion are determined as follows:
Plaintiffs are attorneys licensed to practice law in the State of New York and have offices in the State and specifically, in the County of Queens. Plaintiffs commenced this action seeking monetary damages and injunctive relief against defendants Morrow, 718–4 Landlords, Inc. and Scirocco by filing a summons and complaint on September 29, 2011. In the complaint, plaintiffs allege that defendants Morrow and 718–4 Landlords, Inc. lure the general public into their offices, located at 89–08 Sutphin Boulevard, Jamaica, New York, for the purpose of selling and dispensing legal services to the general public although said defendants are not authorized and licensed to practice law in the Courts of the State of New York. Plaintiffs also allege that defendant Scirocco, a court office assistant, employed with the Unified Court System, at the Civil Court of the City of New York, Queens County, Landlord & Tenant Part, located at 89–17 Sutphin Boulevard, Jamaica, New York, diverts individuals seeking information and guidance from that Court to defendants Morrow and 718–4 Landlords, Inc., indicating that these individuals do not need counsel and that defendants Morrow and 718–4 Landlords, Inc. can handle their legal matters. Plaintiffs also allege that defendant Scirocco receives a fee or consideration in exchange for such referrals to defendants Morrow and 718–4 Landlords, Inc.
Defendant Scirocco now moves to dismiss this case against her for lack of subject matter jurisdiction pursuant to CPLR 3211(a)(2), and for lack of standing to bring a Judiciary Law § 476–a cause of action, pursuant to CPR 3211(a)(3). Plaintiffs cross-move for leave to file and serve an amended complaint, and for a preliminary injunction during the pendency of this lawsuit enjoining and restraining defendant Scirocco from referring the public coming to the courthouse to defendants Morrow and 718–4 Landlords, Inc. for any assistance at any time whatsoever.
In plaintiffs' proposed amended complaint, all monetary claims against the defendants are withdrawn, and plaintiffs allege nuisance and seek permanent injunctions barring and prohibiting defendants Morrow and 718–4 Landlords, Inc. from the unauthorized practice of law and defendant Scirocco from referring members of the public coming to the courthouse to defendants Morrow and 718–4 Landlords, Inc. for legal advice and services.
In their cross motion papers, plaintiffs note that the action as against defendants Morrow and 718–4 Landlords, Inc. has been settled and withdrawn by stipulation dated February 28, 2012.
In that stipulation, a copy of which was annexed to the cross motion papers, defendants Morrow and 718–4 Landlords, Inc. surrender the premises at 89–08 Sutphin Boulevard, Jamaica, New York, and, without admitting any of the allegations in the complaint, consent to a permanent injunction forever barring and enjoining them from the unlicensed and unauthorized practice of law.
A review of Queens County Clerk records revealed that this stipulation has not yet been filed. ( SeeCPLR 3217[a].)
Leave to amend a pleading shall be freely given in the absence of prejudice or surprise resulting from the delay, and provided that the proposed amendment is not palpably insufficient as a matter of law or totally devoid of merit. ( SeeCPLR 3025[b]; see also Edenwald Contracting Co., Inc. v. City of New York, 60 N.Y.2d 957 [1983];AYW Networks, Inc. v. Teleport Communications Group, Inc., 309 A.D.2d 724 [2003].) The determination as to whether to grant such leave is within the motion court's sound discretion, the exercise of which will not be lightly disturbed. ( See Pergament v.. Roach, 41 AD3d 569 [2007];see also Young v. A. Holly Patterson Geriatric Center, 17 AD3d 667 [2005];Sewkarran v. DeBellis, 11 AD3d 445 [2004].)
In this case, plaintiffs' allegations of nuisance in the proposed amended complaint sound in unauthorized practice of law. Judiciary Law § 476–a provides that only the Attorney–General or a bar association formed in accordance with the laws of this State are authorized to enforce the statute in civil actions against those who commit any act or engage in any conduct prohibited by law as constituting the unlawful practice of the law. ( See People v. Romero, 91 N.Y.2d 750 [1998];see also Lawrence v. Houston, 172 A.D.2d 923 [1991];New York Criminal & Civil Courts Bar Association v. Jacoby, 92 A.D.2d 817 [1983].) Thus, plaintiffs do not have standing to maintain such a claim of unauthorized practice of law. Moreover, plaintiffs have failed to sufficiently plead causes of action for public and private nuisance, and these proposed amendments are patently lacking in merit. ( See Ross v. Gidwani, 47 AD3d 912 [2008];see also Hill v.2016 Realty Associates, 42 AD3d 432 [2007];Perrini v. City of New York, 262 A.D.2d 541 [1999].)
A cause of action to abate a public nuisance “exists for conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons.” (532 Madison Ave. Gourmet Foods v. Finlandia Ctr., Inc., 96 N.Y.2d 280, 292 [2001].) A public nuisance is considered a violation against the State, and is actionable by a private person only if it is demonstrated that the person seeking relief suffered special injury beyond that suffered by the community at large. ( See 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., Inc., supra; see also Matter of Agogli v. Benepe, 84 AD3d 1072 [2011].) Here, plaintiffs neither allege, nor demonstrate that they suffered any special injury beyond that experienced by the community at large.
To recover damages based on the tort of private nuisance, a plaintiff must establish an interference with the use or enjoyment of land, substantial in nature, intentional or negligent in origin, unreasonable in character, and caused by the defendants' conduct. ( See Copart Industries, Inc. v. Consolidated Edison Co. of NY, Inc., 41 N.Y.2d 564 [1977];see also Ward v. City of New York, 15 AD3d 392 [2005];Weinberg v. Lombardi, 217A.D.2d 579 [1995].) Here, the allegations against defendants do not, as a matter of law, rise to the level of substantial interference with the plaintiffs' use and enjoyment of their properties so as to constitute a private nuisance. ( See Anderson v. Elliott, 24 AD3d 400 [2005];see also Ruscito v. Swaine, Inc., 17 AD3d 560 [2005];Pearlman v. Simons, 276 A.D.2d 762[2000].)
Inasmuch as the proposed amendments are patently insufficient as a matter of law, the branch of plaintiffs' cross motion seeking leave to file and serve an amended complaint is denied.
In light of the foregoing, defendants' motion to dismiss will be addressed with respect to the original complaint.
The Court of Claims has exclusive jurisdiction over actions for money damages only against State agencies, departments, and employees acting in their official capacity in the exercise of government functions. ( SeeCourt of Claims Act § 9[2]; see also Morell v. Balasubramanian, 70 N.Y.2d 297 [1987];Schaffer v. Evans, 57 N.Y.2d 992 [1982].) To the extent that the instant action seeks money damages against defendant Scirocco for actions taken by her in her official capacity as a state employee, this Court lacks subject matter jurisdiction, and such claims are dismissed. ( SeeCPLR 3211[a][2]; see also Morell v. Balasubramanian, supra.)
In addition, as noted, Judiciary Law § 476–a provides that only the Attorney–General or a bar association formed in accordance with the laws of this State are authorized to enforce the statute in civil actions against those who commit any act or engage in any conduct prohibited by law as constituting the unlawful practice of the law. ( See Lawrence v. Houston, supra.) Thus, the remaining claims in the complaint whereby plaintiffs seek injunctive relief against defendant Scirocco claiming unlawful practice of law are also dismissed as plaintiffs failed to establish standing to maintain such claims. ( SeeCPLR 3211[a][3].) Moreover, the claim for a permanent injunction barring defendant Scirocco from sending members of the public who come to the Court to defendants Morrow and 718–4 Landlords, Inc. for legal advice and services is a moot issue in light of the aforementioned stipulation settling and withdrawing plaintiffs' claims against defendants Morrow and 718–4 Landlords, Inc.
Accordingly, defendant Scirocco's motion to dismiss is granted and plaintiffs' complaint as against her is dismissed in its entirety.
The branch of plaintiffs' cross motion seeking a preliminary injunction is denied as academic.