Opinion
615200/18
02-25-2020
Frederick M. OBERLANDER and Richard E. Lerner, Plaintiffs, v. Robert WOLF, Moses & Singer LLP, Michael Beys, Nader Mobargha, and Beys, Liston & Mobargha LLP), Defendants.
Frederick M. Oberlander, Esq., The Law Office of Frederick M. Oberlander, 28 Sycamore Lane P.O. Box 1870, Montauk, NY 11954, For the Plaintiffs Robert B. McFarlane, Esq., The Chrysler Building, 405 Lexington Ave, 12th Floor, New York, NY 10174, For Robert Wolf and Moses & Singer LLP Michael P. Beys, Esq., Beys Liston & Mobargha LLP, 641 Lexington Ave, 14th Floor New York, NY 10022, For Michael Beys, Nader Mobargha and Beys Liston & Mobargha LLP
Frederick M. Oberlander, Esq., The Law Office of Frederick M. Oberlander, 28 Sycamore Lane P.O. Box 1870, Montauk, NY 11954, For the Plaintiffs
Robert B. McFarlane, Esq., The Chrysler Building, 405 Lexington Ave, 12th Floor, New York, NY 10174, For Robert Wolf and Moses & Singer LLP
Michael P. Beys, Esq., Beys Liston & Mobargha LLP, 641 Lexington Ave, 14th Floor New York, NY 10022, For Michael Beys, Nader Mobargha and Beys Liston & Mobargha LLP
Carmen Victoria St. George, J.
The following numbered papers were read upon this motion:
Notice of Motion/Order to Show Cause 1-3,7; 4-6; 26
Answering Papers 8-22; 27; 28
Reply 23-25; 29
Briefs: Plaintiff's/Petitioner's
Defendant's/Respondent's
Plaintiffs in this action, who are both New York attorneys, move this Court for an enlargement of time to serve a complaint via two separate motions requesting that same relief (Motion Sequences 001 and 002), and that the two motions be consolidated for determination. Plaintiffs seek the relief requested pursuant to " CPLR §§ 2004 and 3012."
The named defendants in this action are also New York attorneys/law firms who previously represented an individual named Felix Sater in New York courts, mostly in the federal Eastern and Southern Districts. Plaintiffs represented individuals suing Sater on various theories. The federal litigation is long-standing, somewhat complex, and it has resulted in disciplinary action taken by the District Court, Eastern District (one-year suspension commencing September 1, 2018) against Mr. Oberlander, which matter is on appeal.
No suspension has ever actually gone into effect to date.
By Motion Sequence 001, plaintiffs request an enlargement of time to serve the complaint through February 8, 2019. With respect to Motion Sequence 001, defendants Robert Wolf and Moses & Singer LLP (the Wolf/LLP) defendants oppose the requested relief. The Beys, Mobargha and Beys, Liston & Mobargha, LLP (the Beys/Mobargha/LLP) defendants did not oppose Motion Sequence 001, but on the same date that opposition to Sequence 001 was filed by Wolf/LLP, the Beys/Mobargha/LLP defendants filed a notice of appearance and demand for a complaint. Asserting that, "in search of economy," plaintiffs propose in Motion Sequence 002 that they "be allowed to litigate by one complaint;" therefore, they request that Sequence 001 and Sequence 002 be consolidated for determination by the Court. Motion Sequence 002 requests an enlargement of time to serve the complaint to a date that the Court "sees fit." The Wolf/LLP defendants and the Beys/Mobargha/LLP defendants each oppose Motion Sequence 002.
In Motion Sequence 002, plaintiffs reaffirm and re-adopt all other representations in the prior motion, Sequence 001.
This action was assigned to this Court by Administrative Order dated October 9, 2019, and the instant motions traveled with this action, for decision by this Court. Although this Court marked the instant motions fully submitted as of November 20, 2019, all papers on each motion were electronically filed on NYSCEF by February 24, 2019.
The named defendants assert that both of the pending motions should be denied and that the action should be dismissed pursuant to CPLR § 3012 (b) since plaintiffs cannot demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause of action.
CPLR § 3012 (b) provides in pertinent part that, "[i]f the complaint is not served with the summons, the defendant may serve a written demand for the complaint within the time provided in subdivision (a) of rule 320 for an appearance. Service of the complaint shall be made within twenty days after service of the demand... If no demand is made, the complaint shall be served within twenty days after service of the notice of appearance. The court upon motion may dismiss the action if service of the complaint is not made as provided in this subdivision. A demand or motion under this subdivision does not of itself constitute an appearance in the action."
CPLR § 3012 (d) provides for an extension of time to appear or plead as follows: "[u]pon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default."
In order to avoid dismissal for failure to comply with the provisions of CPLR § 3012 (b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action ( Patouhas v. Patouhas , 172 AD3d 1219 [2d Dept 2019] ; Lobel v. Hilltop Village Cooperative, No. 4 , 138 AD3d 938 [2d Dept 2016] ; Roberts v. Northington , 128 AD3d 1487 [4th Dept 2015] ; Harris v. City of New York , 121 AD3d 852 [2d Dept 2014] ; Perez v. GEICO Insurance Company , 105 AD3d 1025 [2d Dept 2013] ; Gibbons v. Court Officers' Benevolent Association of Nassau County , 78 AD3d 654 [2d Dept 2010] ; Chmielnik v. Rosenberg , 269 AD2d 555 [2d Dept 2000] ; Gibson v. Victory Memorial Hospital , 221 AD2d 503 [2d Dept 1995] ).
Without passing on the issue of jurisdiction, which is not before the court upon the instant motions, the affidavits of service electronically filed on NYSCEF aver that service of the summons with notice was made on each of the defendants on November 30, 2018, upon persons of suitable age and discretion purportedly "authorized to accept," and then mailed to the respective defendants.
On December 20, 2018, the Wolf/LLP defendants electronically filed their notice of appearance and demand for a complaint. On January 18, 2019, the Beys/Mobargha/LLP defendants electronically filed a notice of appearance and a demand for a complaint. Assuming arguendo that the defendants were properly served, the Beys/Mobargha/LLP defendants did not timely file their demand for a complaint; however, their notice of appearance nonetheless triggered the requirement that plaintiffs serve a complaint within twenty days of the filing of the notice of appearance.
NYSCEF records reflect that there is full participation in the electronic filing system by the parties to this action.
Plaintiffs did not serve any complaint on any of the named defendants but interposed Motion Sequences 001 and 002 seeking an enlargement of the time to serve a complaint. Plaintiffs do not annex a proposed complaint verified by either one or both of them. Although the plaintiffs are attorneys, they are also parties to this action; therefore, a verification would have to be sworn to by either or both of them, or, in the alternative, at least one of the plaintiffs is required to submit an affidavit demonstrating a potentially meritorious cause of action ( CPLR § 2106 [a] ; see also Patouhas , supra ; Abele Tractor & Equipment Company, Inc. v. RJ Valente, Inc. , 94 AD3d 1270 [3d Dept 2012] ; Roberts , supra ; Gibbons , supra ).
In their moving papers, plaintiffs refer to their summons with notice by noting its NYSCEF number. Apart from that reference, plaintiffs do not make any argument in support of a potentially meritorious cause of action, but instead concentrate their application on that branch of the required showing of a reasonable excuse for the delay. Only the affirmation of Mr. Oberlander is submitted in support of the moving papers for both sequences. The summons with notice is not sworn to by either of the plaintiffs in this action. The failure to submit a sworn compliant or an affidavit as to the facts demonstrating a potentially meritorious cause of action is fatal to plaintiffs' applications regardless of the excuse proffered by Mr. Oberlander concerning the delay in serving a complaint.
Next, to make out a potentially meritorious cause of action for fraud, the complaint, or an affidavit, must contain allegations of a representation of material fact, falsity, scienter, reliance and injury. (see Morales v. AMS Mortgage Services, Inc ., 69 AD3d 691, 897 N.Y.S.2d 103 [2d Dept., 2010] ). Moreover, the circumstances of the fraud must be stated in detail, including specific dates and items (see CPLR § 3016[b] ). In this case, plaintiffs refer to "their filings" and "those filings," without the least bit of specificity as to who is alleged to have made the filings or what specific language of filings is allegedly fraudulent. Thus, plaintiffs have failed to set forth with any specificity a potentially meritorious claim for fraud against any of the named defendants.
Also relevant to the determination of the instant application is the principle that where statements and actions that are complained of are made in the course of adversarial proceedings and were fully controverted, there is no claim for fraud (see Sammy v. Haupel , 170 AD3d 1224, 1227 [2d Dept 2019] ; Lazich v. Vittoria & Parker , 189 AD2d 753, 754 [2d Dept 1993] ). Furthermore, there is support in the record that Mr. Sater's safety was actually compromised by plaintiffs' actions, as advocated by Sater's attorneys (the defendants) on his behalf. The submissions in opposition to the instant motions contain evidence that the federal courts apparently agreed that Mr. Sater's safety was endangered by plaintiffs' conduct in the civil RICO action, especially noted in the Sealed Report of the Special Master, USDJ Pamela K. Chen, EDNY, dated July 5, 2017 (Exhibit H).
There is no support in the submissions to this Court supporting the hyperbolic claim of the plaintiffs in the unsworn summons with notice that the "defendants filed in court over a period of time repeated misrepresentations of fact they knew or recklessly indifferent in not knowing were false with the specific intent to frame plaintiffs for attempted murder (sic)" (Notice, paragraph 45).
Although plaintiffs fail to delineate their basis for claiming that the defendants violated the Judiciary Law, it appears that the claim is based upon the same allegations constituting their claim for common law fraud. In this same vein, as supported by the submitted records of the federal court proceedings and decisions, it is evident that Sater's attorneys both past and present, who are the named defendants in this action, appear to have engaged in appropriate representation of their client's interests, without any evidence having been submitted to this Court that remotely supports plaintiffs' claim that the defendants violated Judiciary Law § 487 making it a misdemeanor for an attorney who "[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party" ( Judiciary Law § 487 [1] ; see also Lazich, supra at 754).
Accordingly, the plaintiffs' motions are denied, and this action is dismissed ( CPLR § 3012 [b] ).
The foregoing constitutes the Decision and Order of this Court.