Opinion
No. 0921–10.
10-13-2016
Karenmarie PELTIER, Plaintiff, v. Kathryn Wilson SMITH, Kenneth L. Smith, Bayview Loan Servicing, LLC, a Delaware Corporation and William T. Meconi, Defendants.
KarenMarie Peltier, Saint Albans, Vermont, plaintiff pro se. Niles & Bracy, PLLC, Plattsburgh (John M. Crotty of counsel), for defendants Kathryn Wilson Smith and Kenneth L. Smith. Cabaniss Casey LLP, Albany (David B. Cabaniss of counsel), for defendant William T. Meconi.
KarenMarie Peltier, Saint Albans, Vermont, plaintiff pro se.
Niles & Bracy, PLLC, Plattsburgh (John M. Crotty of counsel), for defendants Kathryn Wilson Smith and Kenneth L. Smith.
Cabaniss Casey LLP, Albany (David B. Cabaniss of counsel), for defendant William T. Meconi.
ROBERT J. MULLER, J.
The extensive factual allegations underlying this action have been previously discussed by this Court (see Decision & Order, Sup Ct, Essex County, Oct. 25, 2011; see also Decision & Order, Sup Ct, Essex County, Apr. 27, 2016; Decision & Order, Sup Ct, Essex County, Dec. 2, 2013) as well as set forth in detail in decisions in a related action in Federal Court (see Adams v. Smith, 2010 WL 3522310, 2010 U.S. Dist Lexis 90729 [ND N.Y.2010] ; see also Adams v. Smith, 2015 WL 4139686, 2015 U.S. Dist Lexis 88873 [ND N.Y.2015] ; Adams v. Village of Keeseville, 2008 WL 3413867, 2008 U.S. Dist Lexis 61764 [ND N.Y.2008] ; Adams v. Smith, 2007 WL 2323435, 2007 U.S. Dist Lexis 58690 [ND N.Y.2007] ).
Briefly, plaintiff KarenMarie Adams (now known as KarenMarie Peltier) purchased commercial property on Front Street, Village of Keeseville, Essex County, from Donald and Caroline Loreman in February 2003. She received funding for the transaction from the Village of Keeseville Revolving Loan Fund. She planned to operate a bed and breakfast, gift shop and/or tea room on the premises. Defendant Kathryn Wilson Smith entered into a partnership with plaintiff in the Fall of 2004 to do business together with her at the premises. Plaintiff fell behind on her payments to the Village and, by mid–2005, the Village had obtained summary judgment against plaintiff on a mortgage foreclosure action regarding the Front Street premises. In August 2005, plaintiff agreed to transfer the building to defendants Kathryn and Kenneth Smith (hereinafter referred to as the Smiths), generating funds to pay the past due amounts to the Village. Plaintiff planned to remain in business at the premises with Kathryn Smith. Also in August 2005, an ongoing dispute between plaintiff and the prior owners (the Loremans)—who had remained as tenants operating a laundromat at the premises—escalated and resulted in an incident in which plaintiff and Kathryn Smith were charged with harassment. Defendant William Meconi, an attorney, appeared in Village Court in September 2005 and obtained an adjournment in contemplation of dismissal for plaintiff.
Although the Village of Keeseville has since dissolved and the property would now be considered as located in the Town of Chesterfield, Essex County, for purposes of this decision the location will be referred to as the Village.
The Smiths purchased the property in September 2005, but they later defaulted on their mortgage and executed a deed in lieu of foreclosure transferring the property to defendant Bayview Loan Servicing, LLC, in July 2007.
By December 2005, the relationship between plaintiff and Kathryn Smith had soured as plaintiff ostensibly continually neglected to make any financial contribution to the business. The business failed and the property ultimately ended up being transferred to the Smiths' mortgagee. Believing that she had been deprived of property as a result of a multiple of wrongs by a host of individuals and entities, plaintiff commenced an action in Federal Court in 2007. She later commenced this action on November 15, 2010. In this action, plaintiff's numerous contentions include that she had some items of personal property at the premises and she claims that, shortly after the business relationship broke down, the Smiths sold her personal property without her permission and kept the proceeds. She further contends that the Smiths together with Meconi (and others) engaged in, among other things, various coordinated efforts and nefarious conduct aimed at depriving her of her interest in the business and real property in the Village. She additionally asserts as to Meconi that, from mid–2009 through 2010, he represented an owner who evicted her from other premises located on Pulitzer Way in the Town of Jay, Essex County. She claims that this conduct by Meconi constituted, among other things, a conflict of interest.
The Smiths made a motion to dismiss this action pursuant to CPLR 3211, which the Court partially granted in October 2011 by dismissing all causes of action against the Smiths except for fraud and unjust enrichment. Causes of action asserted against Meconi appear to include, among other things, malpractice, fraud, violation of civil rights, defamation, harassment and civil violation of the Racketeer Influenced and Corrupt Organizations Act (see 18 USC § 1961 et seq. [hereinafter RICO] ). Disclosure has now been completed. Both the Smiths and Meconi have made motions for summary judgment and dismissal of the complaint.
The motion to dismiss by defendant Bayview Loan Servicing, LLC was granted and the complaint dismissed as to it. Meconi did not make a CPLR 3211 motion to dismiss at such time.
"To prevail on a motion for summary judgment, the moving party must establish prima facie entitlement to judgment as a matter of law by adducing sufficient competent evidence to show that there are no issues of material fact" (Staunton v. Brooks, 129 AD3d 1371, 1372 [2015] ; see Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967 [1988] ). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ; see Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 [2003] ). Although the proof is viewed in the light most favorable to the nonmovant (see e.g. George v. Albert, 141 AD3d 1004, 1005 [2016] )," ‘mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient’ " to defeat a motion for summary judgment (Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d at 967 [brackets omitted], quoting Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ).
I.The Smiths' motion for summary judgment
Two causes of action remain against the Smiths; one alleging fraud and the other alleging unjust enrichment. These causes of action survived the Smiths' CPLR 3211 motion based upon plaintiff's allegations that "the Smiths lied in an effort to induce her to sell the property, saying that Kathryn Wilson Smith would continue to operate the bed and breakfast with plaintiff when, in fact, she had no intention of doing so," and that "the Smiths sold all of [plaintiff's] personal belongings that remained on the property" (Decision & Order, Sup Ct, Essex County, Oct. 25, 2011, at 5). "The elements of a fraud claim are that (1) the defendant made a representation as to a material fact; (2) such representation was false; (3) the defendant intended to deceive the plaintiff; (4) the plaintiff believed and justifiably relied upon the statement and was induced by it to engage in a certain course of conduct; and (5) as a result of such reliance the plaintiff sustained pecuniary loss" (Young v. Williams, 47 AD3d 1084, 1086 [2008] [internal quotation marks, brackets and citations omitted]; see Ross v. Louise Wise Servs. Inc., 8 NY3d 478, 488 [2007] ). "The elements of an unjust enrichment claim are ‘that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered’ " (Delaware County v. Leatherstocking Healthcare, LLC, 110 AD3d 1211, 1213 [2013] [brackets omitted], quoting Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 182 [2011] ).
The Smiths submitted in support of their motion, among other things, a detailed affidavit from Kathryn Smith (with attached exhibits), an affidavit from Kenneth Smith (with attached exhibits) and the complete examination before trial testimony of plaintiff. Kathryn Smith describes at length (and supports with photocopies of checks) the thousands of dollars that she contributed to the business venture [Kathryn Smith affd.]. These payments were reportedly made at a time when plaintiff was not contributing financially to the costs of the building or the business [Kathryn Smith affd.; Kenneth Smith affd.]. Kathryn Smith recounted her conduct, documented her financial contributions and produced her contemporaneous written communications establishing that throughout the relevant time, from 2003 through December 2005, her actions were consistent with the best interests of the business and plaintiff. It was through the efforts and expenditures of the Smiths that the building was saved from foreclosure in mid–2005, thus permitting the struggling business an opportunity to survive. Kenneth Smith adds various details regarding the Smiths' decision to purchase the building. The original goal was to allow plaintiff to continue to operate her bed and breakfast there and for plaintiff and Kathryn Smith to pursue their gift shop and tea room [Kenneth Smith affd.]. However, plaintiff made no financial contributions and soon the Smiths were under a severe financial strain [Kenneth Smith affd.]. The Smiths indicate that they exerted their best efforts and did not engage in any discussions or deals detrimental to the interests of the business or plaintiff prior to December 2005.
With respect to plaintiff's purported personal property at the premises, the Smiths state that they did not convert any such property to their own use. Kathryn Smith relates that plaintiff filed bankruptcy in March 2006, plaintiff's personal property was an issue in such proceeding and the Smiths adhered to the directions of the trustee [Kathryn Smith affd.]. Some of the property was on consignment and was returned to the original owners. The Smiths deny selling property that belonged to plaintiff and keeping the proceeds [Kathryn Smith affd.; Kenneth Smith affd.]. Various property was left at the premises when the Smiths gave a deed in lieu of foreclosure, and what happened thereafter to it is unknown to the Smiths [Kenneth Smith affd.]. The examination before trial testimony of plaintiff reveals little more than conclusory assertions and speculation unsupported by specific facts or relevant proof regarding this issue.
The Smiths have met their threshold burden. Unlike a CPLR 3211 motion where the Court accepts the facts as alleged in determining whether they fit any cognizable legal theory (see e.g., NYAHSA Servs. Inc., Self–Ins. Trust v. People Care Inc., 141 AD3d 785, 787–788 [2016] ), where, as here, the movant has met the threshold burden in a summary judgment motion, the opponent of the motion most produce competent proof and not mere expressions of hope or unsubstantiated allegations (see e.g. Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d at 967 ). The document submitted by plaintiff in opposition was unsworn and thus had no probative value (see e.g. Dudley v. Imbesi, 121 AD3d 1461, 1462–1463 [2014] ; Ulster County v. CSI, Inc., 95 AD3d 1634, 1636 [2012] ). Although plaintiff later submitted a new last page that had been notarized (see Fuller v. Aberdale, 130 AD3d 1277, 1279 [2015] [Court has discretion whether to consider such a late document] ), that last page still did not contain a jurat (i.e., it was not sworn to), as the notary simply acknowledged that plaintiff was the person who signed the document. As such, the new last page did not correct the defect in the document so as to make it in admissible form. In any event, even if the Court was to consider plaintiff's submission as competent evidence, it is replete with conclusory contentions and is otherwise insufficient to raise a pertinent triable issue of fact. Accordingly, the Smiths' motion for summary judgment dismissing the complaint as to them is granted.
II. Meconi's motion for summary judgment
Although it is difficult to discern the particular causes of action being alleged against Meconi, the Court initially finds that, to the extent plaintiff is alleging a civil rights violation and/or civil RICO claim, Meconi is entitled to summary judgment dismissing such causes of action for the reasons set forth in earlier decisions addressing similar assertions by plaintiff against others (see Decision & Order, Sup Ct, Essex County, Oct. 25, 2011, at 3–4; see also Adams v. Smith, 2015 WL 4139686, 2015 U.S. Dist Lexis 88873, supra ; Adams v. Smith, 2010 WL 3522310, 2010 U.S. Dist Lexis 90729, supra ). Further, "[w]ith regard to the alleged harassment, ‘New York does not recognize a common-law cause of action to recover damages for harassment" ‘ (Wells v. Town of Lenox, 110 AD3d 1192, 1193–1194 [2013], quoting Monreal v. New York Dept. of Health, 38 AD3d 1118, 1119 [2007] ). Turning to the apparent malpractice claim, the "[e]lements of a cause of action for legal malpractice include the existence of an attorney-client relationship, that ‘the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" ‘ (McPhillips v. Bauman, 133 AD3d 998, 999–1000 [2015], lv denied 27 NY3d 901 [2016], quoting Dombrowski v. Bulson, 19 NY3d 347, 350 [2012] ). The elements for fraud are set forth above under the discussion of the Smiths' motion. As for plaintiff's defamation cause of action, "plaintiff must prove that [Meconi] made a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se" (Roche v. Claverack Coop. Ins. Co., 59 AD3d 914, 916 [2009] ; see Loch Sheldrake Beach & Tennis Inc. v. Akulich, 141 AD3d 809, 815 [2016] ).
Meconi submitted in support of his motion, among other things, his own affidavit. He states that he was retained by plaintiff in September 2005 regarding the criminal harassment charge resulting from plaintiff's incident with the Loremans [Meconi affd.]. He made two appearances in Village Court. On September 13, 2005, he persuaded the court to lift an order of protection thus permitting plaintiff to have access to the Front Street property where her bed and breakfast (as well as Loremans' laundromat) was located [Meconi affd.]. On September 20, 2005, he was able to get the harassment charged against plaintiff adjourned in contemplation of dismissal [Meconi affd.]. According to Meconi, his representation of plaintiff ended on September 20, 2005 and he thereafter never again represented her [Meconi affd.].
A little less four years after Meconi had represented plaintiff in Village Court, he was retained by an individual who owned a building in the Town of Jay, Essex County, where plaintiff was a tenant and she was behind on her rent [Meconi affd.]. After serving various notices, Meconi commenced an eviction proceeding against plaintiff and was eventually successful in having her evicted [Meconi affd.]. He states that no information gleaned from representing her in 2005 was relevant in any fashion when be brought the eviction proceeding against her in 2009 [Meconi affd.]. He further categorically denies conspiring with anyone regarding the Front Street property or engaging in any activity that could be considered fraudulent regarding plaintiff [Meconi affd.]. He denies defaming plaintiff and notes that the purported statements of his that she contends were defamatory are not even identified by plaintiff [Meconi affd.].
Meconi has met his burden of by producing competent proof establishing the merits of his motion. With respect to the alleged malpractice, he has shown that any representation ended in September 2005, there was no continuous representation so as to toll the statute of limitations (see e.g. Deep v. Boies, 121 AD3d 1316, 1318 [2014], lv denied 25 NY3d 903 [2015] ) and this action was not commenced within three years of September 2005 (see CPLR 214 [6 ] ). Even if there was not a statute of limitations problem, Meconi's representation produced a favorable result for plaintiff with respect to the harassment charge. During that representation, he did not obtain information which created a conflict as to the eviction proceeding that was commenced in 2009. He denies in his sworn statement conspiring with or acting in concert with anyone regarding plaintiff's interest in the Front Street property. He has established that his conduct was neither fraudulent toward plaintiff nor did he defame her. Further, plaintiff has failed to set forth the allegedly specific defamatory words as required by law (see CPLR 3016[a] ; Matter of La Barbera v. Town of Woodstock, 29 AD3d 1054, 1057 [2006], lv dismissed 7 NY3d 844 [2006] ; Dillon v. City of New York, 261 A.D.2d 34, 38 [1999] ).
In opposition to Meconi's motion, plaintiff submitted an unsworn document as she did in opposing the Smiths' motion. This document does not have probative value and is inadequate to raise a factual issue within the context of a motion for summary judgment. Moreover, even if the Court was to consider plaintiff's proof as competent, it fails to set forth sufficient factual allegations to defeat Meconi's motion. Plaintiff's submissions are—as with the Smiths' motion—replete with conclusory comments, speculation, expressions of hope, characterizations of what she thinks witnesses would say (without producing affidavits from those witnesses), her personal opinion of the veracity of defendants and other unsubstantiated allegations. Although plaintiff is proceeding pro se and "courts will routinely afford pro se litigants some latitude, [nonetheless] a pro se litigant ‘acquires no greater right than any other litigant’ and will be held to the same standards of proof as those who are represented by counsel" (Duffen v. State of New York, 245 A.D.2d 653, 653–654 [1997] [internal citations omitted], quoting Roundtree v. Singh, 143 A.D.2d 995, 996 [1988] ; see HSBC Bank USA N.A. v. Pacyna, 112 AD3d 1246, 1247 [2013] ). Plaintiff has failed to raise a triable issue of fact and, accordingly, Meconi's motion must also be granted.
The Court notes that plaintiff holds herself out as a paralegal with law firm experience [plaintiff's response to Smith; plaintiff EBT], and she has commenced several lawsuits pro se.
In summary, the Smiths and Meconi met their threshold burden regarding all claims asserted in the complaint against them and, in response, plaintiff failed "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v. Prospect Hosp., 68 N.Y.2d at 324 ; see Zuckerman v. City of New York, 49 N.Y.2d at 562 ).
Based upon the foregoing analysis and upon review of the papers as enumerated hereinafter, it is
ORDERED that the motion of defendants Kathryn Wilson Smith and Kenneth L. Smith for summary judgment is granted; and it is further
ORDERED that the motion of defendant William T. Meconi for summary judgment is granted; and it is further
ORDERED that the complaint is dismissed in its entirety.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion by the Smiths dated March 15, 2016, and the Notice of Motion of Meconi dated April 4, 2016. Counsel for defendants are hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon the plaintiff in accordance with CPLR 5513.
Papers reviewed:
1. Affirmation in Support of the Smiths Motion by John M. Crotty, Esq., dated March 15, 2016, and annexed Exhibits "A" through "I".
2. Affidavit in Support of the Smiths motion by defendant Kathryn Wilson Smith, dated March 9, 2016, and annexed Exhibits "A" through "H".
3. Affidavit in Support of the Smiths motion by defendant Kenneth L. Smith, dated March 9, 2016, and annexed Exhibits "A" through "D".
4. Memorandum of Law in Support of the Smiths Motion, dated March 15, 2016.
5. Affidavit in Support of Meconi Motion by David B. Cabaniss, Esq., dated April 4, 2016, and annexed Exhibits "A" through "E".
6. Affidavit in Support of Meconi Motion by defendant William T. Meconi, dated April 4, 2016, and annexed Exhibits "A" through "J".
7. Memorandum of Law in Support of Meconi Motion, dated April 4, 2016.
8. Plaintiff's "response" to the Smiths motion, dated May 5, 2016, and annexed Exhibits "A" through "P".
9. Plaintiff's "response" to Meconi motion, dated May 5, 2016, and annexed Exhibits "A" through "F".
10. Plaintiff's Memorandum of Law, dated May 5, 2016.
11. Reply affirmation of John M. Crotty, Esq., dated May 31, 2016, and annexed Exhibit "A".
12. Reply Memorandum of Law in Support of the Smiths Motion, dated May 31, 2016.
13. Reply affidavit of David B. Cabaniss, Esq., dated June 7, 2016.
14. Reply affidavit of defendant William T. Meconi, dated June 6, 2016, and annexed Exhibits "A" through "C".