Opinion
562 Index No. 150728/20 Case No. 2021–01707
06-27-2023
Jorge RODRIGUEZ, Plaintiff–Appellant, v. Reemberto DIAZ, Defendant–Respondent.
Jorge Rodriguez, New York, appellant pro se.
Jorge Rodriguez, New York, appellant pro se.
Webber, J.P., Singh, Kennedy, Scarpulla, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Shawn Timothy Kelly, J.), entered on or about April 7, 2021, which denied plaintiff's motion for a default judgment and sua sponte dismissed the complaint for lack of subject matter jurisdiction, unanimously affirmed, without costs.
Plaintiff is a New York attorney who was admitted pro hac vice in Florida litigation. Defendant, also admitted as an attorney in New York, is a Florida Circuit Court judge who presided over the Florida litigation, in which he granted a motion for sanctions against plaintiff and to revoke his pro hac vice admission. After unsuccessfully attempting to challenge this decision in federal court (see Rodriguez v. Diaz, 2019 U.S. Dist LEXIS 185542 [S.D.N.Y., Oct. 23, 2019, No. 18 Civ. 10011(AT)]), plaintiff sued in New York County, seeking to invalidate nunc pro tunc the revocation of his pro hac vice admission. Plaintiff moved for a default judgment, supporting his motion with an affirmation of service on the Clerk of the Third Department. Supreme Court dismissed the complaint on its own initiative, finding that it lacked subject matter jurisdiction and that the suit would likely be barred by judicial immunity.
Plaintiff's motion for a default judgment was properly denied based on his failure to submit proof that he had properly effected service of the summons and complaint (see CPLR 3215[f] ; D'Arata v. N.Y. Post, 214 A.D.3d 449, 449, 183 N.Y.S.3d 736 [1st Dept. 2023] ). Rules of the Court of Appeals ( 22 NYCRR) § 520.13(a) – which allows attorneys who do not reside, and are not employed full-time, in New York State to be served with process via the Clerk of the Appellate Division of the department in which the attorney is admitted to practice law "in any action or proceeding ... brought against the [attorney] and arising out of or based upon any legal services rendered or offered to be rendered ... within the State" – does not apply in this action, where the acts about which plaintiff complains occurred entirely in the State of Florida.
There is no appeal as of right from so much of the order as sua sponte dismissed the complaint (see CPLR 5701[a][2] ; Sholes v. Meagher, 100 N.Y.2d 333, 335, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003] ). Nevertheless, in the interest of judicial economy, we deem plaintiff's notice of appeal as a motion for leave to appeal and grant the motion (see Dubinsky v. Levine, 200 A.D.3d 574, 574, 155 N.Y.S.3d 756 [1st Dept. 2021] ).
Supreme Court lacked jurisdiction over this collateral attack on a decision of the Florida courts (see Weinstock v. Citibank, 289 A.D.2d 326, 734 N.Y.S.2d 210 [2d Dept. 2001] ; see also R & R Capital LLC v. Merritt, 63 A.D.3d 565, 881 N.Y.S.2d 96 [1st Dept. 2009] ; compare CDR Creances S.A.S. v. Cohen, 23 N.Y.3d 307, 991 N.Y.S.2d 519, 15 N.E.3d 274 [2014] [affirming sanctions for fraud on the court where parties moved before the same court in the same case]). Thus, it properly dismissed the complaint sua sponte (see Matter of Callwood v. Cabrera, 49 A.D.3d 394, 394, 854 N.Y.S.2d 42 [1st Dept. 2008] ).
We have considered plaintiff's remaining arguments and find them unavailing.