Opinion
Index No.: 650025/14
05-17-2016
ANTON SANKO, Plaintiff, v. JEFFREY ROTH, Defendant.
Steven Landy & Associates, PLLC (Steven Landy of counsel), for plaintiff. Jeffrey Roth, defendant pro se.
DECISION/ORDER
Motion Seq. 3 Recitation, as required by CPLR 2219 (a), of the papers considered in reviewing defendant's motion for summary judgment and sanctions and plaintiff's cross-motion for leave to amend the complaint and for sanctions.
| Papers | Numbered |
|---|---|
| Defendant's Notice of Motion | 1 |
| Plaintiff's Notice of Cross-Motion | 2 |
| Plaintiff's Memorandum of Law in Opposition | 3 |
| Defendant's Affidavit in Opposition to Cross-Motion | 4 |
Jeffrey Roth, defendant pro se. Gerald Lebovits, J.
Plaintiff is a tenant-in common who owns an undivided one-third interest in the property located at 801 and 803 Greenwich Street in New York County. Defendant is an attorney who represented the other two co-owners in holdover and nonpayment proceedings in Housing Court: Mark Family Realty, LLC, and Selrob Family Limited Partnership. In 2006, defendant commenced a holdover proceeding against a tenant, Maggie Gyllenhaal (hereinafter the Gyllenhaal holdover proceeding). In 2011, defendant commenced a holdover proceeding and a nonpayment proceeding against tenants Annie Churchill Albert and Andrew Churchill Albert (hereinafter the Albert holdover and the Albert nonpayment proceedings, collectively the Albert proceedings). Plaintiff was a named petitioner in these proceedings.
Plaintiff brought this action against defendant alleging that defendant unlawfully commenced the above proceedings on plaintiff's behalf without his authority by naming plaintiff as a petitioner. Plaintiff asserts ten causes of action: a declaratory judgment (first cause of action); a permanent injunction (second cause of action); aiding and abetting a breach of fiduciary duty (third cause of action); tortious interference with contract (fourth cause of action); abuse of process (fifth cause of action); forgery (sixth cause of action); prima facie tort (seventh cause of action); malicious prosecution (eighth cause of action); violation of the General Business Law Section § 349 (ninth cause of action); and legal malpractice (tenth cause of action).
Defendant moves for summary judgment to dismiss the complaint in its entirety and for sanctions. Specifically, defendant moves to dismiss the first and second causes of action as academic, the third through eighth causes of action as time-barred claims under the statute of limitations, and the fourth, ninth, and tenth causes of action as meritless. Defendant also moves to sanction plaintiff for bringing a frivolous action because, he argues, the action is time-barred. Plaintiff opposes defendant's motion and cross-moves for leave to amend the complaint and for sanctions against defendant for filing a frivolous sanction motion.
Summary judgment is proper when the pleadings and evidence demonstrate that no genuine issue of material fact is in dispute to require a trial. (Winegrad v N.Y. Univ. Med. Ctr., 64 NY2d 851, 853 [1985].) The movant has the burden to establish that no issues of material fact exist. (Id.) A party opposing summary judgment must demonstrate by admissible evidence that factual issues require a trial. (W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 164 [1990].)
I. Defendant's Motion for Summary Judgment
A. First and Second Causes of Action - Declaratory Judgment and Permanent Injunction
The court grants that portion of defendant's motion to dismiss plaintiff's first cause of action for a declaratory judgment and denies that portion of defendant's motion to dismiss plaintiff's second cause of action for a permanent injunction.
Plaintiff asserts that he is entitled to a declaratory judgment and seeks to enjoin defendant permanently from (a) holding himself out as plaintiff's attorney, (b) appearing in court as plaintiff's attorney, (c) signing documents identifying himself as plaintiff's attorney, (d) naming plaintiff as a petitioner in lawsuits and proceedings, and (e) otherwise purporting to act on plaintiff's behalf. Defendant argues that declaratory-judgment relief and permanent injunction are academic because he has already consented to this relief. (Defendant's Affidavit in Support ¶ 9.)
Plaintiff's cause of action for a declaratory judgment must be dismissed because declaratory relief is not necessary. Under CPLR 3001, "supreme court may render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy." To constitute a "justiciable controversy," there must be "an actual controversy between genuine disputants with a stake in the outcome," involving substantial legal interests for which a declaration of rights will have some practical effect. (Long Island Lighting Co. v Allianz Underwriters Ins. Co., 35 AD3d 253, 253 [1st Dept 2006].) Declaratory relief is a discretionary remedy that should be granted only where necessary to serve some useful purpose to the parties. (Jenkins v State Div. of Hous. & Cmty. Renewal, 264 AD2d 681, 682 [1st Dept 1999].)
The subject matter of defendant's conduct and plaintiff's declaratory-judgment action involve general ethical norms that an attorney shall not represent a person without authority. Attorney have duties to prospective clients: "A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a 'prospective client.'" (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.18 [a].) In an attorney-client relationship, an attorney "shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued." (Id. rule 1.2 [a].) Civil Rights Law § 70 already provides that a lawyer is liable for commencing or continuing a lawsuit in the name of another without the named party's consent. No declaration is necessary in this case. Plaintiff's request to declare that defendant has no authority to represent, sign, and name plaintiff as a petitioner in any lawsuit or proceeding, impliedly, without plaintiff's authority has already been declared under the law.
According to a court order dated February 4, 2014, defendant consented to a preliminary injunction enjoining him from holding himself out as plaintiff's attorney. (Defendant's Notice of Motion, Exhibit C.) Plaintiff is entitled to a permanent injunction. That aspect of defendant's motion to dismiss plaintiff's second cause of action is denied. Plaintiff shall submit an order, consistent with his second cause of action, for a permanent injunction.
B. Third Cause of Action - Aiding and Abetting a Breach of Fiduciary Duty
The court grants that portion of defendant's motion to dismiss plaintiff's third cause of action for aiding and abetting a breach of fiduciary duty.
Defendant states that the third cause of action is time-barred and devoid of merit. (Defendant's Affidavit ¶ 12.) Plaintiff's cause of action for aiding and abetting a breach of fiduciary duty is timely. The choice of the applicable limitations period depends on the substantive remedy that a plaintiff seeks. (Loengard v Santa Fe Indus., 70 NY2d 262, 266 [1987].) Where the remedy sought is monetary, and not equitable in nature, the statute of limitations is three years commencing from the date of the act constituting the breach of fiduciary duty. (CPLR 214 [4]; IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139 [2009].) Plaintiff seeks a monetary remedy to recover damages in the amount of $20 million. Thus, a three-year statute of limitations applies. Plaintiff's complaint does not allege the exact date of the breach, but it alleges that plaintiff's ability to sell his interest in his property was interfered with. The alleged breach, thus, might have occurred on January 18, 2011, and November 9, 2011, when defendant commenced the Albert nonpayment proceeding and the Albert holdover proceeding, respectively. Plaintiff filed the instant complaint on January 6, 2014, that time frame does not exceed the three-year limitations period.
Plaintiff's cause of action for aiding and abetting a breach of fiduciary duty, however, lacks merit. In his complaint, plaintiff alleges that the two other co-owners owe him a fiduciary duty and that defendant induced the breach of the fiduciary duty by commencing the underlying proceedings. To sustain a cause of action for aiding and abetting a breach of fiduciary duty, a plaintiff must show (1) a fiduciary duty owed to plaintiff; (2) a breach of that duty; and (3) non-fiduciary-defendant's substantial assistance in the breach; and (4) damages. (Roni LLC v Arfa, 15 NY3d 826, 827 [2010] ["[C]onclusory pleadings do not give rise to an inference that the attorney defendants knowingly participated in the alleged aiding and abetting of a breach of fiduciary duty by providing substantial assistance to the promoter defendants in their purported commission scheme."]; Kaufman v Cohen, 307 AD2d 113, 125 [1st Dept 2003].) No fiduciary relationship exists between tenants-in common. (Berghaus v Berghaus, 255 AD 851, 851 [2d Dept 1938] [citations omitted].) An exception exists if "there is something in addition to the existence of the mere tenancy in common." (Id.) Plaintiff has no fiduciary duty with the other tenants-in common, and plaintiff does not demonstrate that the exception applies to him. Plaintiff's conclusory pleadings do not give rise to an inference that defendant aided and abetted a breach of a fiduciary duty. Defendant is entitled to summary-judgment relief on the third cause of action.
C. Fourth Cause of Action - Tortious Interference with a Contract
The court grants that portion of defendant's motion to dismiss the fourth cause of action for tortious interference with a contract.
Plaintiff's cause of action for tortious interference with a contract must be dismissed. To succeed on a cause of action to recover damages for tortious interference with a contractual relationship, plaintiff must establish that (1) plaintiff and a third party have a contract; (2) defendant knew about the contract; (3) defendant intentionally induced the third party to breach or otherwise render performance impossible without justification; and (4) plaintiff sustained damages. (Burrowes v Combs, 25 AD3d 370, 373 [1st Dept 2006].) A plaintiff must specifically allege that "the contract would not have been breached 'but for' the defendant's conduct." (Id.)
Defendant argues that plaintiff's cause of action for tortious interference with a contract must be dismissed because defendant "is not a party to any of the lease agreements upon which plaintiff relies." (see Defendant's Affidavit ¶ 20.) It is irrelevant that defendant was not a party to the underlying lease agreement. Relevant is whether defendant knew about the agreement and induced the third party to breach it.
Defendant commenced the Albert holdover proceeding in November 2011 alleging that Annie Churchill Albert's lease for the period of October 1, 2010 to September 30, 2011 expired on September 30, 2011. Plaintiff maintains that he executed a lease agreement with Annie Churchill Albert in September 2011 for a term beginning October 1, 2011, and ending on September 31, 2012. (Plaintiff's Notice of Cross-Motion, Exhibit G, Plaintiff's Affidavit ¶ 13.) Plaintiff fails to plead any facts indicating how defendant knew about plaintiff's subsequent lease with Annie Churchill Albert and how he induced her to breach the lease. In a conclusory fashion and without the support of relevant factual allegations, plaintiff asserts merely that defendant's actions caused Annie Churchill Albert to breach her lease with plaintiff after commencing the Albert holdover proceeding and that defendant knew about that lease. Also, plaintiff fails to allege that the contract with Annie Churchill Albert would not have been breached but for defendant's conduct. Plaintiff has no cause of action for tortious interference with a contract. Defendant is entitled to summary judgment on the fourth cause of action.
D. Fifth Cause of Action - Abuse of Process
The court grants defendant's motion to dismiss plaintiff's fifth cause of action for abuse of process.
Defendant challenges plaintiff's fifth cause of action as time-barred by a one-year statute of limitations. (CPLR 215 [3].) Defendant argues that this cause of action accrued upon the commencement of the Gyllenhaal holdover proceeding and the Albert proceedings. (Defendant's Affidavit ¶11.) According to plaintiff, this cause of action is timely, within one year from February 2013, when defendant continued his "litigation activity" in one of the Albert proceedings. (Plaintiff's Affirmation in Opposition ¶19.)
The cause of action alleging abuse of process is time-barred. A cause of action for abuse of process is governed by a one-year statute of limitations. (CPLR 215; Beninati v Nicotra, 239 AD2d 242, 242 [1st Dept 1997].) The statute of limitations begins to run when "the last of the [underlying] proceedings . . . [is] concluded." (Benyo v Sikorjak, 50 AD3d 1074, 1077 [2d Dept 2008].)
Plaintiff filed the instant complaint in January 2014. The Gyllenhaal holdover proceeding was dismissed after Housing Court granted respondent's motion to dismiss in September 2006. (Plaintiff's Notice of Cross-Motion, Exhibit G, Court's Order of Sept 23, 2006.) Neither plaintiff nor defendant submits evidence about when the Albert proceedings concluded. Plaintiff states that the Albert proceedings are still pending. (Plaintiff's Notice of Cross-Motion, Exhibit G, Affidavit of Sanko ¶ 16.) At defendant's examination before trial, defendant stated, "I believe that Annie Churchill Albert and Andrew Albert were evicted for not paying their rent to the tenants-in common. Based upon a court order." (Plaintiff's Notice of Cross-Motion, Exhibit H, EBT transcript at 99 ln 9-14.)
This court's search reveals that the Albert holdover proceeding, Index No L&T 089478/2011, was marked off calendar on February 3, 2012. The Albert nonpayment proceeding, Index No L&T 052285/2011, was settled by a stipulation on the record, on May 16, 2011; petitioners were awarded a judgment of possession and a money judgment for $15,660. Even assuming that at the latest, the cause of action for abuse of process began to run on February 3, 2012, plaintiff's cause of action for abuse of process is still well beyond the one-year statute of limitations.
Plaintiff's contention that the statute of limitations began to run from February 2013, when defendant's client, Ira S. Mark, informed plaintiff about defendant's ongoing litigation activity — pursuing a contempt motion against Annie Albert in the Albert nonpayment proceeding — has no merit. (Plaintiff's Notice of Cross-Motion, Exhibit I, E-Mail Correspondence.) Continuing to work on the proceeding does not constitute a conclusion of the underlying proceedings for statute-of-limitation purposes. Plaintiff's fifth cause of action for abuse of process must be dismissed.
E. Sixth Cause of Action - Forgery
The court grants that portion of defendant's motion to dismiss the sixth cause of action for forgery.
The complaint alleges that defendant falsely held himself out as plaintiff's attorney in the Albert holdover and in the Albert nonpayment proceedings by submitting a forged and illegally executed notice of petition and petition. Defendant moves to dismiss this cause of action as time-barred by the one-year statute of limitations under CPLR 215 (3). Defendant also argues that the alleged act does not constitute a forgery because he signed his own name on the documents. In opposition, plaintiff argues that a forgery-based claim is subject to the six-year statute of limitations for fraud claims under CPLR 213 (8). Plaintiff argues that defendant committed forgery by signing the notice of petition and petition in which defendant falsely identified himself as plaintiff's attorney.
Plaintiff's cause of action for forgery is timely. The applicable statute of limitations for a cause of action for forgery is the six-year statute of limitations for fraud. (Piedra v Vanover, 174 AD2d 191, 194 [2d Dept 1992].) CPLR 213 (8) provides that "the time within which the action [based on fraud] must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff . . . discovered the fraud, or could with reasonable diligence have discovered it." Here, the alleged forgery occurred in November 2011; plaintiff filed his complaint in January 2014, which is within the six-year statute of limitations.
Even though plaintiff's forgery claim is timely, plaintiff's claim is dismissed because it lacks merit. A person commits forgery when "the signing is done in such a way as to deceive others into believing that the signer is in fact some third party." (People v Levitan, 49 NY2d 87, 90 [1980].) Defendant signed the notice of petition and petition in his own name, not in someone else's. Defendant's actions do not constitute forgery. Defendant is entitled to summary judgment on the forgery claim.
F. Seventh Cause of Action - Prima Facie Tort
The court grants defendant's motion to dismiss plaintiff's seventh cause of action for a prima facie tort.
Defendant argues that this cause of action is governed by a one-year statute of limitations under CPLR 215 (3) prescribed for publication of false accusations. Plaintiff asserts that the cause of action for a prima facie tort is governed by a three-year statute of limitations under CPLR 214 (5) because it is premised on economic damages.
Plaintiff's cause of action for a prima facie tort is time-barred. A prima facie tort is defined as the infliction of intentional harm, resulting in special damages, without excuse or justification, by an act or series of acts which would otherwise be lawful. (Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985]; Curiano v Suozzi, 63 NY2d 113, 117 [1984].) A cause of action for a prima facie tort must be pleaded with a particularized statement of the reasonable, identifiable, and measurable special damages. (Broadway & 67th St. Corp. v City of New York, 100 AD2d 478, 486 [1st Dept 1984].) Broad and conclusory allegations are insufficient to sustain a cause of action for a prima facie tort. (Miller v Geloda/Briarwood Corp., 136 Misc 2d 155, 157 [Sup Ct, NY County 1987].) Defendant's intent must be motivated solely by malice or "a disinterested malevolence to injure plaintiff." (Havell v Islam, 292 AD2d 210, 210 [1st Dept 2002].)
A cause of action for prima facie tort is governed by a three-year statute of limitations when the alleged injury is to a plaintiff's economic interests rather than to reputation. (Morrison v National Broadcasting Co., 19 NY2d 453, 459 [1967]; Barrett v Huff, 6 AD3d 1164, 1166 [4th Dept 2004].) A plaintiff may not avoid the one-year statute of limitations by labeling a defamation action as an action for intentional interference with economic relations. (CPLR 215 [3]; Havell v Islam, 292 AD2d at 210; Entm't Partners Grp., Inc. v. Davis, 198 AD2d 63, 64 [1st Dept 1993].)
A cause of action for a prima facie tort accrues on the date of the tort and not from its discovery or the exercise of diligence to discover it. (Barrett, 6 AD3d at 1166.) The statute of limitations begins to run or accrual occurs when the claim becomes enforceable, that is, when all elements of the tort can be truthfully alleged in a complaint. (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 [1993].)
In his affidavit, plaintiff asserts that defendant undermined plaintiff's ability to earn, as a landlord, when defendant commenced the proceedings. Plaintiff states that he was unfavorably portrayed in a 2006 New York Post article about the Gyllenhaal holdover proceeding. (Plaintiff's Notice of Cross-Motion, Exhibit G, Plaintiff's Affidavit ¶18.) If this cause of action falls within the ambit of tortious injury that sounds in defamation, it is well beyond the one-year statute of limitations. The instant complaint was filed in January 2014. The Gyllenhaal holdover proceeding was dismissed in September 2006. To the extent that plaintiff asserts a cause of action for damage to his reputation, he is time-barred.
Even assuming that a three-year statute of limitations applies — damage to his economic interests — this cause of action must be dismissed because plaintiff fails to plead that defendant's sole motivation was malice or that defendant had "disinterested malevolence." Plaintiff also fails to plead with particularity that he suffered special damages.
Also, plaintiff's cause of action must be dismissed because "retaliatory lawsuits based on prima facie tort predicated on the malicious institution of a prior civil action" are not allowed. (Curiano, 63 NY2d at 118.) A prima facie tort should not become a "catch-all" alternative for every cause of action which cannot stand on its legs." (Belsky v Lowenthal, 62 AD2d 319, 323 [1st Dept 1978], aff'd 47 NY2d 820 [1979].) In this action, plaintiff's cause of action for a prima facie tort sounds in malicious prosecution — defendant's alleged malicious commencement of the landlord-tenant proceedings without probable cause. (See Burt v Smith, 181 NY 1, 5 [1905], app dsmd 203 US 129 [1906].) As discussed below, plaintiff's cause of action for malicious prosecution is time-barred and imperfectly pleaded. Defendant is entitled to summary-judgment relief on the seventh cause of action.
G. Eighth Cause of Action - Malicious Prosecution
The court grants defendant's motion to dismiss plaintiff's eighth cause of action for malicious prosecution.
Defendant argues that the cause of action for malicious prosecution is time-barred under CPLR 215 (3). Plaintiff states that this cause of action is timely — it accrued within one year from February 2013, when defendant continued his "litigation activity" in one of the Albert proceedings. (Plaintiff's Affirmation in Opposition ¶19.)
Plaintiff's cause of action for malicious prosecution is time-barred. A cause of action for malicious prosecution is governed by a one-year statute of limitations and accrues upon the termination of the underlying lawsuit, namely, upon a determination favorable to plaintiff, notwithstanding a pendency of an appeal. (CPLR 215 [3]; Syllman v Nissan, 18 AD3d 221, 222 [1st Dept 2005]; Spinale v Guest, 270 AD2d 39, 40 [1st Dept 2000].)
Plaintiff's cause of action for malicious prosecution accrued in September 2006, when the petition in the Gyllenhaal holdover proceeding was dismissed. The dismissal was in favor of respondent, Maggie Gyllenhaal, and petitioner, plaintiff herein, who was in support of respondent's motion to dismiss because he did not seek possession of the property. (Plaintiff's Notice of Cross-Motion, Exhibit G, Court's Order of September 23, 2006.) Plaintiff filed the instant complaint on January 2014, which is well beyond the one-year statute of limitations for malicious prosecution.
As discussed above, plaintiff's contention that the statute of limitations began to run from February 2013, when defendant continued his litigation activity in one of the Albert proceedings has no merit. (Plaintiff's Notice of Cross-Motion, Exhibit I, E-Mail Correspondence.) Continuing to work on the proceeding does not constitute a determination favorable to plaintiff for statute-of-limitation purposes. Plaintiff's cause of action for malicious prosecution must be dismissed.
Plaintiff's cause of action for malicious prosecution is also without merit. To recover damages for a malicious-prosecution claim, a plaintiff must show two essential elements, among others: that the defendant commenced a judicial action or proceeding against the plaintiff and that the plaintiff sustained special injury — interference with plaintiff's person or property beyond the ordinary burden of defending a lawsuit. (Engel v CBS, Inc., 93 NY2d 195, 205 [1999].) Defendant never commenced a judicial action or proceeding against plaintiff; plaintiff was never sued. Even assuming that plaintiff's property interest could have been adversely affected by defendant's conduct, plaintiff sustained no special damage. Defendant is entitled to summary-judgment relief.
H. Ninth Cause of Action - Violation of General Business Law Section 349
The court grants that portion of the defendant's motion to dismiss plaintiff's ninth cause of action for violations of GBL Section § 349.
Plaintiff alleges that defendant committed deceptive acts by commencing the underlying proceedings in plaintiff's name without plaintiff's authority and by naming plaintiff as a petitioner. In his motion, defendant contends that the ninth cause of action must be dismissed because defendant's acts are not consumer-oriented and. thus, are not covered by GBL § 349. Plaintiff argues that the underlying proceedings involve dozens of fraudulently prepared court documents, multiple tenants, and the court. (Plaintiff's Memorandum of Law in Opposition at 9.)
Defendant's alleged misconduct is not consumer-oriented. It does not fall within the ambit of GBL § 349. Under GBL § 349, "[d]eceptive acts and practices in the conduct of any business, trade or commerce or in the furnishing of any service" are unlawful. Plaintiff must demonstrate that the charged acts or practices have a broader impact on consumers at large. (Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, NA, 85 NY2d 20, 25 [1995].) GBL § 349 does not apply to private-contract disputes that are unique to the parties. (Id.)
Defendant commenced three proceedings in Housing Court. By filing the petitions in these proceedings, defendant involved plaintiff, two co-owners of the building, and three tenants. Nothing in the record indicates that defendant's acts affected other, similarly situated consumers. No evidence exists that defendant's conduct had an impact on consumers at large. Each petition asserted a unique legal claim. The proceedings were private disputes, not an act affecting the public interest. Defendant has met his burden to establish his entitlement to summary judgment.
I. Tenth Cause of Action - Legal Malpractice
The court grants that portion of the defendant's motion to dismiss plaintiff's tenth cause of action for legal malpractice.
Defendant contends that the tenth cause of action for legal malpractice must be dismissed because no attorney-client relationship exists between plaintiff and defendant. Plaintiff argues that defendant committed legal malpractice because defendant engaged in fraud and collusion.
Plaintiff's cause of action for legal malpractice must be dismissed. To state a cause of action for legal malpractice, privity of contract is necessary. (Good Old Days Tavern v Zwirn, 259 AD2d 300, 300 [1st Dept 1999].) An exception exists: Liability may be extended to third parties when fraud, collusion, malicious acts, or other special circumstances are present. Absent privity, a legal malpractice claim must be pleaded with sufficient detail. (CPLR 3016 [b]; Hadar v Pierce, 111 AD3d 439, 440 [1st Dept 2013].)
Plaintiff and defendant agree that they never had an attorney-client relationship. Thus, the parties had no privity of contract. Plaintiff's allegations of fraud, however, are not pleaded with sufficient detail to fall within the exception-to-privity rule. Plaintiff fails to plead that defendant made an intentional misrepresentation to plaintiff himself that he was plaintiff's attorney. Nor does plaintiff plead that he relied on defendant's misrepresentation that induced him to act to his detriment.
Plaintiff's allegations of collusion are also insufficient to fall within the ambit of the exception. In conclusory fashion, plaintiff alleges that defendant colluded with the co-owners and defendant's brother, Eric Roth, to gain advantage for one of the co-owners, Mark Family Realty, LLC, in its lawsuit against plaintiff.
II. Plaintiff's Cross-Motion for Leave to Amend
The court denies plaintiff's cross-motion for leave to amend his complaint.
In his proposed amended complaint, plaintiff seeks leave to add two statutory causes of action against defendant for violating Civil Rights Law § 70 (the eleventh cause of action) and Judiciary Law § 487 (the twelfth cause of action). In opposition, defendant asserts that plaintiff's cross-motion is untimely, that the eleventh cause of action is time-barred, and that neither proposed cause of action has merit.
Motions for leave to amend a pleading should be freely granted absent prejudice or surprise. (CPLR 3025 [b]; Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170 [1989]; Zaid Theatre Corp. v Sona Realty Co., 18 AD3d 352, 354-355 [1st Dept 2005]; Davis & Davis, P.C. v Morson, 286 AD2d 584, 585 [1st Dept 2001].) On a motion for leave to amend, a party must establish that the proposed amendment is "not palpably insufficient or clearly devoid of merit." (MBIA Ins. Corp. v Greystone & Co., 74 AD3d 499, 500 [1st Dept 2010].)
Although defendant argues that the cross-motion must be dismissed as untimely, "[m]ere lateness is not a barrier to the amendment . . . . [unless] coupled with significant prejudice to the other side." (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983] [internal quotation marks omitted].) Prejudice occurs not only when a party seeks to add a cause of action but also when a party adds new facts: "There must be some special right lost in the interim, some change of position or some significant trouble or expense that could have been avoided had the original pleading contained what the amended one wants to add." (A.J. Pegno Constr. Corp. v City of New York, 95 AD2d 655, 656 [1st Dept 1983] [internal quotation marks omitted].)
Plaintiff's new allegations in the amended complaint are squarely based on the facts alleged in the original complaint as well as on the documents within defendant's knowledge and possession. Defendant's contention that he will be prejudiced because he needs extensive time to prepare has no merit. No prejudice occurs "simply because a defendant ... has to expend additional time preparing its case."(Jacobson v McNeil Consumer & Specialty Pharms., 68 AD3d 652, 654 [1st Dept. 2009].) Defendant fails to show prejudice or surprise.
Even though defendant fails to show prejudice or surprise, plaintiff's proposed amendment lacks merit. Plaintiff's cause of action for violating Civil Rights Law § 70 is time-barred. Under Civil Rights Law § 70, a nonconsenting person may bring a civil suit for treble damages against a person who "vexatiously or maliciously . . . commences or continues" a lawsuit in the name of another without the named party's consent. Actions under Civil Rights Law § 70 are governed by a one-year statute of limitations prescribed for malicious prosecution claims in CPLR 215 (3). (Mintz & Gold, LLP v Zimmerman, 71 AD3d 600, 601 [1st Dept 2010].) In Mintz & Gold, the First Department applied the continuous-tort doctrine to find that defendants' planning and filing an appeal from the dismissal of an earlier unauthorized action against plaintiff was a continuation of the allegedly tortious conduct for statute-of-limitation purposes. (Id.) Under the relation-back doctrine, an otherwise untimely claim in an amended pleading will be deemed interposed at the time of the original pleading "unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading." (CPLR 203 [f]; see also Giambrone v Kings Harbor Multicare Ctr., 104 AD3d 546, 548 [1st Dept 2013].)
Even though the statute of limitations has run as to plaintiff's eleventh cause of action, applying the relation-back doctrine it is deemed to be interposed at the time of the original complaint. Plaintiff's proposed amendment adds a new theory of recovery arising from the same conduct — defendant's unauthorized commencement of the underlying proceedings — upon which the original complaint is grounded. The proposed amendment seeks to specifically plead Section 70 of Civil Rights Law. The original complaint provides defendant with notice of the facts and circumstances. Thus, plaintiff's eleventh cause of action relates back to the original complaint for purposes of the statute of limitations.
But even under the relation-back doctrine plaintiff's eleventh cause of action would be untimely. The original complaint was filed in January 2014. At the latest, this cause of action began to run in February 2012, when the Albert holdover proceeding was marked off calendar, or in June 2012, the court's date for a motion to show cause against respondents in the Albert nonpayment proceeding. That exceeds the one-year statute of limitations.
Plaintiff's contention that the statute of limitations began to run in February 2013, when defendant continued his tortious conduct by pursuing a contempt motion against Annie Churchill Albert in one of the Albert proceedings, has no merit. In support of his contention, plaintiff submits his own email correspondence dated February 3, 2013, when defendant's client, Ira S. Marko, informed plaintiff about defendant's alleged conduct. (Plaintiff's Notice of Cross-Motion, Exhibit I, E-Mail Correspondence.) Plaintiff's self-serving email is irrelevant for establishing the statute-of-limitation period. But this court's search reveals that defendant filed a contempt motion on January 3, 2012, made returnable on January 17, 2012.
The proposed amended complaint also alleges that defendant violated Judiciary Law § 487 by fraudulently commencing the underlying holdover and nonpayment proceedings with the intent to deceive the court, plaintiff, and the adverse parties in the proceedings.
The twelfth proposed amendment is devoid of merit. Judicial Law § 487 allows an injured party to recover treble damages from an attorney if the latter "[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party." To state a cause of action for violating Judicial Law § 487, a plaintiff must demonstrate that a nexus exists between defendant's alleged conduct and any judicial determination. (Weisman, Celler, Spett & Modlin v Chadbourne & Parke, 271 AD2d 329, 330-331 [1st Dept 2000], lv denied 95 NY2d 760 [2000].) In its order dismissing the petition, Hon. Mark Finkelstein noted that plaintiff notified the court that he had not authorized defendant to commence the Gyllenhaal holdover proceeding on his behalf and represent him in the proceeding. Thus, in the Gyllenhaal holdover proceeding, the court was aware of defendant's possibly unauthorized commencement of the proceeding. Defendant's alleged deceit was not a cause of the dismissal of the Gyllenhaal holdover proceeding. And no judicial determination was made in the Albert holdover proceeding and the Albert nonpayment proceeding. The matters were not adjudicated. The Albert holdover proceeding was marked off calendar and the Albert nonpayment proceeding was settled by stipulation on the record. No nexus exists between defendant's conduct and any judicial determination in the proceedings. Plaintiff is not entitled to leave to amend the complaint.
III. Defendant's Motion for Sanctions and Plaintiff's Cross-Motion for Sanctions
Defendant moves for sanctions against plaintiff on the ground that the instant action is frivolous. Plaintiff cross-moves for sanctions against defendant on the basis that defendant's sanction motion is frivolous.
Defendant and plaintiff are not entitled to sanctions under 22 N YCRR 130.1.1. Conduct is frivolous under 22 NYCRR 130.1.1 if
"(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;Neither party is entitled to sanctions.
(2) it is undertaken primarily to delay or prolong the resolution of the litigation or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false."
IV. Conclusion
ORDERED that defendant's CPLR 3212 motion for summary judgment to dismiss the second cause of action is denied. Plaintiff is entitled to a permanent injunction. Plaintiff is directed to submit an order consistent with his second cause of action; and it is further,
ORDERED that defendant's CPLR 3212 motion for summary judgment to dismiss the first, third through tenth causes of action is granted. The complaint as to these causes of action is hereby dismissed; and it is further,
ORDERED that defendant's motion for sanctions is denied; and it is further,
ORDERED that defendant is directed to serve a copy of this order with notice of entry upon plaintiff and the Clerk of the Court, who is directed to enter judgment accordingly; and it is further,
ORDERED that plaintiff's cross-motion for leave to amend the complaint is denied in its entirety; and it is further,
ORDERED that plaintiff's motion for sanctions is denied.
This constitutes the decision and order of the court. Dated: May 17, 2016
/s/
J.S.C.