Opinion
No. 114230/10.
2013-05-2
Solomon SHARBAT and Qualified Settlement Management, LLC, Plaintiffs, v. LAW OFFICES OF MICHAEL B. WOLK, P.C. and Michael B. Wolk, Defendants.
Simon Schwarz, Esq., New York, for plaintiffs. Ronald A. Nimkoff, Esq., Nimkoff Rosenfeld & Schecter LLP, Syosset, for Nimkoff Law Firm.
Simon Schwarz, Esq., New York, for plaintiffs. Ronald A. Nimkoff, Esq., Nimkoff Rosenfeld & Schecter LLP, Syosset, for Nimkoff Law Firm.
BARBARA JAFFE, J.
By order to show cause dated May 11, 2012, plaintiffs move pursuant to CPLR 5015 for an order vacating and declaring void: (1) the judgment entered on October 4, 2011 against them and in favor of the Nimkoff Law Firm (Firm), jointly and severally, in the sum of $338,248.78, and (2) the underlying decision and order issued by the special referee which awarded the judgment; and vacating and/or modifying the prior orders of the court to the extent that the Firm's motion for fees was granted. Firm opposes.
By order to show cause dated October 12, 2012, plaintiffs and interested third party Solomon Capital LLC (Capital) move pursuant to CPLR 5240 for an order vacating and declaring void sheriff's levy and execution dated December 13, 2011 and information subpoena and restraining notice dated October 4, 2011 and served on TD Bank as garnishee of certain accounts held by Capital and related entities. Firm opposes.
The motions are consolidated for disposition.
I. PERTINENT BACKGROUND
Plaintiffs sue defendants for the return of attorney fees paid them in the course of an action whereby Firm represented plaintiffs. By order to show cause dated February 16, 2011, Firm moved for an order permitting it to withdraw as counsel for plaintiffs and scheduling a hearing to determine its fees in quantum meruit. By decision and order dated March 9, 2011, the justice previously assigned to this part granted Firm's motion to withdraw and ordered a hearing to determine Firm's fees in quantum meruit to the extent of referring the issue to a special referee to hear and determine.
On or about April 19, 2011, the court sent the parties a notice of hearing informing them that the special referee would conduct the hearing on May 17, 2011. On or about May 10, 2011, a new attorney filed a notice of appearance on behalf of plaintiffs, and thereafter appeared at the hearing and participated in it, although he objected to the manner in which plaintiffs were served with the February 2011 order to show cause.
By determination dated September 21, 2011, the special referee found in favor of Firm and granted it a judgment against plaintiffs, jointly and severally, in the sum of $336,784.22. On October 4, 2011, judgment was entered in the sum of $338,248.78, which included interest and costs.
On October 4, 2011, Firm served TD Bank with an information subpoena and restraining notice related to funds held by the it in the following accounts: (1) Solomon Sharbat, No.7915404409 (Sharbat account), (2) Solomon Capital 401K Trust, Solomon Sharbat Trustee, # 7929452022 (Capital 401K account), and (3) Solomon Capital LLC, # 7915975796 (Capital account).
On or about December 13, 2011, the New York City sheriff sent a notice of sheriff's levy and execution to TD Bank, stating that the total amount due was $365,847.55. On September 6, 2012, the sheriff faxed the levy and execution to TD Bank.
II. MOTION TO VACATE ORDER
Plaintiffs now move to vacate the court's order granting a hearing on Firm's request for quantum meruit fees and the resulting determination and judgment by the special referee.
As Firm was not required to commence a separate plenary action to recover its legal fees on a quantum meruit basis, the court did not lack subject matter jurisdiction to order the hearing and grant judgment for the fees. ( See eg Notrica v. North Hills Holding Co., LLC, 2013 WL 1442548, 2013 N.Y. Slip Op 02384 [2d Dept 2013] [court erred in denying motion of plaintiffs' former attorney for award of fees absent hearing to determine whether he was entitled to recover fees based on quantum meruit]; Matter of Ehmer, 272 A.D.2d 541 [2d Dept 2000] [remitting matter for court to hold hearing on attorney's claim to fees after granting motion to withdraw]; Kahn v. Kahn, 186 A.D.2d 719 [2d Dept 1992] [finding that where attorney's withdrawal from representation was justifiable, he was entitled to hearing to determine entitlement to compensation in quantum meruit for services rendered]; see Zito v. Fischbein Badillo Wagner Harding, 58 AD3d 532 [1st Dept 2009] [observing without commenting that lower court had allowed nonparty law firm to withdraw as counsel and directed hearing by referee to determine quantum meruit amount of fees] ).
As to plaintiffs' defense of lack of personal jurisdiction, it is undisputed that Sharbat asserted in another proceeding, where he sought and was granted an order vacating an attachment against him, that the Queens address where he was served with Firm's order to show cause was his current and only home address. He is therefore barred by judicial estoppel from denying it here. ( See Baje Realty Corp. v. Cutler, 32 AD3d 307, 310 [1st Dept 2006]; Gale P. Elston P.C. v. Dubois, 18 AD3d 301, 303 [1st Dept 2005] [judicial estoppel “precludes a party who assumed a certain position in a prior legal proceeding and who secured a judgment in his or her favor from assuming a contrary position in another action simply because his or her interests have changed.”] ).
In particular, Sharbat's assertion in 2012 that he had moved to and resided in Israel for at least the last two years with the intention to permanently stay there, that he became an Israeli citizen, and that he only “temporarily lived in the [Queens home] for several years, after giving up [his] own apartment in Manhattan, due to unexpected delays in the completion of the renovation of a new home in Israel,” completely contradicts his claims in the other action, made in 2009, that he “is now and [has] always been a resident and domiciliary of the State of New York and [does] not plan on re-locating to another state much less another country,” that his home is in Queens where he was born and raised, that he has resided at the Queens address for 35 years, that he had never taken any steps to become an Israeli citizen, and that he has never lived anywhere outside New York City. ( See Litton Loan Servicing, LP v. Vasilatos, 7 AD3d 580 [2d Dept 2004] [defendant could not deny residence address as he listed it as home address in bankruptcy petition filed after service was allegedly made in action]; McNeil v. Tomlin, 82 A.D.2d 825 [2d Dept 1981] [defendant estopped from contesting service as she had affirmatively represented address where she had been served as her residence upon renewal of driver's license two years before service made]; Monroy v. Apipattanamontree, 2013 WL 1788015, 2013 N.Y. Slip Op 50656[U] [Sup Ct, Queens County 2013] [traverse hearing denied as defendant made conflicting statements about where he resided]; see also Foster v. Jordan, 269 A.D.2d 152 [1st Dept 2000] [although defendant alleged that at time of service she was resident of Virginia and had move there before being served, records showed that she owned home where service made, had driver's license listing address as her residence, and mail was sent to address] ).
For all of these reasons, plaintiff have not established any grounds upon which to vacate the judgment or the referee's determination.
III. MOTION TO VACATE ENFORCEMENT DEVICES
Sharbat contends that Firm's restraining notices are illegal and invalid as he does not have an individual interest in Capital's or Capital 401k's bank account, and that, moreover, the 401k is statutorily exempt from levy. He also advises that approximately $12,000 from the TD Bank accounts had been released to the sheriff on or about October 9, 2012. (Affirmation of Simon Schwarz, Esq., dated Oct. 12, 2012).
Firm argues that plaintiffs' attorney's affirmation is insufficient to support plaintiffs' motion absent any personal knowledge of the TD Bank accounts, and that plaintiffs have failed to meet their burden of showing that the accounts are exempt from execution. (Affidavit of Ronald A. Nimkoff, Esq., dated Dec. 28, 2012).
It is well-settled that an affirmation from an attorney without personal knowledge has no probative value. (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ). As plaintiffs submit no other evidence to support their claims that the accounts at issue may not be restrained or levied upon, they have failed to meet their burden of showing that the subject funds were exempt from execution. ( See Frasca v. Genl. Motors Corp., 228 A.D.2d 474 [2d Dept 1996] [court correctly denied plaintiff's motion to stay execution of judgment as plaintiff failed to meet burden of establishing that subject funds were exempt from execution]; see also Swig v. Prop. Asset Mgt. Servs., LLC, 85 AD3d 427 [1st Dept 2011] [judgment debtor bore burden of proving funds at issue were exempt from restraint]; Balanoff v. Niosi, 16 AD3d 53 [2d Dept 2005] [judgment bears burden of claiming and proving exemption as only he or she knows source of funds which may qualify for exemption] ).
IV. CONCLUSION
Accordingly, it is hereby
ORDERED, that plaintiffs' motion to vacate the judgment rendered against them is denied; and it is further
ORDERED, that plaintiffs' motion to vacate the sheriff's levy and execution and information subpoena and restraining notice is denied.