Opinion
May 9, 2000.
Plaintiff Solomon, Zauderer, Ellenhorn, Frischer Sharp commenced this action against the defendants Andrew F. Capoccia Law Centers, L.L.C. and Andrew F. Capoccia, seeking to recover over $300,000.00 in unpaid fees and disbursements for legal services rendered.
Plaintiff now moves by order to show cause for an order of attachment pursuant to CPLR § 6201 against the defendants' assets and interest in personal property or any debts owed to them situated in the State of New York.
Plaintiff argues that it has a likelihood of success on the merits since defendants retained them to perform legal services and agreed to pay the firm for those services; received $491,705.83 worth of services, as requested; received and held invoices for such services without objection for a reasonable amount of time; and expressly agreed to pay such invoices, but made only, a partial payment of $145,000.00 to the plaintiff.
Plaintiff further argues that there is a clear danger that unless this Court issues an Order of Attachment, defendants will secrete assets or transfer assets out-of-state in order to frustrate plaintiff's ability to collect on a judgment in this action.
Specifically, plaintiff alleges that defendants' existing liabilities in New York are significant, including over $1 million in sanctions awarded against them, substantial fees owed to at least three other law firms, and hundreds of thousands of dollars in unsatisfied judgments.
In addition, defendants concede that the New York Attorney General has recently commenced an action against Capoccia and his longtime associate, Herb Moskowitz, alleging that they use the Capoccia Law Centers to defraud and victimize thousands of consumers (although Capoccia and Moskowitz have apparently moved to dismiss that action on procedural grounds).
Defendant Capoccia is also apparently under investigation by the Third Department Committee on Professional Conduct, and is a defendant in a federal action charging him with heading a massive securities fraud scheme involving an entity known as "Imagex".
Finally, there is no dispute that defendants have recently engaged in real estate transfers, opened new offices in New Jersey and Massachusetts and are about to open an office in Connecticut. Thus, plaintiff argues that the defendants will have a ready means to convey their assets out of the jurisdiction of this Court.
While this Court is aware that defendants now claim that they previously expressed displeasure with the amount of plaintiff's bill and the lack of progress in the legal matters that plaintiff was handling, this Court finds that plaintiff has made a sufficient showing that it has a likelihood of success on the merits in this action.
Moreover, although defendants claim that the sole motive in opening offices out-of-state is to provide better services to their clients and vehemently deny that they are seeking to remove assets out of New York State, this Court finds that plaintiff has met its burden of showing that defendant Capoccia, "with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff's favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts;" CPLR § 6201(3). See also, Mineola Ford Sales Ltd. v. Rapp, 242 A.D.2d 371 (2nd Dep't 1997); Arzu v. Arzu, 190 A.D.2d 87 (1st Dep't 1993).
Accordingly, based on all the papers submitted and the extensive oral argument held on the record on February 18, 2000, plaintiffs' motion for an order of attachment is granted.
Settle order.