Opinion
No. 159360/2021
04-21-2023
MIHO SUZUKI, Plaintiff, v. PHILIP ALAN GREENBERG, Defendant.
Unpublished Opinion
MOTION DATE 08/26/2022
PRESENT: HON. DAVID B. COHEN, Justice
DECISION + ORDER ON MOTION
DAVID B. COHEN, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201,202, 203, 204, 205, 206, 207, 208, 209, 210, 211,212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)
Plaintiff moves for summaiy judgment, pursuant to CPLR 3212, seeking an award of treble damages against defendant for an alleged violation of Section 487 of the Judiciary Law. Defendant cross-moves for summaiy judgment, seeking an order dismissing plaintiffs complaint, and sanctioning plaintiff and her attorney for their alleged frivolous conduct in bringing this action.
Background
Plaintiff, a resident of the State of Michigan (complaint ¶l [NYSCEF Doc No. 197]), previously resided in the State of New York, during her 2002 marriage to, and later separation from, her former husband Sebastian Gollings (see id. ¶¶ 3-7 and Plaintiff aff ¶3 [NYSCEF Doc No. 176]). Plaintiff and Gollings have one child togther, Kira Gollings, who was bom on April 25, 2006 (complaint ¶¶3-4 and Plaintiff aff ¶3).
Gollings commenced an action for divorce against plaintiff in 2014, represented by a non-party attorney, in New York County Supreme Court under Index Number 309246/2014 (Divorce Action) (complaint, ¶5).
On October 19, 2015, plaintiff and Gollings entered into a settlement of the Divorce Action, documented by a stipulation, a parenting plan, and a child support stipulation (Plaintiff statement of material facts [SOF] [NYSCEF Doc No. 200], ¶3). Plaintiff alleges that these agreements provided, among other things, that she and Gollings would share joint legal custody of Kira and that Gollings would have residential custody (complaint ¶6).
At an inquest held on October 19, 2015, before a justice of this Court, Gollings and plaintiff presented their executed stipulation, parenting plan, and child support stipulation to the Court, and allocuted to the terms of these agreements. The justice presiding informed the parties that they were now bound by the agreements but not yet divorced, and directed counsel to prepare and submit the necessary documents, including a proposed judgment, to finalize matters (see ex B to Defendant's affidavit in support of cross-motion in sequence number 003 [hearing tr.] [NYSCEF Doc No. 206]).
Plaintiff alleges that Gollings's attorney failed to submit the proposed judgment and ancillary documents needed for the judgment of divorce to be granted and that, from 2015 to 2018, she and Gollings remained separated but adhered to their parenting plan with respect to their child (complaint, ¶7).
A neglect proceeding was commenced against Gollings in Kings County Family Court [Neglect Proceeding], following which, on February 9, 2018, after a showing of "good cause," the presiding judge entered a temporary order of protection, directing Gollings to stay away from Kira (complaint ¶8 and ex 1 thereto [NYSCEF Doc No. 3] [Temporary Order of Protection]).
On April 17, 2018, plaintiff brought another proceeding in Family Court, seeking an order of custody for Kira (see complaint ¶9 and ex 2 thereto [NYSCEF Doc No. 4] [Final Custody Order]). Under the Final Custody Order, dated June 13, 2018, after "hearing the proofs and testimony offered," the judge determined that:
Upon the agreement of all parties, the Court grants a final order of custody to the Petitioner Mother, MIHO SUZUKI with therapeutic visits for the subject child, Kira upon the consent of the child and if the mental health professional for the subject child determines said visits with the Respondent Father, Sebastian Paul Gollings to be appropriate(ex 2 to complaint).
Plaintiff asserts that, during this custody proceeding, she and Gollings also agreed that she and Kira would move to Birmingham, Michigan, where plaintiff s mother lives, and that they thereafter moved to Michigan on June 28, 2018, where they currently reside (Plaintiff aff ¶6).
Plaintiff alleges that Gollings hired defendant "in late 2019," to represent him in the Divorce Action (complaint ¶11). After she relocated, plaintiff retained counsel in Michigan, and her attorney contacted defendant to discuss establishing a parenting schedule for Gollings and finalizing their divorce in Michigan. In response, defendant asked plaintiff to execute an affidavit drafted in 2015, which gave custody of Kira to Gollings, and stated that the parties could work out a new parenting plan after they finalized their divorce in New York (id.).
In late 2019, defendant moved by order to show cause on Gollings's behalf in the Divorce Action, seeking "to submit and have entered a judgment of divorce and related papers upon inquest that was had before this Court on October 19, 2015," and requesting that the court grant a change of custody in Gollings's favor (Plaintiff aff, ¶8 and ex 3 annexed thereto [Order Declining to Sign Order to Show Cause, dated December 9, 2019] [NYSCEF Doc No. 179]).
As the parties had allowed four years to pass without finalizing their divorce, the justice presiding instead issued an order declining to sign the proposed order to show cause, stating that she would not address custody issues prior to entry of the Judgment of Divorce, and directed defendant to "file the divorce papers within 30 days of this Order," or risk possible dismissal of the action (id. and ex 3 thereto). Defendant did not file the divorce papers within the allotted time (id.).
In and after January 2020, plaintiff's Michigan counsel, Michael Fishman, Esq., communicated with defendant, to prepare the paperwork necessaiy to complete the Divorce Action (Plaintiff aff ¶9). On January 31, 2020, Fishman sent two emails to defendant, stating that he had asked plaintiff to search her files for the Final Custody Order, to establish that the October 19, 2015 parenting plan had been superseded and that plaintiff had been granted sole physical custody of Kira (Plaintiff aff, ex 6 and 7 [NYSCEF Doc Nos 182 and 183]). He also asked defendant to send him a copy of the Final Custody Order, if he had it in his possession (Plaintiff aff, ex 6).
In these communications, Fishman mistakenly referred to the Final Custody Order, which was dated June 13, 2018, as the "June 2019" order (see Plaintiff aff exs 2 [Final Custody Order] and 6 [January 31, 2020 email to Defendant] [NYSCEF Doc Nos. 178 and 182]).
Defendant responded to Fishman's emails that same day but made no reference to the Final Custody Order. By letter emailed January 31, 2020 (id., ex 8 [NYSCEF Doc No. 184]), however, defendant asked Fishman to confirm that the "Defendant's Affidavit" accompanying his letter (ex 5 to the Plaintiff aff [NYSCEF Doc No. 181]), which defendant had prepared, was "accurate, at least as of the time that [the justice presiding] allocuted the parties and had the inquest," and then have plaintiff execute it before a notary public (id., ex 8).
Plaintiff asserts that the affidavit that defendant asked her to execute had two false statements. The first, in paragraph 4, incorrectly stated that Gollings had primary physical custody of Kira, while the other, in paragraph 9, required her to deny that she was ever a party to a neglect proceeding (Plaintiff aff ¶9 and exs 1 and 2 thereto).
On February 4, 2020, Fishman emailed defendant, attaching a copy of the Final Custody Order (Plaintiff aff ¶ 11 and ex 9 thereto), and followed up with an email to defendant on February 11, 2020, seeking defendant's acknowledgement that the attachment was the "controlling order" (id. and ex 10 thereto). Defendant did not reply.
Seven months later, on September 16, 2020, defendant fded documents in the Divorce Action requesting a final judgment of divorce based on false statements, including an affidavit Gollings executed on January 2, 2020, in which he falsely swore that he was Kira's custodial parent and entitled to receive child support, and that he had never been a party to a child abuse or neglect proceeding (Plaintiff aff, ¶12 and ex 11 thereto).
On or about July 30, 2020, defendant filed additional documents in support of Gollings's application, including proposed findings of fact and conclusions of law (Plaintiff aff, ex 13 [NYSCEF Doc No 188]), and a proposed Judgment of Divorce (id. ex 14 [NYSCEF Doc No. 189]). The justice presiding signed both documents on September 14, 2020 (id.', see also complaint ex 3 [NYSCEF Doc No. 5] [Judgment of Divorce]). Despite defendant's knowledge of the Final Custody Order, he made no reference to it, or to the order granting plaintiff physical custody of Kira, in Gollings's application (Plaintiff aff, ¶16).
On or about October 19, 2020, Gollings moved by order to show cause to enforce the provisions of the Judgment of Divorce which directed that plaintiff return Kira to New York and that Gollings assume sole residential custody of Kira (Plaintiff aff ¶17 and ex 16 thereto; Plaintiffs SOF ¶18 [NYSCEF Doc No. 200]).
Following service of Gollings's order to show cause, plaintiff retained Elliot R. Polland, Esq. as New York counsel, to oppose Gollings's motion and to move for an order, pursuant to CPLR 5015(a)(3), vacating or modifying the Judgment of Divorce, to maintain her residential custody of Kira in Michigan and limit Gollings's visitation rights, as mandated in the Final Custody Order (see Plaintiff aff, ¶18).
On March 30, 2021, the justice presiding issued a decision and order (ex 18 to Plaintiff aff [NYSCEF Doc No. 194]), denying Gollings's order to show cause and granting plaintiff s motion to modify the Judgment of Divorce. The Court specifically found that
[Gollings] did not include the Family Court determination of custody in the Judgment of Divorce and instead referenced the 2015 Parenting Plan. He then moved in motion sequence number 004 to enforce the Judgment of Divorce and again omitted the June 2018 Family Court [Final Custody Order], This omission is inexcusable and was an attempt to mislead the court"(id. at 2 [emphasis added]).
The Court also awarded plaintiff "attorneys' fees for the costs of litigation created by [Gollings's] extraordinary omissions" and directed plaintiffs counsel to submit "an affirmation of relevant services rendered" to support the award of attorney fees and costs incurred, and a proposed amended judgment of divorce consistent with its March 30, 2021 Decision and Order (id. at 3).
On July 9, 2021, an Amended Judgment of Divorce was filed and entered (ex 19 to Plaintiff aff [NYSCEF Doc No. 195]), which ordered and adjudged, among other things, that plaintiff "is granted sole legal and physical custody" of Kira, and that the March 30, 2021 Decision and Order "held that plaintiffs failure to apprise the court of [the Final Custody Order] was 'inexcusable and an attempt to mislead the court'" (id.).
In support of his fee application, Polland submitted an affirmation, executed April 21, 2021, with supporting invoices and other documentation, which provided that he and Fishman incurred legal fees and expenses recoverable under the March 30, 2021 Decision and Order totaling $18,258.83 (NYSCEF Doc No. 211). On August 25, 2021, the justice awarded plaintiff $18,258.00 and set a monthly payment schedule for Gollings (NYSCEF Doc No. 199).
This action was commenced by e-filing of the summons and complaint on October 13, 2021 (NYSCEF Doc Nos. 1-8). Defendant e-filed his verified answer November 30, 2021 (NYSCEF Doc No. 10).
Plaintiff now moves for summary judgment, pursuant to CPLR 3212, seeking an order granting her treble damages under NY Judiciary Law Section 487(1), namely, triple the $18,258 awarded against Gollings, for defendant's alleged deceit in the Divorce Action (see NYSCEF Doc Nos. 175-202). On August 10, 2022, defendant e-filed his opposition to the motion and cross-moved for summary judgment and sanctions against plaintiff (NYSCEF Doc Nos. 203-23).
Discussion
Summary Judgment
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851,853 [1985] [internal citations omitted]).
To prevail, the movant must produce evidentiary proof in admissible form sufficient to warrant granting summary judgment in its favor (GTF Mktg. v Colonial Aluminum Sales. 66 N.Y.2d 965, 967 [1985]). Once the movant has made its showing, the burden shifts to the opposing party, to submit proof in admissible form sufficient to show a question of fact exists, requiring trial (Kosson v Algaze, 84 N.Y.2d 1019, 1020 [1995]).
In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmovant (Prine v Santee, 21 N.Y.3d 923, 925 [2013]). Party affidavits and other proof must be examined carefully "because summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" (Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231 [1978] [citation and internal quotation marks omitted]). Still, "only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment" (id.).
Judiciary Law Section 487Deception "is [] incompatible with the position of trust and confidence occupied by an attorney at law" (Matter of Alessandro, 100 A.D.3d 210, 214 [2d Dept 2012]). '"Lawyers must be held to the 'highest standards of ethical conduct' because the legal profession needs the respect and confidence of society if it is to play its critical role in sustaining the rale of law and the concept of justice upon which our free and democratic society depends'" (id., quoting Matter of Rowe, 80 N.Y.2d 336, 340 [1992], cert denied sub nom. Rowe v Joint Bar Assn. Grievance Comm, for Second &Eleventh Jud. Dists., 508 U.S. 928 [1993]).
Judiciary Law § 487 provides that
"An attorney or counselor who:
1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or,
2. Willfully delays his client's suit with a view to his own gain; or willfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for,
Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action."
"A claim premised on a violation of Judiciary Law § 487 must be supported by a showing that the attorneys intended to deceive or engaged in a chronic and extreme pattern of legal delinquency" (Koch v Sheresky, Aronson & Mayefsky LLP, 184 A.D.3d 410, 411 [1st Dept 2020], citing Brookwood Cos. v Alston &Bird LLP, 146 A.D.3d 662, 668 [1st Dept 2017] [emphasis added]). To make a prima facie showing of entitlement to summary judgment, a plaintiff need not "submit an affidavit from a legal expert, but rather, an affidavit from someone with actual knowledge of the allegations at issue suffices" (id., citing Boye v Rubin & Bailin, LLP, 152 A.D.3d 1,9 [1st Dept 2017]).
A cause of action under this statute must allege specific damages that could not have occurred in the absence of defendant's misconduct (Kurman v Schnapp, 73 A.D.3d 435, 435 [1st Dept 2010], citing Amalfitano v Rosenberg, 12 N.Y.3d 8, 14 [2009]). Where an alleged violation is based on an attempted deceit, however, recovery of treble damages does not depend on whether "the court acted on the belief that the misrepresentation was true" because "the opposing party is obliged to defend or default and necessarily incurs legal expenses" and so, as the claim could not have been pursued in the absence of the material misrepresentation, the opposing "party's legal expenses . . . may be treated as the proximate result of the misrepresentation" (Amalfitano, 12 N.Y.3d at 15 [construing Judiciary Law § 487]).
Here, plaintiff establishes her prima facie entitlement to judgment on her claim, by demonstrating that the justice presiding over the divorce action already determined that defendant attempted to deceive or mislead the court by failing to include or mention the Final Custody Order when filing for a final judgment of divorce, which caused her to incur damages in the form of attorney fees and costs (see e.g. Schindler v Isller &Schrage, P.C., 262 A.D.2d 226 [1st Dept 1999], Iv dismissed 94 N.Y.2d 791 [1999] [plaintiff granted judgment on Judiciary Law § 487 claim as defendant law firm knowingly withheld crucial information from court in underlying action]; cf. Betz v Blatt, 160 A.D.3d 696 [2d Dept 2018] [defendant attorney was properly denied summary dismissal of Judiciary Law § 487 claim based on allegations that he filed blatantly deficient accounting with court, which delayed administration of estate, and caused estate to incur legal fees]; see also Amaltifano v Rosenberg, 428 F.Supp.2d 196 [SD NY 2006] [attempted deceit is sufficient to trigger liability under section 487]). Moreover, given the prior finding that defendant intentionally attempted to mislead the court, he is estopped from arguing otherwise here.
Defendant's Opposition and Cross Motion
Defendant argues that plaintiffs claim must be dismissed because the cases on which she relies are either inapposite or support dismissal. For example, defendant cites DataTreasury Corp, v Del Col, a case on which plaintiff relies to state the elements of her claim, to assert that "Judiciary Law § 487 applies only to wrongful conduct by an attorney in an action actually pending" (2012 NY Slip Op 31913[U], *3 [Sup Ct, Suffolk County 2012] [citations omitted]). Based on this language, defendant argues that plaintiff s claim fails because the Divorce Action terminated before this action was commenced. However, "the alleged deceit forming the basis of such cause of action, if it is not directed at a court, must occur during the course of a 'pending judicial proceeding'" (Costalas v Amalfitano, 305 A.D.2d 202, 204 [1st Dept 2003] [citation omitted]). Here, defendant's alleged deceit occurred during the course of the then-pending divorce action, and was also directed at the court in terms of misleading it about the existence and terms of the Final Custody Order.
Defendant also cites Melnitzky v Owen (19 A.D.3d 201 ) and Yalkowsky v Century Apts. Assoc. (215 A.D.2d 214 [1st Dept 1995]), to argue that plaintiff s cause of action is barred because it was brought in a secondary proceeding, and not the Divorce Action. However, the applicable rule is that a disappointed litigant cannot bring "a second plenary action collaterally attacking the judgment in that [original] action" (Melnitzky, 19 A.D.3d at 201, citing Yalkowsky, 215 A.D.2d at 215 [emphasis added]).
Here, plaintiff is not improperly collaterally attacking the judgment of divorce, but rather seeking to address defendant's misconduct related to the Divorce Action (see Melcher v Greenberg Traurig LLP, 135 A.D.3d 547 [1st Dept 2016] [plaintiff properly commenced new proceeding to assert Judiciary Law § 487 claim against attorneys, as plaintiff was not attacking underlying judgment or order but seeking to recover damages incurred in underlying action resulting from attorneys' alleged deceit; court also observed that language of section 487 did not require that claim be asserted in same action in which violation occurred]). Nor is she estopped from doing so as the issue of defendant's violation of Judiciary Law § 487 was neither litigated nor determined in the divorce action (id. at 553).
Defendant also asserts that Plaintiff cannot prevail on her cause of action for violation of section 487 because she suffered no damages. However, the justice in the Divorce Action already determined that plaintiff was entitled to damages related to defendant's misconduct in the form of her attorney fees and costs.
Moreover, the cases defendant cites do not support the proposition that plaintiffs full recovery of her legal fees from Gollings in the Divorce Action somehow bars her from recovering treble damages against defendant pursuant to the Judiciary Law in this action. Indeed, as the purpose of awarding treble damages for a violation of Judiciary Law § 487 is to punish a lawyer for his misconduct and to deter him from future misconduct, rather than to compensate plaintiff for her injury (Spec. Indus. Svces. Corp, v Carter, 99 A.D.3d 692 [2d Dept 2012]), it is irrelevant whether plaintiff was already reimbursed for her attorney's fees and costs by Gollings.
Defendant also contends that he cannot be held liable for his conduct because he was not acting for himself but rather on behalf of his client, but the two cases he cites in support are inapposite. In Art Capital Group, LLC v Neuhaus, 70 A.D.3d 605 (1st Dept 2010), there was no claim for a violation of Judiciary Law § 487, and in Michalic by Nakovics v Klat, 128 A.D.2d 505, 506 (2d Dept 1987). the plaintiffs failed to show that the attorneys' conduct was the proximate cause of their claimed damages.
Defendant further seeks sanctions against plaintiff and Polland, claiming that the instant action is frivolous under CPLR 8303-a. That CPLR provision, however, only applies "in an action to recover damages for personal injury, injury to property or wrongful death, or an action brought by the individual who committed a crime against the victim of the crime" (CPLR 8303-a[a]), and is thus inapplicable here.
To the extent that defendant relies on Part 130 of the Rules of the Chief Administrator of the Courts (22 NYCRR § 130-1.1) which, more generally, governs the award of costs and imposition of financial sanctions for frivolous conduct in civil litigation, he fails to show that plaintiff's claim here is frivolous, especially as she has shown her entitlement to summary judgment on the claim.
Conclusion
For the foregoing reasons, it is hereby
ORDERED that plaintiffs motion for summary judgment on her sole cause of action, for violation of Judiciary Law Section § 487, is granted, and the Clerk of the Court is directed to enter judgment in favor of plaintiff and against defendant in the sum of $54,774.00, with interest at the statutory rate, from the date of this decision, as calculated by the clerk, together with costs and disbursements as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further
ORDERED that defendant's cross motion is denied; and it is further
ORDERED, that the clerk is directed to enter judgment accordingly.