Opinion
100298/2009.
October 27, 2009.
DECISION, ORDER AND JUDGMENT
The following papers, numbered 1 to 5 were read on this petition pursuant to CPLR Article 78
PAPERS NUMBERED 1-2 3-4 5
Notice of Motion/Order to Show Cause — Affidavits — Exhibits ... Answering Affidavits — Exhibits Replying AffidavitsCross-Motion: [] Yes [X] No
Upon the foregoing papers, the petition for a judgment in the nature of prohibition and mandamus pursuant to CPLR article 78 Is decided in accordance with the accompanying decision, order and Judgment.
Petitioner Ronald Cohen, Esq. ("Cohen" or "petitioner") commenced this CPLR Article 78 proceeding seeking a judgment from this Court: (1) compelling respondent Arthur Engoron, a Judge of the New York City Civil Court, New York County, ("respondent" or "Judge Engoron") to vacate his order dated October 5, 2007, denying the motion on behalf of Mr. Cohen's client in the case of Amin Marte v Sandra Graber as Voluntary Administrator of the Estate of Herman Graber (Index No. TSN 300260/07) ("the underlying action") and all subsequent orders issued in that case; (2) causing such orders to be removed from the public record; and (3) directing Judge Engoron to cease and desist from maintaining the validity of such orders. Judge Engoron, who is represented in this court by the Office of the New York State Attorney General, interposes an answer in which he generally denies the material allegations of the petition, opposes the relief sought, and seeks dismissal thereof on the ground that the proceeding is moot as the underlying action was dismissed by the Appellate Division, First Department and, therefore, at this juncture, there is no controversy between the parties upon which this court could issue a determination. Respondent further argues that, in any event, petitioner had an adequate remedy at law, namely, he could have appealed the October 5, 2007 order to the Appellate Term, First Department, but did not do so.
This proceeding was randomly reassigned to this Part 61 following the recusal of Justice Marilyn Shafer by order dated May 4, 2009, and of Justice Nicholas Figueroa by order dated September 25, 2009.
In reply, petitioner contends that the proceeding is not moot as Judge Engoron in his October 5, 2007 decision and order made a finding that Mr. Cohen was not qualified to practice law in New York as he no longer maintained an office in New York as required by Judiciary Law § 470 and he argues that such finding is prejudicial to him as damaging to his reputation and providing endless opportunities to re-litigate the validity of the orders issued in an action that the Appellate Division has ruled is a legal nullity.
The relevant facts for purposes of this proceeding are relatively straightforward. The underlying action was commenced in this court in or about July 2005, by plaintiff Amin Marte, an incarcerated inmate acting pro se, by filing an unsigned and undated summons and complaint by which he sought to recover the sum of $8,500.00 paid to attorney Herman I. Graber as a retainer for legal services to be rendered in connection with the filing of an appeal from a conviction for assault in the first degree. Graber is alleged to have failed to perform such services. Mr. Graber died on April 2, 2005, about three months prior to the filing of the summons and complaint and before service was made. Plaintiff Marte moved by Order to Show Cause for a "stay" of the action in order to ascertain the identity of Mr. Graber's personal representative. The court issued an ex parte order dated October 28, 2005, extending plaintiff's time to serve the summons and complaint for 120 days.
Marte then retained counsel who served an amended verified complaint. Defendant, represented by Mr. Cohen, moved to dismiss the action, inter alia, as barred by the three-year statute of limitations applicable to legal malpractice actions. Marte separately moved to substitute Graber's widow, Sandra Graber, voluntary administrator, as defendant in place and stead of Herbert I. Graber, deceased, and for leave to amend the summons. By order dated March 28, 2007, Justice Barbara R. Kapnick of this court denied defendant's motion to dismiss on the ground, inter alia, that the action was for breach of contract, rather than legal malpractice, and was timely under the governing six-year statute of limitations. Plaintiff's motion to substitute the voluntary administrator as defendant and to amend the caption was granted. The Court then removed the action to the Civil Court, New York County, pursuant to CPLR 325 (d).
Defendant moved for leave to reargue the March 28, 2007 order. By decision and order dated August 8, 2007, Justice Kapnick granted defendant's motion for leave to reargue but, upon reargument, adhered to her prior decision and order. She found that jurisdiction was obtained over Sandra Graber, as voluntary administrator of Graber's estate, by service upon her of the amended complaint by substituted service on June 20, 2006, and by the simultaneous motion by which plaintiff sought to substitute the voluntary administrator as defendant.
Defendant appealed both the March 28, 2007, and the August 8, 2007, orders. By decision and order dated November 13, 2008, the Appellate Division, First Department, reversed and held that the action from its inception was a nullity since the summons and complaint were filed after the death of Herman Graber. Graber was never a party to the action, and, therefore, there was no party for whom a substitution could be made nor a legal summons which could be amended ( see, Marte v Graber, 58 AD3d 2008 [1st Dept 2008]).
While the appeal was pending, defendant moved before the Civil Court, New York County, to dismiss the action on the ground that the Supreme Court never had jurisdiction, the action was lacking in merit, barred by the applicable statute of limitations and that plaintiff had improperly sought to amend his complaint. Plaintiff opposed the motion on the ground that defendant's counsel failed to satisfy the requirement of Judiciary Law § 470 that he have an office for the transaction of business within the State of New York. In a decision and order dated October 5, 2007, Judge Engoren denied defendant's motion finding that Justice Kapnick's August 8, 2007 order constituted law of the case as to the grounds upon which defendant's motion was predicated. Judge Engoron further found that the record did not support the claim of defendant's counsel that he maintained an office in New York for the transaction of law business, but rather that the address cited by defendant's counsel was simply an address from which mail was forwarded to him at his office in North Carolina. Thus, the court denied the relief requested by defendant on the additional ground that defense counsel failed to satisfy the requirement of Judiciary Law § 470 that he maintain an office in New York for the transaction of law business within the meaning of the statute ( see, Marte v Graber, 17 Misc3d 1139[A]). Defendant moved for leave to reargue Judge Engoron's October 5, 2007 decision and order. By decision and order dated February 27, 2008, the court granted defendant's motion, but, upon reargument adhered to its prior determination (Ver. Ans. ¶ 10).
Following the Appellate Division's reversal of Justice Kapnick's orders, Mr. Cohen wrote to Judge Engoron seeking to have him withdraw his prior orders claiming that the Appellate Division's ruling that the action was a nullity from its inception required such action. Judge Engoron responded by letter dated December 4, 2008, denying Mr. Cohen's request on the ground that the orders in question were valid upon the record before the court at the time they were issued.
Mr. Cohen then commenced this article 78 proceeding in the nature of mandamus and/or prohibition to compel Judge Engoron to vacate the orders issued in the underlying action and prohibit Judge Engoron from proclaiming the validity of the orders he issued in that case.
The extraordinary remedy of a writ of prohibition is available only when there is a clear right to the relief requested and only when a court, in cases involving challenges to judicial authority, exceeds its jurisdiction or authorized power in such a manner as to implicate the legality of the entire proceeding ( see, CPLR 7804; Lungren v Kane, 88 NY2d 861; Kisloff v Covington, 73 NY2d 445). A writ of prohibition "does not lie, even if there has been an excess of jurisdiction, if there is available an adequate remedy, by way of appeal or otherwise" ( Molea v Marasco, 64 NY2d 718, 720).
The standards governing the availability of article 78 relief in the nature of mandamus are equally well settled. Such relief is available only where the petitioner's right to performance is so clear as to admit of no doubt or controversy ( see, Matter of Coastal Oil of N. Y. v Newton, 231 AD2d 55 [1st Dept 1997], appeal dismissed 91 NY2d 848, lv denied 91 NY2d 808), and then only to compel the performance of a statutory duty that is ministerial in nature and does not require the exercise of judgment or discretion ( see, Matter of Crain Communications, Inc. v Hughs, 74 NY2d 626, 628).
Neither mandamus or prohibition is available to petitioner in this case. Petitioner has not adequately demonstrated a clear legal right to the relief requested This is a case where petitioner had an adequate alternative remedy at law. If he was aggrieved by the orders issued by Judge Engoron, his remedy was to take a direct appeal from those orders ( see, Matter of Veloz v Rothwax, 65 NY2d 902). Having chosen not to follow that procedural course, Mr. Cohen may not now be heard to complain about such orders nor seek to have them vacated on the basis of a subsequent determination. At the time the action was before Judge Engoron, the Appellate Division had not determined the pending appeal. Judge Engoron was bound by principles of law of the case and/or stare decisis to adhere to the findings of Justice Kapnick in the March 28, 2007 and August 8, 2007 orders. In any event, given the Appellate Division's determination, the action before the Civil Court has been rendered a nullity and the issues before this court in this proceeding have been rendered academic ( see, generally, Hearst Corp. v Clyne, 50 NY2d 707, 714-715). It is a fundamental principle of law that courts are forbidden from ruling on academic, hypothetical or moot questions that do not actually determine the rights of parties in a particular case pending before a judicial tribunal ( id.). Contrary to Mr. Cohen's position, that branch of Judge Engoron's decision and order as held that Mr. Cohen had failed to satisfy the requirement of Judiciary Law § 470 is not an issue of such deleterious effect or fundamental importance as would warrant this court under these circumstances to circumvent the mootness doctrine. In any event, such ruling required the exercise of judgment and discretion such that a writ of mandamus and/or prohibition will not lie ( Matter of Crain Communications, Inc. v Hughs, supra).
Accordingly, it is
ORDERED AND ADJUDGED, that the petition is denied and the proceeding is dismissed, without costs or disbursements.
This constitutes the decision, order and judgment of this Court.