Opinion
03-16-2017
Drew DOSCHER, Plaintiff–Appellant, v. MANNATT, PHELPS & PHILLIPS, LLP, et al., Defendants–Respondents.
Merolla & Gold, LLP, Garden City (Angelo Todd Merolla of counsel), for appellant. Frankfurt Kurnit Klein & Selz, P.C., New York (Ronald C. Minkoff of counsel), for respondents.
Merolla & Gold, LLP, Garden City (Angelo Todd Merolla of counsel), for appellant.
Frankfurt Kurnit Klein & Selz, P.C., New York (Ronald C. Minkoff of counsel), for respondents.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered November 20, 2015, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
The doctrine of collateral estoppel precludes plaintiff from asserting his Judiciary Law § 487 claim (see Bernard v. Proskauer Rose, LLP, 87 A.D.3d 412, 415, 927 N.Y.S.2d 655 [1st Dept.2011] ). The claim is premised on alleged discovery abuses during a prior arbitration between plaintiff and his employers, who were represented by defendants. Plaintiff had a full and fair opportunity to litigate the issues he raises in this action in two motions for sanctions before the arbitration panel, both of which were denied (see Pentalpha Enters., Ltd. v. Cooper & Dunham LLP, 91 A.D.3d 451, 936 N.Y.S.2d 173 [1st Dept.2012] ; Gillen v. McCarron, 126 A.D.3d 670, 6 N.Y.S.3d 253 [2d Dept.2015] ; God's Battalion of Prayer Pentecostal Church, Inc. v. Hollander, 24 Misc.3d 1250[A], 2009 N.Y. Slip Op. 51939[U], *7–9, 2009 WL 2960629 [Sup.Ct., Nassau County 2009], affd. 82 A.D.3d 1156, 919 N.Y.S.2d 380 [2d Dept.2011], lv. denied 17 N.Y.3d 714, 2011 WL 5041569 [2011] ). Contrary to plaintiff's contention, the arbitration award constitutes a valid final judgment for collateral estoppel purposes, notwithstanding the pendency of plaintiff's petition to vacate (Acevedo v. Holton, 239 A.D.2d 194, 657 N.Y.S.2d 407 [1st Dept.1997] ; Franklin Dev. Co., Inc. v. Atlantic Mut. Ins. Co., 60 A.D.3d 897, 876 N.Y.S.2d 103 [2d Dept.2009] ).
Plaintiff also failed to state a cause of action under Judiciary Law § 478, because the statute does not apply to attorney misconduct during an arbitral proceeding. The plain text of § 478 limits the statute's application to conduct deceiving "the court or any party" (emphasis added), and, because the statute has a criminal component, it must be interpreted narrowly (see People v. Thompson, 26 N.Y.3d 678, 687–688, 27 N.Y.S.3d 425, 47 N.E.3d 704 [2016] ; Amalfitano v. Rosenberg, 12 N.Y.3d 8, 14, 874 N.Y.S.2d 868, 903 N.E.2d 265 [2009] ). Moreover, courts have held that the statute does not apply to conduct outside New York's territorial borders or to administrative proceedings, observing that its purpose is to regulate the manner in which litigation is conducted before the courts of this State (see Schertenleib v. Traum, 589 F.2d 1156, 1166 [2d Cir.1978] [proceedings outside New York]; Alliance Network, LLC v. Sidley Austin LLP, 43 Misc.3d 848, 864–865, 987 N.Y.S.2d 794 [Sup.Ct., N.Y. County 2014] [same]; Southern Blvd.
Sound v. Felix Storch, Inc., 165 Misc.2d 341, 344, 629 N.Y.S.2d 635 [Civ.Ct., N.Y. County 1995], mod. on other grounds 167 Misc.2d 731, 643 N.Y.S.2d 882 [App.Term 1996] [same]; Kallista, S.A. v. White & Williams LLP, 51 Misc.3d 401, 419, 27 N.Y.S.3d 332 [Sup.Ct., Westchester County 2016] [administrative proceedings] ).
In any event, plaintiff failed to allege the elements of a cause of action under the statute, i.e., intentional deceit and damages proximately caused by the deceit (see Judiciary Law § 487 ; Facebook, Inc. v. DLA Piper LLP [US], 134 A.D.3d 610, 615, 23 N.Y.S.3d 173 [1st Dept.2015], lv. denied 28 N.Y.3d 903, 2016 WL 4820902 [2016] ). The misconduct that plaintiff alleges is not "egregious" or "a chronic and extreme pattern of behavior" (Facebook, 134 A.D.3d at 615, 23 N.Y.S.3d 173 [internal quotation marks omitted] ), and the allegations regarding scienter lack the requisite particularity (id.; see also CPLR 3016[b] ). Moreover, plaintiff was given the opportunity to subpoena a third party for documents that he was unable to obtain from defendants, but he declined it. He cannot blame defendants for his tactical decision.
TOM, J.P., ACOSTA, RICHTER, MANZANET–DANIELS, KAHN, JJ., concur.