Opinion
101011/2010.
June 10, 2010.
DECISION AND ORDER
I. BACKGROUND
Plaintiff, president of American Standard Retriever, Inc., sues defendants, a law firm and two of its attorneys, to recover damages from defendants' action in New Jersey Superior Court against American Standard Retriever, Inc., and other nonparties. Defendants sued for those parties' retaliation against defendants' representation of an individual in a third action in Sullivan County Supreme Court, where defendants' client also sued American Standard Retriever, Inc., as well as other parties.
Here, defendants move to: (1) consolidate this action with an action in Supreme Court, Queens County, American Standard Retriever, Inc. v. Shim Ghim, LLC, Jongsuk Kim, and H. Sarah Kim, Index No. 2182/2010; (2) dismiss the complaint; and (3) award attorney's fees to defendants for plaintiff's frivolous conduct. At oral argument April 15, 2010, defendants withdrew their motion for consolidation. For the reasons explained below, the court grants defendants' motion to dismiss the complaint and for costs in the form of attorney's fees to the extent set forth, without opposition.
II. DEFENDANTS' MOTION TO DISMISS THE COMPLAINT
The complaint's claims, each claim against all defendants, are for: (1) false accusation, (2) harassment, (3) civil conspiracy, and (4) negligence. The court considers plaintiff's first claim seeking damages for false accusation, which is not a cognizable claim under New York law, a claim for defamation, which plaintiff must plead with specificity. C.P.L.R. § 3016(a). Since plaintiff fails to allege defendants' specific defamatory words, the court must dismiss this claim. C.P.L.R. § 3211(a) (7); LoFaso v. City of New York, 66 A.D.3d 425, 426 (1st Dep't 2009); Mañas v. VMS Assoc., LLC, 53 A.D.3d 451, 454 (1st Dep't 2008); Avant Graphics v. United Reprographics, 252 A.D.2d 462, 463 (1st Dep't 1998).
Plaintiff's second claim for harassment is not a cognizable claim except under specific statutory and regulatory provisions that plaintiff does not rely on and are inapplicable here. Jerulee Co. v. Sanchez, 43 A.D.3d 328, 329 (1st Dep't 2007). Therefore the court dismisses this claim as well. C.P.L.R. § 3211(a)(7). Plaintiff's third claim for civil conspiracy likewise is not cognizable under New York law and must be dismissed. Id.; Waggoner v. Caruso, 68 A.D.3d 1, 6 (1st Dep't 2009),aff'd, ___ N.Y.3d ___, 2010 WL 1849367 at *1 (May 11, 2010); Thome v. Alexander Louisa Calder Found., 70 A.D.3d 88, 110 (1st Dep't 2009).
Finally, plaintiff's fourth claim alleges that defendants "as attorneys . . . have a duty to do a reasonable background search before commencing an action . . . to avoid incriminating or harassing the innocent," Aff. of Young Kon Nah, Ex. 1 ¶ 36, and that their breach of that duty caused plaintiff damages. This claim is either for defamation and thus duplicates the first claim or is for harassment and thus duplicates the second claim, which are both unsustainable as discussed above, or is for legal malpractice. Insofar as this claim is for defamation, like all plaintiff's claims, it complains that defendants associated plaintiff with a defendant business entity in the New Jersey litigation. Even were this claim otherwise sustainable, if defendants' alleged incrimination or harassment was through statements necessary to that litigation, they would be absolutely privileged, immunizing defendants from liability for defamation. Park Knoll Assoc. v. Schmidt, 59 N.Y.2d 205, 209 (1983);Ticketmaster Corp. v. Lidsky, 245 A.D.2d 142 (1st Dep't 1997). Insofar as the fourth claim is for legal malpractice, since the complaint does not allege any attorney-client relationship between the plaintiff and any of defendants, a legal malpractice claim also fails. C.P.L.R. § 3211(a)(7);Waggoner v. Caruso, 68 A.D.3d at 5, aff'd, 2010 WL 1849367 at *1;Baystone Equities, Inc. v. Handel-Harbour, 27 A.D.3d 231 (1st Dep't 2006).
Regarding the claims as a whole, defendants present documentary evidence that American Standard Retriever, Inc., commenced its own action against defendants in Supreme Court, Queens County, and that the complaint there is identical to the complaint here, except the plaintiff's name. See C.P.L.R. § 3211(a)(1). Even were the claims here otherwise viable, if the injury alleged is to the corporate entity as the Queens County complaint indicates, plaintiff in his individual capacity may not recover for that corporate injury. Walker v. Saftler, Saftler Kirschner, 239 A.D.2d 252 (1st Dep't 1997);Quatrochi v. Citibank, 210 A.D.2d 53, 54 (1st Dep't 1994). The Queens County complaint, bearing plaintiff's signature alone, not only suffers from the same deficiencies as the complaint in this action, but also violates the requirement that a corporation appear through an attorney. C.P.L.R. § 321(a); Matter of Sharon B., 72 N.Y.2d 394, 398 (1988); Kinlay v. Henley, 57 A.D.3d 219, 220 (1st Dep't 2008); People v. Park Ave. Plastic Surgery, P.C., 48 A.D.3d 367 (1st Dep't 2008).
III. DEFENDANTS' MOTION FOR COSTS
Defendants also seek costs in the form of defendants' reasonable attorney's fees assessed against plaintiff for commencing this action, which defendants claim he undertook primarily to harass defendants. Both C.P.L.R. § 8303-a and 22 N.Y.C.R.R. § 130-1.1(a) and (c)(2) authorize such an award to defendants in frivolous personal injury actions. Engel v. CBS, Inc., 93 N.Y.2d 195, 203 (1999); Nyitray v. New York Athletic Club in City of N.Y., 274 A.D.2d 326, 327 (1st Dep't 2000). See Pickens v. Castro, 55 A.D.3d 443, 444 (1st Dep't 2008); Yao v. Bult, 245 A.D.2d 136 (1st Dep't 1997); Strax v. Granoff Walker, 227 A.D.2d 252 (1st Dep't 1996). In determining whether conduct is frivolous, particularly when due to a harassing purpose, C.P.L.R. § 8303-a(c)(i); 22 N.Y.C.R.R. § 130-1.1(c)(2), the court is not limited to considering the action in which defendants seek fees, but may consider the parties' entire dispute. GT Term. Packaging Co. Inc. v. Western Growers Assn., 66 A.D.3d 563 (1st Dep't 2009); 187 Concourse Assoc. v. Reliance Natl. Indem. Co., 294 A.D.2d 203, 204 (1st Dep't 2002); Nvitray v. New York Athletic Club in City of N.Y., 274 A.D.2d at 327. Abuse of the judicial process warrants the imposition of sanctions. Bell v. State, 96 N.Y.2d 811, 812 (2001); Murray v. National Broadcasting Co., 217 A.D.2d 651, 653 (2d Dep't 1995).
Plaintiff's conduct, necessitating defendants' defense of two similar meritless actions in different counties, which plaintiff has made no attempt to justify or otherwise explain, raises a compelling inference that the actions were a means of harassment, as well as completely without merit and unsupported by any argument. C.P.L.R. § 8303-a(c)(i) and (ii); 22 N.Y.C.R.R. § 130-1.1(c)(1) and (2); Baystone Equities, Inc. v. Handel-Harbour, 27 A.D.3d 231; Nyitray v. New York Athletic Club in City of N.Y., 274 A.D.2d at 327. On this basis, the court finds his conduct frivolous and awards costs in the form of reasonable attorney's fees to defendants. C.P.L.R. § 8303-a(a) and (c) (i) and (ii); 22 N.Y.C.R.R. §§ 130- 1.1(a) and (c)(1) and (2), 130-1.2; Timoney v. Newmark Co. Real Estate, 299 A.D.2d 201, 202 (1st Dep't 2002);Skolnick v. Goldberg, 297 A.D.2d 18, 21 (1st Dep't 2002); Nvitray v. New York Athletic Club in City of N.Y., 274 A.D.2d at 327;Murray v. National Broadcasting Co., 217 A.D.2d at 653.
Defendants' attorney affirms that he spent 33 hours preparing this motion and charges $250 per hour. Although this evidence is unrebutted, and the hourly rate is modest, the hours spent on this unopposed motion, which presents no complex or novel issues, are excessive. Jamie v. Jamie, 19 A.D.3d 330, 331 (1st Dep't 2005). See, e.g., Flanagan v. Flanagan, 267 A.D.2d 80, 81 (1st Dep't 1999); Banco do Estado de Sao Paulo v. Mendes Jr. Intl. Co., 249 A.D.2d 137, 139 (1st Dep't 1998). While plaintiff's lack of representation does not bar the imposition of costs or sanctions against him, e.g., Bell v. State, 96 N.Y.2d 811; Yao v. Bult, 245 A.D.2d 136, the court considers his lack of representation in assessing the amount of the sanctions. Taking the above factors into account, the court assesses attorneys' fees against plaintiff Yoon H. Kim in the amount of $4,000. C.P.L.R. § 8303-a(a); 22 N.Y.C.R.R. §§ 130- 1.1(a), 130-1.2. See Pickens v. Castro, 55 A.D.3d at 444; 187 Concourse Assoc. v. Reliance Natl. Indem. Co., 294 A.D.2d at 204; Skolnick v. Goldberg, 297 A.D.2d at 21.
IV. CONCLUSION
In sum, the court grants defendants' motion to dismiss this action in its entirety and defendants' motion for costs to the extent of assessing $4,000 in defendants' attorney's fees against plaintiff, without opposition. C.P.L.R. §§ 3211(a)(7), 8303-a(a) and (c) (i) and (ii); 22 N.Y.C.R.R. §§ 130- 1.1(a) and (c)(1) and (2), 130-1.2. This decision constitutes the court's order. The Clerk is to enter a judgment dismissing this action and for $4,000 in attorney's fees against plaintiff and in favor of defendants. The court will mail copies of this decision to defendants' attorney and to plaintiff.