Opinion
114491/10.
June 29, 2011.
This action is integrally related to a prior action pending before this court entitled Koch, et al. v Sheresky, Aronson Mayefesky LLP, et al., Index No. 112337/07 (the Related Action). The instant action is brought by the same plaintiffs in the Related Action — Vladimira Koch (Plaintiff), her son Michal Koch, and several corporate entities in which Plaintiff allegedly holds ownership interests (collectively, Plaintiffs) — against the law firm Ragues Min, LLP and one of its partners, Esther Kyong Min (Ms. Min), who is not a party in the Related Action.
The complaint in this action alleges ten causes of action which appear to sound, variously, in legal malpractice, breach of contract, breach of fiduciary duty, fraud, misrepresentation, violation of Judiciary Law § 487, and violation of Executive Law § 135. The defendants move, pursuant to CPLR 3211 (a) (1), (4), (5) and (7) to dismiss all causes of action, or, alternatively, pursuant to CPLR § 602, to consolidate this action with the Related Action if this action is not otherwise dismissed. For the reasons stated herein, this action is dismissed.
Not all causes of action are specifically identified, and in various places, the complaint, with more than 380 paragraphs, mixes and repeats the assertions and arguments interchangeably.
Background
In the Related Action, by order dated July 7, 2009 (the Prior Order), this court disposed of certain issues raised by Plaintiff against the former law firms that represented her in a divorce action, which was commenced against her by her former husband Robert Koch, in February 2004, in the Westchester County Supreme Court (the Divorce Court). The background leading to the commencement of the Related Action was fully discussed in the Prior Order, and familiarity with such background information is presumed and will not be repeated, except as noted herein.
As noted in the Prior Order, Ragues Min, Esqs. (a/k/a Ragues Min, LLP or simply Ragues Min) and its other partner Raymond Ragues (the Ragues Defendants) did not move to dismiss the complaint in the Related Action. Instead, they filed an answer in which they generally denied the allegations of the complaint, and asserted cross claims against the co-defendants in the Related Action. The Prior Order did not address the issues raised by the Ragues Defendant in their answer.
In the divorce action, Plaintiff was initially represented by two law firms which were defined in the Prior Order as "the Aronson Defendants" and "the Bragar Defendants." In September 2004, after the Aronson Defendants and the Bragar Defendants withdrew from representation of Plaintiff without resolving the divorce action, Plaintiff then retained the Ragues Defendants to represent her. In or about October 2005, the Ragues Defendants likewise moved to withdraw from representation of Plaintiff, and the motion was granted by the Divorce Court in November 2005. In March 2006, the Divorce Court entered a Judgment of Divorce by default, which provided, inter alia, that Robert Koch would have exclusive rights to certain video companies, which are the corporate plaintiffs named in the Related Action and this action, and in which Plaintiff purportedly has an ownership interest.
In August 2006, Plaintiff retained new counsel, KTHL Law Offices, P.C., to represent her in the divorce action. In 2007, the Divorce Court granted Plaintiff's motion to vacate the prior Judgment of Divorce by default and the civil contempt orders that were entered against her. In October 2008, the Divorce Court issued a decision and judgment of divorce in Plaintiff's favor. Despite the favorable divorce judgment, Plaintiff asserts that due to her former counsels' alleged malpractice and negligence, Robert Koch was permitted to waste and convert corporate assets, and that it will be unlikely for her to collect or recover any assets and funds from the marital estate or against Robert Koch.
In this action, the complaint and the causes of action alleged therein are substantially similar to those in the Related Action, except in minor respects. For example, in addition to the causes of action asserted in the Related Action, the instant complaint alleges that Ms. Min, in her capacity as a notary public, appeared to have fraudulently notarized a document entitled "Consent to Change Attorney" when Plaintiff retained Ragues and Min in November 2004, and that the alleged notarial misconduct violated Executive Law § 135. Defendants herein move to dismiss all causes of action pursuant to CPLR 3211.
Discussions
In considering a CPLR 3211 (a) (7) motion to dismiss, the court is to determine whether the plaintiff's pleadings state a cause of action. "The motion must be denied if from the pleadings' four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law [internal quotation marks omitted]." Richbell Info. Services, Inc. v Jupiter Partners, L.P., 309 AD2d 288, 289 (1st Dept 2003), quoting 511 W. 232 nd Owners Corp. v Jennifer Realty Corp., 98 NY2d 144, 151-152 (2002). The pleadings are to be afforded a liberal construction, and the court is to give the plaintiff the benefit of every possible favorable inference. Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314 (2002); Leon v Martinez, 84 NY2d 83, 87-88 (1994). However, while factual allegations in a complaint should be favorably construed, bare legal conclusions and inherently incredible facts are not entitled to preferential consideration. Matter of Sud v Sud, 211 AD2d 423, 424 (1st Dept 1995). Moreover, "[w] hen the moving party [seeks dismissal and] offers evidentiary material, the court is required to determine whether the proponent of the [complaint] has a cause of action, not whether [he or] she has stated one." Asgahar v Tringali Realty Inc., 18 AD3d 408, 409 (2d Dept 2005) (internal quotation marks and citations omitted).
All Causes Of Action Against Ms. Min Should Be Dismissed
The complaint alleges, inter alia, that Ms. Min violated New York Executive Law § 135, which provides, in relevant part, that "[f]or any misconduct by a notary public in the performance of any of his [or her] powers such notary public shall be liable to the parties injured for all damages sustained by them."
Plaintiff alleges that during the disclosure phase of the Related Action, she discovered that Ms. Min had notarized one or more documents called Consent to Change Attorney, dated November 12, 2004, which were either signed "well after the fact, or which document had been forged altogether." Plaintiffs' Brief, at 5. Plaintiff argues that the notarial misconduct "was part of a course of conduct by defendants which contributed to plaintiffs' general damages and subversion of the legal system." Id., at 6. Plaintiff's counsel also argues that the document was "notarized outside of her presence and without consent or oath by Ms. Koch," and thus "was fraudulent in that it was a misrepresentation of a material existing fact . . . and [it] contributed to the injury done all Plaintiffs in the course of the mismanagement of the divorce action. . . ." Kovarik Affirmation, ¶¶ 5-7.
The arguments are unpersuasive. Notably, Plaintiff concedes and "does not dispute that it is her signature on the document," and that "she ultimately did retain Ragues Min to represent her in the divorce action." Plaintiffs' Brief, at 5. Also, there is documentary evidence which shows that Plaintiff had executed a virtually identical Consent to Change Attorney document, on October 27, 2004, before "Andrew T. Miller," consul at the United States Embassy in the Czech Republic. Nunberg Reply Affirmation, Exhibit D. This fact is acknowledged by Plaintiff, because "she signed a similar document in the Czech Republic at the United States consulate." Plaintiffs' Brief, at 5. Thus, it is beyond dispute that, via the Consent to Change Attorney form, Plaintiff had truly intended to retain (and did retain) Ragues Min as new counsel, to replace the predecessor attorneys, to represent her in the divorce action. Hence, it is insincere for Plaintiff to argue that the alleged "false certification served to mislead the Court to the effect that an informed decision was made by Plaintiffs [sic] in releasing the predecessor attorneys and retaining the Defendants herein. . . ." Complaint, ¶ 379.
Yet, Plaintiff alleges that the November 12, 2004 document was notarized outside of her presence, and that she sustained damages because the alleged notarial misconduct "contributed to plaintiffs' general damages." Plaintiffs' Brief, at 5. The allegation that the misconduct contributed to general damages is not only vague, but also conclusory, because it is unsupported by facts. Importantly, Plaintiffs fail to articulate a causal link between the alleged misconduct and any damages they might have suffered. On the other hand, in an affidavit, Ms. Min states that "I did in fact witness Ms. Koch execute the Consent to Change Attorney form. It may be possible that I dated the form after it was executed by Ms. Koch." Min Affidavit, ¶ 8. She also states that "[w]hether I properly dated the document or not is immaterial and cannot justify this specious claim, as Ms. Koch was not damaged in any way by the date on the document." Id.
Because Plaintiffs' allegation of general damages is propped by inherently incredible facts and bare legal conclusions, it is not entitled to a favorable inference, even in the context of a motion to dismiss. Assuming, arguendo, that the consent form was notarized outside of Plaintiff's presence or that her signature was forged, any violation of Executive Law § 135 is irrelevant, because the statute provides that any damages must be related to the alleged notarial misconduct. Rastelli v Gassman, 231 AD2d 507, 508 (2d Dept 1996) ("There is no cause of action for notarial misconduct absent injury and there can be no injury unless a plaintiff can demonstrate that he or she relied to his or her detriment upon the alleged misconduct of the notary"); Saleh Holdings Group, Inc. v Chernov, 30 Misc3d 1220(A), 2011 NY Slip Op 50142(U) (Sup Ct, NY County 2011) (plaintiff must show alleged loss was proximately caused by alleged fraudulent notarization).
Other than the alleged notarial misconduct (the tenth cause of action), the complaint does not identify or allege any other substantive action or inaction that Ms. Min had undertaken in connection with the divorce action. However, in a general and overarching manner, the complaint alleges various claims against both defendants (Ms. Min and Ragues Min, LLP). In contrast to the complaint, Ms. Min's affidavit specifically states:
Ms. Koch was represented by my partner Raymond Ragues, and my involvement with this matrimonial action was minimal. I never made any representations to Ms. Koch and I did not provide her with any substantive advice. In fact, in the complaint, there is no allegation that I made any representation or communicated directly with Ms. Koch. Occasionally, I would notarize a document if needed or assist Mr. Ragues when he was not available.
Min Affidavit, ¶ 3.
The foregoing statements are not controverted by Plaintiff. Also, there is no allegation that (1) Ms. Min had misrepresented, fraudulently or otherwise, to Plaintiff that Ms. Min would be able to handle Plaintiff's divorce action for $6,000 (Plaintiffs' Brief, at 9, where such allegation is directed against Mr. Ragues only), or (2) Ms. Min had engaged in a "chronic and extreme pattern of legal delinquency," a required showing for a violation of Judiciary Law § 487. Solow Mgmt. Corp. v Seltzer, 18 AD3d 399, 400 (1st Dept 2005) ("one arguable misrepresentation by defendant [attorney] does not allege cognizable claim under Judiciary Law § 487, which provides recourse only where there is a chronic and extreme pattern of legal delinquency").
Accordingly, any and all causes of action against Ms. Min, such as fraud, misrepresentation or violation of Judiciary Law § 487, that might be, at best, arguably inferred, extended or extrapolated from the alleged notarial misconduct, should be dismissed as against Ms. Min, individually.
This Action Against Ragues Min, LLP Should Be Dismissed
Plaintiff also alleges that, it was only during the discovery phase of the Related Action, when she noticed that "Ragues Min, Esqs.," the defendant named in the Related Action, is "a nonentity and that Attorneys Ragues and Min were partners to the registered limited liability partnership Ragues Min, LLP, defendant in the within action." Plaintiffs' Brief, at 5. Hence, Plaintiff argues that the instant action is commenced against "Ragues Min, LLP," because a judgment against "Ragues Min, Esqs.," a nonentity, "might be unenforceable without at a minimum the inclusion of Attorney Min as a party." Id., at 6-7.
The argument has no merit. There is documentary evidence which shows that the firm name of "Ragues Min, LLP" has been registered with the NYS Department of State since March 7, 2003. Nunberg Reply Affirmation, Exhibit C. Had Plaintiff's counsel performed due diligence in searching the appropriate database before commencing the Related Action in 2007, he would have discovered the correct information. The failure of Plaintiff's counsel in conducting due diligence cannot be blamed on others.
Plaintiff also acknowledges that New York Partnership Law permits abbreviations "in addition to the registered name," and that it would be possible to amend the pleadings in the Related Action "to incorporate the contents of this Complaint." Plaintiffs' Brief, at 3, n. 1, and at 7, n. 2.
However, not having properly named the partnership defendant herein is not entirely fatal to Plaintiff. In Lolly v Brookdale Hosp. Med. Ctr. ( 37 AD3d 428 [2nd Dept 2007]), the appellate court stated the following, in relevant part:
Despite having been incorrectly named as "The Brookdale University Hospital and Medical Center" in a prior action . . . involving the same alleged misconduct, and asserting essentially the same causes of action as those pleaded in the instant complaint, the defendant herein represents that it has, in fact, been defending the prior action, that it has never disclaimed responsibility for the individual employees and residents identified in the prior action, and that "a judgment ultimately entered against The Brookdale University Hospital and Medical Center will have the same effect as a judgment entered against The Brookdale Hospital Medical Center." Based on these representations, this action was properly dismissed pursuant to CPLR 3211(a)(4).
Id., at 428-429 (citations omitted). See also Velez v Union Sanitorium Assn., Inc., 64 NY2d 1119 (1985) (affirming dismissal of subsequent action where defendant in a prior action answered that complaint and stated that its name as sued in that action was the proper entity allegedly responsible for the injuries, and where plaintiff accepted the answer without objection).
Here, the record reflects that (1) Ragues Min, Esqs., the defendant named in the Related Action, had answered the complaint in that action and is defending that action; (2) Plaintiffs had accepted the answer in the Related Action; (3) there are common issues of law and fact involving both the Related Action and the instant action; (4) the complaint in the Related Action pleaded causes of action that are essentially the same as in this action; and (5) the defendant herein has requested that "this action be dismissed as there is prior action pending against Ragues Min and no valid excuse to sue the firm once more here on the same grounds." Nunberg Reply Affirmation, ¶ 18.
Based upon the foregoing, the instant action against Ragues Min, LLP should be dismissed because of the prior and pending Related Action. Moreover, any and all causes of action in the Related Action against Ragues Min, Esqs. (or Ragues Min, LLP) shall be subject to all applicable defenses of such defendant.
In such regard, this court need not address the other issues raised by the parties, including the applicability of the various affirmative defenses, such as the statute of limitations, documentary evidence, duplication of causes of action, and legal standing of the corporate plaintiffs and Michal Koch to commence suit for lack of privity.
Accordingly, it is
ORDERED that the all causes of action against defendant Esther Kyong Min, individually, are hereby dismissed, and the instant action against such defendant is hereby dismissed; and it is further
ORDERED that the instant action against defendant Ragues Min, LLP is hereby dismissed pursuant to CPLR 3211 (a) (4); and it is further
ORDERED that the Clerk is hereby directed to enter judgment in favor of the defendants, with costs and disbursements to the defendants as taxed by the Clerk upon the submission of an appropriate bill of costs.
This constitutes the Decision and Order of the court.