Opinion
Appeal No. 15425 Index No. 150092/21Case No. 2021-02821
03-03-2022
Elaine Platt, Plaintiff-Appellant, v. Morrell Berkowitz, Esq., et al., Defendant-Respondent. Appeal No. 15425 No. 2021-02821
Elaine Platt, New York, appellant pro se. Gallet Dreyer & Berkey, LLP, New York (David S. Salhanick of counsel), for Morrell Berkowitz, respondent. Anderson Kill P.C., New York (Grant E. Brown of counsel), for Deborah Koplowitz and Deborah Koplovitz, respondents.
Elaine Platt, New York, appellant pro se.
Gallet Dreyer & Berkey, LLP, New York (David S. Salhanick of counsel), for Morrell Berkowitz, respondent.
Anderson Kill P.C., New York (Grant E. Brown of counsel), for Deborah Koplowitz and Deborah Koplovitz, respondents.
Before: Manzanet-Daniels, J.P., Mazzarelli, Singh, Scarpulla, Higgitt, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered July 23, 2021, which, to the extent appealed from as limited by the briefs, granted defendants' motions to dismiss the complaint and for sanctions to the extent of awarding costs and attorneys' fees, and referred the matter to a judicial hearing officer or special referee to hear and report, unanimously affirmed, with costs.
The doctrine of collateral estoppel precludes plaintiff's Judiciary Law § 487 claim against defendant Morrell Berkowitz, Esq. (see Buechel v Bain, 97 N.Y.2d 295, 303 [2001], c ert denied 535 U.S. 1096 [2002]). Plaintiff's claim is premised on alleged misrepresentations or mischaracterizations of evidence Berkowitz made to the courts while representing the Board of Directors of Windsor Owners Corp. in an action brought against plaintiff for her conduct while she was a member of the Board. Plaintiff had a full and fair opportunity to raise her Judiciary Law § 487 claim in her motion for sanctions in that prior action, which was denied (Board of Directors of Windsor Owners Corp. v Platt, Sup Ct, NY County, March 28, 2018, Schecter, J., index No. 155985/14; see Doscher v Mannatt, Phelps & Phillips, LLP, 148 A.D.3d 523, 523-24 [1st Dept 2017]).
In any event, plaintiff failed to state a cause of action under Judiciary Law § 487 against Berkowitz. Specifically, she failed to allege any actual deceit, and the misconduct that she alleges is not "egregious or a chronic and extreme pattern of behavior" (Doscher, 148 A.D.3d at 524 [internal quotation marks omitted]).
The claim against defendant Deborah Koplovitz, Esq., for a violation of Judiciary Law § 487(1) was properly dismissed, because the complaint does not allege that Koplovitz was counsel of record in any pending proceeding to which plaintiff was a party (Mazzocchi v Gilbert, 185 A.D.3d 438, 438 [1st Dept 2020], lv denied 37 N.Y.3d 908 [2021]; Sun Graphics Corp. v Levy, Davis & Maher, LLP, 94 A.D.3d 669 [1st Dept 2012]).
In the absence of any actionable tort, the court properly dismissed the civil conspiracy claim against both defendants (Abacus Fed. Sav. Bank v Lim, 75 A.D.3d 472, 474 [1st Dept 2010]).
The court's imposition of sanctions pursuant to 22 NYCRR 130-1.1 did not constitute a "clear abuse of discretion" (Pickens v Castro, 55 A.D.3d 443, 444 [1st Dept 2008]; Levy v Carol Mgt. Corp., 260 A.D.2d 27, 34 [1st Dept 1999]).