Opinion
No. 98 Civ. 9051 (RWS)
April 23, 2002
ROBERT SAVITSKY, Plaintiff Pro Se, Frackville, PA.,
CASTRO KARTEN, New York, NY., for Defendant.
OPINION
This is a motion for summary judgment pursuant to Fed.R.Civ.P. 56 filed against pro see plaintiff Robert Savitsky ("Savitsky") by defendants Louis Mazzella Sr. ("Mazzella"); Anne Mazzella; Louis Mazzella Jr.; Claude Castro ("Castro"); Castro Karten ("C K"); Timothy Dowd ("Dowd"); Louise Mazzella Irrevocable QTIP Trust (the "QTIP Trust"); CLM Properties, Inc. ("CLM"); Darby Corporation ("Darby"); and AL Properties ("AL").
For the reasons stated below, that motion is granted.
THE PARTIES
Savitsky resides at 734 West Pine Street, Frackville, Pennsylvania.
Defendants Mazzella, Anne Mazzella, Louis Mazzella Jr., and the QTIP Trust reside at 4 East 64th Street, New York, New York. Defendant Dowd is the building manager at that address.
Defendants Castro and Castro Karten have a place of business at 444 Madison Avenue, New York, New York.
Defendant CLM Properties is a New York corporation that was dissolved by the state in 1997.
Defendant Darby Corporation is a New York corporation.
Defendant AL Properties is a partnership between Anne Mazzella and Mazzella located in New York, New York.
FACTS
The following facts are taken from the defendants' Rule 56.1 statement and from other submissions from Savitsky.
Savitsky did not file a Rule 56.1 statement. In his Opposition to Defendant's Motion for Summary Judgment, Savitsky referred the Court, generally, to facts contained in five documents (the original complaint, the amended complaint, "all admissions of record," plaintiff's memorandum of law, and plaintiff's pretrial memorandum and exhibits). Presumably, Savitsky sought to demonstrate that a genuine issue of material fact prevented summary judgment. However, it is insufficient merely to point the Court in the general direction of documents that may raise such an issue. Rodriguez v. Schneider, 1999 WL 459813, at *1 (S.D.N.Y. June 29, 1999). Because Savitsky is a pro se plaintiff, however, his prior submissions were used in compiling this list of facts.
On June 27, 1991, a money judgment was entered against Mazzella in favor of Savitsky in the Federal District Court for the Eastern District of Pennsylvania. That judgment was for $90,000. The judgment was not entered against and does not affect any other defendant in this action other than Mazzella. The judgment was transcribed and docketed to the Southern District of New York on July 16, 1992. Savitsky has attempted to collect on the judgment ever since.
Mazzella's California Properties
Mazzella issued a quit claim deed to his wife Anne Mazzella on three properties in California. The deeds were issued on November 8, 1989; October 31, 1991; and July 23, 1992. Under California law, where a married woman, such as Anne Mazzella, purchases real estate for her own account, the married woman's husband is required to sign a "quit claim" deed to confirm the fact that the husband has no interest in the property. The deeds were filed in accordance with California law.
On July 21, 1996, CLM Properties was assigned ownership of a Riverside County, California property.
Mazzella's Deposition
On June 15, 1992, a post-judgment deposition of Mazzella was taken. Mazzella stated under oath that there were no real estate transactions or income available and that the transfers of real estate were made prior to the deposition.
Savitsky claims that Castro suborned perjury of Mazzella at his deposition.
The Blitz Property
On February 16, 1988, Mazzella and Anne Mazzella entered into a mortgage with a Connecticut resident, Richard Blitz ("Blitz"), for Blitz's purchase of 249 Waverly Place. The mortgage was duly recorded with the Registrar of New York County.
On November 25, 1991, due to Blitz's default, Mazzella notified the tenants of 249 Waverly Place that he was exercising his right as mortgagor to collect rent. He collected rents directly or through the Kinsay Corporation, the managing agent of 249 Waverly.
On November 9, 1992, Blitz filed for bankruptcy protection. All creditors, including the holders of the mortgage, the Mazzellas, were stayed from taking any action to enforce their rights.
In August 1994, Mazzella and Anne Mazzella foreclosed on the mortgage for 249 Waverly in the New York County Supreme Court, in Mazzella and Mazzella v. Blitz, No. 94-121380. Savitsky moved to intervene in the foreclosure action but his motion was denied.
On October 3, 1994, Mazzella and Anne Mazzella posted notices to tenants at 249 Waverly that their new managing agent was CLM Properties.
The defendants posted the same notices at four other New York properties, located at 68 Perry Street, 72 University Place, 88 West Third Street, and 4 East 64th Street.
Upon learning of this in April 1995, Savitsky brought an injunctive proceeding to prevent the transfer of the Blitz property. He claims that "once Mazzella Jr., the QTIP Trust and CLM knew of the Injunction, a rush took place to dispose of the proceeds." Savitsky claims Louis Mazzella Jr. replaced his father as the named plaintiff in the case to confuse Savitsky.
As part of the proceeding, Savitsky sought to serve process on Mazzella. In an attempt to serve Mazzella, who is a Florida resident, Savitsky sent a process server to the office of Louis Mazzella Jr., Mazzella's son. The process server was advised by Mazzella's son that Mazzella was not on the premises and that no one in his office was authorized to accept service of papers for Mazzella. Also present at the time was defendant Dowd.
Savitsky claims that Louis Mazzella Jr. and Dowd told him that "it was their intent to see that [Savitsky] would not be able to serve Mazzella." He claims that Louis Mazzella Jr. cursed at him, made racist remarks about Savitsky's wife, and threatened him not to try to serve process on Mazzella. Savitsky claims that Dowd threatened to beat up the process server if he tried to serve Mazzella again and ripped up in the subpoena in his face.
Mazzella failed to appear for a deposition scheduled for April 25, 1997. Dowd refused to respond to an information subpoena sent to him and called Savitsky to state that he was a long-time friend and employee of the family and that he had ripped up the subpoena. Savitsky claims that Louis Mazzella Jr. also told Savitsky again that he would never serve process on his father.
On September 3, 1997, Mazzella and Anne Mazzella assigned their interest in the proceeds of the foreclosure to the QTIP Trust. Castro arranged this transfer.
By order dated April 27, 1998, the Supreme Court, New York County, authorized the plaintiff in the foreclosure action to substitute the QTIP Trust in place and stead of the Mazzellas based on the assignment of the mortgage.
On January 20, 1999, referee Richard Montelione sold the property at 249 Waverly pursuant to a judgment the Mazzellas received in the amount of $433,792.14. The first distribution of the proceeds of the sale of the property was made.
Savitsky brought an order to show cause to this Court to stay further distribution of the sales proceeds of the foreclosure.
At the hearing, Doreen J. Fischman, of Fischman Fischman, represented the defendants. The defendants argued that Louis Mazzella Jr. was the proper party, not Mazzella.
Savitsky had also named Fischman as a defendant in this case, but agreed to stipulate to the dismissal of claims against her.
Savitsky states that Castro "proffer lied] a tax return of CLM as `evidence' that CLM was a legal entity" at this hearing.
Florida Assets
In December 1997, Mazzella and Anne Mazzella owned 248 West Seaview Drive, Duck Key, Florida. Barnett Bank of the Keys was mortgagor. The Mazzellas had the property for sale for the asking price of $600,000. Savitsky spoke to a real estate agent who said that the Mazzellas and the QTIP Trust owned other properties in the area.
Castro Karten's Knowledge
CK's liability is premised on its "knowledge of the Mazzella affairs . . . [e]ven if they allege they did not benefit from the unlawful conveyances." In addition, Savitsky points to the business and social relationships between Mazzella, Castro, and CK. He described the relationship as "Mezzella's hav[ing] become a cash cow for Castro and his firm."
The Instant Lawsuit
The complaint was originally filed in the Central District of California but was transferred to this district. Savitsky filed this amended complaint on September 1, 1999. Defendants moved to dismiss this action on January 29, 2002. The case was argued and considered fully submitted on February 13, 2002.
DISCUSSION I. Jurisdiction
This Court has jurisdiction under 28 U.S.C. § 1332.
II. Summary Judgment Standards
Rule 56(e) of the Federal Rules of Civil Procedure provides that a court shall grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits . . . show that there is no genuine issue as to material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002).
III. Conspiracy
Savitsky's complaint, submitted by his counsel at the time, alleges conspiracy to intentionally fraudulently transfer under New York Debtor and Creditor Law § 276 and conspiracy to defraud.
It is well-settled under New York law that there is no substantive tort of conspiracy. Antonios A. Alevizopoulos and Assoc. v. Comcast Int'l Holdings, Inc., 100 F. Supp.2d 178, 187 (S.D.N.Y. 2000) (citing Goldstein v. Siegel, 19 A.D.2d 489, 244 N.Y.S.2d 378, 382 (1st Dep't 1962)). Nevertheless a plaintiff may plead the existence of a conspiracy in order to connect someone to an otherwise actionable tort committed by another and establish that those actions were part of a common scheme. Briarpatch Ltd. v. Pate, 81 F. Supp.2d 509, 516 (S.D.N.Y. 2000); see also Litras v. Litras, 254 A.D.2d 395, 681 N.Y.S.2d 545, 546 (2d Dep't 1998). In order to state a claim for conspiracy, a plaintiff must allege an independent actionable tort and four additional elements: (1) a corrupt agreement between two or more parties; (2) an overt act in furtherance of that agreement; (3) a party's intentional participation in the furtherance of a plan or purpose; and (4) resulting damage or injury. Kashi v. Gratsos, 790 F.2d 1050, 1055 (2d Cir. 1985); Best Cellars Inc. v. Grape Finds at Dupont Inc., 90 F. Supp.2d 431, 446 (S.D.N.Y. 2000).
The parties agree that the law of the forum applies and thus this Court need not inquire as to choice of law.
Savitsky claims that the defendants, without the knowledge of the plaintiff, intentionally conspired to frustrate all of the plaintiff's attempts to collect his duly awarded judgment. Defendants claim that Savitsky has failed to allege the commission of at least one substantive tort, the existence of a corrupt agreement, and intent. A. Commission of Substantive Tort
Although filed as a summary judgment motion as the motion was filed after discovery has begun, the motion challenges the sufficiency of the complaint under Rule 12(b)(6).
Savitsky alleges that the defendants conspired to engage in an intentional fraudulent transfer and in fraud.
1. Intentional Fraudulent Transfer
Defendants claim that Savitsky is not pursuing a cause of action under DCL § 276 because this action seeks only damages and is not an action or special proceeding to set aside a conveyance made with intent to defraud. It is true that the complaint, filed with the aid of counsel, seeks only money damages and does not seek to set aside any allegedly fraudulent conveyances. Although typically a pro se plaintiff is entitled to less rigorous scrutiny, Savitsky was represented by a lawyer at the time of filing the complaint and cannot complain that it does not seek the proper relief.
2. Fraud
Under New York law, the essential elements of a fraud claim are: (1) the defendant made a material false representation, (2) the defendant intended to defraud the plaintiff thereby, (3) the plaintiff reasonably relied upon the representation, and (4) the plaintiff suffered damage as a result of such reliance. Manning v. Utilities Mut. Ins. Co., 254 F.3d 387, 400 (2d Cir. 2001).
As a general rule, a failure to disclose will not support a claim of fraud in the absence of a confidential or fiduciary relationship. Nat'l Union Life Ins. Co. of Pittsburgh, PA v. Red Apple Group, 710 N.Y.S.2d 48, 49 (2000); Shomar Constr. Servs. v. Lawman Constr. Co., 693 N.Y.S.2d 784, 786 (1999).
Plaintiff does not allege any confidential or fiduciary relationship owed to him by any of the defendants.
In addition, Savitsky's allegations do not rise to the level of specificity required by Federal Rule of Civil Procedure 9(b). A defendant must be given sufficient notice of the time, place, and content of the alleged fraud in order to be able to prepare a defense properly. Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1127-28 (2d Cir. 1994). Moreover, plaintiffs must allege facts that give rise to a "strong inference of fraudulent intent." Mills v. Polar Molecular Corp., 12 F.3d 1170, 1176 (2d Cir. 1993). Savitsky's complaint fails on both grounds. It is unclear from the complaint and from his opposition motion exactly what each defendant is supposed to have done and what each defendant's underlying fraudulent intent is alleged to be.
Therefore, his substantive tort of fraud also fails.
In the absence of a substantive tort on which to base his conspiracy claim, the motion must be dismissed.
IV. Obtaining The $90,000 Judgment
To the extent Savitsky seeks to obtain the original $90,000 judgment, he should return to the Eastern District of Pennsylvania, the jurisdiction that awarded him the judgment in the first place.
CONCLUSION
The defendants' motion is granted and the complaint is dismissed.
It is so ordered.