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Shernoff v. Soden

September 28, 2006

FRANK L. SHERNOFF, PLAINTIFF,
v.
BRUCE SODEN, GREENE, HERSHDORFER & SHARPE, AND SUTTON INVESTING CORP., DEFENDANTS.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

In this action for defamation, tortious interference with contract, and tortious interference with prospective business advantage, plaintiff, a lawyer proceeding pro se, moves for summary judgment (Dkt. No. 25) against defendant Greene, Hershdorfer and Sharpe, LLP ("GH&S"), a law firm, and defendant Bruce Soden, Esq., a lawyer and a partner in GH&S (collectively "defendants"). Defendants cross-move for summary judgment (Dkt. No. 35). Sutton Investing Corp. ("Sutton") never appeared or answered, and it appears that plaintiff has discontinued the action as against it. For the reasons set forth herein, the Court denies plaintiff's motion, grants defendants' motion, and dismisses the action.

AMENDED COMPLAINT

The background factual allegations in the amended complaint (Dkt. No. 3) are as follows. In August 2002, defendants agreed to represent Sutton in a lawsuit against the City of Syracuse for waste, nuisance, and trespass ("underlying litigation"). In connection with this representation agreement, defendants drafted a retainer agreement, which they sent to Sutton for signature.

According to the amended complaint, before signing the proposed retainer agreement,

Sutton retained the plaintiff herein, a lawyer, to manage all aspects of the underlying litigation, including defendants' legal work and billing practices. Upon reviewing the proposed retainer agreement, plaintiff modified it to include a provision that defendants would prosecute the underlying litigation at the direction of Sutton's counsel. Defendants signed the modified retainer agreement. Sutton then directed defendants, in writing, to prosecute the underlying litigation at plaintiff's direction.

The amended complaint avers that, during the course of the underlying litigation, defendants "resented [plaintiff] Shernoff's management and direction on matters of legal strategy, and they resented Shernoff's challenges to their bills and billing practices." Thus, plaintiff claims, defendants "determined to take 'counter action' against Shernoff, in order to have him removed, by Sutton, from his management and oversight of the Underlying Litigation." Plaintiff claims that defendants defamed him, tortiously interfered with his attorney-client relationship with Sutton, and tortiously induced Sutton to dismiss him from his position as litigation manager.

In the first cause of action, for tortious interference with contract, plaintiff claims that he "had a contractual, business, and/or attorney-client relationship with Sutton, including his appointment as Litigation Manager in the Underlying Litigation"; that defendants knew of that relationship; and that they "induced Sutton to terminate the said relationship."

The second cause of action is for "unlawful interference with prospective economic advantage." Plaintiff claims that, by virtue of his relationship with Sutton, he had a reasonable expectation of economic advantage; that defendants knew of that expectation; that they wrongfully interfered with that expectation; and that, in the absence of defendants' wrongful acts, plaintiff would have realized economic advantage or benefit from his relationship with Sutton.

The third, fourth and fifth causes of action allege that defendants defamed plaintiff to Sutton and others. Each of these causes of action asserts that the defamatory statements were not aimed at securing any benefit for Sutton in the underlying litigation; that the statements did not tend to and were not intended to prove Sutton's claims in the underlying action; that the statements were not directed toward the achievement of Sutton's litigation goals; and that they were not uttered as a client advocacy function. Each of these causes of action also avers that the statements complained of constituted defamatory statements of fact and libel per se; that they concerned plaintiff, were false, and were communicated to persons other than plaintiff; and that defendants knew they were false, communicated them with reckless disregard of their truth or falsity, and were negligent in failing to ascertain the falsity of the statements before communicating them.

In his third cause of action, plaintiff alleges that defendants made defamatory statements about him to Sutton as follows:

Among other things, the defendants told Sutton that:

a) Shernoff is a thorn in the foot of the case (i.e., the Underlying Litigation).

b) The Lawyers [i.e., defendants] would not knowingly choose to work for Shernoff or under his direction.

c) Shernoff's legal advice was very annoying and unhelpful.

d) Shernoff's legal work threatened Sutton's litigation objectives.

e) Shernoff's oversight of the Lawyers work and billing practices "necessitated counter action," i.e., his dismissal from the case.

f) The Lawyers suborned a perjured affidavit from Sutton in an effort to discredit Shernoff and procure his dismissal from the case.

g) In April 2005, the Lawyers attempted to suborn further perjured testimony from Sutton in a defamatory effort to absolve themselves from liability in this lawsuit. (Paragraph numbering omitted.)

The fourth cause of action claims that defendants made defamatory statements about plaintiff directed to one or more justices of the Supreme Court of the State of New York. In support of this cause of action, the amended complaint alleges:

Among other things, the defendants told one or more Supreme Court Justices that:

a) Shernoff's affidavit to the Court was comprised of "outright falsehoods."

b) Shernoff's affidavit to the Court was comprised of ...


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