The opinion of the court was delivered by: Daniel R. Palmieri, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The present case arises from a bitterly contested matrimonial action in which the plaintiff Kristin Dupree ("Kristin") has sued her former attorney for legal malpractice, and her former husband's attorneys for abuse of process and certain alleged misrepresentations that she claims give rise to a cause of action under Judiciary Law § 487. The pleading recites that the key event was the ex parte presentation of an order to show cause to the matrimonial court that she contends was based on these misrepresentations. The complaint alleges that certain relief was granted to her husband Keith Dupree ("Keith") on that day, which allowed him to cheat her out of her interest in the marital residence, requiring her to expend tens of thousands of dollars on additional legal fees to rectify matters.
Upon motion of defendants Karyn A. Villar and Dorothy A. Courten, the husband's former attorneys, and by way of order dated May 1, 2008, this Court dismissed the action as against them pursuant to CPLR 3211. On this motion for reargument and renewal, and for vacatur of the order, the Court is called on to reconsider this prior determination in which, among other things, it evaluated the Judiciary Law cause of action under existing Appellate Division case law. This reconsideration is granted in the form of renewal. It is based, primarily, on Amalfitano v Rosenberg, 12 NY3d 8 (2009), a decision of the Court of Appeals rendered in February of this year, well after the initial motion was decided.*fn1 It is also granted in view of an affidavit submitted by plaintiff's own former lawyer, defendant Oliver Raymond Voorhees III, in support of his own later motion for summary judgment. Although the Court stresses that no findings of fact are made here with regard to the lawyer whose alleged conduct is the subject of the Judiciary Law claim, the revival of this cause of action under the Amalfitano decision emphasizes the need for all attorneys to be completely forthright in their dealings with the court, and with one another.
Because it is material to the present application, the salient facts as alleged by the plaintiff and set forth in the May 1, 2008 order will be restated here. Kristin alleges that at the time the divorce action was commenced in October of 2002 the marital premises in Southampton, New York were titled to her and Keith by the entireties, and was encumbered by a mortgage in the amount of $113,881.77. In February of 2003 the matrimonial court (Bivona, J.) ordered Keith to cure defaults under the mortgage. He did not, and in April of 2003 a foreclosure action was begun against the marital property. On October 3, 2003 an order appointing a referee to compute the sums due under the mortgage was filed. At this stage of the foreclosure proceedings no referee's report of the computation had been filed or confirmed, and no judgment of foreclosure and sale had been issued.
On October 17, 2003 the parties entered into a stipulation under which Keith would buy out Kristin's interest in the residence for $70,000 in cash and a $25,000 mortgage as soon as he could refinance the property. He obtained a mortgage commitment from a bank for $145,462.70, which was not enough to pay Kristin what had been agreed after payoff of the existing mortgage and closing fees and expenses.
According to Kristin, Keith and his attorney Villar then "devised a brazen scheme to embezzle the property" by making an emergency application to the Supreme Court on November 21, 2003 in which Keith sought to be appointed temporary receiver of the property. Villar certified certain representations made to the Court. These were that this relief was necessary to prevent a pending foreclosure sale and to refinance the property in order to effectuate the October 17, 2003 settlement, and that Kristin could not be paid contemporaneously because the proceeds would be in escrow for three days, as is customary for a refinance.
Kristin's complaint alleges that these representations were false because a sale was not imminent (that is, there was no emergency), there was not enough money to effectuate the October 17 settlement, and that this was not a refinance at all but rather a new mortgage with no escrow period. She further alleges that Villar knew they were false, but the Court relied on these representations and appointed Keith as a temporary receiver. Keith then used his power to convey the premises to himself alone, paid off the existing mortgage and encumbered the premises with the new mortgage, and gave nothing to Kristin, thereby "embezzling her interest." Because she no longer had an interest in the premises, she lost the value of an increase in the value of the property, alleged to be approximately $550,000. She alleges that her portion of the equity would have been $210,000. She also alleges that as a direct consequence of Keith's exercise of power under the receivership she incurred $75,000 in legal fees.
Based upon these allegations and a transcript of proceedings before Justice Bivona, this Court concluded that the two claims asserted against Villar and Courten could not be sustained. The first sounded in abuse of process. The second alleged a violation of Judiciary Law § 487, which provides for treble damages against an attorney who engages in "deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party." Judiciary Law § 487(1).
That branch of the motion that seeks reargument is denied. Initially, the Court finds that a motion for reargument is timely, as an appeal had been taken from the order that is the subject of the motion within 30 days of service of a copy of the order with notice of entry, and remains unperfected. Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d 636 (2d Dept. 2005).
However, the Court does not find that it misapprehended the facts or the law on the prior motion. CPLR 2221(d); see, e.g., Matter of New York Central Mut. Ins. Co. v Davalos, 39 AD3d 654 (2d Dept. 2007); Foley v Roche, 68 AD2d 558 (1st Dept. 1979). The Court must reject the movant's assertion that it improperly relied upon its own analysis, which plaintiff states was based upon "complex and obscure legal principles raised sua sponte by the Court." Nor did it "impermissibly" (or otherwise) convert the application to one for summary judgment pursuant to CPLR 3211(c).
As a procedural matter, and as noted above, the movants asked in their notice of motion for an order of dismissal. Their attorney's affirmation in support cited CPLR 3211(a) (4),(5),(7) and (10). The Court did not convert the motion to one for summary judgment under CPLR 3211(c). Rather, the decision expressly was made pursuant to CPLR 3211(a)(1) [documentary evidence] and (a)(7) [failure to state a cause of action]. The document relied upon was submitted by the movants (the transcript of settlement proceedings before Justice Bivona, dated February 7, 2007), was not in dispute, and both parties had an opportunity to address it. Indeed, and as stated in the decision, plaintiff's current counsel was one of the participants during the proceeding before Justice Bivona. Under these circumstances, the Court did not have to ignore it simply because the specific section of CPLR 3211(a) had not been cited in the defendants' notice of motion. See, Schenectady Intl. Inc. v Employers Ins. Of Wasau, Inc., 245 AD2d 754 (3d Dept. 1997); Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211: 37, at 58.
Moreover, as both parties had submitted evidentiary material in support of and in opposition to the allegations made in the complaint, the Court was called upon to determine whether the plaintiff had a claim against the attorneys, not merely whether she had stated one, as part of its review of the pleading pursuant to CPLR 3211(a)(7). Guggenheimer v Ginzbrug, 43 NY2d 268 (1977); Morris v Morris, 306 AD2d 449 (2d Dept. 2003); Feeley v Midas Props., 154 AD2d 505 (2d Dept. 1989).
However, renewal is granted with respect to the claim against Villar made pursuant to Judiciary Law § 487.As stated above, the Court finds that the affidavit of defendant Voorhees, which had been submitted on his later motion for summary judgment, and the decision of the Court of Appeals, which also ...