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Sanchez v. Blustein, Shapiro, Rich & Barone Llp

United States District Court, S.D. New York

December 23, 2014


Gerardo Sanchez Astoria, New York, Plaintiff Pro Se.

Gardiner S. Barone, Esq., Blustein, Shapiro, Rich & Barone, LLP, Goshen, New York, Counsel for Defendants.


CATHY SEIBEL, District Judge.

Before the Court is Defendants' Motion to Dismiss. (Doc. 13.) For the reasons set forth below, Defendants' Motion is GRANTED.


This case revolves around the conduct of a state court action begun in April 2010, Washington Park Condo. v. Foundry Dev. Co., et al., No. 4484/2010 (N.Y. Sup.Ct., Orange Cnty.) (" Washington Park "), in which Plaintiff was a defendant. Defendants are the second law firm that represented the Washington Park plaintiff, as well as a partner and two employees of that law firm. Plaintiff asserts several state and federal claims against Defendants arising from: 1) a lien filed by the Washington Park plaintiff's original counsel against property owned by a limited liability company ("LLC") of which Plaintiff is a member; and 2) Defendants' submission of a process server's affidavit of service (which was sworn to and originally filed in May 2010) in conjunction with its opposition (in May 2013) to Plaintiff's motion to dismiss the state court case for insufficient service of process.

This is not the only federal action that Plaintiff has filed related to the process server's allegedly false affidavit and other attorney conduct in Washington Park. On August 9, 2010, Plaintiff filed a case in the Eastern District of New York, (No. 10-CV-3641 (E.D.N.Y.) (" Sanchez I ")), asserting claims against the Washington Park plaintiff's original counsel and "any party that was in any way involved with service of process in the state court action, whether by filing the suit, hiring the process server, filling out an affidavit of service, or notarizing and filing that affidavit." ( Id., Doc. 69 (" Sanchez I MTD Order"), at 4.)[1] The claims in Sanchez I are virtually identical to those Plaintiff asserts in this case, except that the claims here relate to the submission (by the Washington Park plaintiff's second counsel) of the affidavit of service in opposing a motion to dismiss, while the claims in Sanchez I relate to the submission (by the Washington Park plaintiff's original counsel) of the same affidavit at the beginning of the case. Following motions to dismiss and for summary judgment, all of the claims in Sanchez I were dismissed against all defendants who appeared, ( see id., Docs. 69, 122, 148), [2] and the case was closed on September 30, 2014, ( see id., Doc. 148).

The facts below are drawn from both the Amended Complaint ("AC"), (Doc. 12), and filings in Washington Park and Sanchez I. For purposes of the instant Motion, I accept as true the facts, but not the conclusions, as set forth in the Amended Complaint, and because Plaintiff is pro se, I will "interpret the factual allegations of [his] complaint to raise the strongest arguments that they suggest." Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (internal quotation marks omitted). I take judicial notice of the statements made in the other court proceedings, "not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991). I set forth only those facts relevant to this decision.

A. Washington Park

Judge Amon accurately summarized the Washington Park complaint as follows:

[T]he Board of Managers of the Foundry at Washington Park Condominium ("the Board"), located in Newburgh, NY... commenced an action in the Supreme Court in Orange County, NY on April 27, 2010, alleging against Nirva and Gerardo Sanchez, among others, claims sounding in breach of fiduciary duty, breach of contract, fraudulent conveyance, unjust enrichment, and quantum meruit. According to the state court complaint, the Sanchezes (along with other individuals and entities under their collective control) owned title to a majority of the units in the condominium, which in turn gave them control of the Board. They allegedly used this control (1) to avoid paying common charges for the units to which they owned title, in contravention of the condominium's bylaws, (2) to amend the bylaws to excuse payment of common charges, (3) to approve certain borrowing, and (4) to convey title to certain units to another entity under their control for no consideration. The Board sought damages arising directly from these allegations.

( Sanchez I MTD Order 3 (citations omitted).) Plaintiff and his wife were not alleged to reside in the condominium complex at issue in Washington Park. Rather, the Washington Park complaint avers that Plaintiff resides in Astoria, New York and is a principal in corporate entities that invested in the condominium complex. ( See Barone Decl. Ex. 1 (" Washington Park Complaint"), at ¶ 10.)[3]

On June 25, 2010 - about two months after the Washington Park Complaint was filed - Plaintiff and his wife, appearing pro se, filed motions to dismiss it for improper service, arguing that they had not been served, and only "learned of the existence of the Complaint when two of the other defendants (Foundry Development Co., Inc., and Polonia Ventures, LLC), where [ sic ] served by mail by the Secretary of State, at a different address." ( Sanchez I, Doc. 55, Ex. G.) These motions, along with others Plaintiff filed, led to protracted litigation and a series of decisions. Relevant here, on November 25, 2011, the trial court permitted the Board to amend the complaint and serve Plaintiff by overnight mail, ( see Barone Decl. Ex. 2), and the Board appears to have complied with that order, ( see id. Ex. 3). Also on November 25, 2011, the trial court denied Mrs. Sanchez's motion to dismiss for insufficient service, ( see id. Ex. 7), but did not issue an order addressing Plaintiff's motion to dismiss for insufficient service. On March 25, 2012, Plaintiff and Mrs. Sanchez appealed several rulings, including the order "denying dismissal for lack of jurisdiction due to sewer service granting improper leave to serve complaint (amended)." ( Id. Ex. 5.) On November 20, 2013, the Appellate Division denied that portion of the appeal, noting that Mrs. Sanchez's "conclusory and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the prima facie proof of proper service set forth in the process server's affidavit of service." ( Id. Ex. 8.)

Despite the November 2011 order permitting the Board to file an amended complaint and serve it by overnight mail, the trial court scheduled a traverse hearing for May 10, 2013 to determine whether Plaintiff was properly served with the original complaint. (AC ¶ 48; id. Ex. 4.)[4] The process server did not, however, show up for this hearing, ( id. ¶ 49), and the transcript reveals that much of the hearing was rather ironically dedicated to determining whether Defendants used due diligence to serve the process server with a subpoena for the traverse hearing, ( see Barone Decl. Ex. 23, at 4-21). At the May 10, 2013 hearing, the court permitted the Board to move to re-serve Plaintiff with the amended complaint. ( See id. at 26.) On August 23, 2013, the court granted the Board's motion, thus obviating the need for a traverse hearing. ( See id. Ex. 14.)[5] Plaintiff then filed a petition for ...

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