Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Doscher v. Mannatt, Phelps & Phillips, LLP

Supreme Court of New York, First Department

March 16, 2017

Drew Doscher, Plaintiff-Appellant,
v.
Mannatt, Phelps & Phillips, LLP, et al., Defendants-Respondents.

          Merolla & Gold, LLP, Garden City (Angelo Todd Merolla of counsel), for appellant.

          Frankfurt Kurnit Klein & Selz, P.C., New York (Ronald C. Minkoff of counsel), for respondents.

          Tom, J.P., Acosta, Richter, Manzanet-Daniels, Kahn, JJ.

         Order, Supreme Court, New York County (Charles E. Ramos, J.), entered November 20, 2015, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

         The doctrine of collateral estoppel precludes plaintiff from asserting his Judiciary Law § 487 claim (see Bernard v Proskauer Rose, LLP, 87 A.D.3d 412, 415 [1st Dept 2011]). The claim is premised on alleged discovery abuses during a prior arbitration between plaintiff and his employers, who were represented by defendants. Plaintiff had a full and fair opportunity to litigate the issues he raises in this action in two motions for sanctions before the arbitration panel, both of which were denied (see Pentalpha Enters., Ltd. v Cooper & Dunham LLP, 91 A.D.3d 451 [1st Dept 2012]; Gillen v McCarron, 126 A.D.3d 670 [2d Dept 2015]; God's Battalion of Prayer Pentecostal Church, Inc. v Hollander, 24 Misc.3d 1250');">24 Misc.3d 1250 [A], 2009 Slip Op 51939[U], *7-9 [Sup Ct, Nassau County 2009], affd 82 A.D.3d 1156');">82 A.D.3d 1156 [2d Dept 2011], lv denied 17 N.Y.3d 714');">17 N.Y.3d 714 [2011]). Contrary to plaintiff's contention, the arbitration award constitutes a valid final judgment for collateral estoppel purposes, notwithstanding the pendency of plaintiff's petition to vacate (Acevedo v Holton, 239 A.D.2d 194');">239 A.D.2d 194 [1st Dept 1997]; Franklin Dev. Co., Inc. v Atlantic Mut. Ins. Co., 60 A.D.3d 897');">60 A.D.3d 897 [2d Dept 2009]).

         Plaintiff also failed to state a cause of action under Judiciary Law § 478, because the statute does not apply to attorney misconduct during an arbitral proceeding. The plain text of § 478 limits the statute's application to conduct deceiving "the court or any party" (emphasis added), and, because the statute has a criminal component, it must be interpreted narrowly (see People v Thompson, 26 N.Y.3d 678, 687-688 [2016]; Amalfitano v Rosenberg, 12 N.Y.3d 8, 14 [2009]). Moreover, courts have held that the statute does not apply to conduct outside New York's territorial borders or to administrative proceedings, observing that its purpose is to regulate the manner in which litigation is conducted before the courts of this State (see Schertenleib v Traum, 589 F.2d 1156, 1166 [2d Cir 1978] [proceedings outside New York]; Alliance Network, LLC v Sidley Austin LLP, 43 Misc.3d 848, 864-865 [Sup Ct, NY County 2014] [same]; Southern Blvd. Sound v Felix Storch, Inc., 165 Misc.2d 341, 344 [Civ Ct, NY County 1995], mod on other grounds 167 Misc.2d 731');">167 Misc.2d 731 [App Term 1996] [same]; Kallista, S.A. v White & Williams LLP, 51 Misc.3d 401, 419 [Sup Ct, Westchester County 2016] [administrative proceedings]).

         In any event, plaintiff failed to allege the elements of a cause of action under the statute, i.e., intentional deceit and damages proximately caused by the deceit (see Judiciary Law § 487; Facebook, Inc. v DLA Piper LLP [US], 134 A.D.3d 610, 615 [1st Dept 2015], lv denied28 N.Y.3d 903');">28 N.Y.3d 903 [2016]). The misconduct that plaintiff alleges is not "egregious" or "a chronic and extreme pattern of behavior" (Facebook, 134 A.D.3d at 615 [internal quotation marks omitted]), and the allegations regarding scienter lack the requisite particularity (id.; see also CPLR 3016[b]). Moreover, plaintiff was given the opportunity ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.