Makhnevich v. Bougopoulos
| Decision Date | 29 March 2022 |
| Docket Number | 18-CV-285 (KAM) (VMS) |
| Court | U.S. District Court — Eastern District of New York |
| Parties | STACY MAKHNEVICH, Plaintiff, v. GREGORY BOUGOPOULOS; NOVICK, EDELSTEIN, LUBELL, REISMAN, WASSERMAN & LEVENTHAL, P.C., Defendants. |
STACY MAKHNEVICH, Plaintiff,
v.
GREGORY BOUGOPOULOS; NOVICK, EDELSTEIN, LUBELL, REISMAN, WASSERMAN & LEVENTHAL, P.C., Defendants.
No. 18-CV-285 (KAM) (VMS)
United States District Court, E.D. New York
March 29, 2022
MEMORANDUM & ORDER
KIYO A. MATSUMOTO, United States District Judge.
Plaintiff Stacy Makhnevich, proceeding pro se, brings this action against Defendants Gregory Bougopoulos and Novick, Edelstein, Lubell, Reisman, Wasserman & Levanthal, P.C. (the “Novick Firm”)[1], asserting violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and section 349 of New York's General Business Law (“GBL”). Plaintiff claims that Defendants engaged in a host of unfair debt collection practices during the course of state court litigation to recover condominium charges and other fees assessed against Plaintiff.
Defendants now move for summary judgment on Plaintiff's claims pursuant to Federal Rule of Civil Procedure 56. Defendants
have complied with Local Civil Rules 56.1 and 56.2. For the reasons set forth below, Defendants' motion is GRANTED.
BACKGROUND
The court draws the following facts, which are not in genuine dispute, from the parties' 56.1 statements, declarations, and exhibits. The court begins with Defendants' debt collection letters before proceeding to overview what one state court judge described as the “tortured history” of the litigation between the parties. (ECF No. 175-35 at 3.)[2]
I. Pre-Litigation Communications
Plaintiff is the owner of a condominium located at 2900 Ocean Avenue in Brooklyn, New York. (ECF No. 175-41 (“Defs.' 56.1”) ¶ 1; ECF No. 176-22 (“Pl.'s 56.1”) ¶ 1.) In 2015, the condominium's Board of Managers (the “Board”) retained the Novick Firm to recover unpaid common charges and other fees from Plaintiff. (Defs.' 56.1 ¶ 2; Pl.'s 56.1 ¶ 2.) Defendant Gregory Bougopoulos is a member of the Novick Firm. (ECF No. 175-1 (“Bougopoulos Decl.”) ¶ 1.)
On April 3, 2015, the Novick Firm sent a letter to Plaintiff notifying her that it had been retained to collect $5, 410.85 in unpaid common charges. (ECF No. 175-22.) Among other
notifications and disclaimers, the April 3, 2015 letter advised Plaintiff that the Novick Firm had not reviewed the particular circumstances of Plaintiff's account. (Id. at 3.) The April 3, 2015 letter also informed Plaintiff that she had thirty days to dispute the debt in writing. (Id.) On May 11, 2015, the Novick Firm sent a copy of the April 3, 2015 letter to JPMorgan Chase Bank, N.A., which owned a mortgage on Plaintiff's condominium. (ECF No. 175-23.)
On June 5, 2015, the Novick Firm filed a notice of lien for unpaid common charges on behalf of the Board with the Kings County Clerk's Office. (ECF No. 175-24 at 4-6.) The Novick Firm subsequently recorded the lien with the New York City Department of Finance on June 19, 2015. (Id. at 2-3.)
On November 20, 2015, the Novick Firm sent a second letter to Plaintiff informing her that the unpaid debts owed to the Board had grown to $7, 283.16. (ECF No. 175-26 at 3.) Like the first letter, the November 20, 2015 letter notified Plaintiff that the Novick Firm had not reviewed the circumstances of her particular case and that she had thirty days to dispute the debt in writing. (Id.)
II. The Board's Civil Court Action
On November 25, 2015, the Novick Firm filed a complaint on behalf of the Board against Ms. Makhnevich in the New York City Civil Court for Kings County. (ECF No. 175-27.) The complaint
sought $7, 283.16 in unpaid common charges, assessments, and late fees, as well as attorney's fees in excess of $2, 500.00. (Id. at 4.) On December 11, 2015, the summons and complaint were served on Ms. Makhnevich by Devin Harrington, a licensed process server. (Id. at 2.) Mr. Harrington effectuated service in accordance with N.Y. C.P.L.R. § 308(2) by delivering the summons and complaint to a person of suitable age and discretion at Ms. Makhnevich's Brooklyn condominium. (Id.) Mr. Harrington also mailed a copy of the summons and complaint to Ms. Makhnevich's Brooklyn address on December 14, 2015. (Id.)
On March 11, 2016, the Civil Court granted the Board's motion for a default judgment on liability due to Ms. Makhnevich's failure to appear, answer, or otherwise defend in the Civil Court action. (ECF No. 175-29.) On March 24, 2016, the Board served Plaintiff with a notice of an inquest on damages as directed by the Civil Court. (ECF No. 175-30.)
On May 3, 2016, Defendant Bougopoulos received a voicemail from an attorney named Joe Schuessler, who stated that he represented two defendants in lawsuits commenced by the Novick Firm. (ECF No. 175-31 at 4.) In an email the following day, Mr. Schuessler confirmed that Ms. Makhnevich was one of his clients. (Id.) Based on Mr. Schuessler's representation, Mr. Bougopoulos sent the account ledger listing Ms. Makhnevich's debts to Mr. Schuessler for the purpose of settlement negotiations. (Id. at
3.) During a subsequent telephone conversation, in which Mr. Schuessler again stated that he was Ms. Makhnevich's attorney, Mr. Bougopoulos advised Mr. Schuessler that Ms. Makhnevich had defaulted in the Civil Court action. (Bougopoulos Decl. ¶¶ 34-35.) Although Mr. Bougopoulos and Mr. Schuessler also discussed settling the case, the amount that Mr. Schuessler advised that Ms. Makhnevich was willing to pay was far below what the Board was willing to settle for. (Id. ¶ 34.)
The Civil Court scheduled an inquest on damages to commence on April 19, 2017. (ECF No. 175-28 at 3.) On that date, Ms. Makhnevich's daughter - Allison Goldman - appeared in court and obtained an adjournment on behalf of Ms. Makhnevich. (Id. at 2; Bougopoulos Decl. ¶ 36.) On June 21, 2017, the Civil Court denied Ms. Makhnevich's motion to dismiss for lack of standing, because the motion was submitted through a power of attorney for Ms. Makhnevich but the documentation for the power of attorney was not submitted with the motion. (See ECF No. 175-35 at 3-4.) On August 16, 2017, Ms. Makhnevich granted her daughter Allison a durable power of attorney under New Jersey law. (ECF No. 175-33.)
On September 26, 2017, Allison Goldman appeared in Civil Court on Ms. Makhnevich's behalf with Diana Goldman, another one of Ms. Makhnevich's daughters. (Bougopoulos Decl. ¶ 37.) On that date, the Civil Court granted Ms. Makhnevich's motion to vacate the default judgment on the consent of the Board. (ECF No. 181 at
4-5.)[3] The Civil Court accepted Allison Goldman's power of attorney for Ms. Makhnevich, permitted Ms. Makhnevich to file an answer, and ordered that “[a]ny jurisdictional defenses are hereby waived.” (Id.) Rather than answering the Civil Court complaint, however, Ms. Makhnevich filed two motions to stay or dismiss the Civil Court action based on the filing of the instant federal action on January 16, 2018. (See ECF No. 175-35 at 4.) Ms. Makhnevich's motions were denied on January 17, 2018 and January 30, 2018, respectively. (Id.) On February 9, 2018, Ms. Makhnevich filed a motion to dismiss the Civil Court action based again on the filing of the instant federal action. (Id.; see also ECF No. 175-34 at 3.)
On February 13, 2018, Mr. Bougopoulos sent a letter on behalf of the Board to Ms. Makhnevich, in the care of her daughters Allison and Diana Goldman. (ECF No. 175-34.) The February 13, 2018 letter informed Ms. Makhnevich that the Novick Firm had not received an amended answer from her by the Civil Court's January 31, 2018 deadline. (Id. at 3.) As a courtesy, the Novick Firm extended the time to serve an answer until February 25, 2018. (Id.) The letter also advised Ms. Makhnevich that her motions to
stay or dismiss the Civil Court action had been denied, and that the Novick Firm considered her February 9, 2018 motion to dismiss to be a “frivolous . . . dilatory tactic.” (Id.) The letter stated that if Ms. Makhnevich did not agree to withdraw her motion to dismiss and abstain from filing any further motions based on the instant federal action, the Novick Firm would move the court to impose sanctions and/or award legal fees. (Id.)
On March 19, 2018, Mr. Bougopoulos sent another letter to Ms. Makhnevich, in the care of her two daughters. (Id. at 13-14.) The letter advised Ms. Makhnevich that the Novick Firm had not been served with her answer, but that it obtained a copy from the court's file around March 16, 2018. (Id. at 13.) The letter also informed Ms. Makhnevich that the Novick Firm was treating the answer “as a nullity” because it was not verified in accordance with C.P.L.R. § 3020(a). (Id. at 14.)
On April 18, 2018, the Civil Court issued an order denying Ms. Makhnevich's motion to dismiss, declining to strike Ms. Makhnevich's answer, and granting the Board's motion for summary judgment as to liability. (ECF No. 175-35 at 3.) With respect to liability, the Civil Court concluded that Ms. Makhnevich failed to demonstrate a genuine issue for trial because her opposition consisted of an unsworn declaration that was not affirmed under penalty of perjury. (Id. at 5-6.) The Civil Court also observed that it was unclear whether the declaration was made
by Ms. Makhnevich or her daughter Allison. (Id. at 6.) Having concluded that there was no genuine issue as to liability, the Civil Court scheduled a trial on damages. (Id.)
The damages trial occurred between December 4 and December 6, 2018. (ECF No. 175-28 at 2; ECF No. 175-37 at 2.) After deliberations, a jury found that the Board was entitled to $12, 322.80 in common charges and $3, 941.82 in other assessments from Ms. Makhnevich, for a total of $16, 264.62. (ECF No. 175-36 at 3.) Because Ms. Makhnevich's condominium agreement entitled prevailing parties to recover attorney's fees, the Civil Court also held a hearing regarding attorney's fees. (ECF No. 175-37 at 2-4.) The Civil Court ultimately awarded the Novick Firm $21, 047.73 in attorney's fees....
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