Murray Cohen, Helen Cohen & Murray J. Cohen P.A. v. Robert Potenza, Leonard Kreinces, Howard Scott Rosenberg & Kreinces & Rosenberg P.C.
| Decision Date | 03 November 2016 |
| Docket Number | 15-CV-3825 (SJF)(AYS) |
| Parties | MURRAY COHEN, HELEN COHEN and MURRAY J. COHEN P.A., Plaintiffs, v. ROBERT POTENZA, LEONARD KREINCES, HOWARD SCOTT ROSENBERG and KREINCES & ROSENBERG P.C., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
On or about June 30, 2015, plaintiffs Murray Cohen, Helen Cohen and Murray J. Cohen P.A. ("MJCPA") (collectively, "plaintiffs") commenced this action against defendants Robert Potenza ("Potenza"), Leonard Kreinces ("Kreinces"), Howard Scott Rosenberg ("Rosenberg") and Kreinces & Rosenberg P.C. ("the Firm") (collectively, "defendants"), alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et seq., and Sections 349 and 349-c of the New York General Business Law ("NYGBL"). Pending before the Court are: (1) defendants' motion, inter alia, (a) for summary judgment dismissing plaintiffs' claims in their entirety pursuant to Rule 56 of the Federal Rules of Civil Procedure1, and (b) for an awardof attorney's fees and costs pursuant to 15 U.S.C. § 1692k(A)(3); and (2) plaintiffs' cross motion (a) for partial summary judgment on their FDCPA claims against Kreinces, Rosenberg and the Firm (collectively, "the K&R defendants") pursuant to Rule 56 of the Federal Rules of Civil Procedure, (b) for attorney's fees and costs, and (c) for leave to amend the complaint pursuant to Rule 15(b) of the Federal Rules of Civil Procedure to assert additional state law claims against Potenza and/or to "transfer venue of the proceedings to the Florida State Courts[.]" (Plaintiffs' Notice of Cross Motion for Partial Summary Judgment at 2). For the reasons set forth below, defendants' motion is granted in part and denied in part and plaintiffs' cross motion is denied.
Murray and Helen Cohen are husband and wife and are residents of the State of Florida. . At the time this action was commenced, Murray Cohen was eighty-eight (88) years old and Helen Cohen was seventy (70) years old. . MJCPA is a Florida corporation. .
Potenza is a resident of the State of New York. (Plf. 56.1 Stat., ¶ 5; Def. 56.1 Stat., ¶ 5). Kreinces and Rosenberg are attorneys licensed to practice in the State of New York, who conduct business in the State of New York. (Plf. 56.1 Stat., ¶¶ 6-7; Def. 56.1 Stat., ¶¶ 6-7). The Firm is aprofessional corporation organized and existing under the laws of the State of New York. (Plf. 56.1 Stat., ¶ 8; Def. 56.1 Stat., ¶ 8).
On or about October 1, 1985, Mr. Cohen borrowed ten thousand dollars ($10,000.00) from Potenza and signed a promissory note indicating that he would repay the loan by December 1, 1985 ("the 1985 Loan"). (Affidavit of Murray Cohen in Opposition ["Cohen Aff."], ¶ 11 and Ex. 1; Affidavit of Leonard Kreinces, Esq., dated December 10, 2015 ["Kreinces Aff."], Ex. 1 at 3-4). Although Potenza contends that Mr. Cohen never paid the amount due him under the 1985 Loan, (Affidavit of Robert Potenza dated September 30, 2015 ["Potenza Aff."] Potenza Aff., ¶ 10; Kreinces Aff., Ex. 1 at 4), Mr. Cohen avers that he "recall[s] making repayments from [his] personal funds and that this loan was paid in full." (Cohen Aff., ¶ 11). However, in support of his assertion, Mr. Cohen submits only two (2) personal checks ("the 1992 Checks"): the first check, dated March 22, 1992, is made payable to "Cash Management," with the letters "ML" written above that name, in the amount of one thousand eight hundred fifty dollars ($1,850.00), and is endorsed on the back "For Deposit Only To MLPF&S, Inc.;" and the second check, dated June 10, 1992, is made payable to "Cash" in the amount of two thousand seven hundred dollars ($2,700.00), and contains no endorsements on the back.3 (Cohen Aff., Ex. 2). Not only are neither of those checks payable to Potenza, they amount to only four thousand five hundred andfifty dollars ($4,550.00).
Mr. Cohen also borrowed money from Potenza on four (4) occasions in 1992 and signed promissory notes indicating that he would repay the loans by certain dates ("the 1992 Loans"). (Kreinces Aff., Ex. 1 at 5-7, 11). Potenza contends that Mr. Cohen and MCA never paid him the amounts due under the 1992 Loans despite his demand therefor. (Potenza Aff., ¶ 10; Kreinces Aff., Ex. 1 at 6-7). Mr. Cohen does not dispute, or otherwise address, Potenza's assertions regarding the 1992 Loans.
According to Potenza, at the time he made the 1985 and 1992 loans, "Mr. Cohen and MCA had been [his] accountants for approximately twenty years[,]" (Potenza Aff., ¶ 5); the transactions were "business loans to Mr. Cohen and his prior accounting firm, Murray Cohen Associates ('MCA'). . . ," (id., ¶ 4); and the loans "were made for business purposes in connection with certain enterprises in which Mr. Cohen had been engaged during the five to seven years prior to their issuance, including but not limited to restaurants in Florida in which Mr. Cohen had an interest, and Mr. Cohen's accounting firm, MCA, both of which, according to Mr. Cohen, were suffering a negative cash flow and needed an influx of capital." (Id., ¶ 6). As noted above, Mr. Cohen does not address the 1992 Loans at all, but contends with respect to the 1985 Loan that he "used all the[] monies [Potenza 'personally lent' him] for [his] personal purposes, including furnishings for [his] home in Florida, and the like." (Cohen Aff., ¶ 10).
In or about 1994, Potenza commenced an action in the Supreme Court of the State of New York, County of Queens ("the New York state court") against Mr. Cohen and MCA, Potenza v. Cohen, Index No. 9699/1994, to recover the amounts due and owing to him under the 1985 Loan and 1992 Loans. On April 17, 1995, upon Mr. Cohen's default in that action,judgment was entered in favor of Potenza and against Mr. Cohen in the principal amount of seventy thousand two hundred thirteen dollars and ninety-three cents ($70,213.93) ("the Judgment")4. (Plf. 56.1 Stat., ¶ 10; Def. 56.1 Stat., ¶ 10). Mr. Cohen never sought to vacate the Judgment in the New York state court. (See Cohen Aff., ¶ 15).
On or about June 12, 2009, the New York state court rejected and returned the papers filed by Giamo Associates, LLP, formerly known as Giamo & Vreeburg LLP, on behalf of Potenza, seeking a renewal judgment pursuant to Section 5014(1) of the New York Civil Practice Law and Rules ("N.Y.C.P.L.R."). 5. Since the date of entry of the Judgment, "no renewal judgment has . . . been obtained within the twenty year statutorily prescribed period, to wit April 16, 2015." (Plf. 56.1 Stat., ¶ 20; Def. 56.1 Stat., ¶ 20).
The Firm represented Potenza in post-judgment collection proceedings against Mr. Cohen in New York, (Plf. 56.1 Stat., ¶ 12; Def. 56.1 Stat., ¶ 12); and in a malpractice action against Potenza's former attorneys, Giamo & Vreeburg LLP, in the Supreme Court of the State of New York, Nassau County, Index No. 00946/2014. (Plf. 56.1 Stat., ¶ 13; Def. 56.1 Stat., ¶ 13). On or about March 11, 2015, i.e., prior to the expiration of the twenty (20)-year period to seek enforcement of a money judgment provided by Section 211(b) of the New York Civil PracticeLaw and Rules6, (see Plf. 56.1 Stat., ¶ 20), the Firm, on behalf of Potenza, served a subpoena duces tecum upon PNC Bank seeking the production of PNC's "file including but not limited to the financial statement of Helen and Murray J. Cohen in connection" with a certain mortgage loan. . The return date of the original subpoena was April 10, 2015, (id.), also prior to the expiration of the applicable twenty (20)-year period. However, the caption of the original subpoena served by the Firm upon PNC on or about March 11, 2015 erroneously named Joseph O. Giaimo and Giaimo Associates, LLP as defendants. .
On or about April 8, 2015, Ms. Cohen's attorney, Craig J. Gilwit, Esq., sent Kreinces a letter providing, in relevant part:
. On that same date, Ms. Cohen's counsel also filed an order to show cause seeking, inter alia, to quash and vacate the original subpoena. (Id.)
Thereafter, on April 9, 2015, i.e., prior to the expiration of the applicable twenty (20)-year period, (see Plf. 56.1 Stat., ¶ 20), the Firm served an amended subpoena duces tecum upon PNCBank correcting the caption to name Murray Cohen and MCA as defendants. (DE 26, Attach. 18; see also Plf. 56.1 Stat., ¶ 21; Def. 56.1 Stat., ¶ 21). The subpoena and amended subpoena did not restrain any of plaintiffs' accounts or freeze any of their funds. .
In addition, prior to the expiration of the applicable twenty (20)-year period, Potenza, by his Florida attorney, Marc S. Mucci, Esq., of the law firm Benson, Mucci & Weiss, P.L.,"domesticated the . . . Judgment in [t]he Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida, under Case #: 2015 CA 002894 under the Florida Enforcement of Foreign Judgments Act, Florida Statutes §§ 55.501-55.509 (FEFJA)." (Plf. 56.1 Stat., ¶¶ 31-32; Def. 56.1 Stat., ¶¶ 31-32). The domesticated judgment was secured by an affidavit prepared by Mr. Mucci and executed by Potenza, erroneously referencing the index...
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