Rakofsky v. Wash. Post

• Decision Date: 29 April 2013
• Docket Number: No. 105573/11.,105573/11.
• Citation: 39 Misc.3d 1226,2013 N.Y. Slip Op. 50739,971 N.Y.S.2d 74
• Parties: Joseph RAKOFSKY, and Rakofsky Law Firm, P.C., Plaintiffs, v. The WASHINGTON POST, et al., Defendants.
• Court: New York Supreme Court

39 Misc.3d 1226

971 N.Y.S.2d 74

2013 N.Y. Slip Op. 50739

Joseph RAKOFSKY, and Rakofsky Law Firm, P.C., Plaintiffs,

v.The WASHINGTON POST, et al., Defendants.

No. 105573/11.

Supreme Court, New York County, New York.

April 29, 2013.

Goldsmith & Associates, PLLC, by Matthew H. Goldsmith, Esq., New York, for Plaintiffs Joseph Rakofsky and Rakofsky Law Firm, P.C.

Williams & Connelly LLP, by Kevin T. Baine, Esq. and Chetan Patil, Esq., Washington, D.C. and by Flemming Zulack Williamson Zauderer LLP, by Jonathan D. Lupkin, Esq. and Anne B. Nicholson, Esq ., New York, for Defendants Washington Post, Keith L. Alexander, and Jennifer Jenkins.

Proskauer Rose LLP, by Jennifer L. Jones, Esq., New York, for Defendants American Bar Association, ABAJournal.com, Debra Cassens Weiss, and Sarah Randag.

Eric Turkewitz Law Firm, by Eric Turkewitz, Esq., Pro Se and by Mark Randazza, Esq., Pro Hac Vice, New York, for Defendants Eric Turkewitz, The Turkewitz Law Firm, Scott Greenfield, Simple Justice NY, LLC, Blog.SimpleJustice.com, Kravet & Vogel, LLP, Carolyn Elefant, MyShingle.com, Mark Bennett, Bennett and Bennett, Eric L. Mayer, Eric L. Mayer, Attorney at Law, Nathaniel Burney, The Burney Law Firm, LLC, Josh King, Avvo, Inc., Jeff Gamso, George M. Wallace, Wallace, Brown & Schwartz, Tarrant84, Bad Ventures Banni, Brian L. Tannenbaum, Tannenbaum Weiss Colin Samuels, Accela, Inc., Crime and Federalism, Antonin I. Pribetic, Steinberg Morton, E1ie Myste1, AboveTheLaw.com, Breaking Media LLC, David C. Wells, David C. Wells, P.C., and John Doe # 1.

Lester Schwab Katz & Dwyer, by Thomas A. Catalano, Esq., New York, for Defendants Michael T. Doudna and Law Offices of Michael C. Doudna.

David Brickman, P.C., Albany, for Defendants Koehler Law, Jamison Koehler, Seddiq Law, Mirriam Seddiq, The Beasley Firm, P.C., and Maxwell S. Kennerly.

Davis Wright & Tremaine LLP, by James Rosenfeld, Esq., New York, NY, for Defendants Jeanne O'Halloran and Law Office of Jeanne O'Halloran.

Davis Wright & Tremaine LLP, by Robert Balin, Esq., New York, for Defendants Creative Loafing Media, Washington City Paper, and Rend Smith.

John H. Teschner, Esq., New York, for Defendants Mace J. Yampolsky and Mace J. Yampolsky & Associates.

Herzfeld & Rubin, P.C., by Mark Weissman, Esq., New York, for Defendants Thomson Reuters and Dan Slater.

Edward F. Westfield, P.C., New York, for Defendant Gamso, Helmick & Hoolahan.

Levine Sullivan Kogh & Schultz, LLP, New York, for Defendants Allbritton and tbd.com.

SHLOMO S. HAGLER, J.

In this round of voluminous motion practice comprising fifteen (15) separate motions and literally thousands of pages served and filed with the court,¹ fifty-nine (59) defendants move ² for an order pursuant to CPLR § 3211(a)(7) and (8), dismissing the amended complaint on the grounds that the amended complaint fails to state a cause of action and/or the court lacks personal jurisdiction over the out-of-state defendants under CPLR § 302, New York's long-arm statute. Many defendants ³ also move ⁴ for an order pursuant to CPLR § 8303–a and/or 22 NYCRR § 130–1.1 imposing sanctions on plaintiffs and plaintiffs' attorney for commencing this allegedly “frivolous” action and awarding defendants reasonable attorney's fees and costs. Plaintiffs Joseph Rakofsky and Rakofsky Law Firm, P.C., (“plaintiffs” or “Rakofsky”) cross-move ⁵ for an order as follows:

(1) pursuant to CPLR § 1001(a), adding WP Company LLC, as a necessary party;

(2) pursuant to CPLR § 3025(b), granting plaintiffs leave to serve and file a Second Amended Verified Complaint;

(3) pursuant to CPLR §§ 3217 and 2101(c), permitting plaintiffs to discontinue this action against eight defendants ⁶ who have settled with them, and to delete their names from the caption;

(4) pursuant to CPLR § 3215, granting plaintiffs a default judgment against seven defendants ⁷ on the issue of liability and setting this matter down for an inquest on the assessment of damages; and

(5) pursuant to 22 NYCRR § 130–1.1, awarding sanctions against Marc J. Randazza, Esq., “for frivolous conduct undertaken to harass and/or maliciously injure the plaintiff.”

The parties oppose the respective motions and cross-motions. The motions and cross-motions are consolidated herein for disposition.

Procedural History

Plaintiffs commenced this action in Supreme Court, New York County, on or about May 11, 2011 by filing of a summons and complaint. Approximately six (6) days later on May 17, 2011, plaintiffs filed an amended complaint as of right against 81 defendants consisting of 218 paragraphs and 82 pages (“Amended Complaint”). The Amended Complaint alleged four causes of action including one very long defamation claim against all defendants (First Cause of Action), a claim for intentional infliction of emotional distress (Second Cause of Action), intentional interference with a contract (Third Cause of Action) and violation of Civil Rights Law § 50 and 51 for improper use of plaintiff's name and picture for purposes of trade (Fourth Cause of Action) stemming from two articles published in the Washington Post on April 1 and 9, 2011 (“Washington Post Articles”), and the subsequent re-publication of the Post Articles by other defendants and substantial comments on internet “blogs” that discussed the content of said articles which questioned plaintiffs' competence and ethics to be discussed later in more detail. Instead of interposing answers, 59 defendants made the instant pre-answer motions to dismiss the Amended Complaint.

Factual Background

Rakofsky's Legal Education & Bar Admission

Rakofsky graduated and received his law degree from the Touro Law Center in 2009. Since April 29, 2010, Rakofsky has been licensed to practice law in the State of New Jersey. He is not admitted to practice law in New York State. Rakofsky is engaged in the practice of law under the name of Rakofsky Law Firm, P.C.

Rakofsky's Retention in U.S.A. v. Dontrell Deaner

In or about May 3, 2010, Henrietta Watson initially retained plaintiffs to defend her grandson, Dontrell Deaner (“Deaner”), who was charged, among other crimes, with First Degree Murder in Washington D.C. Thereafter, Rakofsky met with Deaner who retained plaintiffs to represent him in the upcoming trial in the Superior Court of the District of Columbia. Since Rakofsky was not licensed to practice law in the District of Columbia, he sought and obtained admission pro hac vice. Rakofsky brought in local counsel, Sherlock Grigsby, Esq. (“Grigsby”), who had substantial experience in criminal defense work, to assist him in Deaner's defense. However, Rakofsky alleges that he was primary and responsible attorney that developed and executed the legal strategy in the case.

Bean's Retention and Termination as Defense Investigator

Rakofsky and/or Grigsby also retained Adrian K. Bean (“Bean”), a certified investigator under the Criminal Justice Act Defender Service of the Superior Court (“CJA”) as the defense investigator in the Deaner case. As part of his investigative duties, on October 6, 2010, Rakofsky e-mailed Bean, in pertinent part, the following request:

1) Please trick ⁸ Leigh ⁹ (old lady) into admitting:

a) she told the 2 lawyers that she did not see the shooting and

b) she told 2 lawyers she did not provide the Government any information about [the] shooting.

( See Motion Sequence Number 008, Exhibit “E” to the Affidavit of Keith L. Alexander, sworn to on July 15, 2011.)

Later, Rakofsky and/or Grigsby terminated Bean's services and replaced him with another investigator. By letter dated March 5, 2011, Bean sent Grigsby an invoice for investigative services he rendered in the Deaner case. ( See Exhibit “E” to Motion Sequence Number 009.) Rakofsky alleges that Bean did not perform any investigative services and he refused to approve Bean's voucher for payment from the CJA. As a result, Bean made a motion to the Superior Court of the District of Columbia requesting compensation for about 22 hours of investigative services and payment through a CJA voucher. Bean concluded that he was terminated and uncompensated for his work “based on his refusal to follow an e-mail request from Mr. Rakofsky ... instructing him to try to trick' a witness into changing her testimony.” ( Id.) On page four of the attached “Investigative Report,” Bean stated in bold lettering several reasons for his refusal to perform Rakofsky's e-mail request as follows:

(1) I do not know what the term, trick', means in this context;

(2) I am in the investigative business, not the trickery business;

(3) I will not risk exposing myself to obstruction of justice or conspiracy charges; and

(4) the implications of such a request appear to [be] inherently unethical.

( Id.)

The Trial

A day before jury selection, on March 28, 2011, the prosecution moved to suppress a Toxicology Report that Rakofsky intended to use which he alleged evidenced that the victim was “high on PCP at the time of his death.” ( See Amended Complaint at ¶ 100.) The presiding judge, William M. Jackson (“Judge Jackson”) granted the prosecution's motion and prohibited Rakofsky from mentioning and introducing any evidence that the victim was under the influence of PCP at the time of his death. ( Id.)

Thereafter, on March 30, 2011, the trial began. In his hour-long opening statement, Rakofsky repeatedly sought to mention the Toxicology Report rationalizing that only references to PCP were prohibited and not the actual report. ( Id. at ¶ 102.) Judge Jackson admonished Rakofsky for violating his prior ruling. ( Id.) At the end of his opening statement, Rakofsky told the jury that he never tried a case before so that Deaner should not be prejudiced for his errors.

Due to this revelation, after the conclusion of opening statements, Judge Jackson conducted a side-bar discussion with Deaner to ascertain whether he was satisfied and comfortable with Rakofsky continuing as his attorney even though it was his first trial. ( Id. at ¶ 102.) Deaner responded affirmatively. The trial...