Serota v. Cooper

• Decision Date: 02 March 2020
• Docket Number: 608544-19
• Citation: 67 Misc.3d 542,121 N.Y.S.3d 557
• Parties: Stuart SEROTA a/k/a Stuart Serota, Esq., Plaintiff, v. Patricia A. COOPER a/k/a Patricia A. Cooper, Esq., Defendant.
• Court: New York Supreme Court

67 Misc.3d 542
121 N.Y.S.3d 557

Stuart SEROTA a/k/a Stuart Serota, Esq., Plaintiff,
v.
Patricia A. COOPER a/k/a Patricia A. Cooper, Esq., Defendant.

608544-19

Supreme Court, Nassau County, New York.

Decided March 2, 2020

121 N.Y.S.3d 559

Counsel for the plaintiff: KAUFMAN & SEROTA, Address: 119 North Park Ave., Suite 308, Rockville Centre, NY 11570, Phone: 516-763-2211

Counsel for the defendant: RIVKIN RADLER LLP, Address: 926 Rxr Plz, Uniondale, NY 11556, Phone: 516-357-3101

Jeffrey S. Brown, J.

67 Misc.3d 543

Defendant moves by notice of motion for an order pursuant to CPLR § 3211(a)(1), (7) and (8) dismissing the summons and complaint in this action.

This action alleges abuse of process by the defendant Patricia A. Cooper, Esq. in connection with a contempt application brought in a prior proceeding. The following facts are taken from the parties' submissions, and are undisputed, except where otherwise noted.

Defendant is an attorney practicing in the State of Colorado. She represented the plaintiff's former daughter-in-law, Dr. Elizabeth Diana Crespi ("Dr. Crespi") in a contested matrimonial action against plaintiff's son, Dr. Marcjonathan Serota ("Dr. Serota"), which was commenced and prosecuted in Colorado (the "Colorado Action"). In connection with the Colorado Action, defendant sought information regarding possible marital assets held jointly or in trust for Dr. Serota by his parents (the plaintiff herein and his wife). According to

121 N.Y.S.3d 560

defendant, based upon Dr. Serota's non-disclosure of such information, defendant issued non-party subpoenas in July 2018 to plaintiff and plaintiff's wife for the production of documents regarding family trusts and other records relevant to the Colorado Action.

Plaintiff and his wife, both residents of Nassau County, New York, rejected and returned the subpoenas, citing several defects under New York and Colorado law. Thereafter, on November 20, 2018, an enforcement proceeding was commenced on behalf of Dr. Crespi against plaintiff and his wife in Nassau County, New York, seeking among other things, to hold plaintiff and his wife in contempt of court. The New York law firm of Schlissel Ostrow Karabatos PLLC ("New York Counsel") represented Dr. Crespi in the proceeding entitled In the Matter of the Application of Elizabeth Diana Crespi to Enforce a Subpoena to Produce v. Stuart Serota and Lila Serota , under Nassau County Index No. 615656/18 (the "Enforcement Proceeding"). By Short Form Order dated June 19, 2019, the Hon. Jack Libert, J.S.C. denied Dr. Crespi's application for an order of contempt, quashed the subpoenas

67 Misc.3d 544

and dismissed the petition on the basis that the subpoenas violated Colorado's rules of civil procedure.

The instant action was commenced by electronic filing of the summons and complaint on June 22, 2019.¹ The complaint alleges a single cause of action for abuse of process, based upon (i) the issuance and service of the first non-party Colorado attorney subpoenas dated July 3, 2018 (which were ultimately withdrawn); (ii) the issuance and service of the second non-party Colorado attorney subpoenas dated July 31, 2018; and (iii) the use of the foregoing non-party subpoenas to obtain an ex parte Order to Show Cause on December 4, 2018 seeking to compel compliance and/or to punish plaintiff for contempt. Plaintiff alleges that the attorney subpoenas were defective on several grounds, that defendant knew they were defective, and that defendant continued to prosecute the contempt proceeding even after being advised of the defective nature of the subpoenas. Plaintiff alleges further that such litigation conduct constituted knowing abuse of process from which malice can be inferred.

Defendant now seeks to dismiss the action on the grounds that: (1) the Court lacks personal jurisdiction over defendant in New York; and, in any event, (2) plaintiff has no viable cause of action for abuse of process as a matter of law. Plaintiff opposes both grounds, and upon the general assertion that further discovery is required to ascertain facts essential to the opposition. See CPLR § 3211(d).²

The Court begins with the threshold issue of personal jurisdiction. In support of her motion, defendant submits, among other

121 N.Y.S.3d 561

things, her Affidavit, sworn to on November 5, 2019 (the "Cooper Affidavit") (NYSCEF Doc. 41 ). In the Cooper Affidavit, defendant

67 Misc.3d 545

asserts that she has resided in Colorado, and has been admitted to practice law in Colorado, since 1999. She was previously admitted to practice law in New York, but resigned from the New York Bar on September 7, 2011. At all times relevant to this action, defendant was associated with the law firm of Lass Moses Ramp & Cooper, LLC, and has worked from the firm's office in Colorado. She does not maintain an office in the State of New York. Neither defendant nor her firm solicits business in New York.

Defendant avers that all of the services rendered on behalf of Dr. Crespi in the Colorado Action were performed in Colorado, including the preparation and execution of the non-party subpoenas. The subpoenas were served in New York by a New York process server. Defendant did not appear in New York in connection with the issuance of the subpoenas.

In addition, defendant avers that Dr. Crespi retained New York Counsel to commence the Enforcement Proceeding. Defendant did not represent Dr. Crespi in the Enforcement Proceeding, and never appeared in New York in connection with that proceeding. She merely submitted an affirmation in support of Dr. Crespi's application, as a non-party witness.

Based upon the foregoing, defendant maintains that there is no statutory basis for the exercise of personal jurisdiction over defendant in New York, and that defendant lacks the minimum contacts with New York necessary to render the exercise of jurisdiction consistent with due process.

In opposition, plaintiff argues that by issuing the subpoenas and causing them to be served upon plaintiff and his wife in New York, defendant purposely invoked, availed herself of, and submitted to, the jurisdiction of the Courts of the State of New York. Plaintiff also maintains that, contrary to defendant's assertions in the Cooper Affidavit, defendant was not merely a witness, but rather, represented Dr. Crespi in the Enforcement Proceeding, with New York Counsel acting either as her agent, or as her local co-counsel. In plaintiff's view, this constitutes another instance of defendant's invocation of, and submission to, the jurisdiction of the New York Courts.

Where the defense is timely asserted, a New York Court may not exercise personal jurisdiction over a non-domiciliary, unless two requirements are satisfied: (1) the action is permissible under the New York long-arm statute ( CPLR § 302[a] ), and (2) the exercise of jurisdiction comports with due process. Williams v. Beemiller, Inc. , 33 N.Y.3d 523, 106 N.Y.S.3d 237, 130 N.E.3d 833 (2019). On a motion to

67 Misc.3d 546

dismiss pursuant to CPLR § 3211(a)(8), the plaintiff, as the party asserting jurisdiction, bears the ultimate burden to show that both of these requirements are satisfied. Wang v. LSUC , 137 A.D.3d 520, 27 N.Y.S.3d 131 (1st Dept. 2016). To meet this burden, the plaintiff need only make a prima facie showing that the defendant is subject to the personal jurisdiction of the Court. Bloomgarden v. Lanza , 143 A.D.3d 850, 40 N.Y.S.3d 142 (2d Dept. 2016).

Three of the statutory predicates of long-arm jurisdiction are asserted by plaintiff herein;³ namely, that defendant's conduct, as alleged, amounts to: (1) the transaction of business within the state or

121 N.Y.S.3d 562

contracting to provide services within the state [ CPLR § 302(a)(1) ]; (2) the commission of a tortious act within the state [ CPLR § 302(a)(2) ]; or (3) the commission of a tortious act without the state causing injury to person or property within the state [ CPLR § 302(a)(3) ].

Here, accepting as true the allegations set forth in the complaint and in opposition to the motion, and according the plaintiff the benefit of every favorable inference, the Court finds that plaintiff has failed to make a prima facie showing that the defendant is subject to personal...