Southern Blvd. Sound, Inc. v. Felix Storch, Inc.

• Decision Date: 31 May 1995
• Parties: SOUTHERN BOULEVARD SOUND, INC. and Southern Boulevard Electronics, Inc., Plaintiffs, v. FELIX STORCH, INC., Harry Block and Lewis Reicher, Defendants.
• Court: New York City Court

Page 635

629 N.Y.S.2d 635

165 Misc.2d 341

SOUTHERN BOULEVARD SOUND, INC. and Southern Boulevard

Electronics, Inc., Plaintiffs, v. FELIX STORCH, INC., Harry Block and Lewis Reicher, Defendants.

Civil Court of the City of New York,

New York County, Special Term,

Part I.

May 31, 1995.

[165 Misc.2d 342] Joseph I. Mezrahi, New York City, for plaintiffs.

Robert D. Block, Harry Block, New York City, for defendant Felix Storch, Inc.

AMENDED OPINION

RICHARD F. BRAUN, Judge.

This is an action for conspiracy to deprive Plaintiffs of their constitutional rights by the alleged fraudulent conduct of Defendants in obtaining default judgments against Plaintiffs in actions brought by Defendants against Plaintiffs in New York and New Jersey. Defendant Felix Storch, Inc. ("Defendant") moves to dismiss this action for failure to state a cause of action, for sanctions against Plaintiffs and their attorney, and for a formal complaint. Plaintiffs cross-move to disqualify the attorney for Defendant and for leave to file an amended complaint.

The Complaint in this action is an endorsed one, pursuant to CCA section 902(a)(1). The requirements of the CPLR for a formal pleading are not applicable to an endorsed pleading in Civil Court (CCA section 903). Thus, contrary to Defendant's argument, the Endorsed Complaint need not comply with CPLR § 3016(b) to the extent that Plaintiffs' cause of action is for fraud. The Endorsed Complaint, together with Plaintiffs' motion papers, demonstrate an arguable cause of action for fraud (see, Guardian Life Ins. Co. of Am. v. Handel, 190 A.D.2d 57, 60, 596 N.Y.S.2d 804 [1st Dept.1993]. Thus, this action should not be dismissed for failure to state a cause of action.

The branch of Defendant's motion for sanctions is meritless and is itself frivolous. Defendant's counsel was reminded at oral argument that a frivolous sanctions motion is itself sanctionable, pursuant to 22 NYCRR section 130-1.1(c) (see, Chinn v. Plastino, NYLJ, Oct. 23, 1991, at 23, col 3 [Civ.Ct., NY County]. At oral argument, this Court informed Defendant's attorney that, if this branch of Defendant's motion was frivolous, sanctions could be imposed. Defendant's attorney was given the opportunity to withdraw this part of the motion but declined to do so.

Too often attorneys make boilerplate motions for sanctions or make such motions as an intimidation device in litigation. Defendant and its counsel have done so here. There is no basis in law or fact for this part of Defendant's motion requesting sanctions. Plaintiffs minimally discussed this branch of Defendant's motion in their opposition thereto. Thus, $50.00 is an appropriate award of costs to each Plaintiff, pursuant to 22 NYCRR section 130-1.2. Furthermore, pursuant to 22 NYCRR section 130-1.3, $50.00 sanctions by Defendant should be deposited with the clerk of this court, and $50.00 sanctions by Defendant's attorney should be paid to the Lawyers Fund for Client Protection.

Plaintiffs should file a formal complaint in this action, pursuant to Defendant's motion and at this Court's initiative, pursuant to CCA section 902(e). It would be useful to the Court if the fraud cause of action were more detailed (see, Carcione v. Rizzo, 154 Misc.2d 13, 14, 593 N.Y.S.2d 152 [App.Term. 2nd & 11th Jud.Dists.1992].

Defendant raises res judicata in its Affirmation in Opposition to Cross-Motion. In violation of CPLR 2214(b), Defendant did not raise that as a ground for dismissal, pursuant to CPLR 3211(a)(5). In any event, res judicata, or more precisely collateral estoppel, does not apply under the circumstances here (see, City Bank Farmers Trust Co. v. Macfadden, 13 A.D.2d 395, 399, 216 N.Y.S.2d 215 [1st Dept.1961].

A motion for disqualification of counsel should be carefully considered by a court because disqualification deprives a party of its choice of counsel (S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443, 515 N.Y.S.2d 735, 508 N.E.2d 647 [1987]. The movant has the burden of proving that disqualification is appropriate (Lefkowitz v. Mr. Man, Ltd., 111 A.D.2d 119, 121, 489 N.Y.S.2d 498 [1st Dept.1985], and that the attorney witness would give necessary testimony and should be called at trial (Willig v. 46 West 47th Assocs., NYLJ, Mar. 14, 1989, at 21, col. 2 [App.Term, 1st Dept.] [dissenting opn., McCooe, J.]. This branch of Plaintiffs' motion was insufficiently particularized (Jolicoeur v. American Tr. Ins. Co., 159 A.D.2d 236, 552 N.Y.S.2d 215 [1st Dept.1990].

Finally, Plaintiffs move to amend the Complaint to add a cause of action pursuant to Judiciary Law section 487. The accusation by Plaintiffs against Defendants in the Complaint is that Defendants...