Thomas v. Dinkes & Schwitzer, P.C.

• Decision Date: 23 September 2010
• Docket Number: No. 14881/09.,14881/09.
• Parties: Dermont THOMAS, Plaintiff, v. DINKES & SCHWITZER, P.C., et al., Defendants.
• Court: New York Supreme Court

29 Misc.3d 1202
958 N.Y.S.2d 311
2010 N.Y. Slip Op. 51666

Dermont THOMAS, Plaintiff,
v.
DINKES & SCHWITZER, P.C., et al., Defendants.

No. 14881/09.

Supreme Court, Kings County, New York.

Sept. 23, 2010.

Dermont Thomas, Brooklyn, pro se.

William Gentile, Esq., Godosky & Gentile, P.C., New York, for Defendant Dinkes & Schwitzer, P.C.

FRANCOIS A. RIVERA, J.

Upon the foregoing papers, in this action by plaintiff Dermont Thomas (plaintiff), defendant Dinkes & Schwitzer, P.C. (defendant), by notice of motion filed on May 4, 2010, moves for an order dismissing plaintiff's complaint, pursuant to CPLR 3211(a)(7), on the ground that plaintiff's complaint fails to state a cause of action. Plaintiff opposes defendant's motion.

BACKGROUND

On June 16, 2009, plaintiff, proceeding pro se, filed a summons and complaint under index number 14881/09 with the Kings County Clerk's office. On February 22, 2010, plaintiff filed an amended complaint. On April 15, 2010, plaintiff filed a rewritten amended complaint, which is dated March 9, 2010. Plaintiff's amended complaint consists of seven pages and eleven paragraphs. Above every paragraph are headings which name various causes of action. The headings above the first, second, sixth, and seventh paragraphs state that the sentences below them are for causes of action in legal malpractice, and the headings above the third, fourth, fifth, eighth, ninth, tenth, and eleventh paragraphs state that the sentences below them are for causes of action for breach of fiduciary duties, vicarious liability, fraud, intentional infliction of emotional distress, breach of contract, unjust enrichment, and conspiracy, respectively. The sentences in these paragraphs are not consecutively numbered. The complaint, although it contains numerous words, phrases, and sentences, is completely devoid of any coherent allegations of fact.

MOTION PAPERS

Defendant's motion papers consist of a notice of motion, an attorney's affirmation, and 11 exhibits. The exhibits consist of the following: the amended complaint; the affidavit of former co-defendant Herb Pereira, Esq.; an arbitration agreement executed by plaintiff on April 1, 2008 in the action of Thomas v. Lee Trucking, Inc., which was filed under index number 25161/04 (the Lee Trucking action); a letter from Herb Pereira, Esq. to plaintiff, dated June 4, 2008, advising plaintiff to “think reasonably about [his] decision not to appeal [the arbitration decision]” in the Lee Trucking action; a letter from plaintiff, dated June 9, 2008, to Justice Bertram Gelfand agreeing with his decision in the Lee Trucking action; two checks from defendant for $4,000 each, made payable to plaintiff; an April 20, 2009 order which dismissed, on default, an action similar to the present action, which was filed by plaintiff against defendant under index number 29569/08; a December 22, 2009 order which permitted plaintiff to amend the complaint in this action “as of course”; the record of the Kings County Clerk's Office regarding documents filed in the Thomas v. BHL Transport action under index number 28517/02 (the BHL Transport action); plaintiff's bill of particulars and supplemental bill of particulars in the BHL Transport action, and various physicians' reports and medical records submitted in that action; and plaintiff's bill of particulars and second supplemental bill of particulars in the Lee Trucking action, and various physicians' reports and medical records submitted in that action. Plaintiff, in opposition, has submitted his affirmation; letters dated February 27, 2008 and March 17, 2008 from him to defendant, which purported to terminate defendant's services in the Lee Trucking action; the preliminary conference order in this action dated October 9, 2009; his bill of particulars; and various medical records, medical reports, and papers filed in the Lee Trucking action and the BHL Transport action.

LAW AND APPLICATION

CPLR 3013 provides that “[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or...