Tsang v. Dong
| Decision Date | 18 August 2016 |
| Docket Number | 150970/2016 |
| Citation | 2016 NY Slip Op 51225 (U) |
| Court | New York Supreme Court |
| Parties | Bernice Tsang, Plaintiff, v. Yongham Dong, Defendant. |
Attorneys are:
For Plaintiffs
ISAIAH FREDERICK SHOTKIN
Firm Name: MINTZ & FRAADE P.C.
Address: 488 MADISON AVE, NEW YORK, NY 10022
Defendant, Pro Se, Yonghan Dong
212-12 69th Avenue, Unit B
Bayside, NY 11364
718-441-2081
In this action for defamation and trespass, defendant Yonghan Dong ("defendant") moves for summary judgment dismissing the complaint of the plaintiffs Bernice Tsang and Ivanka Wang as agents of Mertz, Bitelman & Associates Law Office, P.C. (the "Firm"), plus costs and disbursements, for payment of a money judgment issued against the Firm in favor of defendant in a separate matter, and an award on defendant's counterclaims.
Plaintiffs, managers of the Firm, allege that in July 2008, defendant contacted the Firm seeking an attorney to represent him in a personal injury matter. The Firm referred defendant to Michael Wiseberg ("Wiseberg") and introduced defendant to Wiseberg on July 14, 2008 in the Firm's office. Wiseberg and defendant signed a retainer agreement, and collected $200 from defendant for travel and parking expenses. Though the Firm did not practice personal injury law and did not consent to inclusion, Wiseberg added the Firm's name to the retainer agreement. Wiseberg alone handled defendant's matter.
On two occasions, when defendant called the Firm to reach Wiseberg and was advised that the Firm was not involved in the matter, defendant came to the Firm and harassed and insulted plaintiffs. In particular, defendant stated, in front of the Firm's clients, that the Firm was irresponsible, caused him to lose his case, and would not let him see Wiseberg; he also stated that he would not leave the office until he saw Wiseberg. As a result, the Firm's clients were disturbed, which resulted in a loss of business of at least $87,000.00, as well as damage to the Firm's reputation.
On January 21, 2016, defendant then claimed that plaintiffs or the Firm's staff signed his name on a stipulation.
As a result, plaintiffs commenced this action against defendant for defamation, defamation per se, and trespass, based on defendant's statements made in the Firm's reception area in front of the Firm's clients, threat to remain "in the office forever," and refusal to leave after being asked to leave the office.
In support of dismissal of the complaint, defendant contends that in 2007, he obtained a judgment in his favor against the driver of a vehicle (the "offending driver") which caused defendant property damages.1 When the offending driver sought to vacate the judgment, claiming he did not receive the summons and complaint, defendant hired Wiseberg on July 14, 2008 pursuant to a Fee and Retainer Agreement (the "Retainer Agreement") for the ensuing hearing. According to defendant, the Firm mailed him the Retainer Agreement.2 Thereafter, on April 16, 2011, the Firm advised defendant of rescheduled discovery, and defendant did not hear anything about the matter until July 10, 2013, when Wiseberg advised defendant that he was no longer with the Firm and for defendant to contact the Firm for further information. From July 2013 through October 2013, defendant was unable to obtain satisfactory answers as to the status of his case. On December 19, 2013, when the Firm advised defendant that the Firm no longer was handling his case, defendant visited the Firm's office demanding to speak to the manager.
There, the receptionist threatened to call security, but Ms. "Zhang" gave defendant Wiseberg's contact information in New Jersey as Wiseberg was the attorney of record. When Wiseberg's contact information later proved to be invalid, defendant visited the Firm's office again on October 10, 2014 to obtain Wiseberg's correct contact information. As a result of the Firm's mishandling of his matter, defendant commenced a Civil Court action against Wiseberg and the Firm on October 17, 2014, and obtained a judgment in his favor after trial for $519.63.
Defendant argues that the defamation claim is time-barred under the one-year statute of limitations as to any statements made prior to one year before this action was filed on February 4, 2016. Also, the claim is subject to dismissal for failure to allege the date and time of the alleged statements made in the Firm's office. Further, the trespass claim also fails as a matter of law because plaintiffs alleged no physical damage to their office. And, under the doctrine of res judicata, plaintiff's claims are barred due to the judgment defendant obtained against the Firm for legal malpractice. Plaintiff's claims against defendant arise from defendant's in-person inquiry about the Firm's abandonment of his case. In support of judgment on his counterclaims, defendant requests (1) damages of $8,009.00 for the Firm's negligence resulting in "the loss of" the case for which defendant was initially awarded judgment against the offending vehicle; (2) $95,000 for psychological damages resulting from the Firm's abandonment of his matter, and (3) payment of $519 as directed in the Civil Court Judgment.
In opposition, plaintiffs contend that defendant made the defamatory statements when he visited the Firm's office during "the latter part of 2015." Further, the doctrine of res judicata does not apply. Defendant's motive in visiting the Firm's office to obtain information about his matter, which resulted in a judgment for the return of monies he paid under the Retainer Agreement, does not preclude the Firm from suing him for tortious acts he committed during such visit. And, since defendant created a disturbance in the office after being told to leave, defendant committed a trespass and nominal, punitive, and treble damages may be sought.
In reply, defendant argues that plaintiffs' opposition fails to set forth any specificity as to the dates he allegedly visited the office and cannot overcome his documentary evidence showing that his visits were beyond one year prior to the filing of this action. Defendant's filing of his lawsuit against the Firm on October 17, 2014 belies plaintiffs' assertion that defendant visited the Firm's office in the latter of 2015.
It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR 3212[b]) sufficient to warrant the court as a matter of law to direct judgment in its favor (Friedman v BHL Realty Corp., 83 AD3d 510, 922 NYS2d 293 [1st Dept 2011]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). Thus, the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Madeline D'Anthony Enterprises, Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012] citing Alvarez v Prospect Hosp., 68 NY2d 320, 501 NE2d 572 [1986] and Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Powers ex rel. Powers v 31 E 31 LLC, 24 NY3d 84 [2014]).
Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (CPLR 3212 [b]; Farias v Simon, 122 AD3d 466 [1st Dept 2014]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" for this purpose" (Kosovsky v. Park South Tenants Corp., 45 Misc 3d 1216(A), 2014 WL 5859387 [Supreme Court New York County 2014] citing Zuckerman, 49 NY2d at 562).
The opponent "must assemble, lay bare, and reveal his proofs in order to show his defenses are real and capable of being established on trial ... and it is insufficient to merely set forth averments of factual or legal conclusions" (Genger v Genger, 123 AD3d 445, 447 [1st Dept 2014] lv to appeal denied, 24 NY3d 917 [2015] citing Schiraldi v U.S. Min. Prods., 194 AD2d 482, 483 [1st Dept 1993]). In other words, the "issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief" (American Motorists Ins. Co. v Salvatore, 102 AD2d 342, 476 NYS2d 897 [1st Dept 1984]; see also Armstrong v Sensormatic/ADT, 100 AD3d 492, 954 NYS2d 53 [1st Dept 2012]).
As to plaintiff's trespass claim, defendant's motion to dismiss this claim on the ground that plaintiffs failed to assert any damages to their property, lacks merit. "Any unauthorized entry upon the land of another constitutes a trespass, without regard to the amount of force used, and even though no damage is done, since at least nominal damage is always presumed from a trespass on land (Butler v Ratner, 173 Misc 2d 783, 662 NYS2d 696 [City Court, City of New Rochelle 1997] (awarding $1.00 as nominal damages") (emphasis added)). Therefore, the absence of any physical damage to the Firm's office does not preclude a claim of trespass.
Further, plaintiff's trespass claim alleges that defendant remained in the Firm's office after permission to remain was withdrawn and, therefore, it cannot be said that the trespass claim is identical to the defamation claim against defendant. Therefore, dismissal of the trespass claim on the grounds noted above is denied.
However, as to plaintiff's defamation claim, defendant established that such claim is time-barred. It is uncontested that the Statute of Limitations for a defamation action is one year (see, CPLR 215[3]). Where an issue of fact exists as to "when the allegedly defamatory" conversation took place and whether the action was timely commenced, summary judgment based on the statute of limitations cannot be granted (Karam v First American Bank of New York, 190 AD2d 1017, 593 NYS2d 640 [3d Dept ...
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