Wehringer v. Brannigan

• Decision Date: 08 October 1996
• Citation: 232 A.D.2d 206,647 N.Y.S.2d 770
• Parties: Cameron K. WEHRINGER, Plaintiff-Appellant, v. John D. BRANNIGAN, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 770

647 N.Y.S.2d 770

232 A.D.2d 206

Cameron K. WEHRINGER, Plaintiff-Appellant, v. John D. BRANNIGAN, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Oct. 8, 1996.

Cameron K. Wehringer, pro se.

Thomas S. Harkins, for Defendant-Respondent.

Before WALLACH, J.P., and ROSS, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Robert Lippmann, J.), entered on or about October 6, 1994, which granted defendant's motion to vacate the default judgment against him and directed service of an answer within 30 days, unanimously modified, on the law, to dismiss the complaint and otherwise affirmed, without costs. Appeal from order of the same court and Justice, entered on February 28, 1995, which denied plaintiff's motion for reargument, unanimously dismissed as taken from a nonappealable paper. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

The IAS court properly granted defendant's motion to vacate the default judgment (CPLR 5015[a][1] where defendant demonstrated the existence of a meritorious defense as well as a reasonable excuse for his default. However, on our own motion, we dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7). In our view this action, seeking recovery of attorney's fees for services rendered which resulted in disbarment, is precluded for the reasons stated in A to Z Associates v. Cooper, 161 Misc.2d 283, 292, 613 N.Y.S.2d 512, and the pleadings before us gave plaintiff adequate notice of the illegality defense which we hold must now prevail.

In addition to the rationale of A to Z Associates v. Cooper, dismissal of this complaint is warranted on another basis. Entertaining this action, which boldly and directly derives from the misconduct for which this Court disbarred plaintiff, would not only undermine the integrity of that order, but would also violate our duty to conserve scarce judicial resources. It is a measure of plaintiff's disdain for the legal system, consistent with the nature of the misconduct for which he was disbarred ¹, that he would bring this claim before this court.

Moreover, under the "inherent powers doctrine", this court is vested with all powers reasonably required to enable it to:

"perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective.... Inherent judicial powers derive not from legislative grant or specific constitutional provision, but from the fact it is a court ... and to be a court requires certain incidental powers ..."

(Gabrelian v. Gabrelian, 108 A.D.2d 445, 448-49, 489 N.Y.S.2d 914, app dismissed 66 N.Y.2d 741, 497 N.Y.S.2d 365, 488 N.E.2d 111 citing Carrigan, Inherent Powers of the Courts, National College of the State Judiciary, Reno, Nevada [1973]. Sua sponte dismissal of this claim which flouts the integrity of an order of this court is well within our prerogative and, in the absence of substantial prejudice to plaintiff's due process rights, is consistent with the principles of justice and public policy which we are sworn to uphold.

All concur except TOM, J., who dissents in part in a memorandum as follows:

TOM, Justice, dissenting in part.

I respectfully dissent to the extent that, while I believe the majority's conclusion to vacate the default entered against defendant to be proper, I find the majority's decision to sua sponte dismiss the complaint, pursuant to CPLR 3211(a)(7), for failure to state a cause of action to be incorrect.

Plaintiff commenced the underlying action against defendant to recover fees for legal services rendered. After issue was joined, defendant's answer was stricken, on default, for failure to appear and submit to a court ordered examination before trial, and a default judgment was thereafter entered against defendant after inquest. Defendant subsequently moved to vacate the default judgment which was granted by Justice Lippmann, whose vacatur order is the subject of this appeal.

It has been held that the involuntary dismissal of an action must await a motion for such relief (Fischer v. Mead Johnson Labs., 41 A.D.2d 737, 341 N.Y.S.2d 257; see also, Blunt v. Northern Oneida County Landfill, 145 A.D.2d 913, 536 N.Y.S.2d 295; Balogh v. H.R.B. Caterers, 88 A.D.2d 136, 452 N.Y.S.2d 220). In the matter at bar, no motion was made before the court to dismiss the complaint or a defense, and the only issue raised by plaintiff on appeal is the IAS court's order vacating defendant's default. There is no cross appeal. The majority's sua sponte dismissal of the complaint, without notice to plaintiff, deprives plaintiff of the opportunity to address the issue of the sufficiency of his causes of action (Dental Soc. of State of New York v. Carey, 92 A.D.2d 263, 264, 461 N.Y.S.2d 77 affd. 61 N.Y.2d 330, 474 N.Y.S.2d 262, 462 N.E.2d 362; Greene v. Davidson, 210 A.D.2d 108, 109, 620 N.Y.S.2d 48 lv. denied 85 N.Y.2d 806, 627 N.Y.S.2d 323, 650 N.E.2d 1325). Since the dismissal is predicated upon CPLR 3211(a)(7), plaintiff is also deprived of the right to seek an opportunity for leave to replead (CPLR 3211(e); McLearn v. Cowen & Co., 60 N.Y.2d 686, 468 N.Y.S.2d 461, 455 N.E.2d 1256).

There is authority, when a motion for summary judgment is made, for the court to search the...