FILED: WESTCHESTER COUNTY CLERK 04/28/ :35 PM INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/28/2017

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK : COUNTY OF WESTCHESTER x Index No. Date Purchased: NATURES MARKET CORP Plaintiff, -against- CREDITORS RELIEF LLC, Defendant. Plaintiff designates the county of Westchester as place of trial. The basis of the venue designated is: plaintiff s residence: 1 Pier Pointe Street, Yonkers, New York, SUMMONS x To the above named defendant: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's Attorney within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded herein. Dated: April 25, 2017 Address of Defendant: 120 Sylvan Ave. Suite 300, Englewood Cliffs NJ A m o s W e i n b e r g Attorney for Plaintiff. Office and P.O. Address: 49 Somerset Drive South, Great Neck NY Phone: (516) amos@amoslegal.com 1 of 12

2 SUPREME COURT OF THE STATE OF NEW YORK : COUNTY OF WESTCHESTER x NATURES MARKET CORP, -against- Plaintiff, VERIFIED COMPLAINT CREDITORS RELIEF LLC, Defendant x Plaintiff complains of defendant: First Cause of Action 1) The action arose or is within the personal and subject matter jurisdiction of the court. 2) Plaintiff is a domestic corporation. 3) Defendant is a New Jersey limited liability company whose managing member is an attorney admitted to practice in the courts of the State of New York. 4) Plaintiff was sued in Westchester County Supreme Court by RAPID CAPITAL FINANCE, LLC, under Index Number 54646/ ) Defendant solicited plaintiff for services related to the above mentioned action against plaintiff filed in Westchester County Supreme Court by RAPID CAPITAL FINANCE, LLC, under Index Number 54646/ of 12

3 6) Towards this end, defendant submitted a contract to the plaintiff for the defendant s services. 7) The contract is annexed as Exhibit A. 8) Among others, defendant s services listed in the contract were: 9) Defendant therefore undertook to negotiate a settlement of the action against plaintiff filed in Westchester County Supreme Court by RAPID CAPITAL FINANCE, LLC, under Index Number 54646/ ) Defendant established its right, under the contract, to provide legal assistance for the action against plaintiff filed in Westchester County Supreme Court by RAPID CAPITAL FINANCE, LLC, under Index Number 54646/ ) The contract had one and only one creditor of plaintiff listed: 2 3 of 12

4 12) The contract was drafted to lead plaintiff to believe that the Rapid Capital Funding action would be settled by defendant: 13) Defendant is subject to jurisdiction in New York as a result of its contract with plaintiff. Liberatore v. Calvino, 293 A.D.2d 217, , First Dept. [2002]: Calvino's representation of plaintiff prior to the filing of the personal injury action met each of these criteria. Despite being unlicensed in New York, he projected himself into the state to perform services by contracting with plaintiff to legally represent her here for purposes of obtaining a favorable settlement of her New York personal injury claim from New York tortfeasors in accordance with New York law. Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 21 A.D.3d 90, 94, First Dept. [2005]: While electronic communications, telephone calls or letters, in and of themselves, are generally not enough to establish jurisdiction (see Liberatore v Calvino, 293 AD2d 217, 220 [2002]; Granat v Bochner, 268 AD2d 365 [2000]), they may be sufficient if used by the defendant deliberately to project itself into business transactions occurring within New York State (see Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574 [1980]; Parke-Bernet Galleries v 3 4 of 12

5 Franklyn, 26 NY2d 13 [1970]; Courtroom Tel. Network v Focus Media, Inc., 264 AD2d 351 [1999]). 14) Defendant engaged in the unlawful practice of law and violation of the Judiciary Law: Judiciary Law 479. Soliciting business on behalf of an attorney. It shall be unlawful for any person or his agent, employee or any person acting on his behalf, to solicit or procure through solicitation either directly or indirectly legal business, or to solicit or procure through solicitation a retainer, written or oral, or any agreement authorizing an attorney to perform or render legal services, or to make it a business so to solicit or procure such business, retainers or agreements. Judiciary Law 482. Employment by attorney of person to aid, assist or abet in the solicitation of business or the procurement through solicitation of a retainer to perform legal services. It shall be unlawful for an attorney to employ any person for the purpose of soliciting or aiding, assisting or abetting in the solicitation of legal business or the procurement through solicitation either directly or indirectly of a retainer, written or oral, or of any agreement authorizing the attorney to perform or render legal services. Judiciary Law 495. Corporations and voluntary associations not to practice law. 1. No corporation or voluntary association shall * * * (e) render legal services of any kind in actions or proceedings of any nature or in any other way or manner, nor * * * (h) advertise that either alone or together with or by or through any person whether or not a duly and regularly admitted attorney-at-law, it has, owns, conducts or maintains a law office or an office for the practice of law, or for furnishing legal advice, services or counsel. 2. No corporation or voluntary association shall itself or by or through its officers, agents or employees, solicit any claim or demand, or taken an assignment thereof, for the purpose of representing any person in the pursuit of any civil remedy, nor solicit any claim or demand for the purpose of representing as attorney-at-law, or of furnishing legal advice, services or counsel to, a person sued or about to be sued in any action or proceeding or against whom an action or proceeding has been or is about 4 5 of 12

6 to be brought, or who may be affected by any action or proceeding which has been or may be instituted in any court or before any judicial body. El Gemayel v. Seaman, 72 N.Y.2d 701, [1988]: Judiciary Law 478 provides: "It shall be unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself in a court of record in this state, or to furnish attorneys or counsel or an attorney and counsel to render legal services, or to hold himself out to the public as being entitled to practice law as aforesaid, or in any other manner * * * without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath." Its purpose is to protect the public in this State from "the dangers of legal representation and advice given by persons not trained, examined and licensed for such work, whether they be laymen or lawyers from other jurisdictions" (Spivak v Sachs, 16 NY2d, at 168, supra [construing former Penal Law 270, the predecessor of Judiciary Law 478]). As a matter of public policy, a contract to provide services in violation of the statute is unenforceable in our State courts (Spivak v Sachs, 16 NY2d, at 168, supra; see also, McConnell v Commonwealth Pictures Corp., 7 NY2d 465). Moreover, violation of Judiciary Law 478 is a misdemeanor (Judiciary Law 485) and its provisions also may be enforced in civil actions by the Attorney-General or a bar association formed in accordance with the laws of this State (Judiciary Law 476-a). 15) Defendant s contract violated New York law for attorney fee agreements. McCarthy v. CBC Capital Ventures, LLC, 18 Misc. 3d 1118A, 2008 NY Slip Op 50126U, Sup Ct Nassau Cty: An attorney who brings an action to recover a fee must allege in the complaint that the client received notice of the right to pursue arbitration and mediation and did not file a 5 6 of 12

7 timely request therefor or that the dispute is not otherwise covered by 22NYCRR Part See 137.6(b) complaint must allege receipt of notice or that dispute is not covered by Part 137. Borah, Goldstein, Altschuler, Schwartz & Nahins, P.C. v. Lubnitzki, 13 Misc 3d 823 (Civ. Ct. NY Cty 2006) relying in part on Wexler & Burkhart, LLP v. Grant, 12 Misc. 3d 1162(A) (Sup. Ct. Nassau Cty Palmieri, J.). 16) Defendant received monies from the plaintiff towards its alleged efforts to settle the legal action brought in this court against plaintiff. 17) Plaintiff sought a return of these monies. 18) Defendant failed to pay $2, back to plaintiff. 19) The monies were not earned by defendant. 20) The monies were purportedly placed in escrow by defendant towards financing a possible settlement of the action brought in this court against plaintiff. 21) Defendant never contacted the party that sued plaintiff in this court in order to settle the action. 22) Plaintiff demanded return of the monies. 23) Defendant failed or refused to return the monies. 24) Defendant is liable to plaintiff for the said monies. Ostrovskaya v. Kurilovich, 2005 N.Y. Misc. LEXIS 3497 [2005]; 234 N.Y.L.J. 75: Having determined that the defendants have violated the Judiciary Law by engaging in the practice of law, the contractual basis for performing the services is thus void due 6 7 of 12

8 to the illegal subject matter. El Gemayel v. Seaman, supra; (See also McConnell v. Commonwealth Pictures Corporation, 7 NY2d 465 (1960)). The evidence shows that the monies demanded for services by defendants was paid by the plaintiffs. Plaintiffs therefore seek a return of their payments and based upon the illegality of the services performed here, the Court finds that reimbursement must be given to the plaintiffs. 25) Defendant failed or refused to return the monies. 26) The violations inherent in defendant s contract negate any arbitration clause therein. Estate of Rothko, 84 Misc. 2d 830, Surr. Ct. [1975]: Inasmuch as the court finds the agreements are invalid the contention by Marlborough that performance under the consignment contract is a matter for arbitration must be rejected. (See CPLR 7503, subd [a]). The court is not dealing with the construction of a simple contract but with the fundamental relationship between executors and the estate beneficiaries which makes voidable any transaction in which a divided loyalty has crept into the fiduciary relationship (Matter of Durston, 297 NY 64). The arbitration clause falls with the contract and is unenforceable. (Village of Tarrytown v Woodland Lake Estates, 19 NY2d 660; Durst v Abrash, 22 AD2d 39, affd 17 NY2d 445; 8 Weinstein-Korn-Miller, NY Civ Prac, pars , ). Harris v. Shearson Hayden Stone, Inc., 82 A.D.2d 87, 92 [1981] (aff d. o.b. 56 N.Y.2d 627 [1982]): Criminal violations, for obvious reasons, have been excluded from the ambit of arbitration. (Matter of Goldmar Hotel Corp. [Morningside Studios], 283 App Div 935.) 7 8 of 12

9 Second Cause of Action 27) Defendant had no lawful basis to collect the $2, from plaintiff nor any lawful basis to retain it. 28) Defendant converted the $2, of plaintiff. Additional Damages 29) Defendant routinely solicits commercial entities sued in court. 30) Defendant routinely solicits commercial entities sued in New York State Supreme Court. 31) Defendant s actions are part of a pattern. 32) Defendant s actions are aimed at the public. 33) Defendant s actions are criminal in nature. 34) Defendant s actions warrant punitive damages. WHEREFORE, plaintiff respectfully demands judgment against defendant for $2, with interest from Apr. 24, 2017, punitive damages, and costs. Dated: April 27, 2017 A m o s W e i n b e r g. Attorney for Plaintiff, Office and P.O. Address: 49 Somerset Drive South Great Neck NY Phone: (516) aw@awlaw.us 8 9 of 12

10 SUPREME COURT OF THE STATE OF NEW YORK : COUNTY OF WESTCHESTER x Index No. NATURES MARKET CORP, -against- Plaintiff, AFFIDAVIT and VERIFICATION CREDITORS RELIEF LLC, Defendant x State of New York, County of Westchester, ss.: 10 of 12

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12 Index No. SUPREME COURT OF THE STATE OF NEW YORK : COUNTY OF WESTCHESTER x NATURES MARKET CORP, -against- Plaintiff, CREDITORS RELIEF LLC, Defendant x SUMMONS AND VERIFIED COMPLAINT x Amos Weinberg Attorney for Plaintiff Office and P.O. Address 49 Somerset Dr. S. Great Neck, N.Y. ll020 (5l6) aw@awlaw.us 2 12 of 12