Rubin v Napoli Bern Ripka Shkolnik, LLP 2016 NY Slip Op 31096(U) June 15, 2016 Supreme Court, New York County Docket Number: /2015 Judge:

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1 Rubn v Napol Bern Rpka Shkolnk, LLP 2016 NY Slp Op 31096(U) June 15, 2016 Supreme Court, New York County Docket Number: /2015 Judge: Cyntha S. Kern Cases posted wth a "30000" dentfer,.e., 2013 NY Slp Op 30001(U), are republshed from varous state and local government webstes. These nclude the New York State Unfed Court System's E-Courts Servce, and the Bronx County Clerk's offce. Ths opnon s uncorrected and not selected for offcal publcaton.

2 [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part )( DENSE A RUBN, -aganst- Plantff, ndex No /2015 J DECSON/ORDER NAPOL BERN RPKA SHKOLNK, LLP, WORBY GRONER EDELMAN & NAPO BERN, LLP, NAPOL BERN & ASSOCATES, LLP and PAUL J. NAPOL, Defendants )( HON. CYNTHA KERN, J.S.C. Rectaton, as requred by CPLR 2219(a), of the papers consdered n the revew of ths moton for: ~~~~~~~~~~~~~~~~~~~~ Papers,Numbered Notce of Moton and Affdavts Annexed... 1 Affdavts n Opposton... 2 Replyng Affdavts... 3 Exhbts... 4,J Plantff Dense Rubn commenced the nstant acton allegng employment dscrmnaton and breach of contract aganst her former law frms and one of ts managng partners. Plantff. ~ now moves for an Order pursuant to CPLR 3011 strkng and/or dsmssng defendant Paul J. Napol's ("Napol") frst amended counterclams on the ground that, nte~ ala, stand-alone counterclams are not permtted, sanctonng defendant Napol and hs counsel and dsqualfyng Napol's counsel on the ground that hs counsel, and all the lawyers at hs counsel's law frm, are essental wtnesses to the allegatons of the counterclams. For the reasops set forth below, plantffs moton s granted n part and dened n part. The relevant facts and procedural hstory of ths case are as follows. On or about Aprl 2 of 5

3 [* 2] 24, 2015, plantff commenced the nstant acton aganst Napol n hs r~vdual capacty and f aganst the law frm enttes by whch she was employed and at whch Napol was a partner assertng four causes of acton for: (1) volaton of New York Admnstr~tve Code 8-107, for alleged sex dscrmnaton; (2) breach of contract for falure to pay bonu~es/salary ncreases; (3) 1 " breach of contract for the falure to pay plantff from October 14, 2014 through November, 2014; and (4) quantum merut. Thereafter, Napol moved to dsmss th~ acton as aganst hm ndvdually, whch ths court granted pursuant to Partnershp Law 26 ~n the ground that "the r Frms are all lmted lablty partnershps and plantff fals to allege tha~ Napol personally! commtted a dscrmnatory act aganst her to hold hm personally lable.?' Thereafter, plantff commenced an acton under a separate ndexjnumber aganst Napol n hs ndvdual capacty assertng one cause of acton for employment d.scrmnaton. Napol then moved to dsmss the acton n ts entrety or, n the alternatve, for Jn: Order consoldatng the new acton wth the nstant acton. Ths court dened Napol's moto'.n to dsmss fndng that "the complant n [the new] acton suffcently corrects the defects and ofussons whch were 1 fatal to the complant n the [nstant acton]" but granted Napol's moton to consoldate the new f fl acton wth the nstant acton. On or about March 30, 2016, Napol fled, an answer to the complant n the consoldated acton but dd not assert a counterclam ag~nst plantff. However, also on that date, Napol's "counterclam counsel," Napol Shkolnk, PLLC, fled a document enttled "Counterclams of Napol Bern Rpka Shkolnk, LLP, Worby Groner Edelman & Napol Bern, LLP, Napol Bern, LLP, Napol Bern & Assocates, LLP_;and Paul J. Napol" whch asserts eght separate counterclams aganst plantff. On or abou~ Aprl 5, 2016, Napol f Shkolnk, PLLC fled the "Frst Amended Counterclam" whch asserts fjye counterclams solely ' 2 3 of 5

4 [* 3] on behalf of Napol n hs ndvdual capacty. Plantff now seeks to dkmss these counterclams. ' Ths court fnds that that porton of plantffs moton for an Order pursuant to CPLR 3011 strkng and/or dsmssng Napol's Frst Amended Counterclams ~ust be granted on the ground that standalone counterclams are procedurally mproper. Pursdknt to CPLR 3011, '. "[t]here shall be a complant and an answer. An answer may nclude a qounterclam aganst a. plantff and a cross-clam aganst a defendant... There shall be no other pleadng unless the court --~ orders otherwse." t s well-settled that a ''stand-alone counterclam... [must be] dsmssed as volatve of CPLR 3011." Roth v. McCutcheon, 2015 WL * (Sup. Ct. N.Y. County 2015). See also Newman v. Newman, 245 A.D.2d 353, 354 (2d Dept 1997)(holdng that "a counterclam may only be nterposed through servce of an answer.") Napol's asserton that hs stand-alone counterclams should be a~lowed because such counterclams are generally allowed n New Jersey s wthout mert. Sp{cfcally, Napol asserts that no counterclams were asserted n hs ans~er because he was beng ~epresented by nsurance '\ defense counsel who would not fle counterclams on hs behalf and ctes; to New Jersey case law for the proposton that when a carrer controls a subrogaton acton, the?sured may fle separate., affrmatve clams. However, Napol has faled to provde any New Yor;k case law carvng out. such an excepton to CPLR 3011 and ndeed, Napol acknowledges n hs opposton that "New York s slent on the matter." As the court has dsmssed the counterclams on the ground that t:ey are procedurally,; mproper, the court decln~s to address those portons of plantffs moton for an Order dsmssng the counterclams on any other ground. 1 ' 3 4 of 5

5 [* 4] That porton of plantff's moton for an Order pursuant to 22 NYCRR (a) sanctonng defendant Napol and hs counsel s dened as plantff has faled to provde a suffcent bass for such relef. Fnally, that porton of plantff's moton for an Order dsqualfyng Napol's counsel, Napol Shkolnk, PLLC, s dened as t s now moot based on ths court's dsmssal ofnapol's counterclams. However, the denal of such relef s wthout prejudce to plantff's rght to seek ths relef at a later date f the counterclams are p~operly brought. " Accordngly, that porton of plantff's moton for an Order dsmssng Napol's counterclams s granted; that porton of plantff's moton for an Order sanctonng Napol s dened; and that porton of plantff's moton for an Order dsqualfyng Napol's counsel s dened. Ths consttutes the decson and order of the court. Dated: { 1 ~ 1-( Enter: ~ ~.. "" HON. CYNTHA~~KERN J.S.C. 4 5 of 5