5 cq MICHELE M. WOODARD. Background SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU. Plaintiff MEMORANDUM DECISION

Transcription

1 )()( 5 cq SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU MAXINE HIRSCH Plaintiff -against- DENISE SIRIGO MICHELE M. WOODARD TRIALIIAS Par 8 Index No.: 18748/10 Motion Seq. Nos.: 03 & 04 MEMORANDUM DECISION Defendant. Papers Read on this Motion: Defendant's Order to Show Cause Plaintiffs Notice of Cross-Motion Defendant's Reply Plaintiff s Reply The pro se defendant moves by Notice of Motion for a judgment dismissing the plaintiff s complaint pursuant to CPLR 3211, and for an order disqualifying plaintiffs attorney. Defendant additionally request vacatur of a notice of pendency, declaratory relief as to validity of various deeds, an award of money damages, and immediate occupancy of the subject premises. The plaintiff cross-moves for partial summar judgment dismissing defendant' s affirmative defenses and counterclaims. Plaintiff fuher requests an order directing partition and appointing a referee to report as to the respective rights and interests in the condominium premises at issue herein. Background The paries hereto each claim ownership rights to a condominium known as 979 Ocean Front Apt 15, Long Beach, New York ("the premises ). According to the complaint, the premises was purchased by the plaintiff in Januar 1990 (E)(hibit R). It is undisputed that pursuant to a "Correction

2 Deed" dated December , and recorded on May 4, 1992 (E)(hibit CC), plaintiff Hirsch and defendant Sirigo owned the premises as joint tenants with a right of survivorship. According to the complaint, Hirsch claims she deeded a joint interest with right of surivorship to Sirigo because Sirigo was going to assume one-half of the caring charges. However, Hirsch alleges that she has borne all costs of purchasing and maintaining the premises. According to Sirigo, plaintiff deeded the joint interest to her in e)(change for an interest in defendant's business. Sirigo fuher insists that she has contributed to the e)(penses of the premises. The paries had a falling out, and defendant moved out of the premises. Pursuant to a deed dated April 12, 2003, plaintiff deeded her interest in the premises as a joint tenant with right of survivorship as grantor, to herself as grantee (E)(hibit JJ). Plaintiff asserts that by virtue of this deed she and Sirigo became tenants in common (Cohen affirmation, par. 44). Plaintiff commenced this action for parition of the premises in October, In Januar, 2011 plaintiff moved for a default judgment which was granted by this Cour by order dated April 1, 2011 (E)(hibit B). In July, 2011, the default judgment was vacated and defendant consented to jurisdiction of this cour (E)(hibit I). Defendant's Verified Answer and Counterclaims (E)(hibit H) is dated July Plaintiffs Reply, containing nine affirmative defenses, is dated August 8, For the record, a prior action entitled Hirsch Sirigo Supreme Court, Nassau County, Inde)( # was dismissed by the Honorable Daniel Palmieri by order dated August 7, 2009 (E)(hibit W), for lack of jurisdiction over the defendant. Defendant seeks judgment dismissing the complaint pursuant to CPLR ~3211(a)(7) on the ground that all of plaintiff s allegations in the complaint are untrue, and she fuher seeks disqualification of plaintiff s attorney.

3 At the outset, the Court notes that although pro se litigants are generally granted some leeway by the courts, a litigant' s decision to proceed without counsel does not confer any greater rights than those afforded to litigants represented by counsel (Mirzoeffv Nagar 52 AD3d 789 (2d Dept 2008); Roundtree Singh 143 AD2d (2d Dept 1988); see Banushi Lambrakos 305 AD2d 524 (2d Dept 2003), Iv app den 1 NY3d 504 (2003); see also Horst Brown 72 AD3d (1 st Dept 2010), app dsmd 15 NY3d 743 (2010) and Stoves Stones Rubens 237 AD2d 280 (2d Dept 19971). CPLR 3211 Dismissal Standard and Discussion On a motion to dismiss pursuant to CLR ~3211, the facts, as alleged, must be accepted as true the pleader must be accorded the benefit of every favorable inference, and the court must determine only whether the facts, as alleged, fit within any cognizable theory (Samiento World Yacht Inc., 10 NY3d 70, 79 (2008); Arnav Industries, Inc. Retirement Trust Brown, Raysman, Milstein, Felder & Steiner, LLP 96 NY2d (20011). The criterion on a motion pursuant to CPLR ~3211(a)(7) is whether the pleader has a cause of action (Leon Martinez 84 NY2d 83, 88 (19941). The equitable remedy of parition may be sought by a person holding or possessing real property as a joint tenant or tenant in common (RPAPL ~901(1l; Trotta Ollvier 91 AD3d 8 13 (2d Dept 2011l; Cadle Co Calcador 85 AD3d 700, 702 (2d Dept 20111). Thus, whether plaintiff is a tenant in common, as she claims, or a joint tenant with right of surivorship, as defendant claims, plaintiff is nevertheless, entitled to seek partition. The complaint does allege a claim for parition, and consequently, defendant' s motion for judgment dismissing the complaint pursuant to CPLR ~3211(a)(7) must be denied. Disqualification The disqualification of an attorney is a matter that rests in the sound discretion of the cour

4 (Trimarco Data Treasury Corp. 91 AD3d 756 (2d Dept 2012); Midwood Chayim Aruchim Dialysis Assoc., Inc Brooklyn Dialysis, LLC, 82 AD3d 1177 (2d Dept 2011l; Wells Fargo Bank NA Caro, 82 AD3d (2d Dept 2011); Bentz Bentz 37 AD3d 386 (2d Dept 2007);Gulino Gulino, 35 AD3d 812 (2d Dept 2006); Aryeh Aryeh, 14 AD3d 634 (2d Dept 20051). A par's entitlementto be represented in ongoing litigation by counsel of his or her choice is a valued right which should not be abridged absent a clear showing that disqualification is waranted (In re Deans 92 AD3d (2d Dept 2012); Bentz; Gulino). par seeking to disqualify his or her adversar s attorney bears the burden of proof on this issue (Gulino; Aryeh). Where a party fails to meet his or her burden of showing that disqualification is waranted, the motion for disqualification must be denied (Gulino; Aryeh). A disqualification motion based upon conduct that took place prior to April 1, 2009 is governed by the Code of Professional Responsibility ("the Code ), which were in effect at the time of the conduct at issue, rather than the Rules of Professional Conduct (22 NYCRR et seq.), which are presently in effect (Bank Hapoalim BMv WestLB AG 82 AD3d 433 (1 Dept 20111). Furhermore, the rules for attorney disqualification found in the Code provide guidance, not binding authority, for cours making determinations about disqualification during litigation (S&S Hotel Ventures Ltd Partnership v 777 Corp, 69 NY2d 437, 440 (1987); Ahrens Chisena 40 AD3d 787, 788 (2d Dept 20071). The Code prohibits a lawyer from representing interests adverse to a former client on matters substantially related to the prior representation (DR 5-108(A)(1); (22 NYCRR (a)(1)). A party seeking disqualification of its adversar s lawyer pursuant to DR 5-108(A)(1) must prove the following three conditions: (1) that there was an attorney-client relationship between the moving party and opposing counsel; (2) that the matters involved in both representations are substantially related; and (3)

5 . & that the interests of the present client and former client are materially adverse (Jamaica Pub Serv Co AIU Ins Co 92 NY2d (1998) quoting Tekni-Plex Inc Meyner Landis 89 NY2d 123, 132 (19961). DR5-08(A) mandates disqualification where these three conditions are met (Falk Chittenden 11 NY3d 73, 78 (2008) discussing Jamaica Pub Serv Co). An attorney-client relationship can encompass a preliminary consultation by a prospective client with a view toward retention of the attorney, even where actual employment does not result; however a par canot create the relationship based upon his or her subjective beliefs (Pellegrino Oppenheimer Co, Inc 49 AD3d (1 st Dept 20081). An attorney-client privilege is established where there is an e)(plicit undertaking to perform a specific task (Terio Spodek 63 AD3d 719, 721 (2d Dept 20091). The Code also prohibits the use of confidential information disclosed by a former client (DR5-108(A)(2); 22 NYCRR (a)(2)), e)(cept under certain circumstances not relevant here (see Jamaica Pub Serv Co at 636). It is not necessar for a par seeking disqualification to show that confidential information necessarily wil be disclosed in the course ofthe litigation; rather, a reasonable probability of disclosure should suffice (Jamaica Pub Serv Co at 637 quoting Greene Greene 47 NY2d 447, 453 (19791). Disqualification pursuant to the advocate-witness rules of the Code (DR 5-102; 22 NYCRR ) may be required only when it is likely that the testimony to be given by the attorney is necessar (see S&S Hotel Ventures Ltd Partnership at , and Wolfon Posner 57 AD3d 979 (2d Dept 20081). Discussion Sirigo and plaintiffs attorney, Scott Cohen, agree that they met on June , for a consultation. According to Mr. Cohen, the consultation concerned a claim against an auctioneer. Mr.

6 Cohen recalls "looking at and reviewing several inches of paper " which he believes was an inventory with prices ne)(t to each item (Cohen moving affrmation, par. 13). After he quoted her an hourly rate Mr. Cohen states that defendant allegedly tried to negotiate a reduction in the retainer by offering another case concerning some real propert in which she possessed an interest. Defendant did not bring the paperwork for the second case with her. Mr. Cohen states that he advised defendant that he was not interested in a "two-fer " and that a separate matter would require an additional retainer. He states that defendant left his office claiming that she would gather the paperwork for the other claim, think about what he said, and make another appointment (Id at par 16). According to Mr. Cohen, he never saw the defendant again until this action was commenced. Defendant states that she "brought an almost identical case to the case at bar" to Mr. Cohen (Sirigo affidavit, par. 36). Defendant claims that she met Mr. Cohen "on at least two more occasions to supply him with the additional paperwork for the case at bar, at his request, through and on or about June 27, 2002"(Id. The record contains a cover letter from Mr. Cohen to defendant dated October (E)(hibit KK), pursuant to which Mr. Cohen returned defendant' s papers to her, because it was over a year since the consultation and he had not heard from her. Defendant argues that because the caption on the letter states "Your Cases " this proves that she left information with Mr. Cohen regarding her claim to the premises herein. On this record, defendant has failed to establish that Mr. Cohen undertook to perform any specific task for her, and hence, the Court finds that no attorney-client relationship ever e)(isted between defendant and Mr. Cohen. Defendant' s reliance on the caption "Your Cases" on E)(hibit KK, to prove that she left information with Mr. Cohen regarding her claim to the premises herein, is not persuasive.

7 Prom the voluminous documentation presented, it appears that defendant has had various attorneys over the years in connection with various cases. Under these circumstances, defendant's request for disqualification pursuant to DR 5-08(A)(1) must be denied (Pellegrino supra). Where, as here, a defendant presents no more than generalized assertions of disclosure of confidences, disqualification pursuant to DR5-08(A)(2) must be denied (Jamaica Pub Serv Co at 638). Finally, there has been no showing that any testimony of plaintiff s attorney wil be necessary at trial. Consequently, disqualification for violation of the advocate-witness rule must be denied (S&S Hotel Ventures Ltd Partnership). Defendant' s Requests for Monetary Damages Defendant has alleged counterclaims for personal propert damages of $ , damages from the lockout of $ , reimbursement for e)(penses in the amount of $ , 80% or 100% ownership of the premises due to fraudulent alteration of deeds, and compensatory and punitive damages in the amount of$i OOO OOO. In her moving papers, defendant seeks an award of total damages of$ , plus compensatory and punitive damages of$i OOO OOO. Defendant also seeks a determination that E)(hibit CC is "valid" and E)(hibit JJ is "void. In short, what defendant seeks is summar judgment on her counterclaims. Summary Judgment Standard and Discussion Summary judgment is the procedural equivalent of a trial (SJ Capelin Assoc. Globe Mfg. Corp. 34 NY2d (19741). The fuction of the cour in deciding a motion for summar judgment is to determine if triable issues of fact e)(ist (Matter of Sufolk County Dept. of Social Servs. James M 83 NY2d 178, 182 (19941). The proponent must make aprimafacie showing of entitlement to judgment as a matter of law (Giuffida Citbank Corp. 100 NY2d 72, 82 (2003); Alvarez

8 Prospect Hosp. 68 NY2d 320, 324 (19861). Once aprimafacie case has been made, the pary opposing the motion must come forward with proof in evidentiar form establishing the e)(istence of triable issues of fact or an acceptable e)(cuse for its failure to do so (Zuckerman City of New York 49 NY2d (19801). The evidence must be viewed in the light most favorable to the non-moving party and the cour must accord the non-moving party the benefit of every favorable inference (Negri Stop & Shop, 65 NY2d (19851). On this record, defendant has not made out a prima facie case for summar judgment on any of her counterclaims for monetar damages. Additionally, the defendant has not made out a prima facie case for judgment on the deeds at issue. Accordingly defendant' s request for an award of damages must be denied. The declaration that defendant seeks regarding E)(hibits CC and JJ is denied, although the validity of both of these deeds is discussed below regarding plaintiffs motion for parial sumar judgment. Defendant' s Request for Additional Affirmative Relief Defendant' s request for vacatur of a notice of pendency, allegedly filed as part of a fraud against her, seeks reliefthat is not par of any counterclaim, and is summarily denied. Cross-motion by Plaintiff for Partial Summary Judgment Dismissing Defendant' s Counterclaims Plaintiff seeks summary judgment dismissing all of defendant' s counterclaims on the grounds that they are all untimely. Plaintiff states that the counterclaims are based upon breaches of contract and fraud. This appears true as to the third, fourh and fifth counterclaims. However, the first and second counterclaims for damages alleging claims for injur to personal property and interference with propert, appear to be tort claims.

9 The limitations period for breach of contract is si)( years from the date of breach (CPLR ~213(2)). The limitations period for fraud is si)( years from the date ofthe fraud, or two years from when the fraud was discovered, or could have been discovered with reasonable diligence (CPLR ~213(8)). The limitations period for injur to personal property and interference with property is three years from the date of injur (CPLR ~214(4)). The first counterclaim is for $ , to reimburse defendant for the valuables lost in the burglar of the premises that took place on August 6, The second counterclaim is for $ , to cover defendant's rental ofaltemative premises after she was locked out, from 1994 through Whether these counterclaims allege claims for breach of contract or a tort, they are untimely and must be dismissed. In the third counterclaim defendant s eks reimbursement for all the e)(penses she paid for the premises in the amount of$ However, a joint tenant or tenant in common has no cause of action for recoupment of e)(penses paid for maintenance of jointly held propert (Trotta at 13). Accordingly, this counterclaim must be dismissed. The fourh counterclaim alleges fraud in the fiing of the Deed dated April 12, 2003 (E)(hibit JJ), and seeks 80% or even 100% ownership of the premises. In the fifth counterclaim, defendant seeks compensatory and punitive damages, presumably based upon the fraud alleged in the fourth counterclaim. The two relevant dates for purposes of analyzing defendant's fraud claims are April (E)(hibit JJ), the date of the subject Deed, and March (Exhibit KK), the date ofplaintiffs letter advising defendant of that deed. Under these circumstances, any fraud claim based upon E)(hibit JJ would have had to have been commenced by April 12, 2009, the greater of the two fraud limitation periods. As this action was not commenced until October, 2010, these counterclaims are untimely.

10 Based on the foregoing, plaintiff s motion for parial sumar judgment dismissing all of defendant' s counterclaims is granted. Plaintiff's Request for Dismissal of All Affrmative Defenses The first affirmative defense of lack of personal jurisdiction must be dismissed, as defendant consented to jurisdiction at the time that the default judgment granted herein was vacated. The second affrmative defense of laches lacks merit, as "mere delay" does not constitute laches (see generally Habermen Habermen 216 AD2d 525, 527 (2d Dept 1995)). The third affirmative defense of unclean hands, and the fourth affirmative defense of fraud in the execution ofthe Correction Deed, are based upon plaintiffs conduct in e)(ecuting E)(hibit JJ. Real Propert Law 240-c(1 )(b) e)(pressly authorizes plaintiff s conduct of executing a deed to oneself with the intent to sever a joint tenancy with right of surivorship. Consequently, such conduct canot be the basis for claims of unclean hands or fraud. The fifth affirmative defense is for breach of a business contract by plaintiff. Defendant has failed to establish such contract. Moreover, on this record, such a contract is not a defense to plaintiffs cause of action for partition. Dismissal of this affirmative defense is waranting dismissal. The si)(th affirmative defense alleges lack of standing. As either a tenant in common or a joint tenant with right of surivorship, plaintiff has standing to bring a claim for parition. This affirmative defense is dismissed. The seventh affirmative defense of failure to state a cause of action has been shown above to lack merit. This affirmative defense is summarly dismissed. The eighth affirmative defense is that the parties are joint tenants with right of survivorship, and that plaintiff is therefore not entitled to parition. As set fort above, plaintiff may seek the equitable

11 ). relief of partition (RP APL 901 (1); dismissed. Trotta; Cadle Co. Consequently this affirmative defense is Plaintifrs Cause of Action for Partition Plaintiff asserts that the parties are tenants in common; defendant argues that the paries are, or should be, joint tenants with a right of surivorship. Either way, partition is available to plaintiff (Id. and a sale wil be ordered unless "great prejudice " is shown (RP APL 90 1 (11). Neither par questions the validity of the original deed, E)(hibit CC, which establishes the joint tenancy with a right of survivorship for plaintiff and defendant. Therefore, the Court turs its attention to the disputed deed, E)(hibit JJ, and the statute governing severance of joint tenancies, which provides: 1. In addition to any other means by which a joint tenancy with right of surivorship may be severed, a joint tenant may unilaterally sever a joint tenancy in real propert without consent of any non-severing joint tenant or tenants by: (b) E)(ecution of a written instrument that evidences the intent to sever the joint tenancy, including a deed that names the severing tenant as the direct grantee of the severing tenant's interest. (Real Propert Law ~240-c(I)(b D. On its face, E)(hibit JJ falls within the parameters of the statute as plaintiff names herself as the direct grantee of her interest as joint tenant with right of surivorship in the premises. The statute furter e)(pressly describes the consequence of the severance, as termination of the non-severing tenant' s right of survivorship, as follows: No severance of a joint tenancy pursuant to subdivision one of this section shall terminate the right of survivorship of any non-severing joint tenant or tenants as to the severing tenant's interest unless the deed or written instrument effecting the severance is recorded, prior to the death of the severing tenant, in the county where the real propert is located.

12 (Real Property Law 240-c(21). Based on the statute, plaintiffs e)(ecution of the deed of her interest as joint tenant to herself, individually, cut off defendant's right of survivorship and changes the joint tenancy to one of tenancy in common (Marci Swiers 29 Misc 3d 212, 222 (Sup Ct, Saratoga Cty, 2010); Mineri Knittel 188 Misc 2d 298, 301 (Sup Ct, NYCty, 2001)). As the remedy of parition is available to plaintiff, and plaintiff has made a prima facie showing of entitlement to sumar judgment by demonstrating her interest in and possession of the subject premises (see Manganiello Lipman 74 AD3d 667 (1 st Dept 20101), the Cour hereby grants the plaintiffs motion for parial summar judgment. A referee shall be appointed in the order to be settled hereon, for the purpose of reporting to this Cour whether parition can be had without great prejudice to plaintiff and defendant, and the respective rights, shares, or interests of the paries to the subject premises (Lauriello Gallotta 70 AD3d 1009, 1010 (2d Dept 2010)). Settle Order on Notice. DATED: July 2, 2012 Mineola, N. Y ENTER: HON. MICHELE M. F:\DECISION - SUMMARY JUDGMENT\Hirsch v Sirigo Mot Seq3 - Partition. wpd