Zaichik v Gold

[*1] Zaichik v Gold 2012 NY Slip Op 51687(U) Decided on August 30, 2012 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 30, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570017/09.

Grigori Zaichik, on behalf of situated, Plaintiff-Appellant,

against

David J. Gold and David J. Gold P.C., Defendants-Respondents, -and- HK Investigations Co., Thomas W. Archer and Stephanie Bowman d/b/a Supreme Judgment Recovery, Defendants.

Plaintiff, as limited by his briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), entered July 8, 2011, as granted the motion of defendants David J. Gold and David J. Gold P.C. for summary judgment dismissing the complaint as against them.

Per Curiam.

Order (Arlen P. Bluth, J.), entered July 8, 2011, insofar as appealed from, affirmed, with $10 costs.

We agree, essentially for reasons stated by the motion court, that plaintiff failed to raise a triable issue of fact on his claim that defendants-respondents violated the Fair Debt Collection Practices Act ["FDCPA"](15 USC § 1692 et seq.), since it was conclusively established that defendants-respondents neither committed the wrongful acts alleged in the complaint - the improper restraint and levy upon plaintiff's bank accounts - nor controlled the conduct of the entities that engaged in any alleged wrongdoing (see Clark v Capital Credit & Collection Servs., Inc., 460 F3d 1162, 1173 [9th Cir 2006]; Bodur v Palisades Collection, LLC, 829 F Supp 2d 246, 258-259 [SDNY 2011]). The court properly refused to consider the new facts and theory of liability asserted in plaintiff's opposition papers, in view of the inexcusable delay in raising such alternative claim in this 2007 action (see Langan v St. Vincent's Hosp. of New York, 64 AD3d 632, 633 [2009]; Mainline Elec. Corp. v Pav-Lak Industries, Inc., 40 AD3d 939 [2007]). [*2]

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 30, 2012