Berkowitz v Harmatz

[*1] Berkowitz v Harmatz 2006 NY Slip Op 50724(U) [11 Misc 3d 1086(A)] Decided on March 28, 2006 Supreme Court, New York County Heitler, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 2006
Supreme Court, New York County

David Berkowitz, Plaintiff,

against

Hugo R. Harmatz, Esq., Defendant.



107710/05

Sherry Klein Heitler, J.

Defendant Hugo R. Harmatz, Esq. ("Harmatz") moves, pursuant to C.P.L.R. § 3211 (a) (1), for dismissal of plaintiff's complaint, and for the imposition of sanctions, pursuant to 22 N.Y.C.R.R. §130-1.1, for plaintiff's alleged filing of a frivolous lawsuit. Plaintiff opposes this motion and cross-moves for summary judgment pursuant to C.P.L.R. § 3212. For the reasons that follow, defendant's motion for dismissal, and for sanctions, is denied, and plaintiff's cross-motion is also denied.

Plaintiff David Berkowitz ("Berkowitz") is presently incarcerated in a New York State Correctional Facility. Plaintiff and defendant agree that their relationship began when defendant sent an unsolicited letter to plaintiff in prison. According to Harmatz, that letter requested plaintiff's assistance with the proposed publication of a book by Harmatz, pertaining to high-profile court cases. According to Berkowitz, the relationship between Berkowitz and Harmatz was not based upon such a proposed publication, but upon Harmatz's assertions that he wanted to initiate a Youthful Offenders Program and was seeking Berkowitz's assistance in "facilitating and implementing" this program. Regardless of the initial basis for the relationship, it is uncontested that Berkowitz and Harmatz did, indeed, correspond over the next several years, during which time Harmatz performed legal work for Berkowitz, provided Berkowitz with material goods at Berkowitz's request, and took into his possession various personal items of Berkowitz's, including letters written to Berkowitz and Berkowitz's personal childhood photos.

It is the disposition of these personal items of Berkowitz's which forms the nucleus of Berkowitz's complaint. Berkowitz contends that he sent these items to Harmatz for safekeeping and/or for use by Harmatz in representing him as his attorney, and denies agreeing to their use in any publication. Notably, there is no written agreement between the parties regarding Harmatz's intent to publish a book about Berkowitz. Berkowitz's complaint seeks a judgment:

1. Declaring that Plaintiff, David Berkowitz, is the owner of any and all items of personal property that were caused to be placed in the Defendant's custody through the Plaintiff, David Berkowitz, and that Plaintiff, David Berkowitz, is entitled to the immediate return and possession of all such items of personal property.

2. Directing Defendant to immediately deliver said personal property to Plaintiff, David [*2]Berkowitz, or any person or entity that Plaintiff, David Berkowitz, so designates.

3. For such other and further relief as this Court may deem to be just and proper together with the costs and disbursements of this action.

By contrast, Harmatz asserts that Berkowitz sent these items to him as gifts which Harmatz was free to use in the publication of a book about his relationship with Berkowitz. In support of this contention, Harmatz has provided the following documents:

(1) a copy of Berkowitz's Last Will and Testament, prepared by Harmatz, who is named as both Executor and residuary beneficiary;

(2) letters from Berkowitz to Harmatz;

(3) a letter dated July 12, 2002, from Harmatz to Berkowitz, alleged to be the first letter Harmatz wrote to Berkowitz, wherein Harmatz indicates his interest in writing a book about "certain high profile legal cases;"

(4) a document which Harmatz purports is a written publishing agreement between Berkowitz and a publisher unrelated to this action.

Defendant asserts that, "[t]o determine the factual basis for Plaintiff's allegations, Defendant need not look past his documented letters received from Plaintiff giving Defendant possession of such disputed items." However, the letters referenced by Harmatz do not, in the court's opinion, unequivocally establish that the items turned over to Harmatz were given to him without reservation, for use by Harmatz in whatever manner he chose. For example, Harmatz alleges that Berkowitz "filled out numerous property disposal forms that named Harmatz as the beneficiary of the items Plaintiff no longer desired." However, Harmatz has provided the court with only one such property disposal form, for a broken typewriter, and that form indicates that Berkowitz elected to have the typewriter destroyed, rather than collected by a visitor, i.e., Harmatz.

So, too, Harmatz's introductory letter to Berkowitz indicates Harmatz's interest in publishing a book about "high profile legal cases," but does not specify whether Berkowitz's case would be included in that book. Although later letters from Harmatz to Berkowitz do specify the nature of the intended book, there is no documentation to suggest that Berkowitz had considered this possibility, beyond a remark by Berkowitz, in a letter dated September 3, 2003, that he wished Harmatz to draft his Will so as to bequeath his papers to Harmatz for possible publication after his death:

And I would like you to get all my letters, documents, and any and all papers. Perhaps you will need this material if, at some future time, there is an opportunity for a book to be written by you or some other trustworthy person. We could discuss this last matter further when we meet.

Similarly, Harmatz asserts that a letter, dated September 4, 2003, allegedly written by Berkowitz to Harmatz, evidences Berkowitz's intent that all of the documents and personal items turned over to Harmatz could be used in a future publication. In that letter, Berkowitz allegedly wrote: [E]nclosed are my commitment papers which I have been holding onto but really don't need.I am also enclosing some other paperwork. I don't need any of this back. (Emphasis in original).[*3]

This letter, without more, establishes very little, as the context of the letter is unknown to the court. As Harmatz acknowledges, there was an attorney-client relationship between the parties, at least as to certain matters, such as the drafting of Berkowitz's Will, and this letter alludes to Berkowitz's parole situation. Therefore, without more, it is impossible to discern whether Berkowitz turned over certain legal documents for the sole purpose of effectuating Harmatz's representation of him in such matters, for safekeeping and storage of the items, or with an intent to make a permanent gift of such documents for publication purposes.

With regard to Harmatz's representation of Berkowitz for purposes of drafting Berkowitz's Will, the court notes that Harmatz is named as Executor, as a Beneficiary, and as the Residuary Beneficiary; the Will is unaccompanied by a Putnam Affidavit separately describing the circumstances surrounding Berkowitz's alleged bequest to Harmatz. See Matter of Putnam, 257 NY 140, 143 (1931); Butler v. Mander, 159 AD2d 379, 379-80 (1st Dept. 1990); Matter of Cromwell, 146 Misc 2d 742, 746-47 (Surr. Ct. Suffolk Cty. 1989). That being said, the court notes that Berkowitz's purported willingness to leave certain personal and/or legal documents to Harmatz in his Will hardly establishes that Berkowitz's conveyance of such documents to Harmatz, while alive, is tantamount to an outright gift.

As noted above, Harmatz has also provided the court with a copy of a document purporting to be a publication agreement between Berkowitz and a publishing company unrelated to this litigation. The court notes that there is no such signed agreement between the parties in the case at bar.

C.P.L.R. § 3211 (a) (1) provides that "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that . . . a defense is founded upon documentary evidence." However, "[i]n order to prevail on a defense founded on documentary evidence the document[s] relied upon must definitively dispose of the plaintiff's claim."United States Trust Co. v. Gill & Duffus, Inc., 189 AD2d 655, 655 (1st Dept. 1993) (internal citation omitted). As discussed above, the documents submitted by Harmatz in support of his motion to dismiss do not resolve the questions of fact surrounding the issue of whether Berkowitz's submission of documents and other personal items to Harmatz were gifts, or were sent to Harmatz for use in his legal work for Berkowitz, or for safekeeping. Therefore, dismissal of Berkowitz's complaint pursuant to C.P.L.R. § 3211(a)(1) is inappropriate. See id. See also Bouquet Brands Division of J & D Food Sales v. Citibank, N.A., 97 AD2d 936, 937 (3rd Dept. 1983).

For the same reason, the court will not convert this case to a summary judgment motion to grant summary judgment to Berkowitz pursuant to C.P.L.R. § 3212. Berkowitz's submissions, which also include numerous letters between the parties, do not resolve the central issue of fact as delineated above, namely, whether there was an agreement to give Berkowitz's personal possessions outright to Harmatz, for his use in publishing a book about Berkowitz.

As the court finds no basis for finding that plaintiff's complaint was frivolous within the meaning of N.Y.C.R.R. § 130-1.1, defendant's motion for the imposition of sanctions is denied.

Accordingly, it is hereby

ORDERED that defendant's motion to dismiss the complaint pursuant to C.P.L.R.

§ 3211(a)(1) is denied; and it is further

ORDERED that defendant's motion for the imposition of sanctions pursuant to [*4]N.Y.C.R.R. § 130-1.1 is denied; and it is further

ORDERED that plaintiff's cross-motion for summary judgment pursuant to C.P.L.R.

§ 3212 is denied; and it is further

ORDERED that counsel for the parties shall appear for a discovery conference at 9:30 a.m. on May 1, 2006, at Room 438, 60 Centre Street, New York, New York 10007. This shall constitute the decision and order of the court.

DATED: March 28, 2006

SHERRY KLEIN HEITLER

J.S.C.