Murphy v Sheldon

Annotate this Case
[*1] Murphy v Sheldon 2006 NY Slip Op 51959(U) [13 Misc 3d 1223(A)] Decided on October 16, 2006 Supreme Court, Nassau County Baisley, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 25, 2006; it will not be published in the printed Official Reports.

Decided on October 16, 2006
Supreme Court, Nassau County

Margaret Murphy, Plaintiff,

against

Kim Sheldon, H. Austin Sheldon, Syd Askoff, Esq., Prudential Long Island Realty Formerly Known as Argyle Realty, Cathi Durler, Home Sweet Home Inspections, Inc., James P. Jacobs, "John Doe 1," as Agent for Home Sweet Home Inspections, Inc., Citi Mortgage, Inc., Dina Joyce, Joseph Fragala, Louis Fragala, Stevens J. Kasselman, Esq., "John Doe 2," as Agent of Stevens J. Kasselman, Esq., and William Sweeney, Esq., Defendants.







PLAINTIFF'S ATTORNEY:

STEVEN COHN, P.C.

By: Melissa Lenowitz, Esq.

One Old Country Road, Suite 420

Carle Place, New York 11542

DEFENDANT PRO SE:

HOME SWEET HOME INSPECTIONS, INC.

64 Sally Lane

Ridge, New York 11961

DEFENDANTS' ATTORNEYS:

JAMES E. CLARK, ESQ.

Atty. for Defts. Cathi Durler, Kim Sheldon &

H. Austin Sheldon

76 East Hoffman Avenue

Lindenhurst, New York 11757

CERTILMAN, BALIN, ADLER & HYMAN, LLP

Atty. for Deft. Prudential Long Island Realty f/k/a Argyle Realty

90 Merrick Avenue, 9Th Floor

East Meadow, New York 11554

CALLAN, KOSTER, BRADY & BRENNAN

By: Marc. R. Wilner, Esq.

Atty. for Deft. William Sweeney, Esq.

One Whitehall Street, 10th Floor

New York, New York 10004

BRYAN CAVE, LLP

By: Alan Garten, Esq.

Atty. for Deft. Citimortgage

1290 Avenue of the Americas

New York, New York 10104

MCMANUS, COLLURA & RICHTER, P.C.

By: Ann Marie Forte, Esq.

Atty. for Deft. Syd Askoff, Esq.

48 Wall Street

New York, New York 10005

LAMB & BARNOSKY, LLP

By: Joel M. Markowitz, Esq.

Attys. for Deft. Dina Joyce

534 Broadhollow Road, Suite 210

P.O. Box 9034

Melville, New York 11747-9034

BERKMAN, HENOCH, PETERSON & PEDDY, P.C.

By: Andrew M. Roth, Esq.

Atty for Defts. Joseph & Louis Fragala

100 Garden City Plaza

Garden City, New York 11530

L'ABBATE, BALKAN, COLAVITA & CONTINI, LLP

By: William T. McCaffery, Esq.

Attys. for Defts. Stevens J. Kasselman & "John Doe"

1050 Franklin Avenue, 4th Floor

Garden City, New York 11530

Paul J. Baisley, J.

Upon the following papers numbered 1 to 175 read on these motions and cross-motions to dismiss complaint: Notice of Motion (No.001) and Affirmation 1 to 18 and supporting papers; Notice of Motion (# [*2]

002) and Affirmation 19 to 25 and supporting papers; Memorandum of Law 26 to 42; Notice of Cross-motion (#

003) and Affirmation 43 to 53 and supporting papers; Notice of Cross-motion (#

004) and Affirmation 54 to 63 and supporting papers; Notice of Motion (#

005) and Affirmation 64 to 69 and supporting papers; Memorandum of Law 70 to 78; Notice of Motion (#

006) and Affidavit 79 to 91 and supporting papers; Memorandum of Law 92 to 105; Notice of Cross-motion (#

007) 106 to 116 and supporting papers; Memorandum of Law 117 to 133; Affirmation in Opposition 134 to 140; Reply Affirmation 141 to 145; Reply Affirmation 146 to 154; Affirmation in Reply 155 to 158; Reply Affirmation 159 to 164; Reply Affirmation 165 to 175; it is

ORDERED that the following motions and cross-motions of defendants all for an order dismissing plaintiff's complaint pursuant to CPLR R. 3211(a)(1), (a)(3), (a)(5) and/or (a)(7), and/or CPLR R. 3016(b); and/or changing venue pursuant to CPLR §§510 and 511; and for an order imposing sanctions against plaintiff and/or her attorney pursuant to 22 NYCRR §130-1.1 are consolidated for purposes of this decision and order, and, as so consolidated, are granted as set forth herein:

1. The motion (motion sequence no. 001) of defendants STEVENS J. KASSELMAN, ESQ. and "JOHN DOE 2."

2. The motion (motion sequence no. 002) of defendant CITIMORTGAGE, INC.

3. The cross-motion (motion sequence no. 003) of defendants KIM SNYDER f/k/a KIM SHELDON, H. AUSTIN SHELDON and CATHI DURLER.

4. The cross-motion (motion sequence no. 004) of defendant DINA JOYCE.

5. The motion (motion sequence no. 005) of defendant WILLIAM SWEENEY, ESQ.

6. The motion (motion sequence no. 006) of defendant SYD ASKOFF, ESQ.

7. The cross-motion (motion sequence no. 007) of defendants JOSEPH FRAGALA and LOUIS FRAGALA.

The Court notes in the first instance that to the extent that defendants' motions/cross-motions seek a change of venue of this action to Suffolk County, the motions are denied as moot in light of the May 19, 2006 Administrative Order of the Honorable Jan H. Plumadore, Deputy Chief Administrative Judge, whereby the undersigned Supreme Court Justice sitting in the Tenth Judicial District, Suffolk County, was assigned to hear the matter.

The instant action arises out of the purchase by plaintiff MARGARET MURPHY of residential premises located in Lindenhurst, New York on July 26, 2000. On February 22, 2006, plaintiff commenced the instant action predicated on allegedly fraudulent and conspiratorial misrepresentations regarding the subject property and naming as defendants virtually every person and entity that was involved with the sale of the premises nearly six years previously: KIM SHELDON, the former owner of the property; H. AUSTIN SHELDON, the seller's father who acted as attorney-in-fact on behalf of his daughter at the closing; SYD ASKOFF, ESQ., the [*3]attorney who represented the seller at the closing; PRUDENTIAL LONG ISLAND REALTY (formerly known as ARGYLE REALTY) and CATHI DURLER, the real estate agency and agent that represented the seller in connection with the sale; HOME SWEET HOME INSPECTIONS, INC., JAMES P. JACOBS and "JOHN DOE" #

1, the home inspection company retained by plaintiff in connection with her purchase of the premises, its principal and the inspector; CITIMORTGAGE, INC., the plaintiff's mortgage lender, and its appraisers, JOSEPH FRAGALA and LOUIS FRAGALA, as well as the attorneys who represented the mortgage lender in connection with the transaction, STEVENS J. KASSELMAN, ESQ. and "JOHN DOE #

2"; DINA JOYCE, the mortgage broker for plaintiff's mortgage loan; and WILLIAM SWEENEY, ESQ., the attorney who represented plaintiff at the closing.

In her purportedly "verified" complaint (although denominated a "verified" complaint, no verification is annexed to any of the copies of the complaint submitted with the motion papers), plaintiff has asserted against all defendants causes of action alleging violations of General Business Law §349, "fraud and deceit (active concealment)," and "conspiracy to commit fraud." In addition, plaintiff has asserted causes of action for breach of contract against defendants KIM SHELDON, H. AUSTIN SHELDON, HOME SWEET HOME, JAMES P. JACOBS, "JOHN DOE #

1," CITIMORTGAGE, and DINA JOYCE; and a legal malpractice cause of action against WILLIAM SWEENEY, ESQ. Via seven separate pre-answer motions, 11 of the 15 named defendants now move for dismissal of the complaint pursuant to CPLR R. 3211(a) and for sanctions pursuant to §130-1.1 of the Uniform Rules predicated on plaintiff's assertedly frivolous conduct in commencing the instant action. The motions are granted as follows.

The gravamen of plaintiff's complaint, which comprises 634 numbered paragraphs in 79 pages alleging 53 causes of action against the 15 named defendants, is her allegation that the defendants "falsely represented to [plaintiff] that the subject premises were in a safe and structurally sound condition free from defects" and that "the subject premises were in compliance with all applicable codes and ordinances." Plaintiff further alleges that the defendants "purposefully and with the intent to conceal known defects in the subject premises prevented the plaintiff's diligent efforts to discover the true condition of the premises" and "acted in concert with the other defendants in an effort to conceal the fact that the subject premises was materially defective." In some instances defendants' conduct is alleged to constitute a breach of contract. As a result of the defendants' actions, plaintiff claims to have suffered unspecified injuries resulting in an unspecified amount of damages.

Despite its impressive volume and mass, however, plaintiff's complaint is devoid of any factual allegations that detail the substance of the alleged misrepresentations by each of the defendants; the nature of the alleged defects in the premises or the manner in which the premises assertedly deviates from applicable codes and ordinances; the nature of plaintiff's asserted reliance on defendants' misrepresentations; the manner in which defendants assertedly conpired with one another; the provisions of and manner in which any applicable contract was assertedly breached; or the manner in which and amount whereby plaintiff was thereby injured. Rather [*4]than enumerate the specific events, actions, statements or omissions of defendants that underlie her claims, plaintiff has promulgated a blunderbuss, formulaic, cookie-cutter pleading wherein the allegations as to each of the 15 defendants are virtually identical, and collectively constitute a bewildering mass of bare legal conclusions that fail to articulate any colorable cause of action. Stuart Lipsky, P.C. v. Price, 215 AD2d 102, 625 NYS2d 563 (1st Dept. 1995).

As to plaintiff's claims of fraud and deceit, CPLR R. 3016(b) provides that "[w]here a cause of action...is based upon misrepresentation [or] fraud...the circumstances constituting the wrong shall be stated in detail." At a minimum, that requires plaintiff to identify the time, place, manner and content of the alleged misrepresentations with respect to each of the defendants. Eastman Kodak Co. v. Roopak Enters., 202 AD2d 220, 608 NYS2d 445 (1st Dept. 1994). Broad, conclusory allegations such as those employed by plaintiff herein are insufficient to satisfy the statutory standard. Meltzer v. Klein, 29 AD2d 548, 285 NYS2d 920 (2d Dept. 1967). Moreover, plaintiff has pleaded no facts to establish that her alleged reliance on the alleged misrepresentations as to the condition of the property and/or its value by, e.g., the seller's attorney, the bank's attorney, the mortgage broker, and the bank's appraiser whose normal roles in the context of a residential real estate closing suggest the implausibility of plaintiff's claims was "reasonable." In light of the foregoing, all of plaintiff's "fraud and deceit" claims are dismissed pursuant to CPLR R. 3211(a)(7).

It is well established that New York does not recognize an independent cause of action for conspiracy to commit fraud. Alexander & Alexander v. Fritzen, 68 NY2d 968, 510 NYS2d 546 (1986); Crispino v. Greenpoint Mortgage corp., 2 AD3d 478, 769 NYS2d 553 (2d Dept. 2003). In light of the dismissal of plaintiff's underlying fraud claims herein, her causes of action for conspiracy to commit fraud are also dismissed. Kestenbaum v. Suroff, 268 AD2d 560, 704 NYS2d (2d Dept. 2000); Sokol v. Addison, 293 AD2d 600, 742 NYS2d 311 (2d Dept. 2002).

The submissions establish that plaintiff's claims arising under General Business Law §349 are time-barred. That statute is governed by a three-year statute of limitations measured from the time that a "plaintiff has been injured by a deceptive act or practice violating section 349." Gaidon v. Guardian Life Insurance Company of America, 96 NY2d 201, 727 NYS2d 30 (2001). The submissions establish that plaintiff's injury, if any, occurred when she took title to the allegedly defective premises, which occurred on July 26, 2000 more than three years prior to commencement of this action. In any event, plaintiff's pleading does not demonstrate that the allegedly fraudulent misrepresentations by the defendants herein were directed to the public at large so as to bring them within the ambit of General Business Law §349. Lakehill Associates, Inc. v. 6077 Jericho Tpke. Realty Corp., 18 AD3d 506, 795 NYS2d 281 (2d Dept. 2005). Accordingly, all such claims are dismissed pursuant to CPLR R. 3211(a)(5) and (a)(7).

Plaintiff's breach-of-contract claims are also dismissed pursuant to CPLR R. 3211(a)(7). As with her fraud claims, plaintiff's breach-of-contract claims are vague, conclusory and indefinite and fail to particularize the manner in which the defendants allegedly breached their [*5]respective contracts with plaintiff.[FN1] Island Surgical Supply Co. v. Allstate Ins. Co., 2006 NY App. Div. LEXIS 10671, 2006 NY Slip Op 6392 (2d Dept. Sept. 12, 2006). It is well established that in order to plead a cause of action for breach of contract, a complaint must allege the provisions of the contract upon which the claim is based and be "sufficiently particular to give the court and [the] parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved as well as the material elements of each cause of action or defense." Atkinson v. Mobil Oil Corp., 205 AD2d 719, 614 NYS2d 36 (2d Dept. 1994); Shields v. School of Law of Hofstra University, 77 AD2d 867, 431 NYS2d 60 (2d Dept. 1980). Plaintiff's complaint is woefully deficient in that regard.

Finally, plaintiff's legal malpractice claim against her former attorney WILLIAM SWEENEY, ESQ. is dismissed. Any malpractice allegedly committed by Mr. Sweeney necessarily occurred at or prior to the closing of title on July 26, 2000, at the earliest, or on or before July 16, 2001, when the defendant closed his file, at the latest. In any event, more than three years have passed since the defendant allegedly failed to "use reasonable care in exercising his skill and applying his learning in his representation of plaintiff." Accordingly, plaintiff's legal malpractice claim is time-barred. Moreover, plaintiff's allegations fail to state a cause of action for legal malpractice. Plaintiff's claim is based upon "nothing but bare allegations of fact and conclusory legal arguments" that do not establish any of the required elements of a legal malpractice claim. Leder v. Spiegel, 31 AD3d 266, 819 NYS2d 26 (1st Dept. 2006). Accordingly, the legal malpractice claim is dismissed pursuant to CPLR R. 3211(a)(5) and (a)(7).

In addition to dismissal of the complaint, the moving defendants seek an order imposing sanctions against plaintiff and/or plaintiff's attorney pursuant to 22 NYCRR §130-1.1 on the grounds that the commencement and maintenance of this action constitutes "frivolous conduct" as defined therein. In her affirmation in opposition to defendants' motions, plaintiff's counsel denies that this action is "frivolous," an assertion, however, that is as unsupported legally and factually as plaintiff's pleading itself. The submissions and the dismissal of all of plaintiff's claims herein unequivocally establish that without a legally or factually sufficient basis, plaintiff commenced the instant action against 15 apparently unrelated individuals and entities who were compelled to retain counsel in order to respond to plaintiff's vague, conclusory and insubstantial claims with respect to a real estate transaction that had been concluded six years before and as to which plaintiff has proffered no facts to evidence that any defendant did anything wrong or that plaintiff has suffered any loss whatsoever. Indeed, defendants' submissions reflect that far from being aggrieved, plaintiff purchased the subject property "as is" for a bargain price, has benefitted from a substantial increase in value of the premises, has paid off the original mortgage loan with CITIMORTGAGE, and apparently continues to reside in the allegedly "defective" premises. [*6]

Moreover, and perhaps more importantly, the submissions establish that plaintiff's attorney ignored defendants' repeated requests outlining the applicable law and detailing the legal and factual deficiencies of plaintiff's complaint that plaintiff voluntarily discontinue her claims.

For purposes of 22 NYCRR §130-1, conduct is "frivolous" if "(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another, or (3) it asserts material factual statements that are false." 22 NYCRR §130-1.1(c). Moreover, in determining whether conduct was "frivolous," the court is required to consider, among other factors, "whether or not the conduct was continued when its lack of legal or factual basis was apparent, or should have been apparent, or was brought to the attention of counsel or the party." Under the foregoing standard, the Court finds that the conduct of plaintiff and her counsel in commencing and maintaining this action is frivolous and sanctionable.

The Court finds that in the circumstances, it is appropriate that plaintiff and her counsel reimburse, in the ratio of 20% to 80%, respectively, the costs, disbursements and attorney's fees incurred by defendants in preparing the instant motions to dismiss. Lake Anne Homeowners Ass'n v. Lake Anne Realty Corp., 225 AD2d 738, 639 NYS2d 200 (2d Dept.1996). Defendants are directed to submit to the Court, on notice to plaintiff, affidavits or affirmations of legal services rendered in connection with the instant motions, within thirty days of the date of entry of this order. Plaintiff shall have 30 days thereafter to respond, on notice to defendants.



Date:October 16, 2006______________________________

J.S.C. Footnotes

Footnote 1: If, indeed, such contracts existed. Defendants' submissions suggest that, for example, defendant AUSTIN SHELDON had no contractual relationship with plaintiff and that his sole involvement in this transaction was to execute the deed as attorney-in-fact for his seller-daughter at the closing.



Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.