Castro v East End Plastic Reconstructive & Hand Surgery, P.C.

[*1] Castro v East End Plastic Reconstructive & Hand Surgery, P.C. 2006 NY Slip Op 52107(U) [13 Misc 3d 1233(A)] Decided on August 16, 2006 Supreme Court, Suffolk County Loughlin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2006
Supreme Court, Suffolk County

Frank Castro, NARDO CASTRO, AND CHRISTOPHER CASTRO, A MINOR, BY AND THROUGH FRANK AND NARDA CASTRO AS HIS LEGAL GUARDIANS, Plaintiffs,

against

East End Plastic Reconstructive and Hand Surgery, P.C., DOCTOR JUDY ANN EMANUELE AND RICHARD SOKOLOFF, ESQ., Defendants.



42-06



BENJAMIN J. FISCHER, PC

Attorney for Plaintiffs

213-37 39TH Avenue, Suite 147

Bayside, NY 11361

RICHARD SOKOLOFF, ESQ.

Defendant Pro Se

3245 Route 112

Building 2, Suite 1

Medford, NY 11763

WICKHAM BRESSLER GORDON et al

Attorneys for Deft. East End and Emanuele 13015 Main Road

Mattituck, NY 11452

Daniel J. Loughlin, J.

ORDERED, that the motion by plaintiffs for an order striking the affirmative defenses and counterclaims of the defendants East End Plastic Reconstructive and Hand Surgery, P.C. and Dr. Judy Ann Emanuele, the defendants cross-motion for summary judgment, the plaintiffs motion for a default judgment against defendant Richard Sokoloff and Sokoloff's motion to dismiss are determined as follows.

The defendants East End Plastic Reconstructive and Hand Surgery, P.C. (East End) and Dr. Judy Ann Emanuele commenced an action in District Court against the plaintiffs Frank Castro and Narda Castro to recover payment for medical services rendered to the infant plaintiff Christopher Castro. The action was brought by the defendant attorney Richard Sokoloff. The defendants obtained a default judgment and filed restraining notices against the plaintiffs' bank accounts. After the plaintiffs brought an order to show cause to vacate the judgment, the District Court granted the motion and dismissed the complaint on the grounds of improper service. The plaintiffs then commenced this action with a complaint consisting of 656 paragraphs and 36 purported causes of action. The complaint consists primarily of a rambling diatribe against the defendants and fails to coherently or succinctly define specific causes of action or claims against the defendants. The complaint repeatedly accuses the defendants of fraud, perjury and other misconduct but the gravamen of the allegations appears to be that the defendants improperly commenced the District Court action because they had agreed to accept payment from an insurance carrier in full satisfaction of the amount owed. The defendants East End and Emanuele have asserted counterclaims seeking, inter alia, payment for services rendered. The plaintiffs move to strike the defendants affirmative defenses and counterclaims and the defendants cross-move for summary judgment. The plaintiffs also move for a default judgment against Sokoloff and Sokoloff moves to dismiss the complaint.

In support of their cross-motion for summary judgment, the defendants East End and Emanuele submit an affidavit and a copy of a form signed by the plaintiff Frank Castro which provides that he shall be responsible for any balance not covered by insurance. However, the defendants have failed to submit invoices or documentary evidence establishing the services rendered and amount owed and have submitted no evidence that a demand for payment was made. In addition, the defendants did not specifically address the plaintiffs' allegation that they accepted an assignment of the claim. Therefore, the defendants have not established their entitlement to judgment as a matter of law and the cross-motion for summary judgment is denied. The motion by plaintiffs to strike is granted solely to the extent that the second affirmative defense of lack of personal jurisdiction is dismissed. Since the defendants did not move to dismiss on this ground within 60 days after service of the answer, the objection is waived (see CPLR 3211[e]). In all other respects, the motion to strike is denied. [*2]

The plaintiffs' motion for a default judgment against Sokoloff is denied. By order dated April 7, 2006, this Court denied, without prejudice, a prior motion to dismiss by Sokoloff. The plaintiffs did not serve Sokoloff with a copy of that order with notice of entry. Therefore, Sokoloff's time to answer or otherwise move did not begin to run (see CPLR 3211[f]). Sokoloff again moves to dismiss on the grounds that the complaint fails to state a cause of action. To the extent that it can be determined, the primary claim against Sokoloff appears to be a cause of action for malicious prosecution.

The elements of an action for malicious prosecution are (1) the initiation of a proceeding, (2) its termination favorably to the plaintiff, (3) lack of probable cause and (4) malice (see Colon v City of New York, 60 NY2d 78, 82; Wilhelmina Models v Fleisher, 19 AD3d 267, 269 [1st Dept 2005]). Here, the District Court action was dismissed for lack of personal jurisdiction over the plaintiffs and thus was not an adjudication on the merits (see Kokoletsos v Semon, 176 AD2d 786 [2d Dept 1991]). Therefore, the plaintiffs' allegations are insufficient to demonstrate that the prior action was terminated in their favor (see Weichert v Kimber, 249 AD2d 996 [4th Dept 1998]; Struve v Bingham, 244 AD2d 178 [1st Dept 1997]; Sokol v Sofokles, 136 AD2d 535 [2d Dept 1988]). The plaintiffs' allegation that the action was dismissed with prejudice based upon CPLR 205(a) is without merit. Where the statute of limitations has not expired, CPLR 205(a) cannot be applied so as to shorten the period otherwise available to a plaintiff (see United States Fid & Guar. Co v Smith Co., 46 NY2d 498, 505; Sotirakis v United Services Auto Assn., 100 AD2d 931 [2d Dept 1984]).

In addition, the plaintiffs failed to adequately allege that the District Court action lacked probable cause. The plaintiffs' assertion that the defendants were collaterally estopped from bringing the prior action is meritless. Even accepting the plaintiffs contention that the defendants accepted an assignment in full satsifaction of the charges as true on a motion to dismiss, this would not act to collaterally estop the defendants from bringing an action to recover payment for services rendered. The doctrine of collateral estoppel requires that the identical issue was decided in a prior action and that the party to be precluded had a full and fair opportunity to contest the issue (see Luscher v Arrua, 21 AD3d 1005, 1007 [2d Dept 2005]). There was no prior action before the District Court case that would have prohibited the defendants from bringing an action. Thus, the plaintiffs failed to state a cause of action for malicious prosecution (see Longo v County of Nassau, 6 AD3d 670 [2d Dept 2004]). The plaintiffs remaining allegations which include, inter alia, claims of fraud, conversion and harassment are insufficient to state viable causes of action. Accordingly, the motion to dismiss is granted and the complaint is dismissed insofar as asserted against Sokoloff.

Dated:August 16, 2006

DANIEL J. LOUGHLIN, J.S.C.

FINAL DISPOSITIONXNON-FINAL DISPOSITION