J.D. v P.D.

[*1] J.D. v P.D. 2006 NY Slip Op 52166(U) [13 Misc 3d 1238(A)] Decided on November 20, 2006 Supreme Court, New York County Visitacion-Lewis, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 24, 2006; it will not be published in the printed Official Reports.

Decided on November 20, 2006
Supreme Court, New York County

J.D., Plaintiff,

against

P.D., JANE and JOHN DOE, Persons known and unknown, Defendant.



101745/06

Laura Visitacion-Lewis, J.

By Summons and Verified Complaint filed April 4, 2006, plaintiff, J.D., brings an action against defendants, P.D. and "Jane and John Doe," which seeks to vacate the Stipulation of Settlement (Stipulation) entered into by and between the D.'s on July 13, 1998, and incorporated, but not merged, into their Judgment of Divorce entered on August 11, 1998 (Virginia E. Yancey, J., Sup. Ct., Kings Co., Ind. No. ****/96). The gravamen of plaintiff's claims is that defendant P.D. engaged in fraud by failing to fully disclose his assets, and colluded with judges and court personnel to manipulate various aspects of the trial that was in progress at the time the parties entered into the settlement discussions that resulted in the Stipulation.

Defendant P.D., the plaintiff in the original matrimonial action, files an Amended Notice of Motion and supporting Memorandum of Law seeking dismissal of the complaint on the basis of documentary evidence (CPLR 3211[a][1]) and/or as barred by the statute of limitations (CPLR 3211[a][5], 213[8]), and for failure to plead fraud with the requisite degree of particularity (CPLR 3016[b]); or, alternatively, to strike specified paragraphs of the complaint on the ground that they contain prejudicial and scandalous material unrelated to plaintiff's substantive claims.[FN1]

By Amended Notice of Cross-Motion, plaintiff seeks leave to amend the complaint in the event that her allegations are determined by the court to be inadequately pleaded. Defendant's attorney files an Affirmation in Further Support of Dismissal and in Opposition to Cross-Motion [*2]to Amend, together with a Reply Memorandum of Law. For the reasons that follow, defendant's motion to dismiss the complaint as time barred, on the basis of documentary evidence, and as insufficiently pleaded, are granted, and plaintiff's cross-motion to amend the complaint is denied.

BACKGROUND

The parties were married on ****, 1978, in the County of Westchester, State of New York. On January 10, 1996, an action for divorce was commenced by P.D. against J.D. in Supreme Court, Kings County, under Index No. ****/96. During the course of those proceedings, J.D. was consecutively represented by four sets of attorneys: Polizzotto & Polizzotto; Ralph E. Gansell, Esq.; Raoul Lionel Felder, P.C.; and, for the six days of trial held in March 1998 and the mid-trial negotiations that led to settlement, Saul Edelstein, Esq.

The terms of the parties' agreement, which were memorialized in the Stipulation executed on July 13, 1998, provided, inter alia, for the distribution of their property, and contained acknowledgments that they had "exercised their rights to disclosure and to compel inspection of the other's books and records, business and personal, and ... to have accountants, appraisers and other investigators, appraise or evaluate the other's property" (Stipulation,

¶ 11[A]). In addition, each party acknowledged in the Stipulation that the trial had commenced, and that six trial days had been held (Id.). Finally, the parties acknowledged that the agreement had been fully explained to them, and that each had received independent legal advice from counsel and was satisfied that the agreement was fair and "not the result of any fraud, duress, coercion, pressure or undue influence" (Stipulation, ¶ 12[E]).

DISCUSSION

The Statute of Limitations

As a threshold issue, the court will address defendant's application to dismiss the complaint as time-barred. In pertinent part, CPLR 213(8) provides that the time within which an action based upon fraud must be commenced "shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff ... discovered the fraud, or could with reasonable diligence have discovered it." Here, the acts of fraud plaintiff alleges were committed by defendant would have to have occurred at or prior to the time of the Agreement's execution on July 13, 1998, or nearly eight years prior to the commencement of this action on April 4, 2006.[FN2] To the extent that plaintiff claims not to have learned of the alleged fraud until "in or about late 2003" (Complaint, ¶ 37[c]), the litigation was not commenced within two years of that discovery. On the basis of the undisputed dates, plaintiff's action must be dismissed as time-barred.[FN3]

[*3]The Complaint

In addition to the time bar, defendant identifies several substantive defects in the complaint as grounds for dismissal or, alternatively, for the striking of prejudicial and scandalous matter. First, it is noted that plaintiff's allegations of fraud are prefaced by a detailed history of the serious and painful injuries she sustained in a 1987 accident that also resulted in the death of the parties' infant son. The description of these catastrophic events, which befell the parties during their intact marriage in 1987, is heartrending. The court is in agreement with defendant, however, that plaintiff has failed to establish any plausible nexus between those tragic events and the Stipulation entered into by the parties during their divorce trial more than 10 years later, or the instant litigation commenced more than 18 years later. Accordingly, the court deems this narrative to have no relevance to the instant action and has excluded it from its consideration.

The complaint next goes on to set forth the facts underlying plaintiff's causes of action through bald, sweeping, vague, and conclusory claims of a conspiracy among defendant and former members of the Kings County judiciary to "fix" the divorce trial held eight years ago. Thus, it is alleged that two named former justices and an unnamed former associate justice of the Appellate Division Second Department, who is described as defendant's "mother's boss and former lover," "guided" defendant in some unspecified manner during the divorce litigation (Complaint, ¶ 17). Plaintiff further asserts that defendant's mother, who also goes unnamed in the complaint, participated in having the case fixed through her unspecified "position of judicial power and authority" (Complaint, ¶ 37[a][2]).[FN4] In the next paragraph, the complaint further broadens its sweep with reference to "the since exposed and corrupted Brooklyn court system" (Complaint, ¶ 38).

In making these claims, plaintiff fails to set forth specific acts or conduct attributed to the alleged conspirators, or to otherwise demonstrate how the purported influence, collusion, fraud and fixing of the trial is alleged to have occurred. Further absent from the serious claims presented is what role, if any, Justice Yancey, who presided over the trial and is not named or implicated in the alleged conspiracy, is purported to have played. Instead, the complaint conclusorily states that plaintiff was subjected to an "expedited trial" which proceeded in a "peculiar" fashion that, inter alia, denied plaintiff discovery, and subjected her to unfair rulings (Complaint, ¶¶ 24, 32).

To the extent that plaintiff's claims are dependent upon allegations of an unfair trial, grievances such as improper rulings and denial of discovery would certainly have been known to her at the time she entered into the Stipulation. Plaintiff's contention that the trial was improperly "expedited," is negated by the undisputed fact that there were two years of pre-trial [*4]proceedings, and that the trial was in its sixth day when the parties settled. Nor do the objective facts support plaintiff's further contention that, in the midst of trial, she was forced to sign the Stipulation presented to her and given one hour to do so. In fact, the date of the Stipulation establishes that it was not executed until four months after the last trial session. In addition, the Stipulation contains several handwritten modifications initialed by the parties, indicating that negotiations were ongoing until its execution.

In short, plaintiff's claims regarding the manner in which the trial was conducted and the Stipulation executed are negated by undisputed facts and objective evidence, including the

22-page Stipulation itself. Significantly, the various charges of trial manipulation by the alleged conspirators do not implicate or provide a nexus to the judge who presided over the trial and signed the Judgment of Divorce. Moreover, the serious allegations contained in the complaint are comprised of vague and conclusory claims and innuendo, and fail to meet the pleading particularity required for fraud by CPLR 3016[b] (see Sirohi v Lee, 222 AD2d 222 [1st Dept 1995], lv to appeal dismissed in part, denied in part by 88 NY2d 897 [1996], reargument denied by 88 NY2d 1018 [1996] [upholding dismissal of cause of action for failure "to allege each of the elements of fraud, i.e., misrepresentation of a material fact, scienter, justifiable reliance, and injury" with sufficient particularity]; see, also, Greschler v Greschler, 51 NY2d 368, 375 [1980] [plaintiff's conclusory allegations of fraud deemed insufficiently pled]; Lynch v Upper Crust, Inc., 294 AD2d 237 [1st Dept 2002] [allegations of fraud properly dismissed as "too vague and conclusory to give proper notice of the transactions and occurrences intended to be proved"]).

In addition to the pleading defects mandating dismissal of the second cause of action, it must also be dismissed inasmuch as it seeks to set forth a substantive tort of conspiracy, which is not recognized in New York State (see MBF Clearing Corp. v Shine, 212 AD2d 478 [1st Dept 1995]).

The Cross-Motion to Amend

Although CPLR 3025(b) provides that leave to amend a complaint shall be freely given, this relief is not granted upon mere request. Rather, a court making its determination must examine the underlying merit of the causes of action in order to prevent the waste of judicial resources (Wieder v Skala, 168 AD2d 355 [1st Dept 1990]). As noted, the complaint at bar contains fatal substantive deficiencies. The proposed amendment, however, is limited to the timing of its filing, and does not address any of the substantive defects upon which defendant's motion to dismiss is based. Where pleading defects are not cured by a proposed amendment, leave to replead is properly denied (see CLP Leasing Co., LP v Nessen, 27 AD3d 291 [1st Dept 2006]).

Moreover, plaintiff's proposed amendment, which would add facts to ¶ 38 and create a new ¶ 39 of the complaint in an effort to establish that it was timely filed within the two-year window of discovery for fraud, is itself lacking in merit. Plaintiff asserts that, although she learned from defendant's father in late 2003 that defendant had concealed a funeral home ownership interest he held at the time of the divorce, she was unable to file the instant action until the summer of 2005. It was only then, plaintiff contends, that she obtained "proof" of the fraud divulged to her by her former father-in-law in 2003, which proof consisted of a 2002 agreement that her former father-in-law had entered into with his son, defendant herein, to settle a lawsuit between them. Thus, plaintiff's argument continues, the two-year discovery window [*5]provided by CPLR 213(8) did not commence until the summer of 2005, rendering the February or April 2006 filing date timely. The court rejects plaintiff's argument.

Given that the information provided to plaintiff in 2003 concerned defendant's alleged concealment of a specific asset, namely a one-half interest in the L.D. & Sons M. Funeral Homes, Inc. (see Complaint, ¶ 37[c]), plaintiff's assertion that she did not have a sufficient basis upon which to file an action at that time must fail (see Lucas-Plaza Housing Dev. Corp. v Corey, 23 AD3d 217, 218 [1st Dept 2005]; see, also, Watts v Exxon Corp., 188 AD2d 74, 76 [3d Dept 1993] ["... positive knowledge of fraud is not required to commence the running of the two-year Statute of Limitations ... a plaintiff need only be aware of enough operative facts so that, with reasonable diligence, she could have discovered the fraud'" (citation omitted)]). Nor does plaintiff's further assertion that she could not, with due diligence, obtain a copy of the 2002 settlement agreement between defendant and his father until the summer of 2005, excuse the delay and warrant extension of the two-year period. The settlement agreement has been publicly available from the Kings County Clerk's office ever since its filing in March 2002.

In light of these circumstances, the court finds that the plaintiff has failed to establish any factual or legal basis for the proposed amendment and, accordingly, denies the cross-motion seeking this relief (see Posner v Central Synagogue, 202 AD2d 284 [1st Dept 1994], lv to appeal dismissed by 83 NY2d 953 [1994] [leave to amend should not be granted where "the proposed amendment is plainly lacking in merit"]).

Finally, in determining defendant's motion to dismiss, this court is guided by our appellate courts' salutary policy of maintaining "respect for the integrity and finality of divorce settlements," most recently reiterated by the First Department on October 19, 2006, in Kojovic v Goldman, __ AD3d __, 2006 NY Slip Op. 07595, 823 NYS2d 35, 38 (1st Dept 2006). There, the Court noted its "disdain for post-divorce claims of concealment" of assets that were readily ascertainable [FN5] in circumstances where, as here, the parties were represented by experienced matrimonial counsel at the time of negotiation and execution, the settlement agreement was fair on its face, and there was an explicit acknowledgment that the parties each exercised rights to disclosure that included the services of accountants, appraisers, and other investigators (see, generally, Kojovik v Goldman, supra ; see, also, Mahan v Mahan, 29 AD3d 471, 472 [1st Dept 2006]; DiSalvo v Graff, 227 AD2d 298 [1st Dept 1996]).

For all of the above reasons, defendant's motion to dismiss is granted, and plaintiff's cross-motion to amend the complaint is denied. In light of this determination, the court does not reach defendant's alternative application to strike matter claimed to be prejudicial and/or scandalous pursuant to CPLR 3024(b).[FN6] [*6]

Accordingly, it is hereby

ORDERED, that defendant's motion to dismiss the complaint on the basis of documentary evidence (CPLR 3211[a][1]), as barred by the statute of limitations (CPLR 3211[a][5], 213[8]), and for failure to plead fraud with the requisite degree of particularity (CPLR 3016[b]), is granted; and it is further

ORDERED, that plaintiff's cross-motion to amend the complaint if deemed to be inadequately pleaded is denied.

This constitutes the Decision and Order of the court.

_________________________________

LAURA VISITACION-LEWIS, J.S.C. Footnotes

Footnote 1:Defendant's motion also contains an application to dismiss for failure of plaintiff's counsel to sign the pleading, even after the omission was brought to his attention, as required under 22 NYCRR 130-1.1a (a). The defect has since been cured, rendering this basis for dismissal moot.

Footnote 2:The County Clerk's file contains two identical complaints dated January 25, 2006, one filed on February 7, 2006, and the other on April 4, 2006. Although the court deems it appropriate to utilize the later, superseding, filing date, both filing dates are beyond the statute of limitations period.

Footnote 3:In an apparent concession that the dates as currently pleaded will not overcome defendant's motion to dismiss her action as time-barred, plaintiff has cross-moved to amend the complaint to add facts in support of an argument that, despite the 2003 discovery, she had no basis upon which to file an action until the summer of 2005. Plaintiff's proposed amendment, discussed at pp. 7-8, infra, fails to cure this and other fatal defects, and has, accordingly, been denied (see Goldring v Goldring, 290 AD2d 365 [1st Dept 2002] [statute of limitations will bar fraud action where plaintiff fails to provide adequate basis for delay following discovery; substantive defects in the complaint also noted]).

Footnote 4:It is assumed that defendant's mother and the former associate justice of the Appellate Division, Second Department, are the Jane and John Doe defendants named in the caption. With respect to said defendant John Doe, it is noted that this litigation was never before the Appellate Division.

Footnote 5:In this regard, the court notes that the asset defendant is alleged to have concealed is an interest in a family business known as L.D. & Sons M. Funeral Homes, Inc. Defendant and members of his family owned other funeral homes, which were disclosed to plaintiff during the discovery phases of the trial and prior to the execution of the Stipulation (see Complaint, ¶¶ 19, 29, 32).

Footnote 6:This statutes provides that "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." Here, the prejudicial and/or scandalous allegations consist of the details surrounding the accident of 1987, which this court has found is irrelevant to the instant action, and the claims of a conspiracy between the defendant, judges, and court personnel, which this court has rejected as vague and conclusory.