Behrins & Behrins, P.C. v Chan
Annotate this CaseDecided on December 6, 2006
Supreme Court, Richmond County
Behrins & Behrins, P.C., Plaintiff,
against
Pamela Chan a/k/a Pamela Solomon, Defendant Pamela Chan Plaintiff, Behrins & Behrins, P.C. Defendant
Pamela Chan Plaintiff,
against
Behrins & Behrins, P.C. Defendant
14162/01
Appearances of Counsel:
For Plaintiff, Behrins - Paul A. Lemole, Esq., Lemole , McCarthy & Associates, 1492 Victory Blvd. Staten Island, NY 10301
For Defendant, Chan- Beth Kaufman, Esq.,Schoeman, Updike & Kaufman, LLP, 60 East 42nd Street, NY, NY 10165
Michael V. Ajello, J.
This matter involves two actions which were ordered to be tried jointly. The first action, Behrins & Behrins, P.C. v. Chan was commenced on December 13, 2001 in Richmond County, where Behrins & Behrins, P.C., a law firm, has its office. The action sought recovery of the principal sum of $97,964.65 based on breach of contract, account stated and quantum meruit and involved legal services rendered to Pamela Chan. [*2]
On June 20, 2002, Pamela Chan brought an action against Behrins & Behrins, P.C. in New York County, where she resides, seeking $623,866.63 for legal malpractice and $23,170.00 for wrongful conversion of property.
Chan thereafter, by order to show cause, moved in New York County for an order directing a joint trial of the two actions and also seeking that the actions be tried in other than Richmond County or Kings County, preferably in New York County. In support of the request for ordering the trials other than in Richmond or Kings Counties, Chan's attorney stated that the case in Richmond County had a long history of recusals, indicating a potential for non-neutral assessment if the cases are to be tried in Richmond County. It was also asserted that Bruce Behrins is a well established attorney in Richmond County and served on the Judicial Screening Committee for the Second Judicial District since 1980 and that Behrins & Behrins, P.C. advertises affiliated relationships on its website with "two currently sitting judges". She also pointed out that Ms. Chan is the single parent of a learning disabled child and cannot afford the expense and time to travel to and from Staten Island and that a material non-party witness lives and works in New York County.
An affidavit in opposition was submitted by Bruce Behrins in which he stated, inter alia, that he has, in fact, served on a Staten Island-Brooklyn Supreme Court Judicial Screening Committee for two decades and while the Committee does screen applicants for nomination to run for election in Kings and Richmond, he also served for 16 years on the Koch and Dinkins Mayor's Committee on the Judiciary for mayoral appointments to the Criminal and Family Courts throughout the City, and many of these judges are now sitting in the Supreme Court in every county in New York City. He further stated that the associates or counsel referred to in the website as being sitting judges referred to former associates. Mr. Behrins also contended that the expert witness was not a "material witness" for purposes of venue change.
Justice Alice Schlesinger granted the application insofar as it sought a joint trial. However, she denied so much of the application as sought to have the place of trial moved from Richmond County. No appeal was taken from this order.
By order to show cause dated November 13, 2006, Chan once again moved to have the cases transferred from Richmond County and to adjourn the trial pending determination of the motion. She also requested that the order to show cause should not be submitted for consideration to certain judges. This request for relief has been rendered moot since the order to show cause was submitted to this court for determination.
In support of the motion, Chan's attorney submitted an affirmation in which she stated that the motion should be granted because Chan cannot obtain a fair trial in Richmond County since Behrins & Behrins, P.C. is the adverse party. Bruce Behrins, a principal of Behrins & Behrins, P.C. is the attorney who handled Chan's underlying matrimonial action and he held a position on the Staten Island-Brooklyn Judicial Screening Committee until approximately two years ago, which led to close relationships with the justices he helped select. His close relationship with the justices in Richmond County has already led to two recusals and a third justice considering recusing himself. In addition, Richmond County Justices have recused themselves in other cases where Bruce [*3]Behrins or Behrins & Behrins, P.C. was a party.
Chan's attorney further stated that Justice Schlesinger ordered that the actions be heard for all purposes in Richmond County, but suggested that Behrins & Behrins should agree to a transfer to another county in light of Behrins' own explanation of the purpose and function of the Judicial Screening Committee of which he was a member.
It was further pointed out that Behrins & Behrins, P.C. had moved to strike Chan's jury demand, claiming that no jury should decide Behrins & Behrins, P.C.'s legal fee claim or Chan's legal malpractice and conversion claims since the underlying matter was a matrimonial action. Despite the fact that no New York case law was cited for this proposition, the motion was granted, necessitating an appeal. The Appellate Division reversed and reinstated the jury demand.
The attorney for Chan indicated that the matter has been on the calendar since June 30, 2003. On May 22, 2006, a Justice was requested to select a date certain for trial. The Justice agreed and selected September 18, 2006. On September 6, 2006, the Justice that selected September 18, 2006 heard oral argument on Chan's motion to dismiss and Behrins & Behrins' cross motion for sanctions. He reserved decision and noted that he would need time beyond the September 18, 2006 trial date to render his decision (on September 18, 2006, the Administrative Judge of Richmond County Supreme Court set a trial date of December 4, 2006). On September 14, 2006, a request was made to the Justice who had the motion to dismiss to recuse himself since he had previously recused himself in another action in which Behrins & Behrins had made a fee application (O'Donnell v. O'Donnell). The Justice has not responded to the request. Eight Justices in Richmond County had recused themselves in O'Donnell v. O'Donnell before it was transferred to Queens County. Chan requested that the place of trial should be changed because an impartial trial cannot be had and that the trial be transferred to New York County because she resides there, Action No. 2 was commenced there and a material non-party expert witness resides and works in New York City.
An affidavit in opposition was submitted by Bruce G. Behrins in which he stated that one of the Justices who recused himself in this matter did so because Behrins had earlier represented an individual who had sued the Justice. The other Justice who recused himself did so because there had been an attorney-client relationship between them. The Justice who has not recused himself but had done so in a previous action did so because Plaintiff in that action had served under him as a court clerk in Civil Court and later as a part clerk in the Justice's TAP part in Supreme Court. The other recusals in the prior action resulted from Plaintiff's employment in the Richmond County Supreme Court.
The affidavit further stated that the request for a change of the place of trial is substantively and procedurally defective. Justice Schlesinger already denied a change because Chan lived in New York County and the request for a change because her expert lives there should carry no weight when compared to the convenience of his firm's witnesses, which besides affiant, included three other persons who live in Richmond [*4]County.
A reply affirmation was submitted by Chan's attorney in which she once again mentioned the various recusals in this and other cases and stated that Behrins could not know the real reasons for the various recusals. She also stated that this matter is based on the inability to obtain a fair trial and not on the convenience of witnesses and mentioned the residences of Chan and the expert witness simply to provide support for transferring the case to New York County rather than another county.
Initially it should be noted that the denial by Justice Schlesinger of Chan's prior motion to transfer the trial to another county upon the ground that a fair trial could not be had in Richmond County was not appealed and would normally constitute the law of the case. Once an issue has been judicially determined, law of the case binds not only the parties, but also all other judges and courts of coordinate jurisdiction (Doe v. Karpf, 11 Misc 3d 1093; McCluskey v. County of Suffolk, 9 Misc 3d 1106). It does not, of course, bind a higher appellate court (People v. Evans, 94 NY2d 499; Trump Village Section 3
v. New York State Housing Finance Agency, 307 AD2d 891).
Therefore, if Justice Schlesinger's decision constituted the law of the case, I would be bound by that decision and the matter would end right here. However, I am of the opinion that I am not bound by that decision.
Although the motion before Justice Schlesinger and the present motion both contend that a fair trial is unattainable, Justice Schlesinger's determination was predicated upon statements made by Justice Lebowitz, to whom the matter had been assigned, that there was no reason for him to recuse himself, and her belief that it would not be appropriate to, in effect, override him by altering the venue selection made in the earlier trial. Basically, the holding is to the effect that Chan would not be denied a fair trial if the matter proceeded before Justice Lebowitz. However, since that determination, Justice Lebowitz has retired and therefore the prior holding can no longer have any binding effect.
However, I am of the opinion that the motion must nevertheless be denied. This matter has been assigned to me for all purposes. On June 21, 2006, I was appointed a Supreme Court Justice by Governor George Pataki to fill a vacancy and am currently serving an interim term. I did not appear before any Screening Committee in order to be appointed. I did appear before the Richmond County Bar Association Screening Committee when I ran for the Supreme Court in November of this year and was approved, but I believe Bruce Behrins was not a member of such Committee. In any event, I also appeared before the Judiciary Committee of the Association of the Bar of the City of New York and was approved. Ms. Kaufman, Chan's attorney, is Chairperson of that Committee and in fact signed the letter informing me of my approval. The fact that someone may have been a member or even a chairperson of a Judiciary Committee that had to approve me would not influence me in any way in any case that came before me wherein such person was involved as a party or as an attorney. Moreover, although I am acquainted with Mr. Behrins, we have no social relationship and to the best of my knowledge, I have never been involved in any legal matters with Mr. Behrins nor have I ever had any business or financial transactions with him or his firm. I perceive of no reason whatsoever why the parties cannot have a fair trial before me and this matter [*5]should therefore now proceed expeditiously in view of the many delays there have been.
It is unnecessary to determine a transfer based upon the convenience of witnesses since Chan's attorney has stated that this is not the basis of her motion and that she mentioned that Chan resides in New York County and that a material non-party expert resides and works in New York County merely to provide support for transferring the case to New York County rather than transfer the case to some county other than Richmond or Kings.
Accordingly, it is ordered that so much of the motion that sought to transfer the place of trial from Richmond County to a Supreme Court in New York City other than Richmond County and Kings County is denied. The other branches of the motion have been rendered moot.
This is the decision and order of the Court.
E N T E R
____________________________
J.S.C.
Dated: December 6, 2006
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