Scheuer v Schwartz

[*1] Scheuer v Schwartz 2008 NY Slip Op 52487(U) [21 Misc 3d 1143(A)] Decided on October 15, 2008 Supreme Court, New York County Edmead, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 15, 2008
Supreme Court, New York County

Majorie Scheuer, as Executor of the Will of Walter Scheuer, Plaintiff,

against

Mark D. Schwartz, Defendant.



604049/2005

Carol R. Edmead, J.

MEMORANDUM DECISION

In this action to recover monies overpaid for legal services rendered, defendant Mark D. Schwartz ("defendant") moves pursuant to CPLR 3212 for summary judgment dismissing the complaint of the plaintiff Majorie Scheuer, as Executor of the Will of Walter Scheuer ("plaintiff"). Defendant's argument is bottomed on plaintiff's failure to comply with the due process requirements under Article I, Section 6 of the New York State Constitution and of the 14th Amendment of the United States Constitution.[FN1]

In response, plaintiff opposes the relief sought, and cross moves for sanctions.

Background

According to the complaint, Walter Scheuer (the "decedent") died in 1999 and Marjorie Sheuer was appointed executor of his estate (the "Sheuer Estate"). Previously, the decedent retained defendant to represent him in connection with his claim against the Estate of Isaac Stern ("Mr. Stern").[FN2] Defendant billed the decedent and his Estate approximately $425,000, and later, approximately $80,000 for Connecticut counsel, who defendant utilized in the prosecution of the litigation against the Stern Estate. These fees, totaling approximately $500,000, were paid in full. After the litigation against the Stern Estate settled for approximately $1.1 million, [*2]defendant retained an additional $200,000 out of the recovery, before making payment to the Scheuer Estate, claiming it as a "success" fee, even though no such payment was authorized. This action for breach of contract, unjust enrichment, breach of fiduciary duty, and misappropriation and conversion ensued.

Defendant moved to dismiss the complaint for lack of personal jurisdiction, which this Court granted. However, on appeal, the First Department found that based on defendant's visits to New York and work performed for the decedent in New York, defendant engaged in "purposeful activities" in this state, and that being defendant before New York courts to answer this action was justified. The First Department also found that a substantial relationship existed between defendant's transactions in this state and plaintiff's causes of action. Therefore, the complaint was reinstated.[FN3]

Defendant subsequently petitioned the Appellate Division for leave to reargue its decision and alternatively, to certify this matter to the Court of Appeals. Both requests were denied.

Defendant then filed his answer, asserting in one of his affirmative defenses that he reserved all rights to move and seek dismissal of the complaint for lack of personal jurisdiction on due process grounds.

Defendant's Motion

Defendant contends that the Appellate Division's decision never addressed the requirement determining personal jurisdiction over a non-domiciliary in a two-step process: examining first whether New York law supports the exercise of personal jurisdiction and if so, whether New York's extension of jurisdiction would be permissible under the due process clause of the Fourteenth Amendment to the United States Constitution.

Since this Court found that the contract for legal services under which defendant was retained by decedent, was formed in Massachusetts and dismissed the action on that basis, the Court did not reach the due process requirement as presented in defendant's motion. The Appellate Division then held that defendant's services were retained in Massachusetts, but that defendant repeatedly engaged in purposeful activities in New York. Yet, the Appellate Division never addressed whether finding jurisdiction on defendant's contacts with New York comports with due process as both the New York and federal Constitution require. While defendant may have had contacts with New York in the process of preparing the Stern Matter, his actions were not directed purposefully to the forum state, New York, such that he would reasonably expect to be hailed into court in New York.

Defendant notes that in personam jurisdiction in New York is specific and not general, and New York's specific jurisdiction does not extend as far as the federal constitution permits. However, neither this Court, nor the Appellate Division, addressed the requisite five factors for determining jurisdiction under the second step of the analysis. It would pose a burden on defendant, a non-New York resident and sole practitioner in Pennsylvania, to litigate this matter in New York. New York may have an interest in resolving a dispute for the convenience of one of its residents, but the plaintiff's residence alone is not sufficient basis under due process for jurisdiction. As the foundation of this matter is tied to the Stern Matter, New York does not have [*3]an interest in the substance of the dispute, especially since Massachusetts or Connecticut law would apply. Massachusetts has a greater interest in adjudicating the contract for legal services made in Massachusetts and Connecticut has a substantial interest in resolving disputes arising out of matters before its courts, especially since defendant was admitted pro hac vice in the Stern Matter. The interests of both of these states trump those of New York. Further, the center of gravity of all defendant's conduct was centered in Connecticut. All of defendant's activities in New York were for advancing a legal matter in Connecticut. Additionally, none of defendant's activities invoked any privilege of doing business in New York, or the protection of New York law.

Defendant could not reasonably foresee that his activities, i.e., reviewing files, meeting counsel, and interviewing witnesses, in the Stern Matter would drag him into a New York court. The fact that defendant spent time in New York does not negate the fundamental conclusion that all of his transactions in New York were performed for the sole purpose of furthering the Stern Matter in Connecticut.

Furthermore, argues defendant, plaintiff has readily available alternatives to maintaining this action in New York, such as recommencing this action in Pennsylvania, where defendant resides and practices law, or Connecticut, where the underlying action was conducted.

Plaintiff's Opposition and Cross-Motion

Plaintiff argues that defendant raised the constitutional propriety of personal jurisdiction on appeal and on his motion to reargue, and got a second bite of the apple, making the same arguments as he had on appeal: that exercising jurisdiction over him was a violation of due process and the notions of fair play. The issue defendant now raises was put squarely before the Appellate Division. Upon consideration, the Appellate Division expressly agreed with plaintiff that defendant engaged in "purposeful activities" in New York.

The Appellate Division engaged in the two-step process; as to sufficient contacts, the Appellate Division held that the "quantity and quality of defendant's contacts with this state" were sufficient. As to the connection requirement, the second prong, the Appellate Division held that defendant repeatedly engaged in purposeful activities in ths state relating to the Stern Matter out of which this action arises; the defendant's activities were also found to be sufficient to hail defendant "before New York courts to answer this action."

Furthermore, as the federal due process requirements are less stringent, as defendant even concedes, there should be no need for a separate analysis. In any event, under the federal tests for due process, the five factors favor plaintiff. Requiring defendant to defend this action in New York is not burdensome, in that he traveled here more than 10 times over a nine month period in connection with the Stern Matter. It is in the interest of New York and plaintiff to see that this action, on behalf of an estate being probated in New York, be heard and determined in New York. This action can be efficiently resolved in New York, where plaintiff and other witnesses reside. Finally, New York has a substantive policy interest in insuring that the estates administered in its surrogate's courts have remedies for wrongs against them heard and determined in New York. As the Appellate Division already ruled, the exercise of personal jurisdiction over defendant is fully proper.

In support of the cross-motion, plaintiff argues that she should be awarded attorneys' fees and costs pursuant to Rule 130-1.1, associated with responding to defendant's frivolous motion. [*4]Plaintiff argues that defendant filed this motion after twice having the same arguments rejected by the Appellate Division, blatantly ignoring discovery requests, and imposing additional unnecessary expenses upon the Scheuer Estate.

Defendant's Reply

Plaintiff's papers do not negate the fact that the Appellate Division failed to find that jurisdiction comports with Federal due process, and it is uncontested that this Court never decided the second issue of due process. Since this Court's decision was based solely on the finding that the first prong of the personal jurisdiction test was not satisfied, the Appellate Division could not and did not decide on the second prong, which is expressly required in order to confer personal jurisdiction. Defendant's brief on appeal only stated that this Court did not reach the second prong, and that the matter should be returned to this Court to consider the due process prong; the second prong was not briefed. Nor did plaintiff mention "due process" in her appeal brief. Further, that the parties briefed this second issue would not mean that the Appellate Division decided the due process prong. "Due process" is not mentioned anywhere in such decision. Long-arm jurisdiction under CPLR 302(a) was the only issue decided by the Appellate Division. Furthermore, the language that "defendant engaged in purposeful activities" indicates a finding on minimum contacts, which alone, does not satisfy due process. And, in defendant's motion to reargue or leave to appeal to the Court of Appeals, defendant merely pointed out errors with the Appellate Division's finding of long-arm jurisdiction, and in the failure to remand the case to this Court for consideration of due process.

If one adopts the notion that New York's jurisdiction requirements are more stringent than the Federal jurisdictional requirements, then this would amount to an admission of a violation of due process. As there are no factual issues that require discovery on the issue of due process, moving now is appropriate to avoid an unnecessary expense of discovery.

The five factors for federal due process, which remain to be considered, favor defendant. Defendant has no involvement with the probate of the Scheuer Estate. New York's interest in the probate of that Estate has nothing to do with the claims regarding defendant's representation of the decedent, and the residence of plaintiff, alone, is insufficient. A person of plaintiff's wealth could not be burdened in litigating this matter in Massachusetts, where she also resides, Connecticut, or Pennsylvania. Connecticut, where the underlying Stern Matter occurred, is the appropriate forum, even with respect to necessary third party witnesses. New York's probate proceedings have nothing to do with defendant's representation in Connecticut, whereas Massachusetts has a strong interest in adjudicating contracts made in that state, Connecticut has a strong interest in resolving issues that pertain to actions before its courts, and Pennsylvania has an interest regarding its residents.

If this Court finds that due process was implicit in the Appellate Division's decision, then the implicit nature of such a holding renders such decision vague and ambiguous. Further, the Appellate Division's decision on reargument opined nothing in its order denying defendant's application. Therefore, sanctions against defendant is inappropriate because defendant has a colorable, good faith claim in making this motion.

Plaintiff's Reply [*5]

In reply, plaintiff addresses certain alleged distortions made in defendant's reply, and adds that though given the opportunity, defendant failed to fully brief the issue regarding the second prong before the Appellate Division.

Analysis

As stated in the decisions of this Court and the Appellate Division, New York's "Long-Arm" statute, CPLR 302(a), provides, as here relevant, as follows: As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary . . . who in person . . .1. Transacts any business within the state or contracts anywhere to supply goods or services in the state; . . . .

Once a court determines that a defendant has transacted business pursuant to CPLR 302(a)(1), the court must then "ascertain whether the exercise of jurisdiction comports with due process" (Deutsche Bank Securities, Inc. v Montana Bd. of Investments, 21 AD3d 90, 797 NYS2d 439 [1st Dept 2005] citing see LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 216, 713 NYS2d 304 [2000]). Due process is not offended "[s]o long as a party avails itself of the benefits of the forum, has sufficient minimum contacts with it, and should reasonably expect to defend its actions there . . . even if not present' in that State" (Kreutter v McFadden Oil Corp., 71 NY2d 460, 466, 527 NYS2d 195 citing McGee v Intl. Life Ins. Co., 355 US 220, 78 SCt 199, 2 LEd2d 223 [1957] [emphasis added]). In order to satisfy the minimum contacts requirement, it is essential that there be "some act by which defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefit and protection of its laws" (Hanson v Denckla, 357 US 235, 253, 78 SCt 1228 [1958] [emphasis added]).

A reading of this Court's earlier decision reveals that the Court granted defendant's motion for dismissal based on lack of personal jurisdiction pursuant to CPLR 302(a)(1), the "transacting business" section of New York's long-arm statute. The Court essentially rested its opinion on the grounds that "the decedent's retention of defendant's legal services to pursue the Stern Matter, out of which this action arises, occurred at . . . Massachusetts," the "legal services, from which this action arises, were rendered before a court in Connecticut . . ." and that notwithstanding the fact that defendant regularly spent time in New York, "the retention of legal services [ ] did not occur in New York." Since the Court found that plaintiff failed to establish jurisdiction as asserted under CPLR 302(a)(1), the Court did not reach the question of whether any exercise of jurisdiction over defendant offended due process.

On appeal, the Appellate Division found that the Court may exercise personal jurisdiction over the defendant. After reciting the salient factual background of this case, the Appellate Division began its analysis with a citation to CPLR 302(a)(1)'s long arm jurisdiction statute. The Appellate Division explained that one transaction was sufficient to invoke jurisdiction, provided defendant's activities were "purposeful and there is a substantial relationship between the transaction and the claim asserted." The Appellate Division found that the decedent "retained defendant in Massachusetts" and that the case was not one in which jurisdiction pursuant to CPLR 302, i.e, physical presence in New York at the time of contract formation, could be found. However, the Appellate Division continued, "the quantity and quality of defendant's contacts with this state in performing that [Massachusetts] agreement demonstrates that long-arm jurisdiction under CPLR 302(a)(1) may be exercised over defendant." The Appellate Division [*6]then went on to state the number of trips defendant made to New York in connection with his representation of the decedent, the legal work he performed on the decedent's matter while in New York, and the number of hours decedent was billed for work defendant performed while in New York. Concluding, the Appellate Division opined that defendant "engaged in much more than a single act in New York. Rather, defendant repeatedly engaged in purposeful activities' in this state relating to the Connecticut proceeding out of which this action arises." Therefore, bringing defendant "before New York courts to answer this action is justified." Lastly, the Appellate Division found that a substantial relationship existed between defendant's transactions in this state and plaintiff's cause of action.

A finding of "purposeful activities," however, does not necessarily amount to a finding that the exercise of jurisdiction comports with due process, but applies when considering whether the circumstances of a particular case meet the requirements of New York's long-arm statute (see e.g., Deutsche Bank Securities, Inc. v Montana Bd. of Investments, 21 AD3d 90, 797 NYS2d 439 [1st Dept 2005] ["CPLR 302(a)(1) permits a New York court to exercise personal jurisdiction over a nondomiciliary if the nondomiciliary conducts purposeful activities' within the state and the claim against the nondomiciliary involves a transaction bearing a substantial relationship' to those activities"]; Courtroom Television Network v Focus Media, Inc., 264 AD2d 351, 695 NYS2d 17 [1st Dept 1999] [stating that under CPLR 302, "a nondomiciliary defendant is subject to the jurisdiction of New York . . . if the defendant engaged in some purposeful activity within the State and there is a substantial relationship between the activity and the cause of action sued upon . . . the key inquiry, for purposes of the "transacting business" section of long-arm statute, is whether defendant purposefully availed itself of the benefits of state's laws]).

Defendant claims that the Court failed to conduct the second prong-the due process prong-test, the examination of five factors, prior to asserting personal jurisdiction: (1) the burden imposed on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff's interests in a obtaining a convenient and effective resolution; (4) the interstate judicial system's interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies (see BHC Interim Funding, LP v Bracewell & Patterson, LLP, 2003 WL 214 67544 [SDNY 2003]; Asahi Metal Indus. Co. v Superior Court of Cal., 480 U.S. 102, 107 S. Ct. 1026, 94 L. Ed. 2d 92 [1992] ["A court must consider the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief. It must also weigh in its determination "the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies"]). Defendant cites to cases which conduct an analysis of these five factors in order to determine whether the exercise of jurisdiction would comport with "fair play and substantial justice" after having found that defendant has purposefully established minimum contacts with the forum under CPLR 302 (see e.g., BHC Interim Funding, LP, supra ; Bank of Brussels Lambert v Fiddler Gonzalez & Rodriguez, 171 F3d 779 [2d Cir. 1999]; see also BHC Interim Funding, LP v Bracewell & Patterson, LLP, supra ] ["Federal courts sitting in New York thus engage in a two-step analysis, examining first whether New York law would support the exercise of personal jurisdiction and, if so, turning to the question of whether New York's extension of jurisdiction would under the circumstances be permissible under the Due Process Clause of the Fourteenth Amendment to the Constitution of [*7]the United States"]). And, it appears that the Second Department also follows this course of analysis (Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 806 NYS2d 84 [2d Dept 2005]).

However, this Court failed to uncover, and the defendant failed to cite, any First Department caselaw in which a finding of jurisdiction under the long-arm statute of CPLR 302 included an analysis of these five factors. In this regard, one First Department case, Liberatore v Calvino (293 AD2d 217, 742 NYS2d 291 [1st Dept 2002]), acknowledged that in order to exercise long-arm jurisdiction under CPLR 302(a)(1), "it is necessary that the Due Process Clause of the United States Constitution be satisfied insofar as the basis of the exercise of long-arm jurisdiction must be a defendant's " minimum contacts' with the state and must comport with traditional notions of fair play and substantial justice.'" However, in Liberatore, the First Department found that jurisdiction over the defendant was "fair and just" under the circumstances, without discussing whether the five factors applied or were satisfied.

Notably, the Court of Appeals decision in LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 713 NYS2d 304 [2000]) however, applied such an analysis after first finding "that the exercise of long-arm jurisdiction" over defendant was "compatible" with CPLR 302. The Court of Appeals first concluded that defendant "derived substantial revenue from interstate commerce and the circumstances surrounding its sale of the subject rear-loader gave it reason to expect that its acts in connection with the manufacture of the rear-loader would have consequences in this State." The Court then turned to International Shoe v State of Wash. (326 US 310, 316, 66 SCt 154), as follows: . . . the United States Supreme Court held that a State may constitutionally exercise jurisdiction over non-domiciliary defendants, provided they had "certain minimum contacts with [the forum State] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice'" . . . . Under the Due Process Clause, the standards of "minimum contacts" and "fair play and substantial justice" are implicated in the decisional law governing personal jurisdiction. We therefore discuss both.

* * * * *

The Court of Appeals then continued, stating that minimum contacts "alone do not satisfy due process. The prospect of defending a suit in the forum State must also comport with traditional notions of " fair play and substantial justice.'" Compelling a defendant to defend an action in New York must be "reasonable." After assessing the facts according to the five factors articulated above, the Court of Appeals concluded "that asserting jurisdiction over Pak-Mor [defendant] in New York would not offend traditional notions of fair play and substantial justice."

It is noted that plaintiff's papers herein do not adequately address the issue of whether analysis of the five factors is required.

Plaintiff's objection that defendant raised this issue before the Appellate Division lacks merit; a request that the case be remanded to a lower court to consider the due process element of jurisdiction in the event the Appellate Division found that the long-arm statute applied hardly constitutes a "brief" of the five factors proposed herein by the defendant. Likewise, plaintiff's reply on appeal, which simply stated that no notions of due process and fair play would be offended by hailing defendant into a New York court, is not a "brief" on this legal issue. [*8]Contrary to plaintiff's contention, the Appellate Division's cite to Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988] was for the proposition that CPLR 302 "is a single act statute and proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" and not for the issue of whether long-arm jurisdiction comported with due process.

Nor was the issue regarding the five factors briefed on reargument. Defendant's papers on reargument to the First Department with regard to the five factors was that the Appellate Division erred in not "remanding" this case to this Court for further due process analysis, and not that the Appellate Division failed to "consider" the five factors. Although defendant claimed on reargument that jurisdiction was unconstitutional, defendant's argument was aimed at the Appellate Division's finding of long-arm jurisdiction. Similarly, plaintiff's argument that the Appellate Division correctly found that defendant's activities in New York "far exceeded the minimum contacts" does not speak to whether the five factors should be considered or were satisfied.

Plaintiff's sole argument with regard to the discreet issue before this court was that federal due process requirements are less stringent than that which is required under New York's long-arm statute. Plaintiff failed to cite to any First Department caselaw which dispenses with analysis of the five factors required by the Court of Appeals in Pak Mor (supra ) or with the necessity of finding that the exercise of jurisdiction under the long-arm statute must also comport with due process requirements (see Pastorella v City of New York, 182 AD2d 360, 585 NYS2d 693 [1st Dept 1992], citing Asahi Metal Indus. Co., supra , [agreeing "with the IAS court that quite apart from the long arm statute, the exercise of jurisdiction over Racal [defendant] would violate the due process clause of the Federal Constitution]).

It is against this decisional background that this Court turns to the question presented herein. Based on an analysis of the above caselaw, this Court agrees that the Court must now engage in the analysis of the five factors of due process announced in Pak Mor before exercising jurisdiction over the defendant pursuant to CPLR 302(a)(1) (see also, Glenn v SBPartners LLC, 18 Misc 3d 1123, 859 NYS2d 894 [Sup. Ct. Nassau County 2008] ["Any analysis of personal jurisdiction requires a two-part inquiry: first, whether the state law basis for personal jurisdiction has been met, and second, whether the exercise of state law jurisdiction in a particular case comports with due process"]; Southern Industries of Clover, Ltd. v Tex-Cellence, Inc., 7 Misc 3d 1007, 801 NYS2d 242 [Sup. Ct. Bronx County 2005]; Cerberus Capital Management, L.P. v Snelling & Snelling, Inc., 12 Misc 3d 1187 [Sup. Ct. 2005] ["The second prong of federal due process jurisdictional analysis is to determine whether [t]he prospect of defending a suit in the forum State ... comport[s] with traditional notions of fair play and substantial justice' . . . . A court must consider the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief. It must also weigh in its determination the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies"]).

The Court now considers these factors seriatim.

Although defendant resides and practices solely in Pennsylvania, it cannot be said that litigating this action in New York would impose an unreasonable burden on him. The record [*9]demonstrates that defendant visited New York on at least 10 occasions to meet with lawyers he was replacing on the Stern Matter, to meet with witnesses, and to review records of loans the decedent made to Mr. Stern.

Further, although New York's interest in the probate of the Scheuer Estate is unrelated to defendant's legal representation of the decedent, New York has an interest in matters directly affecting and impacting estates being probated within its borders.

The record also fails to clearly establish whether Massachusetts or Connecticut law would govern the claims in this case. Although defendant was engaged to prosecute the Stern Matter in Connecticut, the complaint does not allege legal malpractice arising from defendant's performance of legal services. Instead, plaintiff seeks to recover the "success fee" defendant retained in connection with settling the Stern Matter, and these funds would inure to the benefit of the Scheuer Estate being probated in New York.

Further, while Massachusetts may have an interest in regulating contractual relationships created therein, and Connecticut may have an interest in resolving issues arising from actions litigated in its courts, again, New York has an equal interest in resolving issues that affect an estate being probated here.

These factors, coupled with the fact that plaintiff resides in New York, support a finding that this Court's exercise of jurisdiction over the defendant would not offend traditional notions of fair play and substantial justice. As such, dismissal on the ground that the exercise of in personam jurisdiction over the defendant violates the due process requirements under Article I, Section 6 of the New York State Constitution and of the 14th Amendment of the United States Constitution is unwarranted, and denied.

Sanctions

Part 130 of the Uniform Rules of the Chief Administrator (22 NYCRR § 130-1.1 et seq.), permits the court to impose sanctions, including reasonable attorney's fees, for conduct if it is found to be "frivolous," i.e., if (1) it is completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; or (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another (130-1.1[c]; Solow v Bethlehem Steel Corp., 204 AD2d 227, 612 NYS2d 402 [1st Dept 1994]).

This Court's earlier decision found that CPLR 302(a)(1)'s long-arm jurisdiction did not apply, and thus, did not reach the due process prong of personal jurisdiction. On appeal, the Appellate Division was called to determine whether this Court's decision in that regard was in error, and did not appear to apply the five-factor test of due process. Given that the Appellate Division did not indicate whether it applied the five-factor test applicable to due process analysis, defendant's assertion that the exercise of jurisdiction over his person violated due process was not frivolous or so lacking in merit so as to warrant sanctions. Thus, plaintiff's request for an award of costs and attorney's fees was is unwarranted, and likewise, denied.

Conclusion

Based on the foregoing, it is hereby

ORDERED that the motion defendant pursuant to CPLR 3212 for summary judgment dismissing the complaint of the plaintiff Majorie Sheuer, as Executor of the Will of Walter Scheuer ("plaintiff"), for failure to comply with the due process requirements under Article I, [*10]Section 6 of the New York State Constitution and of the 14th Amendment of the United States Constitution is denied; and it is further

ORDERED that the cross-motion by plaintiff for sanctions is denied; and it is further

ORDERED that defendant serve a copy of this order with notice of entry upon all parties within 20 days of entry; and it is further

ORDERED that the parties appear for a preliminary conference on December 2, 2008, 2:15 p.m.

This constitutes the decision and order of the Court.

Dated: October 15, 2008__________________________________

Hon. Carol Robinson Edmead, J.S.C.

In accordance with the accompanying Memorandum Decision, it is hereby

ORDERED that the motion defendant pursuant to CPLR 3212 for summary judgment dismissing the complaint of the plaintiff Majorie Sheuer, as Executor of the Will of Walter Scheuer ("plaintiff"), for failure to comply with the due process requirements under Article I, Section 6 of the New York State Constitution and of the 14th Amendment of the United States Constitution is denied; and it is further

ORDERED that the cross-motion by plaintiff for sanctions is denied; and it is further [*11]

ORDERED that defendant serve a copy of this order with notice of entry upon all parties within 20 days of entry; and it is further

ORDERED that the parties appear for a preliminary conference on December 2, 2008, 2:15 p.m.

This constitutes the decision and order of the Court. Footnotes

Footnote 1: The Fourteenth Amendment of United States Constitution, Section 1, provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Footnote 2: Allegedly, the decedent and defendant agreed that defendant would be paid on an hourly basis for the time defendant reasonably expended on the matter and that defendant would be reimbursed for out-of-pocket expenses he incurred in connection with the legal representation. Defendant performed his legal services for the decedent, in New York.

Footnote 3: Scheuer v Schwartz, 42 AD3d 314, 839 NYS2d 485 [1st Dept 2007]).