God's Battalion of Prayer Pentecostal Church, Inc. v Hollander

[*1] God's Battalion of Prayer Pentecostal Church, Inc. v Hollander 2009 NY Slip Op 51939(U) [24 Misc 3d 1250(A)] Decided on August 27, 2009 Supreme Court, Nassau County Warshawsky, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2009
Supreme Court, Nassau County

God's Battalion of Prayer Pentecostal Church, Inc., Plaintiff,

against

Larry B. Hollander, HOLLANDER & STRAUSS, LLP, HOLLANDER & STRAUSS AS SUCCESSOR TO HOLLANDER, STRAUSS & MASTROPIETRO, LLP, ROPAL CONSTRUCTION CORP., CHARLES CROSS, ANDREW PALADINO, PAUL ALONGI and AXA GLOBAL RISKS U.S. INSURANCE COMPANY AS SUCCESSOR TO COLONIA INSURANCE COMPANY, Defendants.



001056/2009

Ira B. Warshawsky, J.

This motion by defendant Larry B. Hollander, Hollander & Strauss, LLP, Hollander & Strauss as Successor to Hollander, Strauss & Mastropietro, LLP ("Hollander & Strauss") and this affirmation by defendants Ropal Construction, Charles Cross and Angelo Paladino ("Ropal Construction") in support of movants and requesting similar relief including sanctions pursuant to pursuant to CPLR 8303-a and 22 NYCRR 130-1.1 is granted as provided herein.

This motion by defendants Paul Alongi and AXA Global Risks U.S. Insurance Company as Successor to Colonial Insurance Company "AXA") for an order pursuant to CPLR 3211(a)(1), (3), (5) and (7) dismissing the complaint against them is granted as provided herein.

In this action commenced on January 21, 2009, the plaintiff God's Battalion of Prayer Pentecostal Church, Inc. ("the Church") seeks to recover of the defendants for violations of the Canons of Professional Ethics, violation of Judiciary Law § 487, money had and received, fraud, prima facie tort and unjust enrichment based upon alleged overpayments which it alleges it was fraudulently compelled to make for its construction project at its church on account of the [*2]defendants' dishonest conduct vis a vis it, its surety and the courts. It also seeks to recover of defendant Hollander and his firm for his alleged interference with a prospective non-party witness in a related ongoing proceeding.

The moving defendants seek dismissal of the complaint pursuant to CPLR 3211(a)(1) as barred by documentary evidence; pursuant to CPLR 3211(a)(3) for lack of standing; pursuant to CPLR 3211(a)(5) as barred by the doctrines of collateral estoppel, res judicata and judicial estoppel and as untimely; and, pursuant to CPLR 3211(a)(7) for failure to state a claim. They also seek sanctions.

The pertinent facts are as follows:

The plaintiff Church owns property at 661 Linden Boulevard in Brooklyn. In 1996, it sought to expand its facilities and to that end, hired the architectural firm Miele & Associates, P.C. ("Miele") to prepare the plans and to supervise and oversee the construction. Construction bids were solicited and allegedly on account of pressure by Miele, on or about August 29, 1996, the Church contracted with the defendant Ropal construction to do the work. The contract provided that the project would cost $1,650,000 and that it would be completed by August, 1997, and ready for the school's opening in September. It required Ropal Construction to provide the Church with a payment and performance bond which was issued by the defendant AXA. It also required Ropal Construction to submit monthly requisitions certifying under oath that all prior subcontractor bills for labor and materials had been paid and as to each line item, certifying the gross amount of the work performed, the percentage of completion, and the remaining balance due as provided in the requisition forms.

The Church alleges in this action that in August, 1997, the construction project was not finished as promised and that Ropal Construction in fact lacked the financial resources to complete it. It further alleges that in early 1998, contractors who had been hired by Ropal Construction began walking off the job claiming that they had not been paid. The Church alleges that on or about May 7, 1998, Newco Ironworks filed a Mechanic's Lien in the amount of $31,000; that on or about June 29, 1998, Andy Piping filed a Mechanic's Lien in the amount of $23,035; and, that in October, 1998, Williams Elevator Company refused to install elevators claiming that it was owed $157,581, even though Ropal Construction's requisition forms indicated that the Church had already paid it $174,258 for Williams Elevators' work and that only $36,742 worth of work remained outstanding. The Church alleges that as of October, 1998, it had paid Ropal Construction $1,550,000 of the total contract price of $1,650,000 and that Ropal Construction had in fact submitted a certified requisition statement which indicated that the project was 93.9% complete and that only $101,102 worth of work remained, however, the subcontractors' outstanding claims as reflected by Newco Ironworks, Andy Piping and Williams Elevator Company's liens and demands totaled in excess of that amount, i.e., $211,000. The Church alleges that on October 30, 1998, Ropal Construction submitted a requisition form seeking payment of $192,982.09 and that on November 30, 1998, it filed a Mechanic's Lien against the Church in that amount. It alleges that that lien was fraudulent and was in fact contradicted by the history of Ropal Construction's requisitions. It claims that Ropal Construction only filed that lien to coerce it into paying the aforementioned unpaid Mechanic's Liens. The Church alleges that in November, 1998, and again in January, 1999, it declared Ropal Construction in default and served a notice on its surety, the defendant AXA. It further alleges [*3]that on February 8, 1999, Williams Elevator Company filed a Mechanic's Lien in the amount of $157,581.

On or about February 17, 1999, Ropal Construction commenced an action to foreclose on its Mechanic's Lien and in response, the Church sought to have the lien discharged as exaggerated. As counsel to Ropal Construction, defendant Hollander sought to stay that action and to proceed to arbitration, which was granted by order dated August 4, 1999. In arbitration, Ropal Construction allegedly maintained that it was Miele who as the Church's fiduciary agent had decided what payments to make and Miele in fact testified as such on behalf of Ropal Construction. The Church maintained that it was not liable to Ropal Construction because its requisitions as well as its Mechanic's Lien were fraudulent and exaggerated. It also maintained that Ropal Construction, Miele and Hollander were making fraudulent representations to the Arbitrator. By determination dated January 25, 2002, the arbitrator concluded that Miele's certifications were binding on the Church and accordingly found in favor of Ropal Construction in the amount of $154,907 plus interest in the amount of $44,093, for a total of $198,990.

In this action, the Church alleges that the arbitrator blatantly miscalculated by finding that only $1, 459,766 of $1,673,834 had been paid, leaving a balance owed to Ropal Construction of $189,937. The Church alleges that an additional approximately $100,000 had been paid but "was overlooked and lost somewhere by the arbitrators." Despite the Church's opposition to the award's confirmation and its motion to vacate the arbitrator's award, it was confirmed by the Supreme Court, Kings County by order dated March 26, 2002 and on April 9, 2002, judgment was entered in Ropal Construction's favor in the amount of $198,990.00 plus interest and costs totaling $203,132.75. The Church moved to stay entry of judgment and to reargue the court's March 26, 2002 order arguing, inter alia, that the arbitrator had erroneously based his decision on the architect's rubber stamping "every false and fraudulent requisition that [Ropal Construction] submitted;" that it was entitled to damages on account of Ropal Construction's willful and deliberate exaggeration of its Mechanic's Lien; and, that the Arbitrator failed to afford it credit for $95,984 in payments to Ropal Construction. The Church alleged that Ropal Construction and AXA were "attempting to manipulate the court to perpetrate an enormous fraud on" it. By order of the Supreme Court, Kings County dated May 22, 2002, the Church's motion was denied. On appeal, by order dated May 19, 2003 the Appellate Division, Second Department affirmed the Supreme Court's decision. On June 17, 2003, the Church issued a check to Ropal Construction's attorney defendant Hollander & Strauss in the amount of $224,921.45.

The Church alleges that in the interim, the surety AXA hired the engineering firm Cashin Associates, P.C., to act as its agent to oversee completion of the construction and that its engineer employee Larry Britt was assigned to that task. The Church alleges that in the course of his investigation, Britt encountered "substantial obstruction and lack of cooperation" from Ropal Construction, owing to its attorney defendant Hollander & Strauss' interference, as a result of which on or about August 26, 1999, the Church had to bring suit against AXA to procure performance under the bond, the completion of the project and to recover under the performance bond for damages suffered as a result of Ropal Construction's breach. The Church alleges that only when Hollander undertook representation of AXA did it counterclaim against it "for losses in connection with the labor, services and materials furnished in connection with the completion of the project." In response to AXA's motion for partial summary judgment, the Church argued [*4]that it should not be held liable for damages in excess of the contract price; that it was entitled to a credit for the monies Ropal Construction recovered in arbitration; that Ropal Construction should be held liable to AXA for any losses it sustained; and, that the Arbitrator had erred in its assessment of Ropal Construction's Mechanic's Lien. Ultimately, by order dated March 17, 2003, the Supreme Court, Kings County granted AXA partial summary judgment dismissing the complaint against it, finding that "the arbitration award in favor of defendant's principal [Ropal Construction] under the performance bond, as confirmed by the court, preclude[d] any possible obligation by the defendant surety to the plaintiff." The order also set the matter down for an inquest to determine AXA's damages. By order dated June 16, 2003, the Supreme Court, Kings County denied the Church's motion for reargument of that order.

On or about May 15, 2003, the Church commenced another action in Supreme Court, Kings County against Ropal Construction, AXA, Newco Ironworks, Andy Piping, Williams Elevator and 4H Refrigeration challenging the arbitration award. It alleged that the arbitration award procured by Ropal Construction was a prima facie exaggeration, premised upon the exaggerated Mechanic's Lien; that it was entitled to a credit from AXA for the moneys Ropal Construction obtained via arbitration; that it did not owe AXA any moneys, either; and that any moneys owed AXA were owed by Ropal Construction. At oral argument, the Church maintained that it had been stonewalled in discovery and that the arbitrator's award was procured through a fluke and false, fraudulent and deceptive practices. It sought Hollander's disqualification. By order dated September 22, 2003, that action was dismissed, the court finding that it was "a repeat of the issues that were dealt with in the arbitration." The Church's attorney was sanctioned $1,000 for bringing a frivolous action.

The Church filed for bankruptcy under Chapter 11 on or about September 23, 2003, the day the inquest regarding AXA's damages was scheduled. In the bankruptcy proceeding, the Church and AXA entered into voluntary mediation at which AXA sought the cost of completing the project under its bond, i.e., $418,444.01, and interest in the amount of $130,000, for an approximate total of $550,000. AXA acknowledged that the Church had already paid Ropal Construction $225,000 as a result of their arbitration. The Church and AXA ultimately voluntarily entered into a settlement agreement whereby the Church agreed to pay AXA $435,000 in satisfaction of all its claims on or about January 7, 2004. By the Church's motion, the settlement was approved by the Bankruptcy Court by order dated February 5, 2004. In this action, the Church alleges that defendant Hollander made willful, deliberate, maliciously false, fraudulent and deceptive representations to the federal mediator in the bankruptcy proceeding by exaggerating the amount owed AXA and ignoring payments Ropal Construction and/or AXA had recovered for which the Church should have received credit. The Church alleges that the federal mediator found in AXA's favor on account of Hollander's false representations.

As a result of its liability to Ropal Construction and AXA, the Church commenced suit against Miele alleging breach of contract and architectural malpractice. Presently, the Church alleges that it brought suit against Miele because the arbitrator found that Miele had certified Ropal Construction's requisitions, which the Church was bound by. The Court of Appeals ultimately decided that despite the absence of a signed agreement, arbitration of that dispute was required. See, God's Battalion of Prayer Pentecostal Church, Inc. v Miele Associates, LLP, 6 NY3d 371 (2006). In this action, the Church alleges that while that issue was being litigated, it [*5]communicated with Cushin Associate's engineer Larry Britt regarding his investigation under the performance bond, anticipating his use as a witness in that action because he, the Church alleges, is the "key witness to testify as to fair and reasonable value of the work, labor and services performed and materials furnished in connection with the completion of the project." The Church alleges that the defendant Hollander blocked its attempt to prepare Britt as a witness and that AXA also refused to cooperate on account of overtures from defendant Hollander. The Church alleges that Hollander's "blockage and interference" with its attempt to communicate with non-party witnesses "constitutes false, fraudulent and deceptive practices" and is a violation of the Canon of Professional Ethics and Judiciary Law § 487.

In this action, the Church alleges that in procuring relief in the other actions and proceedings, the defendants jointly and severally conspired, each for and on behalf of himself and each other, to engage in fraudulent and deceptive tactics; to unjustly enrich themselves and gain benefits at the expense of the Church; to illegally and improperly prevail upon Miele to support Ropal Construction in the submission of false and fraudulent and deceptive requisitions by certifying the accuracy thereof; in demanding and receiving a payment on June 17, 2003 to the order of Hollander's law firm of $224,921.45, which should have been transmitted from Ropal Construction to AXA as a credit to the Church, but was not; in demanding and receiving by a check made payable to Hollander's firm on July 15, 2004 the sum of $442,749.36 from which, again, the $224,921.45 received on June 17, 2003 should have been deducted but was not; in concealing the distribution of $224,921.45 and the $442,749.36 from it and from the courts; in blocking any and all communications with Larry Britt and Cashin Associates, P.C. through threats or intimidation or other forms of coercion so as to prevent the truth from being told in the arbitration against Miele; in illegally, unethically and fraudulently retaining the fruits of the illegal and deceptive tactics; and, in otherwise engaging in false, fraudulent and deceptive practices to sustain their nefarious benefits.

As and for its first cause of action against the defendant Hollander, the Church seeks to recover for fraud based upon his violation of the Canons of Professional Ethics premised upon his alleged misrepresentations in prior actions and proceedings and his interference with its case against Miele. It alleges that Hollander's actions and conduct are malicious, vicious, vindictive, morally culpable and constitute a wanton and reckless disregard of his responsibilities as an attorney at law and an officer of the Court.

As and for its second cause of action against defendant Hollander, the Church seeks to recover for his alleged violation of Judiciary Law § 487 based upon his "vicious, malicious and vindictive attempts to frustrate, block and thwart the revelation of truth."

As and for its third cause of action against all of the defendants, the church seeks to recover for "money had and received" on account of the "collusion, deceit and fraud perpetrated by the defendants."

As and for its fourth cause of action against all of the defendants, the Church seeks to recover for common law fraud, alleging that the conduct of the defendants, acting in concert with each other represented a high degree of bad faith, wanton, reckless, malicious and reprehensible conduct, demonstrated an enormous disrespect for the law, disrespect for constitutional rights and privileges, disrespect for due process, disrespect for the integrity of the legal system, and a lust for greed and self interest. [*6]

As and for its fifth cause of action against all of the defendants, the Church seeks to recover for prima facie tort based upon "the false and perjured submission by Ropal [Construction] to the Church of a requisition," and the ensuing conspiracy whereby the defendants aided and abetted Ropal Construction and its officers, directors and/or principals defendants Cross and Paladino in perpetrating the fraud upon the Church and the courts.

As and for its sixth cause of action, the Church seeks to recover of all the defendants for unjust enrichment.

Essentially, the Church advances two claims: that it was forced to overpay Ropal Construction and AXA in other actions and proceedings on account of their, their agent's and the defendant Hollander's and his firm's fraudulent dishonest conduct; and, that the defendant Hollander has violated the Professional Code of Ethics and § 487 of the Judiciary Law by his conduct in those actions and proceedings and by crippling its preparation of its case against Miele by interfering with its communication with AXA's agent Cashin Associates' engineer Britt.

All of the Church's claim to recover its alleged overpayments to Ropal Construction and AXA on account of the defendants' fraudulent misconduct fails based on, inter alia, the doctrines of collateral estoppel, res judicata and judicial estoppel. In any event, those claims are untimely. The claim for professional misconduct against Hollander for his role vis a vis Britt also fails for failure to state a claim.

Dismissal pursuant to CPLR 3211(a)(1) lies when "a defense is founded upon documentary evidence." "In order to prevail on a CPLR 3211(a)(1) motion, the moving party must show that the documentary evidence conclusively refutes plaintiff's . . . allegations." AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 590-591 (2005), citing Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314, 326 (2002); see also, L & S Motors, Inc. v Broadview Networks, Inc., 25 AD3d 767 (2nd Dept. 2006). That is, " [t]o succeed on a motion under CPLR 3211(a)(1), a defendant must show that the documentary evidence upon which the motion is predicated resolves all factual issues as a matter of law and definitively disposes of the plaintiff's claim.' " Ozdemir v Caithness Corp., 285 AD2d 961, 963 (3rd Dept. 2001), lv den., 97 NY2d 605 (2001), quoting Unadilla Silo Co. v Ernst & Young, 234 AD2d 754 (3rd Dept. 1996). "The word [documentary evidence] apparently aims at a paper whose content is essentially undeniable and which, assuming the verity of contents and the validity of its execution, will itself support the ground on which the motion is based. Neither the affidavit nor the deposition can ordinarily qualify under such a test." Siegel, Practice Commentaries, McKinneys Cons. Laws of NY Book 7B, C3211:10, p. 22; see, Berger v Temple Beth-El of Great Neck, 303 AD2d 346 (2nd Dept. 2003); Brown v Solomon and Solomon, P.C., 181 Misc 2d 461 (New York City Court 1999). "[I]t is quite plain that an affidavit cannot qualify as documentary evidence' so as to support a dismissal based on paragraph 1" of CPLR 3211. Siegel, Practice Commentaries, McKinneys Cons. Laws of NY Book 7B, C3211:10, p. 21; see, Berger v Temple Beth-El of Great Neck, supra ; Brown v Solomon and Solomon, P.C., supra .

"In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court should accept the facts alleged in the compliant as true, accord the plaintiff the benefit of every possible favorable inference, and determine whether the alleged facts fit within any cognizable legal theory." Turkat v Lalezarian Developers, Inc., 52 AD3d 595 (2nd Dept. 2008), citing Town of Riverhead v County of Suffolk, 39 AD3d 537 (2007); Hartman v Morganstern, 28 AD3d 423, [*7]434 (2006); see also, Leon v Martinez, 84 NY2d 83, 87 (1994). " Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claim,' is irrelevant to the determination of a predisclosure CPLR 3211 motion to dismiss." Palo v Cronin & Byczek, LLP, 43 AD3d 1127 (3rd Dept. 2007), quoting Shaya B. Pacific, LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP., 38 AD3d 34, 38 (3rd Dept. 2006); see also, Porcelli v Key Food Stores, 44 AD3d 1020 (2nd Dept. 2007).

None of the claims advanced here were disclosed by the Church in its bankruptcy proceeding. With the exception of the claim premised upon defendant Hollander's alleged interference with the witnesses in the Church's action against Miele, the Church accordingly lacks standing to pursue them here. Whelan v Longo, 7 NY3d 821 (2006); see also, Dynamics Corp. of America v Marine Midland Bank-New York, 69 NY2d 191, 197 (1987); Gray v City of New York, 58 AD3d 448 (1st Dept. 2009), app dism. 12 NY3d 802 (2009); 123 Cutting Co. v Topcove Associates., Inc., 2 AD3d 606, 607 (2nd Dept. 2003). With the exception of the claim premised upon defendant Hollander's alleged interference with the witnesses in the Church's action against Miele, dismissal of all of the claims lies pursuant to CPLR 3211(a)(3).

"The doctrine of collateral estoppel . . . precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same." Ryan v New York Telephone, 62 NY2d 494, 500 (1984), citing Ripley v Storer, 309 NY 506, 517 (1956); Restatement, Judgments 2d, § 27; 46 Am Jur 2d, Judgments, § 415.9 Carmody-Wait 2d, NY Prac, Judgments, § 63:205. "[C]ollateral estoppel allows the determination of an issue of fact or law raised in a subsequent action by reference to a previous judgment on a different cause of action in which the same issue was necessarily raised and decided.' " Ryan v New York Telephone, supra , quoting Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485 (1979); see also, York v Landa, 57 AD3d 980 (2nd Dept. 2008). "What is controlling is the identity of the issue which has necessarily been decided in the prior action or proceeding." Ryan v New York Telephone, supra . "[T]he issue must have been material to the first action or proceeding and essential to the decision rendered therein and it must be the point actually to be determined in the second action or proceeding such that a different judgment in the second would destroy or impair rights or interests established by the first.' " Ryan v New York Telephone, supra , at p. 500-501, citing Silberstein v Silberstein, 218 NY 525, 528 (1916); Hinchey v Sellers, 7 NY2d 287 (1959); Ripley v Storer, supra ; Ward v Boyce, 152 NY 191 (1897) and quoting Schuylkill Fuel Corp. v B. & C. Neiberg Realty Corp., 250 NY 304, 307 (Cardozo, Ch. J. [1929]); S.T. Grand Inc. v City of New York, 32 NY2d 300, 304-305 (1973).

"The party seeking the benefit of the doctrine of collateral estoppel must establish that the identical issue was necessarily decided in the prior action and is determinative in the present action." Mahler v Campagna, 60 AD3d 1009, 1011 (2nd Dept. 2009), citing Buechel v Bain, 97 NY2d 295, 303-304 (2001), cert den sub nom. Bain v Buechel, 535 U.S. 1096 (2002); see also, Parker v Blauvelt Volunteer Fire Company, 93 NY2d 343, 349 (1999); D'Arata v New York Central Mut. Fire Ins. Co., 76 NY2d 659 (1990); Martin v Geico Direct Ins., 31 AD3d 505 (2nd Dept. 2006). And, he must establish that the party against whom the doctrine is exercised had a full and fair opportunity to contest the prior determination. D'Arata v New York Central Mutual Fire Ins. Co., supra , at p. 1011; Martin v GEICO Direct Ins., supra , at p. 506. "Once the party [*8]invoking the doctrine discharges his or her burden in that regard, the party to be estopped bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination." Mahler v Campagna, supra , citing Buechel v Bain, supra ; York v Landa, supra ; see also, Parker v Blauvelt Volunteer Fire Company, supra ; D'Arata v New York Central Mut. Fire Ins. Co., supra ; Martin v GEICO Direct Ins., supra . "The doctrine of res judicata operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding' " (Luscher ex rel. Luscher v Arrua, 21 AD3d 1005, 1006-1007 (2nd Dept. 2005); see also, Kafka v Meadowbrook Gardens Owners, Inc., 34 AD3d 676 (2nd Dept. 2006).

"[T]he doctrine of res judicata not only applies to the parties of record in the prior action, or administrative proceeding, but also to those in privity with them." State of New York v Seaport Manor A.C.F., 19 AD3d 609, 610 (2nd Dept. 2005), citing Watts v Swiss Bank Corp., 27 NY2d 270 (1970); Bay Shore Family Partners, L.P. v Foundation of Jewish Philanthropies of Jewish Federation of Greater Fort Lauderdale, 270 AD2d 374, 375 (2nd Dept. 2000); Home of Histadrouth Ivrith, Inc. v State Facilities Development Corp., 114 AD2d 200 (2nd Dept. 1986); see also, Stassou v MGS World Inc., 51 AD3d 772, 773 (2nd Dept. 2008), lv den. 11 NY3d 712 (2008). "Under New York's transactional approach to res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.' " QFI, Inc. v Shirley, 60 AD3d 656 (2nd Dept. 2009), quoting O'Brien v City of Syracuse, 54 NY2d 353, 357 (1981). And, "[t]he rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation." In re Hunter, 4 NY3d 260, at p. 269 (2005).

Both of these doctrines apply to arbitration determinations as well as to so-ordered stipulations. Mahler v Campagna, supra , at p. 1011. Gurvey v Lynch, 282 AD2d 367 (1st Dept. 2001), lv dism. 100 NY2d 640 (2003).

Although the Church asserts an array of different legal theories in this action, the Church is really seeking to reverse the prior decisions in favor of Ropal Construction and AXA in the other proceedings and actions, as well as its decision to enter into a so-ordered settlement in the bankruptcy proceeding. The Church had a full and fair opportunity to litigate the prior determinations discussed, supra . It was represented by counsel who passionately advocated on its behalf in every proceeding and action at every stage, indeed, daresay ad nauseum. It is beyond dispute that with the exception of Hollander's alleged misconduct regarding Britt, the Church was well aware of the defendants' alleged misconduct as it occurred and used it as both a sword and shield in the prior proceedings and actions. Indeed, the record clearly illustrates that it repeatedly vehemently alleged and objected to the alleged dishonest fraudulent representations and conduct at each juncture in both the arbitration proceedings and the court proceedings. "Thus, even assuming that the defendants misrepresented facts to [the arbitrator and the courts] in obtaining [relief for Ropal Construction and AXA] in the prior action[s] [and proceedings],plaintiff's remedy lies exclusively in [those] lawsuit[s] [and proceedings themselves and] . . . not a second plenary action collaterally attacking the judgment[s] [and determinations] in the [prior] action[s] [and proceedings]." Hansen v Werther, 2 AD3d 923 (3rd Dept. 2003), citing Yalkowsky v Century Apartments Associates, 215 AD2d 214 (1st Dept. 1995), and citing Curtis v Scherer, 261 [*9]AD2d 158, 159 (1st Dept. 1999), lv den. 93 NY2d 815 (1999); see also, Melnitzky v Owen, 19 AD3d 201 (1st Dept. 2005); Melnitzky v LoPreto, 8 AD3d 4 (1st Dept. 2004); O'Connor v Dime Sav. Bank of New York, F.S.B., 265 AD2d 313 (2nd Dept. 1999). In fact, "[i]nasmuch as the prior actions undisputably addressed the instant allegations raised by the plaintiff [again, with the exception of Hollander's conduct vis a vis Britt] and found them to be without merit, the plaintiff's causes of action[s] . . . cannot stand." Stone v Curran, 245 AD2d 285 (2nd Dept. 1997), lv dism. 92 NY2d 891 (1998), citing Lazich v Vittoria & Parker, 189 AD2d 753 (2nd Dept. 1993), app dism. 81 NY2d 1006 (1993).

In addition, in view of the settlement reached in Bankruptcy Court by the Church and AXA, the doctrine of judicial estoppel also precludes the Church from recovering of AXA and its representative Alonghi here. Reynolds v C.I.R. of Internal Revenue, 861 F.2d 469, 473-474 (6th Cir. 1988); Manhattan Ave. Dev. Corp. v Meit, 224 AD2d 191, 192 (1st Dept. 1996), lv den. 88 NY2d 803 (1996).

Not only are the alleged violations of Judiciary Law § 487 premised upon Hollander's alleged fraudulent misrepresentations in the prior proceedings and actions barred by the doctrines of res judicata and collateral estoppel, they fall well within the boundaries of adversarial conduct and fail to support such a claim. Lazich v Vittoria & Parker, supra ; Thomas v Chamberlain, D'Amande, Oppenheimer & Greenfield, 115 AD2d 999 (4th Dept. 1985), app dism. 67 NY2d 1005 (1986), rearg den. 68 NY2d 754 (1986); O'Callaghan v Sifre, 537 F. Supp. 2d 594, 596-597 (SDNY 2008).

No law has been cited to support the Church's allegation that Hollander interfered with its preparation of its case against Miele by influencing non-party witness Britt not to appear for a deposition absent the issuance of a subpoena and in so doing, violated Judiciary Law § 487. Such conduct hardly meets the definition of conduct prohibited by Judiciary Law § 487, i.e., that Hollander "is guilty of deceit or collusion, or consents to any deceit or collusion with intent to deceive the court or any party; or, willfully delays his client's suit with a view to his own gain; or, willfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for."

While a party may bring an action under Judiciary Law § 487 to recover treble damages, i.e., attorney's fees and costs, suffered on account of an unsuccessful fraudulent ploy on a tribunal (Almalfitano v Rosenberg, 12 NY3d 8 [2009]), "a plenary action under [that] section may not be commenced afterwards only if [as here] its essential purpose is to give that party a means to collaterally attack the judgment in the underlying action." Dupree v Vorhees, 24 Misc 3d 396. 402 (Supreme Court Suffolk County 2009), rearg den. __ Misc 2d __, 2009 WL 2049897 (Supreme Court Suffolk County 2009). Not only is Britt an employee of Hollander's client's agent, in any event, disclosure from a non-party witness must be obtained by the issuance of a subpoena duces tecum issued to that person—which has not occurred—and, special circumstances, i.e., that the information cannot be obtained elsewhere, must be established to obtain such disclosure. CPLR 3120 (1)(i); cf., CPLR 3106(b); Tannenbaum v Tannenbaum, 8 AD3d 360 (2nd Dept. 2004). That Hollander's conduct vis a vis Britt may provide grounds for disqualifying Hollander from representing Britt (see, Rivera v Lutheran Medical Center, 22 Misc 3d 178 [Supreme Court Kings County 2008]; US v Occidental Chemical Corp., 606 F. Supp. 1470 [WDNY 1985]), hardly equates with conduct violative and punishable under Judiciary Law § [*10]487.

With the exception of Hollander's alleged interference with Britt, the Judiciary Law claim is in any event barred by the Statute of Limitations. The Church's liability to Ropal Construction was conclusively determined when a check was issued to it on June 17, 2003, if not sooner. The Church's liability to AXA was conclusively determined when the check was issued in July 2004, if not sooner. Assuming, arguendo, that the Church's claims did not accrue until then, this action was not commenced until January 21, 2009 and the Judiciary Law claim is untimely.

Not only does the fraud claim fail due to its duplicity, the plaintiff could not have justifiably relied upon the defendants' alleged fraudulent representations. O'Connor v Dime Savings Ban, F.S.B., supra ; Lazich v Vittoria & Parker, supra . Furthermore, the specificity requirement of CPLR 3016(b) has not been met. See, True Zion Gospel Temple, Inc. v Roberson, 39 AD3d 850, 851 (2nd Dept. 2007).

The remaining claims against all the defendants also fail as barred by the doctrines of collateral estoppel and res judicata. They are premised upon identical factual allegations already resolved against the Church. In any event, assuming, arguendo, that they were not barred by those doctrines, they still fail.

"To state a cause of action for unjust enrichment, a plaintiff must allege that it conferred a benefit upon the defendant, and that the defendant will obtain such benefit without adequately compensating plaintiff therefor." Nakamura v Fuji, 253 AD2d 387, 390 (2nd Dept. 1998), citing Tarrytown House Condominiums v Hainje, 161 AD2d 310, 313 (1st Dept. 1990); Lake Erie Distribs. v Martlet Importing Co., 221 AD2d 954, 956 (4th Dept. 1995). "To prevail on a claim of unjust enrichment, a plaintiff must establish that the defendant benefitted at the plaintiff's expense and that equity and good conscience require restitution." Whitman Realty Group, Inc. v Galano, 41 AD3d 590, 592-593 (2nd Dept. 2007), citing Kaye v Grossman, 202 F3d 611, 615-616 (2nd Cir. 2000); City of Syracuse v R.A.C. Holding, 258 AD2d 906, 906 (4th Dept. 1999). However, a valid enforceable contract bars recovery under this principal. Whitman Realty Group, Inc. v Galano, supra , at p. 593, citing Samiento v World Yacht, Inc., 38 AD3d 328, 329 (1st Dept. 2007), aff'd as mod. 10 NY3d 370 (2008); Singer Asset Finance Co., LLC v Melvin, 33 AD3d 355 (1st Dept. 2006); Stark v City of New York, 31 AD3d 530 (2nd Dept. 2006). The Church alleges that it was wrongfully made to pay excessive fees to Ropal Construction and AXA. Not only has the propriety of those payments already been judicially established and, again, cannot be contested here, the Church does not allege that the Hollander defendants were paid or retained any benefit. This claim accordingly fails. As for AXA, the settlement agreement bars recovery under this theory.

The claim for money had and received fails for the same reasons. "A cause of action for money had and received sounds in quasi contract and arises when, in the absence of an agreement, one party possesses money that in equity and good conscience it ought not retain.' " Goldman v Simon Property Group, Inc., 58 AD3d 208, 220 (2nd Dept. 2008), citing Rocks & Jeans v Lakeview Auto Sales & Serv., 184 AD2d 502 (2nd Dept. 1992). " [I]t is an obligation which the law creates in the absence of agreement when one party possesses money that in equity and good conscience he [or she] ought not to retain and that belongs to another.' " Matter of Estate of Witbeck, 245 AD2d 848, 850 (3rd Dept. 1997), quoting Parsa v State of New York, 64 NY2d 143, 148 (1984), rearg den. 64 NY2d 885 (1985). A cause of action for money had and [*11]received does not lie where there is a valid enforceable agreement. Fesseha v TD Waterhouse Investor Servs., Inc., 305 AD2d 268 (1st Dept. 2003), citing Phoenix Garden Rest. v Chu, 245 AD2d 164, 166 (1st Dept. 1997); Yeterian v Heather Mills, 183 AD2d 493 (1st Dept. 1992). Again, not only has the propriety of the Church's payments or obligations to Ropal Construction and AXA already been judicially established and beyond contest here, the Church has not alleged that the Hollander defendants received any moneys. And, again, as for AXA, the settlement agreement again bars recovery under this theory.

The claim for prima facie tort also fails under CPLR 3211(a)(7). The elements of that claim are "intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, and (4) by an act or series of acts that would otherwise be lawful." Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 332 (1983), citing ATI, Inc. v Ruder & Finn, 42 NY2d 454, 458 (1977); Wehringer v Helmsley-Spear, Inc., 91 AD2d 585 (1st Dept. 1982), aff'd. 59 NY2d 688 (1983). The plaintiff has failed to adequately allege that any of the defendants' acts caused "the intentional, malicious injury to another by otherwise lawful means without economic or social justification, but solely to harm another (quotations omitted)." Michalic by Nakovics v Klat, 128 AD2d 505, 506-507 (2nd Dept. 1987), quoting Drago v Buonagurio, 46 NY2d 778, 779 (1978), quoting Morrison v National Broadcasting Co., 24 AD2d 284, 287 (1st Dept. 1965), revsd on other grounds, 19 NY2d 453 (1967); Ginsberg v Ginsberg, 84 AD2d 573, 574 (2nd Dept. 1981); see also, Curry v Doland, 52 AD3d 642 (2nd Dept. 2008), lv den. 11 NY3d 709 (2008); Avgush v Town of Yorktown, 303 AD2d 340 (2nd Dept. 2003).

In addition, assuming, arguendo, that the three year Statute of Limitations as opposed to the one year Statute of Limitations applies here (see, CPLR 214, 215; Havere v Islam, 292 AD2d 210 [1st Dept. 2002]), once again, with the exception of defendant Hollander's conduct vis a vis Britt, the claims would still be untimely. The claims against Ropal Construction were disposed of no later than June 17, 2003 when the Church paid and again on September 22, 2003 when the Church's action was dismissed. The claims against AXA were ultimately resolved via the bankruptcy settlement no later than February, 2004, when payment was made. This action was not commenced until January 21, 2009 and this claim is untimely.

Defendants' application for sanctions is denied. The Court finds the arguments advanced by the Plaintiff to be persuasive that they have paid substantial sums for work, labor and services which were not credited to them, and that the Defendants seemingly overstated the amount of their liens and frustrated Plaintiffs' efforts to establish overpayments.

Unfortunately, this Court is bound by the determinations made by trial and appellate courts under the doctrines of res judicata and stare decisis.

The Defendants' motion to dismiss the complaint is reluctantly granted.

Dated: August 27, 2009

J.S.C. [*12]

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