Palmieri v Perry, Van Etten, Rozanski & Prima Vera, LLP
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Palmieri v Perry, Van Etten, Rozanski & Prima Vera, LLP 2017 NY Slip Op 32694(U) December 7, 2017 Supreme Court, Suffolk County Docket Number: 15-18431 Judge: David T. Reilly Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 15-18431 SHORT FORM ORDER SUPREME COURT- STATE OF NEW YORK I.A.S. TERM, PART 30 - SUFFOLK COUNTY PRESENT: HON. DAVID T. REILLY Supreme Court Justice PAUL PALMIERI, Judith N. Berger, Esq. Attorney for Plaintiff 28 E. Main Street Babylon, NY 11702 Plaintiff, -against- Peter C. Contino, Esq. Rivkin Radler LLP Attorneys for Defendants 926 RXR Plaza Uniondale, NY 11556 PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA, LLP, GEOFFREY PFORR, ESQ., (Individually and in bis capacity as a partner in PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA, LLP), Defendants. MOTION DATE: 04/20/16 SUBMITTED: 10/04/l 7 MOTION SEQ. NO.: 2 MG MOTION: Upon the reading and filing of the following papers in this matter:(!) Notice of Motion by Defendants dated March, 2016 and supporting papers; (2) Plaintiff's Affinnation in Opposition dated June 3, 2016 and supporting papers; (3) Defendants Reply Affirmation dated June 21, 2016; and (4) Plaintiff's Amended and Supplemental Affinnation in Opposition dated June 3, 20 16 (1111d 11fter he111 ing eotmsel in s11ppo1"t 1111d in opposition to the motion) it is ORDERED that defendants' application for an Order dismissing the plaintiffs Complaint pursuant to Civil Practice Law and Rules (CPLR) §3211 is granted and the plaintiffs Complaint is dismjssed. In this action, plaintiff alleges causes of action sounding in, among other things, abuse of process, conspiracy, trespass, tortious interference with a contract, conversion and violation of Page 1 of 6 [* 2] .Judiciary Law §487 against the defendant law lirm and a partner of that law finn individually. 1 T he genesis of this action ( Palmieri IT) lies in another matter entitled Paul Palmieri v. Town o.fBabylon, Suffolk County Supreme Court, Index No. 17598-1999 (Palmieri l). fn Palmieri I, which has endured its own tortured history, the plaintiff commenced an action against the Town of Babylon seeking to recover damages for alleged trespass by unspecified individuals onto hi s property using a public access way from a publ ic road. Plaintiff lives near the end off ,ittle East Neck Road which tenninatcs at the Great South I3ay. ft is from that terminus that plaintiff alleges the unspecified individuals gained access to his property. A short recitation of the procedural history of Palmieri I, as culled from the record currently before the Court, is necessary for a full understanding of the instant determination. Palmieri I was seemingly settled when the parties entered into a Stipulation dated July 17, 2004 which was filed in the County Clerk's office on August 6, 2004. According to the Stipulation, the Town agreed to erect or cause to be erected an eight (8') foot high chain-link fence having a gate secured by a lock essentially blocking off public access to plaintiff's property. The rence was to be built within sixty (60) days of the signing of the Stipulation. On July 24, 2006 the Town of Babylon moved to vacate that Stipulation based upon their contention that the proposed fence was illegal because it blocked navigable waters. A Justice of this Court [Cohalan, J.l agreed and granted that motion on June IL 2007. Plaintiff then appealed to the Appellate Division, Second Department. The Appellate Division reversed this Court in a decision dated November 25, 2008. At that point in the litigation rather than comply with its obligations under the Stipulation, the Town of Babylon filed a mot ion pursuant to CPLR §3211 seeking dismissal ofthe plaintifrs Complain!. That motion wa-; denied and the decision affitmed (see Palmieri v. Tow11 of Baby/011, 87 AD3d 625 l201 lJ). Of note, the Appellate Division, Second Department declined to impose sanctions against the Town of Babylon, as requested by the plaintiff. This Court is unaware of what, if anything, occurred in the next six (6) years, however, on May 16, 2014, plaintiff moved for contempt against the Town of Babylon, the Supervisor and the Town Counci l. Tt appears from the record before the Court that the defendants therein claimed that the Town's failure to creel the fonce was due to the changing topography or the subject area in that Hurricane Sandy caused sufficient erosion such that the location o f the proposed fence was now underwater thereby invoking the jurisdiction of the Department o f Environmental Conservation (DEC). The Town defendants maintained that approval from that agency was now necessary before the fence could be erected. On July 291h and 31 ~i, 2015 that matter came to a hearing and in a decision dated October 29. 20 15 the Court IHudson . .J. j denied the application for contempt ..basc<l solely on an insufliciency of prooC .. but warnl!<l thl.! parties that they should move expeditiously to fullill the obligations imposed by the Stipulation. Plaintiff Palmieri. by service of an Amended Summons dated October 30, 2015, commenced thi s separate action against the law lirm {PVRP) and an individual partner within that law firm. Plaintiff's cause of action sounding in fraud/collusion has been withdrawn. 1 Page 2 of 6 [* 3] defendant Geoffrey Pforr, Esq. (Pforr) who represented the Town of Babylon. The gravamen of the complaint is lhat PVRP and Pforr intentionally deprived the plaintiff of his right to have the fence huilt by the Town in a timely manner by claiming that the fence had to be approved by the DEC and an application would have to be submitted to that agency. The Complaint also alleges that the attorneys and the Town of Babylon conspired to deny the plaintiff the installation of the fence by fraud and deceit. PVRP and Pforr now move to dismiss the plaintifPs Complaint on various grounds under the umbrella of CPLR §32 11 (a). Among the deficiencies argued by the defendants are that their defense is founded upon documentary evidence, the action may not be maintained on account of res judicata, plaintiff has failed to state a cause of action and plainti ff has failed to perfect service upon Pforr as an ind ividual. Plain ti ff responds by initially seeking the rccusal ofJustice Hudson, who was assigned to this case when this motion was first submitted. That portion o f the plaintifrs argument is dismissed as moot as the matter is now before the undersigned. Next, plaintiffmaintains that the issues presented in this action bear little resemblance to the issues presented in the contempt proceeding in Palmieri I such that the doctrines of res judicata or collateral estoppel do not apply. In addition, plaintiff argues that he has sufficiently pied causes of action for, among other things, abuse of process, conspiracy, conversion, tortious interference with a contract and a violation of Judiciary Law §487. Tnitially, with respect lo the personal jurisdiction of Pforr. CPLR §308(1 ) provides for personal service upon a natural person and requires that service be attempted by personal delivery of the Summons to the person to be served. In the alternative, CPLR §308 (2) requires service by delivery to a person of suitable age and discretion at the actual place of business, dwelling place, or usual place of abode and by mailing the Summons to the person to be served. Although there exists a presumption that proper service of process was made, if a plaintiff fails to properly serve a defendant with process, all subsequent proceedi ngs arc null and void (see A 11a11da Capital Part11ers, Tue. vStav Elec. Sys. (1994) Ltd. , 301 AD2d 430 1 Dept 2003]). Service of process must be made in strict compliance with statutory methods for eftecting personal service pursuant to CPLR ~308 (see f.."'state of Waterman v Jones, 46 A03d 63 f2d Dept 20071). "In the absence of proper service, no personal jurisdiction I.isl acquired over [respondcntsf" (Kleiu v Educational Loan Servicing, LLC. 71/\D3d957 (2d Dept20 101). ris I Iere. the plaintiffs attempted personal service on Pforr by leaving a copy of lhe Amcmk<l Summons with notice with a receptionist at PVRP. Pforr maintains that the recept ionist was not authorii'ed to accept service of process on him individually, nor was she his designated agent for service of process pursuant to CPLR §3 18 (Designation of agent for service). In addition. Pforr argues that service was never perfected pmsuant to CPT .R §308(2) in that plaintiff has failed to submit proof that a copy of the Amended Summons with otiee was mailed to him within ten (I 0) <lay~ or service.:. Plai ntiff responds by arguing that Pfon-. an allorncy. should not be permitted to escape liability based upon a mere technicali ty and that he had notice of lhc commencement of the Page 3 of 6 [* 4] action through service on PVRJ>. The mandates of"CPLR ~308 arc quite clear. Equally clear is that plaintiff has failed to shO\\ that the strict service of process requirements over the individual defendant was cffoctuatcd. Therefore. no personal jurisdiction has been acquired over Pforr and the action is dismissed as to him as an individual defendant. Next, the doctrine ofcol lateral cstoppel, a narrower species of res j udicata, precludes a party from re-litigating in a subsequent action or proceeding an issue clearly raised in the prior action or proceeding, and decided agajnst that party or those in privity, whether or not the tribunals or causes of Jct ion arc the same (Ryan v New York Tel. Co., 62 NY2d 494f19841; Breslin Realty Dev. Corp. v Shaw, 72 AD3d 258 I2d Dept 20101). Once the party seeking the benefit of collateral estoppcl establishes that the identical issue was material to a prior judicial or quasi-judicial determination, the party to be estopped bears the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action or proceeding (see ld.). With respect to the contempt application in Palmieri I, the Court [Hudson. J. ]dctailed the issue to be addressed at the hearing in a decision dated .lune 3, 2015. Thal decision, in sum and substance, indicated that the plaintiff alleged that the Town defendant wilfully failed to comply with the Stipulation and that the defendants were contending that their efforts towards compliance were thwar1cd by the effects of Hurricane Sandy thereby necessitating the intervention of the DEC. The Court further noted that the plaintiff viewed this explanation as subterfuge. At the contempt hearing, much of the testimony adduced from the plaintiff centered around the timing of the Town ·s application for a permit from the DEC and the necessity of that application relative to the pJacement of the proposed fence. Plaintiff argued that the Town submitted the application to the DEC in an effort to stall the erection of the fence in that the application referenced a proposed fence that the Town knew would not be approved, and was not in the same location as the fence proposed in the Stipulation of Settlement. Plaintiff maintains that the application to the DEC was, therefore, unnecessary and tiled to impede his rights. After careful consideration, the Court finds that the plaintiffs causes of action sounding in tortious interference with a contract and violation of Judiciary Law §487 must be dismissed based up\)ll the doctrine of collateral estoppel. Throughout the plaintifrs Complaint arc allegations that the defendants herein engaged in a scheme with the Town of Babylon lo Jcny the pluintiff thc relief afforded him within the 2004 Stipulation of Sett lement. As the Palmieri I litigation endured the torturous history evidenced by the present record hcforc the Court. certain factors occurred which operated to stull the Town ·s obl igation to construct the fence at issue, most notably the motions and appeals which litter the record. Those factors culminated in the plaintifrs contempt motion in Palmieri I in which the pl aintiff strenuously argued that the Town defendants intentionally refused to abide by the terms or Page 4 of 6 [* 5] the Stipulation of Settlement. The only difference between the contempt motion and the instant ac1ion that the Court can discern is the name of the defendants in each action. That being said. the Court can find no evidence of collusion or tortious interference on the part of PYRP, only zealous representation of their client within the permitted bounds of attorney advocacy. Next, in determining whether to dismiss a Complaint pursuant to C PLR §32 I I{a)(7), the Court must assume to be true the facts pied , give every favorable inference to the allegations, and determine only whether the alleged focts fit any cognikable legal theory (Dickinson v lgoui, 76 AD3d 943 !2d Dept 20 I OJ; Tsutsui v Barasch , 67 AD3d 896 f2d Dept 20091). The test is whether the pleading states a cause of action, not whether the plaintiff has a cause of action (Sokol v Leader. 74 A03d 1180 f2d Dept 20 IO]). ''Whether a plaintiffcan ultimately establish fhis or her] allegations is not part of the calculus in determining a motion to dismiss'' (EBC I, Inc. v Goldma11, Sachs & Co.. 5 NY3d 11 12005]). fn determining ir a pleading states a cause of action, ''the sole criterion'· for the Courts is whether ·'from its four corners factual allegations arc discerned which taken together manifost any cause of action cognizable at law'· (Guggenheimer v Gi11zburg, 43 NY2d 268 [ l 977J). A claim for abuse of process has three essential clements: (I) regularly issued process; (2) an intent to harm without excuse or justification; and (3) use of process in a perverted manner to obtain a collateral objective (Varela v. I n vestors Ills. Holdbzg Corp., 185 A02d 309 12d Dept 19921). ln dctennining that there existed no collusion or toutious interference on the part of PVRP, the plai ntiff s cause of action alleging abuse of process must fail. Stated otherwise the Court, as noted above. has determined that PYRP's representation of the Town of Babylon cannot be characterized in such a manner as to support the second clement necessary for this cause of action, that PY RP intended to hann the plaintiff without excuse or justification. With respect lo that causes ofaction al lcging conspiracy, trespass and conversion, based upon the sum of the forego ing, those causes of action must fail as wcJI in that the Court has determined that the facts alleged in the Complaint cannot support the contention that PVRP engaged in a common scheme or plan to intentionally impede or forestall the erection of the rence at issue. Therefore, as a matter oflaw, the Complaint fa ils to set forth sufficient facts to demonstrate liability based upon conspiracy on the part of PYRP. In addition, PVRP cannot be held liable for the actions of unnamed individuals in trespassing upon the plaintiffs property, inasmuch as the law firm had no control over these individuals and cannot be held vicariously liable for their acts (see generally Feliberty v. Dam on, 72 NY2d 112119881). Accordingly, the Court finds that the plilintiffis unahlc to sunicicntly plead causes of action for trespass and conversion. Insofar as the Court has found that the above causes of action must be dismissed. that cause action alleging respondcat superior must also be dismissed. Rcspondeat superior is a legal principle, not an independent cause o f action, but a theory that must attach to an underlying claim (Greenberg v. JP Morgan Chase Bank, N.A., 2014 NY Misc. LEXIS 2011 fSup Ct. NY County :2014 j). Simply stated. upon dism issal of all of the other causes of action. there remains nothing upon which this legal theory could attach. or Page 5 of 6 [* 6] Finally, the Court must make two significant observations. Fi rst, according lo the communication sent to the Court by both parties after the submission of the instant application. the fence at issue has been erected by the Town of Babylon according to the terms of the Stipulation of Settlement, save for the minor issue of affixing a lock to the gate. Second, in Palmieri I. the defendant Town of Babylon has subm itted to the plaintiff a Stipulation Discontinuing Action With Prejudice which the plaintiff has seemingly refused to sign and which is the subject of a motion currently pending before this Court in that action. The foregoing constitutes the decision and Order of the Court. ()a tcd: _ _.D cc'"'"'e m b .... _.,_. 2.__0 17__ ~ ............._c r_7. .......... Riverhead, New York DAVID T. REILLY JUSTICE OF THE SUPREME COURT -""""X____ FINAL DISPOSITION - -- Page 6 of 6 NON-FINAL DISPOSITlON
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