Weiss v Superior Jamestown Corp., Inc.

[*1] Weiss v Superior Jamestown Corp., Inc. 2004 NY Slip Op 51923(U) [18 Misc 3d 1139(A)] Decided on July 26, 2004 Supreme Court, Chautauqua County Marshall, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 26, 2004
Supreme Court, Chautauqua County

Arnold Weiss, Esq., Plaintiff

against

Superior Jamestown Corporation, Inc. et al., Defendant



K1-2004-263



APPEARANCES:JAMES E. WESTMAN, ESQ.

Attorney for Plaintiff

LOREN L. BLY, ESQ.

Attorney for Defendant

Frederick J. Marshall, J.

The above matter, having come on by way of defendant's Notice of Motion dated March 29, 2004 to dismiss and/or strike, and for costs and sanctions; the affidavit of Loren L. Bly, Esq., duly sworn on March 29, 2004, together with exhibits attached thereto, the affidavit of Andrew J. Connell, duly sworn on March 29, 2004, together with exhibits attached thereto, the affidavit of Ellen Connell, duly sworn on March 29, 2004, the reply affidavit of Loren L. Bly, Esq., duly sworn on April 21, 2004, the reply affidavit of Andrew J. Connell, duly sworn on April 21, 2004, all in support of defendant's Notice of Motion to dismiss or for alternative relief; the plaintiff's cross motion for summary judgment or for leave to serve an amended complaint, dated April 15, 2004, the statement of Arnold Weiss, Esq., dated April 15, 2004 together with the exhibit attached thereto, all in support of plaintiff's cross motion; the supplemental affidavit of Loren L. Bly, Esq., duly sworn on May 3, 2004, together with the exhibits attached thereto in further support of defendant's Notice of Motion to dismiss and/or strike and for costs and sanctions; and having reviewed and considered this Court's prior rulings of April 22, 2004, memorialized by correspondence dated April 26, 2004, correspondence dated June 17, 2004 from James E. Westman, Esq., and [*2]correspondence dated June 22, 2004 from Loren L. Bly, Esq., this decision follows.

Procedurally, it is necessary to address this Court's prior rulings and the resultant conduct of counsel. Following in-Chambers argument on the defendant's pending motion conducted on April 22, 2004, this Court issued various rulings, all of which were contingent on the service of an amended summons and complaint. Plaintiff's counsel was directed to serve an amended complaint by April 29, 2004 with an answer due on or before May 24, 2004. Thereafter, defendant's counsel was to amend and/or supplement the pending motion by June 1, 2004 and plaintiff was to serve any cross motion by June 4, 2004. Counsel were directed to appear for further argument on the motion and anticipated cross motion on June 9, 2004.

Plaintiff's counsel failed to serve an amended summons and complaint until some time on or after May 21, 2004 and prior to May 24, 2004. The amended summons and complaint was apparently hand delivered and left in the door of Mr. Bly's law office. The amended pleading was immediately rejected as untimely pursuant to the previous Order of this Court. Counsel for defendant has now renewed the original motion to dismiss. In opposition, plaintiff's counsel contends that the failure to file a timely amended summons and complaint was akin to "law office failure", in that counsel did not take note of the date by which this Court imposed such obligation. As such, counsel requests this Court grant the plaintiff's cross motion to amend and dismiss without prejudice defendant's motion to dismiss.[FN1]

In response, counsel for defendant contends that plaintiff's counsel's failure to advance an adequate excuse for the late proffer of the amended summons and complaint affords sufficient basis to preclude such pleading from consideration; and thus, contends that defendant's motion to dismiss be considered in relation to the plaintiff's original pleading only. This Court is in accord.

In Kimmel v. State of New York, 286 AD2d 881 [4th Dept.2001] the Appellate Division, Fourth Department, in the exercise of discretion, struck the answers of the State Police defendants, after having previously granted them "one final chance" to comply with plaintiff's discovery demands. The Court reasoned "when a party fails to comply with a Court Order and frustrates the disclosure scheme set forth in the CPLR, dismissal of a [*3]pleading is warranted" (citing Kihl v. Pfeffer, 92 NY2d 118, 122 [1999]). The Court went on to note "If the credibility of Court Orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore Court Orders with impunity" (Kihl v. Pfeffer, supra at 123). See also Leone v. Esposito, 299 AD2d 930 [4th Dept.2002].

The denial of plaintiff's cross motion to amend is a provident exercise of this Court's discretion. Support is found in cases addressing statutorily untimely motions for summary judgment. CPLR 3212(a) requires a showing of good cause when motions are not filed within the proscribed time frame.

The Court of Appeals in Brill v. City of New York, 2004 WL 12637 54 [June 2004] reversed a grant of summary judgment on the basis that neither the trial court nor the Appellate Division should have addressed the merits of the motion, which was filed well beyond the appropriate date. The Court held that as no excuse was proffered for the delay, there could be no "leave of Court on good cause shown" within the meaning of CPLR 3212(a), to permit a review of the merits of the motion. See also Eighteen Associates, LLC v. Nanjin Leasing Corp., 2004 WL 1488393 [NY Sup.], 2004 NY Slip Op. 50656. DiFusco v. Wal Mart Discount Cities, 255 AD2d 937 [4th Dept.1998].

Therefore, plaintiff's cross motion to amend, or in the alternative, for summary judgment is denied. Thus, plaintiff is bound by the allegations as contained in the original summons and complaint.

The Court will now address defendant's motion to dismiss.

Preliminarily, resort to §137 of the Rules of the Chief Administrator ("Fee Dispute Resolution Program") is inappropriate herein as the subject representation commenced prior to January 1, 2002.

Moreover, and in light of the parties' agreement by stipulation to enter into a sealing order, the Court will not address that portion of defendant's motion to strike scandalous and/or prejudicial matter from plaintiff's complaint.

This Court has carefully reviewed defendant's request for an award of costs and sanctions as against plaintiff, Arnold Weiss, Esq. and counsel, James E. Westman, Esq. based on their conduct both prior to, and subsequent to, the filing of the subject lawsuit. Given the serious nature of the allegations, as well as the potential consequences to plaintiff and/or counsel, this Court is not prepared to rule, and hereby deems defendants to have reserved their right to renew the application; and further, that plaintiffs have a reasonable opportunity to be heard on this issue. See 22 NYCRR Part 130 et seq.

Similarly, the Court hereby reserves in it's decision to refer this matter to the Office of Court Administration.

A review of plaintiff's summons and complaint dated February 26, [*4]2004, together with Exhibit A attached thereto, is captioned: "Arnold Weiss, Esq., v. Superior Jamestown Corporation, Inc., et al" and was signed by James E. Westman, Esq. as attorney. The relief sought therein is judgment for $244,980.55, with interest thereon, representing fees for legal services rendered between September 5, 1990 and December 18, 2003.

Counsel for defendants contend that plaintiff's summons and complaint should be dismissed on several grounds, although primarily on the basis that defendants have established a defense founded upon documentary evidence as a matter of law pursuant to CPLR 3211(a)(1).

Prior to undertaking a review of defendant's defense relative to payment, and pursuant to CPLR 3211(a)(1) and Exhibit M attached to defendant's Notice of Motion to Dismiss, defendant's motion is hereby granted as it relates to named defendants Adanlock Custom Architectural Walls and Adanlock Office Environments. Plaintiffs failed to rebut defendant's proffer of documentary evidence which established that the aforementioned defendants are not corporations or other legal entities duly registered to transact business, and thus, are not amenable to suit.

Defendants contend that they have paid a total of $421,981.77 to the plaintiff's partnership or successor professional limited liability corporation for services rendered between September 5, 1990 and July 23, 2003. Please refer to defendant's Exhibit 2, attached to the affidavit of Andrew J. Connell duly sworn on March 29, 2004. It is undisputed that the plaintiff's representation of the defendants terminated on or about July 3, 2003.

Therefore, based on the documentary evidence provided in support of the motion to dismiss, defendants argue that not only have they paid for all services rendered, they have, in fact, overpaid. Please refer to defendant's Exhibit 2, attached to the affidavit of Andrew J. Connell, duly sworn on March 29, 2004 and plaintiff's Exhibit 1, attached to plaintiff's summons and complaint dated February 26, 2004.

By statement dated April 15, 2004 and captioned "Affirmation", Arnold Weiss, Esq. alleges that reliance on plaintiff's Exhibit 1 as accurately reflecting all of the legal services rendered by plaintiff's partnership or successor PLLC is misplaced, in that it was merely an attempt by counsel to set forth an estimate of time and services expended. Plaintiff argues that due to error or miscommunication, such billing statements were uncorrected and inadvertently included in plaintiff's summons and complaint.

The Court is unpersuaded.

Preliminarily, the statement of Arnold Weiss, Esq. dated April 15, 2004, which attempts to correct or amend the previously served summons and complaint, was not executed before a notary public or other authorized official. Styled as an affirmation, it is not affirmed. However, even if Mr. Weiss' statement were duly affirmed, it is still insufficient to defeat [*5]defendant's motion to dismiss. Because plaintiff, an attorney, is a party to the action, even the submission of an affirmation was insufficient and the contents thereof should be disregarded. See CPLR 2106; PD International Bank v. Muniz, 2003 WL 21375143 [NY Sup]; Samuel & Weininger v. Belovin & Franzblau, 4 AD3d 466 [2nd Dept.2004]; Seven Acre Wood Street Associates, Inc. v. Town of Bedford, 302 AD2d 511 [2nd Dept.2003]; Pisacreta v. Minniti, 265 AD2d 540 [2nd Dept.1999].

Thus, the deficiency renders plaintiff's papers insufficient to defeat the defendant's motion to dismiss, as none of plaintiff's contentions are in proper evidentiary form. See Slavenberg Corp. v. Opus Apparel, Inc., 53 NY2d 799 [1981]; Schutzer v. Suss-Kolyer, 57 AD2d 613 [2nd Dept.1977]; Board of Managers of Ocean Terrace Towne House Condominium v. Lent, 148 AD2d 408 [2nd Dept.1989].

In light of the foregoing, defendant's Motion to Dismiss pursuant to CPLR 3211(a)(1) is granted in all respects.

Submit Order.

DATED:July 26, 2004

________________________________

Hon. FREDERICK J. MARSHALL

Justice, Supreme Court Footnotes

Footnote 1:It is noted that at the time of the April 22, 2004 conference, plaintiff's cross motion to amend was not technically before this Court as the requisite filing fees had not been paid. The cross motion was filed and fees paid on May 13, 2004.