Faust, Roy, Mangold & Fuchs, LLP v Higbee

[*1] Faust, Roy, Mangold & Fuchs, LLP v Higbee 2008 NY Slip Op 50231(U) [18 Misc 3d 1128(A)] Decided on January 30, 2008 Supreme Court, Westchester County Smith, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 30, 2008
Supreme Court, Westchester County

Faust, Roy, Mangold and Fuchs, LLP, Marily S. Faust, Esq., and Marilyn S. Faust d/b/a Faust, Mangold & Fuchs, Plaintiff,

against

Nancy N. Higbee a/k/a Nancy Cresap, Defendant.



20929/07



Joan Marshall Cresap

Atty. For Deft.

1 Greenacres Drive

Rye, New York 10580

Peter B. Ackerman, Esq.

Atty. For Pltfs.

202 Mamaroneck Avenue, Suite 500

White Plains, New York 10601

Mary H. Smith, J.

This is an action to recover legal fees for services rendered defendant, a Connecticut resident, in her New York matrimonial action, which fees, as of November 1, 2004, allegedly totaled $135,379.56. Defendant presently is moving to dismiss the action, arguing not only that New York does not have long arm jurisdiction over her, but that the doctrines of res judicata and collateral estoppel bar this action, which, in any event, also fails to state a cause of action. For the reasons which follow, this motion is denied.

Regarding the personal jurisdiction issue, while there is no issue as to defendant's Connecticut residency, both at the time of the commencement of the Westchester County matrimonial action and presently, the Court finds that defendant cannot successfully [*2]assert that this Court lacks jurisdiction over her given that she, by commencing her New York matrimonial action, had availed herself of the Westchester County Supreme Court, had hired New York counsel, plaintiffs herein, to represent her in that litigation, which litigation occurred over a number of years, and the legal fees here in dispute arose solely out of that litigation.

"It is well settled that in order for a court

to exercise personal jurisdiction over a defendant,

that defendant must "have 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.' (Citations

omitted)." Further, "an essential criterion

in all cases is whether the quality and nature'

of the defendant's activity is such that it is

reasonable' and fair' to require him to conduct

his defense in that State." (Citations omitted).

Jacobson v. Grindlinger, 178 AD2d 507 (2nd Dept. 2001). Applying the foregoing standard to the instant case, the inescapable conclusion is that defendant had engaged in purposeful activity in New York and consequently properly is subject to personal jurisdiction pursuant to CPLR 302, subdivision (a), paragraph 1. See Fischbarg v. Doucet, 38 AD3d 270 (1st Dept. 2007); Kaczorowski v Black & Adams, 293 AD2d 358 (1st Dept. 2002); Abbate v. Abbate, 82 AD2d 368 (2nd Dept. 1981).

Defendant's reliance upon Colucci & Umans v. 1 Mark, Inc., 224 AD2d 243 (1st Dept. 1996) is completely misplaced, as the Court therein had held, contrary to defendant's understanding, that jurisdiction properly was exercised over the out-of-state corporate defendant based upon its hiring of New York counsel to represent it in New York litigation, its participation in that proceeding by way of numerous telephone calls and its visits to New York.Notably, defendant wholly mischaracterizes the holdings in both Deutsche Bank Securities, Inc. v. Montana Bd. of Investments, 7 NY3d 65 (2006) and Granat v. Bochner, 268 AD2d 365 (1st Dept. 2000) as being authority for the proposition that the retention of New York counsel is insufficient to establish jurisdiction based upon the transaction of business. Indeed, neither of those cases even involved the issue of attorney hiring.

Notwithstanding defendant's protestations to the contrary, the Court further rejects defendant's arguments that this action is subject to dismissal based upon the principles of res judicata [*3]and/or collateral estoppel. Plaintiff previously had commenced this same action in Federal Court, Southern District of New York, purportedly based upon diversity jurisdiction. On September 21, 2007, Judge Brieant, addressing the defendant's motion to dismiss that action, stated his belief that the action properly should have been commenced in the District of Connecticut, based upon defendant's Connecticut residency or in the New York State Courts. Specifically on this point, Judge Brieant stated as follows:

... Diversity case. You could have brought it in the

New York State Courts and you chose not to. So you

have a choice. You can have it dismissed without

prejudice and without costs for improper jurisdiction,

and can go sue where you ought to have sued to begin

with and probably can make it stick; or, you can go

over and try it in the district court in Bridgeport.

Your choice.

Plaintiff had agreed to have that action dismissed without prejudice, indicating that he would re-commence in New York State Courts.Even a cursory reading of the transcripts unequivocally establishes that all Judge Brieant had determined was that diversity jurisdiction did not support the bringing of the Federal action in New York where defendant is a Connecticut resident; there was no adjudication that New York personal jurisdiction over defendant could not be obtained. The dismissal by Judge Brieant expressly was without prejudice to plaintiff's commencement of a new action in either New York or Federal Court in Connecticut and that. Indeed, Judge Brieant had expressed his opinion that a New York cause of action would "stick." There is absolutely no basis for defendant to successfully assert herein that this action is barred by the doctrine of issue preclusion. See Allied Chemical v. Niagra Mohawk Power Corp., 72 N.Y. 2 d 271, 276 (1988), cert. den. 488 U.S. 1005 (1989).

The Court also denies defendant's motion to dismiss this action based upon a failure to state a cause of action. The pleading, on its face, manifestly states a cause of action for services rendered and an account stated. To the extent that defendant complains that plaintiff has failed to adhere to the Court Rules pertaining to the collection of counsel fees in matrimonial action and plead compliance therewith, her objection is completely unfounded and indeed frivolous. Firstly, plaintiff had pleaded the inapplicability of those Rules in its complaint. Secondly, the Rules manifestly do not apply because the amount in dispute exceeds $50,000, see 22 N.Y.C.R.R. §137.1(b)(2), and the [*4]dispute concerns legal fees rendered more than two years ago. See 22 N.Y.C.R.R. §137.1(b)(6).

In the exercise of this Court's discretion, plaintiff is awarded statutory motion costs in the sum of one hundred ($100) dollars. See CPLR 8202.

Finally, defendant shall serve her answer within thirty (30) days after the date of entry of this Order. The parties shall appear before the undersigned at 9:30 a.m. on April 1, 2008, for a preliminary conference. This date shall not be adjourned without the Court's consent. Any party's failure to appear may result in the imposition of costs and/or sanctions.

Dated: January, 2008

White Plains, New York

_________________________________

Mary H. Smith

J.S.C.