Complete Mgt., Inc. v Subin

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Complete Mgt., Inc. v Subin 2011 NY Slip Op 33443(U) December 16, 2011 Sup Ct, NY County Docket Number: 112675/08 Judge: Jane S. Solomon Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] UEDON I212712011 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART - : 1126732008 COMPLETE MANAGEMENT SUBIN, HERBERT S. SEQUENCE NUMBER : 006 SUMMARY JUDGMENT [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: I A S PART 55 COMPLETE MANAGEMENT, INC., Plaintiff, -against- HERBERT S . S U B I N INDIVIDUALLY AND D / B / A SUBIN & ASSOCIATES, FILED NEW YORK COUNTY CLERKS OFFICE SOLOMON, J. : D e f e n d a n t Herbert S. Subin, individually and d / b / a Subin & Associates (Subin) moves for summary judgment p u r u s u a n t to CPLR 3212, and to dismiss t h e complaint pursuant to CPLR 3 2 1 1 . Most of the relevant facts are s e t f o r t h in this court s order deciding motion sequence 001, d a t e d March 31, 2009 (Prior O r d e r ) . The Prior Order granted in p a r t Subin s pre- answer motion to dismiss; as most r e l e v a n t here, it dismissed claims under t h e applicable six year statute of limitations (Prior Order, 2 - 3 ) . B r i e f l y r e s t a t e d , plaintiff Complete Management, Inc. (CMI) alleges that it was in the business of collecting health c a r e account receivables. In 1 9 9 8 , it a c q u i r e d a n assignment of liens in f a v o r of a n entity called Greater Metropolitan Medical Services, P . C . (GMPIS). GMMS is alleged to have been a medical p r o v i d e r t h a t made arrangements with p e r s o n a l i n j u r y lawyers to give medical care to i n j u r e d p e o p l e who were t h e lawyers [* 3] clients. GMMS t h e n deferred payment until the injured person r e c o v e r e d money on the personal i n j u r y claim. An i n j u r e d p e r s o n would e x e c u t e a document called a "doctor's lien", which g r a n t e d GMMS a lien to any settlement, claim, judgment or verdict obtained in connection with t h e t r e a t e d condition ( s e e generally, Aff. of Ray W. Rowney, Jr., Ex. 2 ) . The i n j u r e d person would tell GMMS the name of his or her attorney, and GMMS would notify t h e a t t o r n e y of the l i e n a g a i n s t r e c o v e r y . The liens i n question allegedly involve treatment to Subin's clients by GMMS. Subin received written n o t i c e of the l i e n s without objection, and some of t h e liens were paid (Rowney A f f . , paragraphs 11-12). The motion is supported b y a rambling a t t o r n e y ' s affirmation, f o r t y - t h r e e pages long, w i t h no page numbers or numbered paragraphs.I for the motion. The affirmation nowhere summarizes grounds I t r e f e r s t o documents lettered A t h r o u g h R t h a t were not submitted with t h e motion. The various g r o u n d s for relief a r e addressed seriatim a s follows: ' 1) Stipulatio n 3 to 01scontirlLJg Subin contends that t h e parties stipulated to a discontinuance of all claims but t h o s e involving twenty-one o f ' See Rule 14(b) of the Rules of the J u s t i c e of t h e Supreme C o u r t , Civil B r a n c h , New York County, which p r o v i d e s that: "Unless advance permission o t h e r w i s e i s g r a n t e d by the c o u r t for good c a u s e , memoranda of law shall n o t exceed 30 pages each (exclusive of t a b l e of contents a n d table of authorities) and affidavits/affirmations shall n o t exceed 25 pages each." No advance permission was g r a n t e d to d e f e n d a n t . -2- [* 4] A t the onset h i s clients. of the d e p o s i t i o n of CMI's witness, Subin's attorney s t a t e d on the record that he and CMI's attorney had come to an understanding that the o n l y claims b e i n g pursued were t h o s e of twenty-one lienees identified on defendant's Exhibit 1. CMI's attorney s t a t e d t h a t h e agreed t h a t his client's claims were so limited. The witness, Ray W. Rowney, Jr., hesitated when questioned about t h e stipulation because, he said, some of CMI's claims had been w r o n g l y dismissed by the court on s t a t u t e of limitation grounds, and he was u n w i l l i n g t o concede CMI's appellate r i g h t s on this issue (Rowney EBT, 1 7 - 1 9 ) . CMI now contends that t h e r e was n e v e r a stipulation because Rowney expressed h i s reservations to it. This is i n c o r r e c t : He did not want to concede a legal issue while contemplating an appeal, but o t h e r w i s e c o n s e n t e d t o the stipulation. The time to f i l e an appeal is long p a s t , and CMI's p a p e r s m a k e no reference to an appeal pending on t h i s issue. Rowney's concern for protecting CMI's options is no longer r e l e v a n t , and he and his attorney otherwise accepted the terms of the stipulation limiting the scope of CMI's claims. 2) M I u r e to A dd a Necessarv Partv S u b i n contends t h a t dismissal of t h e lawsuit is warranted because CM9 f a i l e d to add Subin's law firm as a p a r t y , The firm i s known a s Subin Associates, LLP ( S u b i n Firm). sued Subin, individually and d o i n g b u s i n e s s a s S u b i n -3- & CMI [* 5] Associates; it did n o t sue t h e Subin Firm, although its existence c l e a r l y was known to CMI from the beginning of this litigation. S u b i n argues that it would have made sense to sue the S u b i n Firm in the first instance. This may be correct, however, it is not grounds for dismissing t h e claim against Subin. CPLR 1 0 0 1 addresses joinder of a "necessary" p a r t y , who might be inequitably a f f e c t e d by a judgment in t h e action. The S u b i n Firm would not be inequitably affected by a judgment in this action; indeed, CMI's failure to timely sue the firm may well have saved it from liability. C M I bears the b u r d e n of proof t o show t h a t Subin, and not t h e Subin Firm, is liable for these obligations. 3 ) Law o f the Ca S g There is no reason t o address this b r a n c h o f Subin's motion, because it simply states t h a t the court issued a n o r d e r limiting t h e scope of CMI's claims in the P r i o r Order. CMI concedes that the o r d e r limits t h e scope of its claim. 4 ) blot S u k r n I ' s C lients Subin contends t h a t some o f t h e i n j u r e d people who executed liens for GMMS were not h i s clients. Because there i s no a f f i d a v i t in support of the motion by Subin, or anyone else with personal knowledge, questions of fact remain as to which of the i n j u r e d people, if a n y , were represented by Subin. 5 ) Bocumenta r v E v j d e n c g Subin contends t h a t t h e complaint should be dismissed -4- [* 6] based on documentary evidence under C P L R 3211(a) (1). The argument is premised upon what is described as "sources of information searched by Marie Donadio" (Aff. of Brooke Lombardi, Esq.), which, upon the attorneys's information and belief, relate to her d u t i e s as a n o f f i c e manager. How t h e s e records establish a defense founded upon documentary evidence is nowhere explained, and it does not "utterly refute plaintiff's factual allegations or conclusively establish a defense as a matter of l a w " Blank, 8 0 A D 3 d 401, 4 0 2 [ l S t Dept 2 0 1 1 1 ) . (Simkin v Accordingly, this branch of Subin's motion is d e n i e d . 6 ) ReLeagE Subin alleges t h a t CMI gave a r e l e a s e for claims relating t o c e r t a i n injured p e o p l e who were his clients, but t h e only one identified is named Jessica Gilette. Subin's This branch of motion is made upon t h e information and belief of Subin's a t t o r n e y , and l a c k s any evidentiary foundation. Accordingly, it is d e n i e d . 7 ) Statute clf ~rauds Subin argues t h a t the complaint s h o u l d be dismissed because its claims a r e barred by the S t a t u t e of F r a u d s . General Obligations Law S 5-701 p r o v i d e s that c e r t a i n agreements must be in writing to be enforceable, b u t the motion does not state what section of t h e statute is relied upon. Since the relevant claims are supported by written l i e n s , there is no basis for this b r a n c h -5- [* 7] of Subin's motion. 8 ) L a c k of Leg31 CaPaciQ Subin c o n t e n d s t h a t CMI lacks l e g a l c a p a c i t y t o s u e because it was dissolved as a N e w Y o r k c o r p o r a t i o n in 2 0 0 1 . CMI argues that this action is p r o p e r because it is made i n the c o u r s e of w i n d i n g up i t s business (Business C o r p o r a t i o n Law 5 1006[al [ 4 ] ) . While Subin does n o t concede t h e p o i n t , i t f a i l s t o refute CMI's argument with any factual allegation, so t h i s branch of S u b i n ' s motion is d e n i e d . 9) Ynla wful Assiunment of a Personcil 5 n-iusv C l a i m S u b i n a p p a r e n t l y c o n t e n d s t h a t , by permitting i n j u r e d people to obtain medical treatment s u b j e c t to a l i e n on t h e i r p o t e n t i a l recovery i n a lawsuit, GMMS p u r p o r t e d to have procured a t r a n s f e r of the i n j u r e d person's personal i n j u r y claim in contravention to General Obligations Law § 13-lOl(1). As a r e s u l t , CMI, as the a s s i g n e e of a transferred personal i n j u r y claim, f a i l s to s t a t e a cause of a c t i o n . On its face, Subin mis- characterizes the n a t u r e of CMI's claim. T h e liens do n o t p u r p o r t t o effect the t r a n s f e r of an i n j u r e d person's claim, r a t h e r they obligate t h e person, or t h e person's a t t o r n e y , to repay the debt if or when money i s received resolving t h e personal i n j u r y claim. Subin acknowledges t h a t a lien against t h e proceeds of a personal i n j u r y lawsuit is e n f o r c e a b l e , and since t h e liens i n this a c t i o n f i t t h a t description, this b r a n c h -6- [* 8] of Subin's motion is denied. The c o u r t has considered the parties' other contentions, and they are to no avail. Accordingly, it h e r e b y is ORDERED t h a t defendant's motion to dismiss a n d for summary judgment i s g r a n t e d in p a r t to the extent t h a t plaintiff's claims are dismissed, but for those preserved by the terms of the Stipulation described in Section 1, s u p r a , and the motion otherwise is d e n i e d ; and it further is '1.. ORDERED that t h i s action is transferred to the Mediation Part, 8 0 C e n t r e Street, Room 106, New Y o r k , NY, and counsel s h a l l a p p e a r t h e r e on J a n u a r y 2 3 , 2012 a t 9 : 3 0 AM: Dated: December /b , 2011 FILED ENTER: ..-** <.. -7- --- ' . I d e - ,

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