Bryan L. Salamone P.C. v Cohen
Annotate this CaseDecided on August 1, 2013
Supreme Court, Suffolk County
Bryan L. Salamone P.C., Plaintiff,
against
Melissa Cohen, Defendant.
2012-20320
Timothy M. Wan, Esq.
Smith Carroad Levy & Wan P.C.
Attorneys for Plaintiff
5036 Jericho Turnpike
Commack, New York 11725
Melissa Cohen
Defendant Pro Se
4104 Townhouse Drive
Coram, New York 11727
Bryan L. Salamone, Esq.
Bryan L. Salamone P.C.
1145 Walt Whitman Road
Melville, New York 11747
Theresa A. Mari, Esq.
Hagney Quatela Hargraves & Mari PLLC
888 Veterans Memorial Highway
Hauppauge, New York 11788
Jeffrey Arlen Spinner, J.
Presently before the Court is Plaintiff's application to vacate the judgment previously rendered in this matter together with leave to respond to Defendant's opposition to the motion for summary judgment. This motion is virtually identical to that interposed in the matter of "Bryan L. Salamone P.C. vs. Vincent Russo" bearing index no. 2012-23205 (decided simultaneously herewith). Though styled by counsel as a motion to vacate the Court's decision, a fair reading clearly demonstrates that it is actually a motion to [*2]reargue pursuant to CPLR § 2221(d). It is likewise clear that counsel has failed to comply with the mandatory provisions applicable to such motions. Indeed, the relevant portions of CPLR § 2221 set forth as follows:
"2221 Motion Affecting Prior Order
(a) A motion for leave to...vacate or modify an order
shall be made, on notice, to the judge who signed the
order...
(d) A motion for leave to reargue
1. Shall be identified specifically as such;
2. Shall be based upon matters of fact or law
allegedly overlooked or misapprehended by the court
in determining the prior motion..."
Counsel's supporting Affirmation, specifically the language preceding Paragraphs 22 et. seq., states "The Court has mis-interpreted the law with respect to the charging of post-default interest." This alone is sufficient to lead the Court to conclude that the application is one seeking reargument, thus requiring compliance with the mandates of the statute, something that counsel has failed to do.
The Court notes that this application is vigorously opposed by Defendant. However, the original Order to Show Cause that was returned to the Court is wholly devoid of any proof of service upon Defendant, leaving the Court to question as to whether or not the motion was served in accordance with the directives of the Court.
In response to Defendant's opposition, Plaintiff, through Bryan L. Salamone Esq. has interposed reply papers some 4 cm (1 ½") thick which, like the original application herein, bears no proof of service upon Defendant. In those papers, Mr. Salamone goes to great lengths to justify his actions and his fees, at one point stating that "We do not let the clients run the firm." Included among the items attached, specifically Exhibit R, is a handwritten letter from Defendant's minor child to Theresa Mari Esq., the Law Guardian in the matrimonial proceeding which, it is claimed, gave rise to the astronomical fees demanded by Plaintiff. According to Mr. Salamone, this letter, described by him as a "...highly objectionable 12 year old letter," is illustrative of the tremendous difficulty encountered in litigating the underlying matrimonial matter, which somehow justifies his fee demand. However, the Court has grave questions as to how Mr. Salamone came to be in possession of this letter, whether he had consent of the Law Guardian to release the same in any manner, whether or not said letter is subject to any claim of privilege or confidentiality and how it truly relates to the collection of a fee for legal services.
The Court has also elected to again review the billing in this matter and finds that the same is facially outrageous and certainly bereft of reasonableness. In his opposition papers, Mr. Salamone attempts, albeit unsuccessfully, to defend the amount of his billing, asserting that the underlying action was complex and required a substantial expenditure of attorney's time. However, the papers interposed by Defendant are factually at odds with the claims of Mr. Salamone which, in any event, would preclude summary judgment in Plaintiff's favor, Zuckerman v. City of New York 49 NY2d 557 (1980).
That having been said, the Court is compelled to deny this application by Plaintiff, whether it be styled inartfully as one to vacate a final judgment (which, incidentally is procedurally improper, Maddux v. Schur 53 AD3d 738 (3rd Dept. 2008)). In spite of the denial, there are points which compel this Court to comment, inasmuch as counsel has clearly mis-interpreted the applicable law yet has chosen to assert that it is the Court that has done so. [*3]
In the present application (just as in the one in the Russo matter), Plaintiff's counsel employs an unpleasant, somewhat sarcastic and clearly condescending tone throughout, which, counsel is warned, borders upon conduct that may well be sanctionable. Indeed, counsel has the insufferable temerity to actually admonish this Court for expressing its distress over the terms and conditions of Plaintiff's over-reaching retainer agreement (clearly a contract of adhesion on its face), baldly stating that all of the terms thereof "...are all within the ambit of the law." Counsel goes further, scolding the Court for failing, in his view, to provide both statutory and common law bases for certain findings, even though the character of and deficiencies within the retainer were so painfully obvious on their face.
Counsel then expounds on his argument, stating, in a stentorian manner, that this Court both mis-applied and mis-interpreted the usury statutes, justifying Plaintiff's conduct by invoking the 25% usury ceiling [Penal Law § 190.40, Criminal Usury in the Second Degree] and the 16% ceiling in Banking Law § 14-(a). Even assuming arguendo that Plaintiff is subject to these provisions (and the Court does not believe that these statutes apply here), Plaintiff's retainer agreement would still be deemed usurious on its face and therefore subject to mandatory cancellation since it provides for interest at the rate of 18% per annum (it should be noted that Plaintiff would not be subject to a criminal prosecution under these circumstances). It is important to note here that the issue of criminal usury was expressly raised by Plaintiff's counsel; this Court has dealt only with civil issues and has never intimated nor implied in any way that Plaintiff has in any manner been engaged in any activity of a criminal nature. However, as will be clearly demonstrated below, counsel's reliance upon both of these statutes is woefully misplaced and his arguments are both spurious and meretricious.
While it is facially correct, as counsel argues, that the provisions of Banking Law § 14-(a)(1) set a maximum rate of interest that may be charged at 16% as it applies to General Obligations Law
§ 5-501 (which sets a 6% ceiling), such a postulation is wholly inapplicable to the matter that is sub judice especially inasmuch as counsel has failed to tell the whole story, as it were. This section of the Banking Law cannot be applied in a vacuum but instead must be interpreted in conjunction with Banking Law §§ 1 and 2. The plain language of Banking Law § 1 states that the statute is "...applicable to all corporations, partnerships and individuals defined in the next section..." Continuing to Banking Law § 2 (the "next" section), the only entities to which the Banking Law applies are the following: banks [§ 2(1)], trust companies [§ 2(2)], private bankers [§ 2(3)], savings banks [§ 2(4)], safe deposit companies [§ 2(6)], licensed lenders [§ 2(7)], savings and loan associations [§ 2(8)], credit unions [§ 2(9)], investment companies [§ 2[10)], mutual investment companies [§ 2(10-a)] and banking organizations [§ 2(11)]. The Court is constrained to note that counsel has failed to point out this critical information, whether deliberately or negligently, instead leaving the Court to address the matter upon its own initiative.
Since Plaintiff is a professional service corporation whose members are engaged in the practice of law, it is obvious that Plaintiff does not fit within any of the foregoing enumerated categories of the Banking Law. Hence, the provisions of the Banking Law are wholly inapplicable to the present matter.
Returning to the issue of what Mr. Salamone characterizes as the "highly objectionable 12 year old letter" the Court finds that it is obligated to inquire further into the circumstances surrounding the same. The Court therefore directs Bryan L. Salamone Esq. to appear personally for an examination under oath with respect to all aspects of the letter in question. Said examination shall not be adjourned except by Order of the Court and Mr. Salamone may, if he so desires, be represented by counsel at said examination.
It is, therefore,
ORDERED that the within application by the Plaintiff shall be and same is hereby denied in its entirety; and it is further
ORDERED that any and all stays shall be and the same are hereby vacated, dissolved and set aside; and it is further
ORDERED that Plaintiff's counsel shall serve a copy of this Order upon Defendant within twenty one days of the date hereof; and it is further
ORDERED that Bryan L. Salamone Esq. shall appear in person, for an examination under oath, before I.A.S. Part 21 of the Supreme Court of the State of New York, Courtroom D-66, John P. Cohalan Jr. Court Complex, 400 Carleton Avenue, Central Islip, New York 11722 at 2:30 p.m. on September 11, 2013.
Dated: August 1, 2013
Central Islip, New York
_____________________________
HON. JEFFREY ARLEN SPINNER
J.S.C.
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