Xiaokang Xu (Shirley He) v S & C Elec. Co.

[*1] Xiaokang Xu (Shirley He) v S & C Elec. Co. 2013 NY Slip Op 51358(U) Decided on August 7, 2013 Supreme Court, Albany County Lynch, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 7, 2013
Supreme Court, Albany County

XIAOKANG XU (SHIRLEY HE), Plaintiff,

against

S & C Electric Company, KYLE SEYMOUR, JOHN W. ESTEY, MIKE EDMONDS, HUMAN RESOURCE MANAGER, XIAOKANG XU'S INTERVIEWER, XIAOKANG XU'S HIRER, CAO HONG, SHELTON CHUE, ZHANG WANFAN, XU SHIKAI (deceased), XU XIAOHUI, WAYNE P. SMITH, Defendants.



318-12



APPEARANCES:Mrs. Xu Xiaokang (Shirley He),

Plaintiff Pro Se

P.O. Box 4097

Clifton Park, New York 12065

McDERMOTT WILL & EMERY LLP

Attorneys for Defendants S & C Electric Company, Kyle

Seymour, John W. Estey and Mike Edmonds

340 Madison Ave.

New York, New York 10173

Michael C. Lynch, J.

In this action premised, in part, on negligence and "fraud on the court," defendants S & C Electric Company, Kyle Seymour, John W. Estey and Mike Edmonds (hereinafter, "S & C defendants") move to dismiss the complaint on various grounds, and for sanctions pursuant to 22 NYCRR 130-1.1. Plaintiff opposes the application. [*2]

By way of background, in 2005, Supreme Court, Schenectady County (Eidens, J.), granted plaintiff's ex-husband, Mr. Xiaokang Xu, a judgment of divorce as against plaintiff on the grounds of cruel and inhuman treatment, which judgment was affirmed (see Xiaokang Xu v Xiaoling Shirley He, 24 AD3d 862 [3d Dept 2005], lv denied 6 NY3d 710 [2006]).[FN1] Following that judgment, further litigation between those parties ensued, in part, regarding the sale of the marital residence (see Xiaokang Xu v Xiaokang Shirley He, 77 AD3d 1083 [3d Dept 2010]). Characterizing Ms. He's behavior as "dilatory and obstructionist", the Appellate Division upheld an award of approximately $15,000 in counsel fees to Mr. Xu (Id p. 1084-1085). In 2010, plaintiff commenced a separate action against her ex-husband in Supreme Court, Schenectady County, which that Court dismissed. That Order and Judgment also provided that "Plaintiff shall be required to obtain pre-Court approval prior to filing any further legal actions, proceedings or motions regarding issues pertaining to the prior matrimonial proceedings between the parties" (Xiaokang Shirley He v Xiaokang Xu, Sup Ct., Schenectady County, September 16, 2011, Drago, J., index No. MAT2010-0568).

In December 2012, plaintiff commenced an action against assorted defendants, including the purchasers of the former marital residence, alleging, among other things, "that these defendants tortiously intruded and interfered with her private and personal life" (Xiaokang Xu a/k/a Shirley He v Realty USA, et al., Sup Ct., Saratoga County, March 17, 2013, Ferrandino, J., index No. 20123527). In its decision dismissing the Complaint, that Court noted that the action appeared to be in contravention of Judge Drago's earlier Order and Judgment directing plaintiff to obtain prior court approval before commencing any actions pertaining to the matrimonial proceedings (id. at 7). The Court explained: "The instant action clearly involves the prior matrimonial proceedings between the parties in that it directly relates to the sale of the marital property and the sale of what the plaintiff alleges to be marital property" (id.).

On January 18, 2013, plaintiff commenced this action by filing a summons with notice, which provided, in part: "The nature of this action is, but not limited to, to obtain a Judgment on Negligence, Tort and Damages, Perjury (fraud on court), Subornation, Conspiracy, Misconduct" (Summons with Notice, King Affirmation, Exhibit D [emphasis in original]). Notably, plaintiff's ex-husband Xiaokang Xu is not a named party, but his current employer and three co-workers are named parties, i.e. the S & C defendants. The requested relief includes "legal fees, commissions for selling homes, loss of value of property, loss of business, value of right of inheritance, value of sacrifice career and business in amount of approximately $386,571 (to be modified) sanctions" (Exhibit "D").On April 9, 2013, counsel for the S & C defendants demanded a copy of the complaint from plaintiff (see CPLR 3012[b]). On April 16, 2013, plaintiff faxed a letter directly to the S & C defendants that provided: Mr. Xu, Xiaokang committed Perjury (Fraud on Court) in New York Courts. Mrs. Xu is suing him against his Crime against Justice and he has escaped his responsibility.Please send him back to New York. He can find a position for a living in New York or go back to China for his CEO position and Legal Representative one (Shirley He [*3]Letter, id., Exhibit F [emphasis in original]).

After not receiving the complaint within 20 days, on May 7, 2013, S & C defendants filed the instant motion to dismiss the complaint, in part, pursuant to CPLR 3012 (b) and on the basis that plaintiff did not obtain prior Court approval prior to commencing this action. In response, plaintiff submits a document styled an "affirmation," dated May 22, 2013 in which she seeks further time to "complete the process of Summons with Notice" and seeks to move to dismiss S & C defendants motion.[FN2] In another "affirmation" dated May 10, 2013, plaintiff seeks "pre-Court Approval for further proceedings to the motion to dismiss." She also notes that she has an appeal pending with regard to the September 16, 2011 order requiring such Court pre-approval.[FN3]

The S & C defendants' maintain this matter should be dismissed since plaintiff did not seek Court approval prior to commencing this action (see e.g. Dimery v Ulster Sav. Bank, 82 AD3d 1034, 1035 [2d Dept 2011], lv dismissed 17 NY3d 774 [2011]; Matter of Ram v Hershowitz, 76 AD3d 1022, 1023 [2d Dept 2010]). This Court agrees. As the Court in Dimery explained: Public policy generally mandates free access to the courts. Here, however, the record reflects that the plaintiff forfeited that right by abusing the judicial process through vexatious litigation. Accordingly, it was not improper for the Supreme Court to enjoin the plaintiff from bringing any further motions regarding the subject matter of the instant action without its permission (82 AD3d at 1035).

Here, it is undisputed that plaintiff did not seek the Court's pre-approval prior to commencing the action. Upon review, it is evident the limited allegations in the Summons with Notice appear similar to prior suits that plaintiff has brought as noted above. Defendant S & C Electric Company is her ex-husband's current employer in Wisconsin. The "Summons with Notice" lists individual employees of S & C involved in the hiring of plaintiff's ex-husband. She also names her ex-husband's sister and matrimonial attorney as parties. Plaintiff's April 16, 2013 letter expressly asserts that her ex-husband "committed Perjury (Fraud on Court) in New York Courts" and that she "is suing him against his Crime against Justice and he has escaped from his responsibility". She concludes with the request "Please send him back to New York..." (Exhibit "F"). Frankly, neither the "Summons with Notice" nor the purported "affirmations" of plaintiff identify any independent basis for this action apart from her continued efforts to pursue litigation pertaining to her ex-husband and the prior matrimonial litigation. Accordingly, the S & C defendant's motion to dismiss the complaint due to plaintiff's failure to obtain pre-approval before commencing the action is granted, and the action is hereby dismissed in its entirety, together with costs and disbursements. Considering that plaintiff commenced this action two months before Judge Ferradino's decision dismissing the Realty USA action in Saratoga County for lack of pre-approval, and given the sparse record presented, the Court declines to grant defendant 's request for an award of sanctions. Plaintiff's [*4]application for sanctions is utterly without merit.

Accordingly, it is

ORDERED that S & C defendants' motion is granted , and the complaint is hereby dismissed in its entirety, together with costs and disbursements.

This Memorandum constitutes the Decision and Order of the Court. This original Decision and Order is being returned to the attorney for S & C defendants. The below referenced original papers are being mailed to the Albany County Clerk. The signing of this Decision and Order shall

not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.

DATED:August, 2013

Albany, New York

________________________________________

Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

Notice of Motion to Dismiss dated May 7, 2013;

Affirmation of Ashley N. King, Esq., affirmed May 7, 2013, with annexed Exhibits A-F;

Defendants' Memorandum of Law dated May 7, 2013;

"Affirmation" of Mrs. Xu, Xiaokang (Shirley He) dated May 22, 2013; "Affirmation"

of Mrs. Xu, Xiaokang (Shirley He) dated May 10, 2013;

Reply Affirmation of Ashley N. King, Esq., affirmed May 28, 2012, with annexed Exhibit A;

Defendant's Reply Memorandum of Law dated May 28, 2013. Footnotes

Footnote 1:The Court notes that in this action plaintiff now identifies herself as "Mrs. Xu, Xiaokang (Shirley He)". The Court will refer to her as either plaintiff or Ms. He.

Footnote 2:CPLR 2106 does not apply to a party, and there is nothing in the submissions to show that plaintiff is otherwise authorized to sign an "affirmation".

Footnote 3:The Notice of Appeal, which states that the order was entered on October 19, 2011, was not filed until April 30, 2013 (i.e. several weeks after the S & C defendants demanded the complaint) and appears to be untimely (CPLR 5513[a]).