Terekhina v Terekhin

[*1] Terekhina v Terekhin 2014 NY Slip Op 51917(U) Decided on December 24, 2014 Supreme Court, Kings County Sunshine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 24, 2014
Supreme Court, Kings County

Liubov Terekhina, Plaintiff,

against

German Terekhin, Defendants.



53551/13



Yonathan S. Levoritz, P.C.

Attorney for Plaintiff

2754 Nostrand Avenue, Second Floor

Brooklyn, New York 11210

German Y. Terekhin

Defendant, pro se
Jeffrey S. Sunshine, J.

Upon the foregoing papers, plaintiff Liubov Terekhina (plaintiff) moves by order to show cause (motion sequence No.4) for an order: (1) pursuant to CPLR 3126 (1), sanctioning defendant German Terekhin (defendant) for his discovery defaults by deeming all the issues as to which defendant has failed to provide discovery information to be resolved for the purpose of this action in accordance with plaintiff's claim; (2) pursuant to CPLR 3126 (2), sanctioning defendant for his discovery defaults by prohibiting him from supporting any of his claims and from opposing plaintiff's claims; (3) pursuant to CPLR 3126 (3) striking defendant's pleadings and directing the entry of a default judgment against defendant in favor of plaintiff based upon his discovery defaults; (4) pursuant to Penal Law §§ 170.10 and 70.00 (2) (d), directing that non-party J. R. be arrested for perpetrating forgery as he has falsely attested to notarizing defendant's signature; and (5) pursuant to CPLR 308 (5), granting plaintiff permission to serve defendant via substituted service in the form of overnight courier and e-mail transmission. In a separate motion by order to show cause (motion [*2]sequence # 5), plaintiff moves for an order: (1) striking defendant's substitution of counsel application as it was not properly executed pursuant to CPLR 321; (2) precluding non-party Dmitry Kochergov from appearing in this matter on behalf of defendant as an attorney-in-fact pursuant to a power of attorney.

Background Facts and Procedural History

On September 6, 2000, plaintiff and defendant were married in Russia. The marriage produced two offspring, a male child who was born in Russia in 2002 and a second male child who was born in the United States in 2011. According to defendant, in 2010, when plaintiff was pregnant with their second child, the couple decided to travel to New York "and take advantage of its advanced prenatal and baby delivery care." On November 19, 2010, plaintiff and defendant jointly purchased a house located in Staten Island, New York for the price of $910,000.00. In this regard, $460,000 of the purchase price was paid in cash and the remaining $450,000 was obtained from a bank loan that was secured by a mortgage on the premises. Under the terms of the loan, monthly payments in the amount of $1,687.50 were to be made up until November 19, 2013, at which time the principal and any unpaid interest became due in full.

In or about March 2011, the parties traveled to the United States on temporary visas and moved into the recently purchased residence. Shortly thereafter, their second child was born. On August 15, 2012, defendant was arrested and charged with assault in the third degree after allegedly striking plaintiff at their home. Subsequently, an ex-parte temporary order of protection was issued by the Richmond County Family court directing that defendant stay away from plaintiff and their two children. On August 21, 2012, plaintiff filed a petition in Richmond County Family Court seeking child support from defendant. At or around this same time, defendant returned to Russia and filed for divorce in that country.

In a written decision dated February 20, 2013, the Octyabrskyi District Court of Samara City in the Russian Federation granted a divorce and dissolved the marriage between the parties.[FN1] The Russian court further determined that based upon the circumstances of the case as well as the "interests of the minors," plaintiff would retain custody of the children in the United States. The Russian court made no ruling regarding the distribution of the parties' marital assets or the payment of alimony or child support and it does not appear from the decision that these issues were raised by plaintiff or defendant in that proceeding.

On or about July 1, 2013, plaintiff moved out of the Staten Island residence and leased the premises to tenants. The lease agreement contained a purchase option agreement whereby the tenants paid $42,000.00 in exchange for the option to purchase the house for $850,000.00 during the one-year term of the lease. On August 5, 2013, the Richmond County Family Court issued an Order of Support by Default which, among other things, directed defendant to provide child support payments to plaintiff in the amount of $ 3,986.00 [*3]per month as well as an additional $1,019.70 per month for child care.

On or about November 27, 2013, plaintiff-wife commenced the instant divorce action against defendant. The complaint seeks various relief including a judgment of divorce on the grounds of cruel and inhuman treatment pursuant to Domestic Relations Law § 170 (7), equitable distribution of all the parties' marital assets, a judgment awarding plaintiff sole custody of the parties' two children, maintenance payments, as well as counsel fees. After being served with the complaint, defendant filed a notice of appearance indicating that he had retained the Law Offices of Yuliya Vangorodska, P.C. to represent him in the action.

After the commencement of the action, plaintiff moved for an order directing that the Staten Island residence owned by the parties be sold to the current occupants of the property and that the net proceeds from the sale of the premises be placed in an escrow account pending the equitable division of these proceeds by the court. Defendant opposed the motion and cross-moved to dismiss the action. In particular, defendant argued that plaintiff's equitable distribution claim was precluded by a postnuptial agreement between the parties as well as the doctrine of res judicata. Defendant further contended that plaintiff's divorce cause of action must be dismissed inasmuch as the parties were already divorced pursuant to the decree of the Russian court.

In a decision and order dated May 14, 2014, this court denied plaintiff's motion in its entirety. The court further granted that branch of defendant's cross motion which sought to dismiss plaintiff's divorce cause of action and otherwise denied the cross motion. Finally, the court directed that the parties were to proceed with discovery on an expedited basis. In particular, the court directed that demands for discovery and inspection were to be served no later than June 9, 2014, that depositions of the parties were to be held on July 28, 2014,[FN2] and that the parties were to appear at a final pre-trial conference on August 7, 2014.

On or about June 6, 2014, plaintiff served her discovery demands as well as written interrogatories upon defendant's counsel. Thereafter, defendant's attorneys advised plaintiff's counsel that defendant was terminating their services and would represent himself in the action. Ultimately, defendant's counsel provided plaintiff with a consent to change attorneys form dated May 30, 2014. The form was signed by defendant's outgoing attorneys and also contained an illegible signature above defendant's name along with the notation "POA" (i.e., power of attorney). The form was notarized by "J.R.". On July 28, 2014, defendant failed to appear for the scheduled deposition. Further, to date, defendant has not responded to plaintiff's discovery demands.

On August 4, 2014, plaintiff filed the instant motion (motion sequence #4) seeking various sanctions pursuant to CPLR 3126 based upon defendant's failure to comply with her discovery demands and failure to appear at the deposition. Although defendant did not [*4]submit opposition papers to the motion, his outgoing counsel submitted an affirmation in partial opposition to the motion in which he denied plaintiff's claim that the Law Offices of Yuliya Vangorodska was still defendant's counsel of record in the action.

On August 7, 2014, the instant case was called on the court's conference calendar. At the call of the calendar, Dmitry Kochergov appeared on defendant's behalf and indicated on the record that, although he is a lawyer in his native Russia, he is not admitted to practice law in New York. Mr. Kochergov further provided the court (and plaintiff) a form whereby defendant had given him power of attorney. Mr. Kochergov then advised the court that he believed the power of attorney "gives me, so to speak, power to represent the client in court." At that point, the court informed Mr. Kochergov that he could not represent defendant as an attorney as he was not admitted to practice in New York.[FN3] Mr. Kochergov then stated that "I simply want to serve or may serve as a conduit, providing court with all paperwork necessary." Counsel for plaintiff then indicated to the court that plaintiff was challenging the substitution of attorney form as defective and that plaintiff took the position that the Law Offices of Yuliya Vangorodska, P.C. was still defendant's attorney of record. Thereafter, the court adjourned the matter to September 23, 2014 so that defendant's outgoing counsel could appear and respond to plaintiff's position.

On August 25, 2014, plaintiff made the instant motion (motion sequence #5) seeking to strike defendant's substitution of counsel application as defective and further sought an order precluding Mr. Kochergov from appearing in this matter on behalf of defendant as an attorney-in-fact pursuant to a power of attorney. On September 23, 2014, plaintiff's motions were returnable before the court. At the call of the calendar, counsel for plaintiff, defendant's outgoing counsel (the Law Offices of Yuliya Vangorodska, P.C.) and Mr. Kochergov appeared before the court. After a conference was held off the record, plaintiff's counsel agreed to accept defendant's corrected substitution of counsel and the Law Offices of Yuliya Vangorodska, P.C. were released from the case. The court then addressed its attention to the issue of whether or not Mr. Kochergov could act as defendant's attorney-in-fact in this case. In this regard, Mr. Kochergov handed to the court a letter from defendant in which he stated that due to a medical condition, he is unable to travel from Russia to the United States to make court appearances. Defendant further stated that, inasmuch as his income is only $1,000 per month, he is unable to pay an attorney to represent him in the case. Attached to this letter were certain medical records and financial records of defendant which purportedly supported the claims in the letter. When plaintiff's counsel objected to the submission of these papers based upon the fact that they were not previously served upon him, the court allowed him two weeks to submit reply papers.[FN4] Thereafter, the court heard oral argument [*5]on the issue of whether or not Mr. Kochergov could act as defendant's attorney-in-fact or otherwise stand in defendant's shoes in the case. The court then reserved decision on all pending motions. The court now rules on the pending motions.

Findings and Rulings

Initially, that branch of plaintiff's second motion which seeks to strike the defendant's substitution of counsel application is denied as moot. In particular, as previously noted, plaintiff agreed at the September 23, 2014 court appearance to accept defendant's substitution of counsel. Further, to the extent that plaintiff still seeks an order directing the arrest of the notary "J.R.", it is clear, as conceded at oral argument, that she is not entitled to such relief. In particular, plaintiff has failed to cite to any authority which would allow this court to direct the arrest of a non-party notary pursuant to Penal Law §§ 170.10 and 70.00 (2) (d).

Turning to that branch of plaintiff's second motion which seeks to preclude Mr. Kochergov from appearing in this matter on behalf of defendant as an attorney-in-fact pursuant to a power of attorney, after reviewing the applicable case law, it is clear that, notwithstanding defendant's power of attorney, Mr. Kochergov may not represent the defendant in this action, or otherwise stand in his place as an attorney-in-fact, in any capacity. This includes appearing on defendant's behalf in court and/or drafting and submitting legal briefs, motions, and opposition to motions. In this regard, the Appellate Division, Second Department has ruled in no uncertain terms that, "[a] person not licensed to practice law in the State of New York pursuant to the Judiciary Law may not appear pro se in court on behalf of a litigant as an attorney-in-fact pursuant to a power of attorney. A person who does so has unlawfully engaged in the unauthorized practice of law" (Whitehead v Town House Equities, LTD., 8 AD3d 369, 370 [2d Dept 2004]). This ruling is in accord with other rulings by the Court of Appeals, the Second and Third Departments, as well as numerous lower court rulings (New York Criminal & Civ. Cts. Bar Assn., v Jacoby, 61 NY2d 130, 136 [1984]; Matter of Welsh v Commissioner of Labor, 51 AD3d 1351, 1351-1352 [3d Dept 2008]; People ex rel. Field v Cronshaw, 138 AD2d 765 [2d Dept 1988], lv dismissed 72 NY2d 872 [1988]; Smolenski v T.G.I Friday's Inc., 15 Misc 3d 792 [2007]).

Accordingly, plaintiff's motion for an order precluding Mr. Kochergov from appearing in this matter on behalf of defendant as an attorney-in-fact pursuant to a power of attorney is granted. If defendant is to continue to represent himself in this action, he must personally appear on all scheduled court dates and may not rely upon Mr. Kochergov or any other [*6]individuals who are not licensed to practice law in New York State.[FN5] If defendant is unable to represent himself due to health reasons or otherwise, it is incumbent upon him to retain counsel who is licensed to practice law in the state of New York.

Turning to that branch of plaintiff's motion which seeks to sanction defendant pursuant to CPLR 3126 for failure to comply with discovery, it is well-settled that the trial court "has broad discretion in making determinations concerning matters of disclosure, including the nature and degree of the penalty to be imposed under CPLR 3126" (Dimoulas v Roca, 120 AD3d 1293 [2d Dept 2014]). Thus, "[w]hen a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court's discretion to strike the pleadings or parts thereof as a sanction against such party" (Stone v Zinoukhova, 119 AD3d 928 [2d Dept 2014]). However, the sanction of striking a party's pleadings or precluding evidence is a drastic one and should only be imposed upon a clear showing that the party's failure to comply was willful and contumacious (Dimoulas, 120 AD3d at 1293; Stone, 119 AD3d at 928; Almonte v Pichardo, 105 AD3d 687, 688 [2d Dept 2013]).

Here, it is undisputed that defendant failed to respond to plaintiff's discovery demands and further failed to appear for the court-ordered deposition. However, plaintiff has failed to make a clear showing that this failure on defendant's part was willful and contumacious. Rather, it appears that defendant's failure to appear for the deposition and otherwise comply with plaintiff's discovery demands was the result of his inability to travel from Russia to the United States due to health reasons, as well as the fact that he terminated the services of his former attorneys. Under the circumstances, the severe sanctions sought by plaintiff are not warranted. Instead, plaintiff's motion for sanctions pursuant to CPLR 3126 is granted only to the extent that defendant is directed to respond to plaintiff's discovery demands and appear for a deposition within 60 days of service of a copy of this order with notice of entry. Upon defendant's failure to comply with this directive, he will be precluded from presenting evidence in this matter unless he can demonstrate good cause his failure to comply.

As a final matter, plaintiff is directed to serve a copy of this order upon defendant by DHL International Express to his address in Samara, Russian Federation, 443096. The Court finds it disconcerting that defendant's attempts to litigate and seek affirmative relief at the same time he claims he cannot come to the United States and is in default of his child support obligations and ignores discovery demands in this instant action.

Summary

In summary, the court rules as follows: (1) that branch of plaintiff's initial motion (motion sequence #4) which seeks to impose sanctions upon defendant pursuant to CPLR 3126 based upon his failure to comply with discovery is granted only to the extent that [*7]defendant is directed to comply with all outstanding discovery as set forth above; (2) that branch of plaintiff's initial motion which seeks an order directing the arrest of J. R. is denied; (3) that branch of plaintiff's second motion (motion sequence #5) which seeks to strike defendant's substitution of counsel application is denied on consent; and (4) that branch of plaintiff's second motion which seeks an order precluding Mr. Kochergov from appearing in this matter on behalf of defendant as an attorney-in-fact pursuant to a power of attorney is granted.

This matter is hereby scheduled for a next appearance on Tuesday, January 13, 2015 at 9:30 a.m.

This constitutes the decision and order of the court.

E N T E R:

JEFFREY S. SUNSHINE

J. S. C. Footnotes

Footnote 1:Plaintiff, who appeared in the Russian divorce proceedings via a representative, does not contest the validity of the Russian divorce.

Footnote 2:As the result of an oversight, the decision provided that the parties were to appear for a deposition on July 19, 2014, which was a Saturday. The deposition date was subsequently changed to July 28th.

Footnote 3:The court notes that at no point has Mr. Kochergov sought to be admitted pro hac vice.

Footnote 4:Plaintiff submitted reply papers to the court in a timely manner. In addition, defendant submitted a letter to the court dated October 20, 2014, in which he stated that he was the defendant in a Richmond County action brought by one Dennis Mosesman (presumably, a foreclosure action involving the Staten Island premises owned by plaintiff and defendant). Defendant further claimed that in this action, "my ex-wife asks to provide her with the opportunity to sell the house and appoint her as a successor for further distribution of money. Yet I am sure that after her distribution I will receive nothing."

Footnote 5:CPLR 321 (2) (c) provides for an automatic 30-day stay when an attorney is removed prior to judgment. However, inasmuch as Mr. Kochergov is not an attorney, this provision is not applicable.