Clevenger v. Yuzek

203 N.Y.S.3d 114

222 A.D.3d 931

Ty CLEVENGER, appellant,

v.Dean G. YUZEK, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 18, 2023

December 27, 2023

Ty Clevenger, Brooklyn, NY (Quainton Law, P.C. [Eden Quainton], of counsel), appellant pro se.

Furman Kornfeld & Brennan LLP, New York, NY (Daniel H. Butler and Andrew R. Jones of counsel), for respondent Jeffrey Bloom.

Vigorito, Barker, Patterson, Nichols & Porter, LLP, New York, NY (Gary Patterson and William Gagas of counsel), for respondent Stanley Slater.

Kranjac Tripodi & Partners LLP, New York, NY (Joseph Tripodi and James Van Splinter of counsel), for respondents Dean G. Yuzek, Cherish Benedict, Robert Banner, Melissa T. Billig, Daniel L. Carroll, Roger Cukras, David G. Erbert, Warren E. Friss, Larry F. Gainen, Edward Goodman, Tara B. Mulrooney, John G. Nicolich, Shane O’Neill, Susan J. Onuma, Amol K. Pachnanda, Jessica L. Rothman, Jennifer E. Schwartz, Mioko C. Tajika, Neil R. Weinstein, Cory L. Weiss, David J. Zinberg, Jennifer B. Zourigui, and Ingram Yuzek Gainen Carroll & Berlotti, LLP.

Rivkin Radler LLP, Uniondale, NY (Cheryl F. Korman and Peter C. Contino of counsel), for respondents Selzer Gurvitch Rabin Wertheimer Polott & Obecny, P.C., Robert Selzer, Carlton Obecny, Andrew R. Polott, Neil Gurvitch, H. Mark Rabin, Patrick Kearney, James G. Dattaro, Elyse L. Strickland, and Michael Bramnick.

Citak & Citak, New York, NY (Donald L. Citak of counsel), for respondent Frederick E. Edwords.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, LOURDES M. VENTURA, JJ.

DECISION & ORDER

In an action to recover damages for fraud, violation of Judiciary Law § 487, and civil conspiracy, the plaintiff appeals from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated July 3, 2018. The order, insofar as appealed from, denied, as academic, the plaintiff’s motion to appoint a guardian ad litem for William C. Cartinhour, Jr, granted the motion of the defendants Selzer Gurvitch Rabin Wertheimer Polott & Obecny, P.C., Robert Selzer, Carlton Obecny, Andrew R. Polott, Neil Gurvitch, H. Mark Rabin, Patrick Kearney, James G. Dattaro, Elyse L. Strickland, and Michael Bramnick pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, granted that branch of the motion of the defendants Ingram Yuzek Gainen Carroll & Berlotti, LLP, Dean G. Yuzek, Cherish Benedict, Robert Banner, Melissa T. Billig, Daniel L. Carroll, Roger Cukras, David G. Erbert, Warren E. Friss, Larry F. Gainen, Edward Goodman, Tara B. Mulrooney, John G. Nicolich, Shane O’Neill, Susan J. Onuma, Amol K. Pachnanda, Jessica L. Rothman, Jennifer E. Schwartz, Mioko C. Tajika, Neil R. Weinstein, Cory L. Weiss, David J. Zinberg, and Jennifer B. Zourigui which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, granted the motion of the defendant Jeffrey Bloom pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him, granted the motion of the defendant Stanley Slater pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him, and granted that branch of the cross-motion of William C. Cartinhour, Jr., by the guardian of his property, Robert M. McCarthy, which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against William C. Cartinhour, Jr.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

In an action commenced in the United States District Court for the District of Columbia (hereinafter Robertson I), a jury found, inter alia, that Wade Robertson breached a fiduciary duty he owed to William C. Cartinhour, Jr., and awarded Cartinhour $7,000,000 in damages. Robertson was represented by Edward Griffin, and Cartinhour was represented by members of Selzer Gurvitch Rabin Wertheimer Polott & Obecny, P.C.

While Robertson I was still pending in the District Court for the District of Columbia, the plaintiff in this action, acting as Robertson’s attorney, commenced an action in the United States District Court for the Southern District of New York (hereinafter Robertson II), alleging, inter alia, racketeering, conspiracy, and fraud related to the events underlying Robertson I and certain misconduct by Cartinhour and his attorneys in Robertson I. After Robertson II was transferred to the District Court for the District of Columbia, it was dismissed and sanctions were imposed against the plaintiff in this action. Members of the firm Ingram Yuzek Gainen Carroll & Berlotti, LLP, represented Cartinhour in Robertson II in the District Court for the Southern District of New York.

The plaintiff commenced this action to recover damages for fraud, violation of Judiciary Law § 487, and civil conspiracy against Selzer Gurvitch Rabin Wertheimer Polott & Obecny, P.C., Robert Selzer, Carlton Obecny, Andrew R. Polott, Neil Gurvitch, H. Mark Rabin, Patrick Kearney, James G. Dattaro, Elyse L. Strickland, and Michael Bramnick (hereinafter collectively the SGRW defendants); Ingram Yuzek Gainen Carroll & Berlotti, LLP, Dean G. Yuzek, Cherish Benedict, Robert Banner, Melissa T. Billig, Daniel L. Carroll, Roger Cukras, David G. Erbert, Warren E. Friss, Larry F. Gainen, Edward Goodman, Tara B. Mulrooney, John G. Nicolich, Shane O’Neill, Susan J. Onuma, Amol K. Pachnanda, Jessica L. Rothman, Jennifer E. Schwartz, Mioko C. Tajika, Neil R. Weinstein, Cory L. Weiss, David J. Zinberg, and Jennifer B. Zourigui (hereinafter collectively the Ingram defendants); Jeffrey Bloom, Stanley Slater, and Cartinhour. In the complaint, the plaintiff asserted, inter alia, that during the course of Robertson I, Cartinhour’s attorneys concealed the fact that Cartinhour was symptomatic of schizophrenia, conspired with others in order to do so, and improperly communicated ex parte with the Judge who was overseeing the case. The plaintiff alleged that all of the defendants committed fraud and violations of Judiciary Law § 487 and participated in a civil conspiracy to conceal Cartinhour’s mental illness and lack of capacity in Robertson I and Robertson II and as a result of the defendants’ wrongful conduct, sanctions were improperly imposed against him, he suffered physical and emotional injury, and he lost hundreds of hours of work.

In an order dated July 3, 2018, the Supreme Court, inter alia, granted the separate motions of the SGRW defendants, Slater, and Bloom pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them, granted that branch of the motion of the Ingram defendants which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, granted that branch of the cross-motion of Cartinhour which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him, and denied, as academic, the plaintiff’s motion to appoint a guardian ad litem for Cartinhour. The plaintiff appeals. Cartinhour has since died. By decision and order on motion of this Court dated February 17, 2023, Frederick E. Edwords, as administrator of Cartinhour’s estate, was substituted for Cartinhour, and the caption was amended accordingly.

[1–3] "On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory" (Gorbatov v. Tsirelman, 155 A.D.3d 836, 837, 65 N.Y.S.3d 71). Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal shall not eventuate (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274–275, 401 N.Y.S.2d 182, 372 N.E.2d 17). "Under CPLR 3211(a)(1), a dismissal is warranted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law" (Bianco v. Law Offs, of Yuri, Prakhin, 189 A.D.3d 1326, 1327–1328, 138 N.Y.S.3d 576; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190).

Here, in the complaint, the plaintiff alleged that the SGRW defendants concealed Cartinhour’s mental illness, tampered with evidence, suborned perjury, and engaged in improper ex parte communications during their representation of Cartinhour in Robertson I and conspired with the other defendants to conceal Cartinhour’s mental illness in Robertson I and Robertson II. In addition, in the complaint, the plaintiff also alleged that the Ingram defendants concealed Cartinhour’s mental illness and their lack of authority to represent him in Robertson II and conspired with the SGRW defendants to transfer Robertson II to the District Court for the District of Columbia.

The Supreme Court granted the SGRW defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them and that branch of the Ingram defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on the ground that the complaint failed to state a viable cause of action insofar as asserted against those defendants (see CPLR 3211[a][7]).

[4–6] The elements of a cause of action to recover damages for fraud "require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages" (Eurycleia Partners, LP v. Seward &...