| Bohn v 176 W. 87th St. Owners Corp. |
| 2013 NY Slip Op 03755 [106 AD3d 598] |
| May 23, 2013 |
| Appellate Division, First Department |
| Theodore Bohn, Respondent, v 176 W. 87th St.Owners Corp. et al., Defendants, and Steinhardt Management, Inc., Appellant. TheodoreBohn, Respondent, v 176 W. 87th St. Owners Corp. et al., Defendants, and SethFriedland et al., Appellants. Theodore Bohn, Appellant, v 176 W. 87th St. Owners Corp.et al., Respondents, et al., Defendants. Robert Cantor, Esq., et al., NonpartyRespondents. |
—[*1] Jaroslawicz & Jaros LLC, New York (Michelle Holman of counsel), for SteinhardtManagement, Inc., appellant. Friedland Laifer & Robbins, LLP, New York (Eugene P. Hanson of counsel), forSeth Friedland and Friedland Laifer & Robbins, appellants. Theodore Bohn, New York, appellant pro se/respondent pro se. Cantor, Epstein & Mazzola LLP, New York (Robert I. Cantor of counsel), for 176W. 87th Street Owners Corp., Paul Gottsegen, Insignia Management, HalsteadManagement, Richard Feldman, Sonnenschein, Sherman & Deutsch, LLP, Robert Cantorand Cantor, Epstein & Mazzola LLP, respondents.
Orders, Supreme Court, New York County (Milton A. Tingling, J.), entered April 17,2012 and April 18, 2012, which denied defendants-appellants' motions pursuant toCPLR 3211 and 3212 and defendant Steinhardt Management's motion for sanctionsagainst plaintiff, unanimously reversed, on the law, without costs, the motions granted,and the matter remanded for a determination of the appropriate attorneys' fees. The Clerkis directed to enter judgment in favor of defendants-appellants dismissing the complaintas against them. Order, same court and Justice, entered May 16, 2012, which, to theextent appealed from as limited by the briefs, denied plaintiff's motion for sanctionsagainst nonparty Robert Cantor Esq., and to disqualify Cantor and Cantor, Epstein, &Mazzola LLP from representing Feldman and Sonnenschein, Sherman & Deutsch, LLP,unanimously affirmed, without costs. Order, same court and Justice, entered April 17,2012, which granted Cantor's motion to quash a subpoena, unanimously affirmed,without costs.
In 2003, plaintiff, a shareholder-tenant in the cooperative located at 176 West 87thStreet in Manhattan, commenced an action (the 2003 action) against defendant 176 W.87th Street Owners Corp., among others, alleging that in late 1999 he began complainingto defendant Paul Gottsegen, the managing agent, that his apartment was being madeuninhabitable by odors entering it from a restaurant on the ground floor of the building.He alleged that his complaints were ignored and that although the Department ofEnvironmental Protection issued several [*2]violationsbased on the odors, defendants failed to ameliorate the problem, which forced him to sellhis apartment.
The complaint in this action, commenced in July 2011, centers on the allegations thatdefendants provided false letters to the Environmental Control Board about who wasauthorized to represent the cooperative in defending against the violations, that the letterslater disappeared, and that defendants acted to conceal the existence of the letters.
The prima facie tort cause of action fails to allege that defendants, or any of them,acted solely to injure plaintiff (see WFB Telecom. v NYNEX Corp., 188 AD2d257, 258 [1st Dept 1992], lv denied 81 NY2d 709 [1993]). It also fails to allegespecial damages that are specific and measurable (see id.; Wehringer vHelmsley-Spear, Inc., 91 AD2d 585, 586 [1st Dept 1982], affd 59 NY2d 688[1983]). In any event, the limitations period for a claim of prima facie tort is one year(Havell v Islam, 292 AD2d 210 [1st Dept 2002]). The complaint does not clearlyset forth exactly when defendants engaged in the acts giving rise to the cause of action,but, whether it was in the years preceding the commencement of the 2003 action orduring the pendency of that action, the limitations period had expired by July 2011, whenplaintiff commenced this action.
The fraud cause of action is not pleaded with the requisite detail (see CPLR3016 [b]; Small v Lorillard Tobacco Co., 252 AD2d 1, 15 [1st Dept 1998],affd 94 NY2d 43 [1999]). Plaintiff alleges that he relied to his detriment ondefendants' false representations as to the authorization to defend, but he does notidentify false representations of material facts on which he relied, the allegedrepresentations were not all made to him, and he does not explain how he relied on them.As to defendants' representations about efforts undertaken to ameliorate the odors in hisapartment, plaintiff does not allege what was said to him. Moreover, he could not havereasonably relied on those representations, given that he was litigating againstdefendants, and he could not have been harmed by them, given that the violations weresustained after an administrative hearing.
In any event, the fraud claim is barred by the statute of limitations, which is thegreater of six years from the date the cause of action accrued or two years from the timethe plaintiff discovered the fraud (CPLR 213 [8]). Plaintiff's cause of action accruedsome time before 2003, when he was involved in the various administrative proceedingsand before he sold his apartment. To the extent he may later have discoveredimproprieties in connection with the authorization letters, that discovery preceded thecommencement of this action by more than two years.
Plaintiff concedes that his Judiciary Law § 487 cause of action is inapplicableto 176 W. 87th St Owners Corp. and Steinhardt Management, neither of which is anattorney. As to the attorney defendants, the cause of action fails to allege that plaintiffsuffered any injury proximately caused by any deceit or collusion on their part, and nosuch injury can reasonably be inferred from the allegations in the complaint (Seldon v Spinnell, 95 AD3d779 [1st Dept 2012], lv denied 20 NY3d 857 [2013]; Rozen v Russ & Russ, P.C., 76AD3d 965 [2d Dept 2010]). To the extent the Judiciary Law § 487 cause ofaction is based on conduct that occurred before 2005, it is in any event barred by thesix-year statute of limitations (see Guardian Life Ins. Co. of Am. v Handel, 190AD2d 57, 62 [1st Dept 1993]).
We find that the complaint is without merit and apparently was undertaken to harassdefendants (see Great Am. Ins.Cos. v Bearcat Fin. Servs., Inc., 90 AD3d 533 [1st Dept 2011], lvdismissed 18 NY3d 951 [2012]). Accordingly, an award of attorneys' fees toSteinhardt is [*3]appropriate, and we remand the matterfor a determination of the amount of fees incurred.
Contrary to his contention, plaintiff failed to establish that Cantor made materialfactual statements that were false or in direct conflict with his client's testimony andshould be sanctioned therefor. Nor did plaintiff establish any basis for disqualifyingCantor and his firm from representing Feldman and Sonnenschein, Sherman & Deutsch,LLP.
The court properly granted Cantor's motion to quash the subpoena served on him,since it sought documents and testimony protected by the attorney-client privilege.
We have considered plaintiff's other arguments and find them unavailing.Concur—Gonzalez, P.J., Friedman, Moskowitz and Feinman, JJ.