Brown v. Solomon & Solomon

LESLIE E. STEIN, J. Plaintiff commenced the instant action seeking recovery in the amount of $1,000, representing statutory damages resulting from defendant's alleged violation of the Fair Debt Collection Practices Act (15 USC § 1692f [1] [hereinafter FDCPA]). Plaintiff also seeks recovery of reasonable attorneys' fees. Defendant now moves to dismiss the complaint under CPLR 3211 (a) (1) and (7), and for an order imposing sanctions against plaintiff and plaintiff's counsel pursuant to the provisions of Fair Debt Collection Practices Act (15 USC) § 1692k and of 22 NYCRR part 130; plaintiff opposes the motion and cross-moves for an order disqualifying the defendant law firm as defense counsel. With respect to the motion to dismiss based upon documentary evidence, the court notes that CPLR 3211 (a) (1) provides as follows: "A party may move for judgment dismissing one or more causes of action asserted against him on the ground that * * * "a defense is founded upon documentary evidence". The court further notes that, in order "[t]o dismiss a cause of action based on CPLR 3211 (a) (1), defendants must show that `the documentary evidence that forms the basis of [this] defense must be such that it resolves all the factual issues as a matter of law and conclusively and definitively disposes of the plaintiff's claim'" (Vanderminden v Vanderminden, 226 AD2d 1037, 1039 [1996] [citations omitted]). Furthermore, with regard to what qualifies as "documentary evidence", it is well recognized that "[t]he word apparently aims at a paper whose content is essentially undeniable and which, assuming the verity of its contents and the validity of its execution, will itself support the ground on which the motion its merits, it is becoming readily apparent that there is a pattern of conduct by the Capoccia law firm which exhibits a complete disregard for the judicial system, in tying up its limited resources and preventing the system from addressing legitimate disputes, by bombarding it with meritless claims and defenses, apparently as some sort of tactic, the aim of which is to coerce settlement from the adversaries of its clients. Therefore, in determining the amount of the sanction to be awarded, the court has placed substantial weight, not only on the nature of the conduct found to be frivolous, but also on the need for an appropriate deterrent with respect to similar future conduct. In accordance with the provisions of 22 NYCRR 130-1.3, payment of the $5,000 sanction shall be deposited with the Lawyers' Fund for Client Protection and, further, shall be paid within 30 days of the date of service of a copy of this order by defendant's counsel upon plaintiff's counsel, with notice of entry. Funds used for these payments are not to result from any current or additional charge to the plaintiff client. At the time payment is made, an affidavit is to be filed with this court indicating that the sanction has been paid and that the source of the funds used was not that of the client in this proceeding. With respect to the issue of costs pursuant to 22 NYCRR 130-1.1, the court finds that defendant is also entitled to recover reasonable attorneys' fees and, accordingly, schedules a hearing for the determination of same to be held on June 11, 1999 at 1:30 P.M. With regard to defendant's motion for sanctions against plaintiff herself, the court finds that defendant has failed to demonstrate that plaintiff knew, or should have known, that the commencement of the within action was lacking in legal or factual basis. Accordingly, the court concludes that the imposition of sanctions against her is not warranted. Based upon the other provisions of this decision and order, the court need not address defendant's assertions concerning attorney's fees under 15 USC § 1692k. Similarly, plaintiff's cross motion to disqualify defendant from acting as its own counsel in this matter has become moot based upon the dismissal of the claim as set forth hereinabove.