FILED: ONONDAGA COUNTY CLERK 09/07/2021 10:55 AM INDEX NO.

006484/2021
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/07/2021

STATE OF NEW YORK

SUPREME COURT : COUNTY OF ONONDAGA

RONALD R. BENJAMIN,

Plaintift DECISION & ORDER

Index No.: 00648112021

PAUL (;. FERRARA, ESQ. and , HON. GRf,GORY R. GILBERT. JSC

COSTELLO, COONEY & FEARON, PLLC,

Defendants.

Appearances: Ronald R. Benjamin, Esq. Daniel Rose, Esq.

Law Office olRonald R. Benjamin Costello, Cooney & Fearon, PLLC
Attomeys for Plaintilf Attomeys for Defendants
126 Riverside Drive 21 I West Jefferson Street
Binghamton, New York 13905 Slracuse, New York 13202

BACKGROUND

The present action is predicated on Judiciary Law $487 alteging that defendants engaged in
deceit and collusion to intentionally deceive the court in an action commenced against plaintiff
arising from various asserted acts of misconduct and attomey negligence committed against
plaintifls former client ''AMP". This action was commenced by fi[ingon July 23,2021. Defendants
have filed a pre-answer motion to dismiss. Defendants also seek sanctions against plaintiff for
frivolous conduct.

DISCUSSION

A motion to dismiss is restricted to the pleading itself rather than the determination of the
facts ola given case. Stukuls v. State,42NY2d272 (1977) and Mansour v. Abrams, 120AD2d933
(4'h Dept 1986). The Court is to look to the four comers of the complaint. 511 West 232"d Owners
Com. l'. Jenni fer Realtv Co . 98 NY2d 144 (2002); Cole v. O'Tooles of Utica. Inc., 222 ADzd 88
(4'h Dept 1996) and Nestor v. Putney Twombly Hall & Hirson" LLP, 153 AD3d 840 (2"d Dept 2017).

The factual allegations ofthe complaint are to be taken as true together with all favorable
inferences that may be drawn or reasonably implied therefrom. See Connaughton v. Chipotle
xican Grill lnc 29 NY3d l3 7 (201 7); Choromanskis v. Chestnut Homeowners Association. Inc.,
147 AD3d 1477 (4'h Dept2017) and Palladino v. CNY Centro. Inc.. 70 AD3d 1450 (4'h Dept 2010)

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The complaint is to be given a liberal construction as prescribed by CPLR $ 3026. SeeABN AMRO
Bank. NV v. MBIA Inc.. l7 NY3d 208 (201 l).

The Court is required to accept every allegation ofthe complaint as true without regard to
the ability ofplaintiffto ultimately establish the truth ofthe facts that have been asserted, particularly
on a motion such as this presented prior to any disclosure. See 219 Broadway Com. v. Alexander's.
Inc., 46 NY2d 506 (1979) and Davis v. Boeheim, 24 NY3d 262 (2014). If the motion is to be
granted, it must be because the complaint actually states no cause ofaction or documentary or other
evidence that is submitted conclusively shows there to be no cause ofaction as attempted. Smith v.
Ctark, 185 Misc2d 1 (Supreme Court, Monroe County 2000) affirmed 286 AD2d,880 (4th Dept
2001) motion for leave to appeal denied 97 NY2d 608.

In short, there have to be sufficient factual allegations in the complaint for the Court to
conclude that there is basis lor a cause of action that is stated and not just conclusory statements
lacking factual support. Sager v. Citv of Buffalo. l5l AD3d 1908 (4'h Dept 2017); Miller v. Allstate
lndemnitv Company , 132 AD3d 1306 (4'h Dept 2015); Dominski v. Frank Williams & Son LLC
46 AD3d 14$ Gr'' Dept 2007) and Otszewski v. Waters of Orchard Park, 303 AD2d 995 (4'h Dept
2003).

The motion, in part, seeks dismissal for failure to state a claim. At the core, the complaint
alleges that counsel conspired with another law firm for the purpose ofretaliating against plaintiff
by bringing a known false claim against him. At most, the complaint states that AMP may have been
deceitful and otherwise the claim ofconspiracy by defendants with another law firm is devoid ofany
factual predicate.

The facts required to substantiate a cause ofaction under Judiciary Law $487 must include
some allegation oldirect knowledge of falsity on the part ofcounsel so as to demonstrate the intent
to deceive the Court or a party. Kurman v. Schnaop, T3 AD3d 435 (1'r Dept 2010). All that the Court
has been presented with by this complaint are conclusory statements lacking factual support and
allegations that def-endant has advocated tbr AMP. Seldon r- Lewis, Brisbois, Bissaard & Smith.
LLP, I l6 AD3d 490 (1't Dept 2014) leave to appeal dismissed 25 NY3d 985; Gill v. Doughertv,
188 AD3d 1008 (2M Dept 2020); Cordelt Marble Falls. LLC v. Kelly, 191 AD3d 760 (2'd Dept
2021). The Court finds that the complaint fails to state a cause of action under Judiciary Law $487
on this basis.

The second argument on which dismissal of the complaint is sought is that "plaintiffs relief,
ifany, lies in the pending AMP action where it has already been rejected". At issue is a motion to
disqualiff counsel brought by plaintiff within the AMP action and rejected by Hon. Richard W.
Rich, Jr., Acting Supreme Court Justice, Broome County. Plaintiff acknowledges that the same
factual matters raised by the complaint were raised on the motion for disqualification. In addressing
these issues Judge Rich found as follows:

"The defense argues that Attomey Fenara falsified allegations in the complaint,

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sanitized versions in the complaint, that he was part ofa conspiracy with another
attomey regarding separate litigation, that he will be brought into this action via a
third-parry' action by the Defendant(s), and that he will be a necessary witness in this
action (via the aforementioned third party action).
The instant action is brought by AMP with a complaint which is verified by her, not
by Attomey Ferrara.
Just how Attomey Ferrara will be brought into this matter as a third-party defendant
and how his testimony will be relevant and necessary in this action is at this time a
mystery to this cou(. At this time, the court cannot envision allowing any such action
or testimony as being appropriate in this action."

Judge Rich then denied the motion to disquatifu counsel. It should be noted that the determination
ofa motion to disqualifu counsel proceeds on a different basis than a motion to dismiss under CPLR
321 I . As stated b1 Judge fuch:

"'ln resolving such a motion. a court must balance the vital interest in avoiding even
the appearance of impropriety against concem for a party's right to representation by
counsel [***3] ol choice and danger that such motions can become tactical
derailment weapons for strategic advantage in litigation" (NYAHSA Servs.. Inc.,
Self-lns. Trust v People Care lnc., 156 AD3d 1205,1206,67 NYS3d 676 12017)
[intemal quotation marks, brackets and citations omitted])." Graziano v
Andzel-Graziano 169 A.D.3d 1195. 1196 (3'd Dept., 2019)

for
Thus, while the facts being asserted by the complaint are identical to the facts asserted as basis
disqualification of counsel, there is no identity of issue between CPLR $3211 and a motion to
disqualifo and this is the hallmark of both collateral estoppel and res judicata. 73A NY Jur
Judgments $334 and 348. Specifically, Judge Rich made no ruling on a CPLR $3211 motion to
dismiss the Judiciary Law $487 action. Accordingly, this basis for dismissal ofthe complaint has no
merit.

Another part oldefendants argument is a claim that the Judiciary Law $487 action may only
be brought before the same Court in which the offensive conduct has taken place under the cases
Hansen v. Werther,2 AD3d 923 (3'd Dept 2003); Yalkowskv v. Century Aoartments Associates,
215 AD2d 214 (1" Dept 1995); McMahan v. Belowich, 164 AD3d 1443 (2"d Dept 2018). What each
case has in common is that plaintiff incurred ajudgment by reason ofthe deceit of counsel. In the
case of Hansen, for example, the prior proceeding was an action asserting a Judiciary Law $487
cause ofaction. These three cases left the Judiciary Law $487 claim to be asserted as basis to re-open
the judgments obtained by virtue ofthe claimed attomey deceit. This argument is not reached but
it should be noted that a Judiciary Law $487 claim may be brought even where the attempted deceit
is unsuccessful and no motion to vacate a judgment is necessary. See Amalfitano v. Rosenberg, 12
NY3d S (2009) noting the rich history behind Judiciary Law $487 reaching back to the first Statute
of Westminster in the year 1275.

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The final part of defendants argument is that this action under Judiciary Law $487 is
intended to collaterally attack and interfere with the already pending AMP action having failed to
obtain disqualification of counsel therein. The action may not be maintained lor that purpose.
Duoree v. Voorhees,24 Misc3d 396 (Supreme Court, Suffolk County 2009) affirmed in pertinent
part 68 AD3d 807 (2'd Dept 2009). The Court finds that the obvious purpose in bringing the
Judiciary Law $487 claim at this time is a collateral attack and interference with the pending AMP
action. The overarching purpose behind Judiciary Law $487 in this context is to protect the integrity
of the AMP Court and proceeding and to foster the truth-seeking function of that litigation.
Amalfitano v. Rosenbers, 12 NY3d 8 (2009). The Court will dismiss the present action on this basis
as well.

The Court respectfully declines to consider sanctions as urged by defendants.

Accordingly, it is

ORDERED, that the motion of defendants, Paul G. Fenara. Esq. and Costello, Cooney &
Fearon, PLLC, to dismiss the complaint of the plaintifl Ronald R. Benjamin, shall be and the same
is hereby GRANTED and the same is hereby DISMISSED; and it is

ORDERED, that the motion of defendants, Paul G. Ferrara, Esq. and Costello, Cooney &
Fearon, PLLC, seeking imposition of sanctions shall be and the same is DECLINED.

IT IS SO ORDERED.

ENTER

Dated: September 7 ,2021

Oswego, NY HON. GREGORY R. GILBERT
SUPREME COURT JUSTICE

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