Opinion
38583/06.
Decided June 25, 2008.
By notice of cross-motion sequence number four, filed on June 19, 2007, plaintiff moves pursuant to CPLR § 3212(b) and an order of the Florida Circuit Court Order dated June 18, 2007, for partial summary judgment on the instant complaint. Plaintiff contends that applying the principles of full faith and credit to the aforementioned Florida Circuit Court order supports her entitlement to a sum certain in the amount of $2,088,269.77, together with federal maritime interest, at a rate of 12% per annum from the date of the accident, December 11, 1975, to present.
By notice of motion sequence number five, filed on January 8, 2008, defendants jointly move pursuant to CPLR § 3211 to dismiss the complaint. Specifically, Omnium Agencies Inc (hereinafter OAI), United States Fidelity and Guaranty Company (hereinafter USFG) and Travellers seeks dismissal of the complaint pursuant to CPLR § 3211(a)(7) on the basis that no cause of action is stated against them. Defendant Frota seeks dismissal pursuant to
CPLR § 3211(a)(8) claiming that the plaintiff has not served the complaint upon them. All defendants seek dismissal of the complaint, in the alternative, pursuant to CPLR § 3211(a)(4) on the premise that the causes of action in the instant complaint may only properly be brought in Bronx County. If dismissal of the complaint is denied, all defendants move pursuant to CPLR § 503 to change of venue of the instant action to Bronx County.
PLAINTIFF'S CROSS-MOTIONPlaintiff's cross-motion papers on sequence number four consist of an her affidavit and nineteen annexed exhibits. The first exhibit is a certified copy of an order of the Florida Circuit Court under case no DR-03-3440, dated June 18, 2007, in which Circuit Court Judge Theotis Bronson granted Virgina Pires' motion to establish a sum certain entitlement to marital res. The matrimonial action was between Virgina Pires against her husband Starkheiser Pires (hereinafter S.M. Pires). The court granted her entitlement to $2,088,269.77 as her share of the marital res as well as statutory interest at the Federal Maritime rate of 12% per annum from December 11, 1975 until paid. The second exhibit is a copy of the decision, Pires v. Frota Ocieanica Brasileira, S.A., 288 AD2d 126 [1st Dept 2001]). The third exhibit is a certified copy of a final judgment of an uncontested divorce signed by Circuit Court Judge Theotis Bronson on January 3, 2007, and certified on March 14, 2007. The judgment states in paragraph 10(b) that the parties agree to the division of $4,176,539.54 equally with each to receive $2,088,269.77. The judgment states in paragraph 10(c) as follows:
"There remains an award to be decided in the case of Starkeiser Da Silva Pires v. United States Fidelity Guaranty Company, index No. 023829/1976 Supreme Court of the State of New York, New York County, for "a sum equal to the amount of counsel fees charged to Plaintiffs and presumably already paid." Upon the final determination and award of these monies, the parties agree that these funds are a marital asset to be distributed in two equal shares (50% to each party)."
Exhibit four is a certified copy of an order of the Florida Circuit Court under case no DR-03-3440, dated November 21, 2006, in which Circuit Court Judge James C. Hauser granted Virginia Pires' application to file a third party claim against USFGC. The court granted the application on the basis that S. Pires, her husband, consented to the application and that USFCG held a marital asset of the parties. Exhibit five is a cover from a Florida attorney to Mr. Heller referencing an attached order. Also included is the a certified copy of an order of the Florida Circuit Court under case no DR-03-3440, dated March 14, 2007 in which Circuit Court Judge Theotis Bronson granted Virgina Pires' request to file a direct independent action as a first party. Exhibit six is the summons, complaint, affidavit of service of the summons and complaint, and defendants answer to same for the instant action. Exhibit seven is an affidavit of S. M. Pires, plaintiff's former husband, now deceased. Exhibit eight is an undated hand printed letter purportedly written by S. M. Pires. Exhibit nine is a letter signed by S. M. Pires, before a notary public and dated April 11, 2005. Exhibit ten is a notarized affidavit of S. M. Pires dated January 10, 2002. Exhibit eleven is a certified transcript of a deposition of S. M. Pires taken on October 7, 2003. Exhibit twelve and thirteen are transcripts of court proceeding conducted on April 3, and December 15, 1998, before Justice Edward J. Greenfield in the matter of S. M. Pires Virgina Pires v. Forta, et al, index number 23829/76. Exhibit fourteen is a decision of the Court of Appeal of New York, 91 NY2d 948 (1998) in the matter of Pires v. Frota Oceanica Brasileira, S.A. . Exhibit fifteen is a decision of the Court of Appeal of New York, imposing sanctions on Frota in connection with its appeal on the Pires matter. Exhibit sixteen is a decision and order of Justice Greenfield's dated December 22, 1998, awarding plaintiffs S. M. Pires and Virgina Pires, attorney fees in the amount of five million four hundred thousand dollars ($5,400,000.00). Exhibit seventeen is a copy of the appeal bond in the sum of $32,983,181.59 dated May 31, 1995, issued by St. Paul Fire and Marine Insurance Company to secure defendant Frota in favor of S.M. Pires and Virginia Pires in an action entitled S.M. Pires et al v. Frota Oceanic Brasileira, S.A. et al., Index No. 23829/76. Exhibit eighteen is a rider to the aforementioned bond, which substituted the surety from St. Paul Fire and Marine Insurance Company (hereinafter St. Paul) to USFGC effective May 31, 2003. Exhibit nineteen is a transcript of a court proceeding conducted on November 22, 2002 before Justice Herman Cahn in the matter of S. M. Pires Virgina Pires v. Forta, et al, index number 2382/76.
Defendants opposition papers consists of an affirmation of their counsel, Mr. Stiles, and five annexed exhibits. The first exhibit is an affidavit of USFG's counsel in the matter of Pires v Pires in the Florida Circuit Court under case no DR-03-3440. The second exhibit is an order of the Florida Circuit Court under case no DR-03-3440 granting USFG's motion to dismiss. The third exhibit is an affidavit of S. Pires in the matter S. M. Pires v Kenneth Heller et al in New York Supreme Court. The fourth exhibit is an affirmation of Saul Rudes, a plaintiff in the matter S. M. Pires v Kenneth Heller et al in New York Supreme Court The fifth exhibit is a letter from Susan Harmon, plaintiff's counsel, to Justice Karen Smith of New York Supreme Court regarding Pires v Frota, under Index No. 23829/76.
Plaintiff submitted a reply affirmation consisting of an affirmation of counsel, an affidavit of plaintiff's counsel in the matter Pires v Pires in the Florida Circuit Court under case no DR-03-3440 and eighteen annexed exhibits.
DEFENDANTS' MOTION
Defendants motion papers on motion sequence number five consist of the following documents. There is an affirmation of defendants' attorney, Thomas Stiles. Thomas Stiles' affirmation does not reference or explain the documents that follow his affirmation. After his affirmation are the following documents in the order presented. There is a copy of a Decision and Order of this Court dated December 17, 2007 issued in the matter of Kenneth Heller v. Frota Oceanic E Amazonica, S.A. et al., Index No. 38282/06. There is an unsigned letters from Thomas Stiles dated July 25, 2006 addressed to New York County Supreme Court Justice Tolub regarding S.M. Pires et al v. Frota Oceanic Brasileira, S.A. et al., Index No. 23829/76. There is another letter from Thomas Stiles dated October 17, 2006 addressed to Bronx County Supreme Court Justice Salman regarding S.M. Pires et al v. Frota Oceanic Brasileira, S.A. et al., Index No. 23829/76. There is an affirmation of William Byrne, the former president of OAI. There is an affirmation of Thomas Stiles signed on January 4, 2006, and filed in opposition to the an order to show cause to attach a bond filed in the matter of Kenneth Heller v. Frota Oceanic E Amazonica, S.A. et al., Index No. 38282/06. There is a decision and order of the New York State Supreme Court, Appellate Division First Department entered June 24, 1997 in the matter of Pires v. Frota Oceanica Brasileria, S.A. which reversed a jury award for punitive damages and loss of consortium and remanded for the trial court to consider an award of attorney's fees to the plaintiff. There is a decision and order of the New York State Supreme Court, Appellate Division First Department entered November 27, 2001, reversing an award of attorney fees to plaintiff's counsel as opposed to the plaintiff directly. There is a decision and order by the New York State Supreme Court, Appellate Division First Department entered May 4, 2004 in the matter of Pires v. Frota Oceanica Brasileria, S. A. . There is an order of New York County Supreme Court Justice Smith of dated January 10, 2005 denying Ms Pires motion and cross motion for summary judgment in the matter of S.M. Pires v. Kenneth Heller, Index No. 114298/04. There is a transcript of a proceeding conducted on May 31, 2006, before Honorable James C. Hauser in the Circuit Court of the Ninth Judicial District of Orange County, Florida under case no 03-3440-0 involving the marriage of Virgina Pires and her S. Pires, her husband. The final document is a transcript of a proceeding conducted on October 27, 2006 before Bronx County Supreme Court Justice Sallie Manzanet in the matter of S.M. Pires v Brasileira, Frota Oceanica, Index No. 1437/06.
LAW AND APPLICATION
Plaintiff's CPLR 3212(b) cross-motion
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists ( Alvarez v. Prospect Hosp., 68 NY2d 320). The burden is on the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts ( Guiffirda v. Citibank, 100 NY2d 72). Once the moving party has established entitlement to summary judgment, to defeat the motion, the opposing party must raise triable issues of fact ( Gravina v. Wakschal, 255 AD2d 291 [2nd Dept., 1998]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the sufficiency of the opposing papers ( Ayotte v. Gervasio, 81 NY2d 923).
Article IV, § 1 of the United States Constitution requires that the public acts, records and judicial proceedings of each State should be given full faith and credit in every other State. The purpose of the Full Faith and Credit Clause is to avoid conflicts between States in adjudicating the same matters, functioning to "weld the independent States into a Nation" ( Luna v Dobson, 97 NY2d 178 citing Matter of Farmland Dairies v. Barber, 65 NY2d 51, 55). In a practical sense, full faith and credit establishes a rule of evidence requiring recognition of a prior out-of-State judgment, giving it res judicata effect and "thus avoiding relitigation of issues in one State which have already been decided in another" ( Luna v Dobson, supra, 97 NY2d 178 citing Matter of Farmland Dairies v. Barber, 65 NY2d 51, 55). Under the Full Faith and Credit Clause a" 'judgment of a state court should have the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced' "( Luna v Dobson, supra, 97 NY2d 178 citing Underwriters Natl. Assur. Co. v North Carolina Life Acc. Health Ins. Guar. Assn, 455 US 691, 704).
Divorce judgment of a sister state made in an action in which both parties were subject to the personal jurisdiction of the court is entitled to full faith and credit by the courts of New York.
( Somma v. Somma , 19 AD3d 477 [2nd Dept 2005]; citing Vanderbilt v. Vanderbilt, 354 US 416 and Green v. Green, 246 AD2d 627, 628 [2nd Dept 1998]).
Plaintiff asserts the amount of counsel fees charged to the plaintiff S. M. Pires and presumably paid is undisputed and is the amount of $4,176539.54 and that she is entitled to one half of that amount plus interest on the strength of the aforementioned Florida Circuit Court order. Plaintiff seeks summary judgment against the defendants for one half of the attorney's fees that the defendants allegedly owe her husband for his counsel fees which were paid to his attorney. Plaintiff's submission includes a certified copy of the order of Circuit Court Judge Theotis Bronson which granted Virgina Pires' motion to establish a sum certain entitlement to marital res. The order establishes the existence of matrimonial action between Virgina Pires and her husband S. M. Pires and their participation in the action. It also establishes that the court granted her entitlement to $2,088,269.77 as her share of the marital res as well as statutory interest at the Federal Maritime rate of 12% per annum from December 11, 1975 until paid. Her annexation of a certified copy of a final judgment of divorce signed by Circuit Court Judge Theotis Bronson on February 3, 2007, established her entitlement to receive one half of $4,176,539.54 award or $2,088,269.77. The divorce judgment also specifically contemplated a potential additional award of attorney fees in the case of S. Pires v. United States Fidelity Guaranty Company, Index No. 023829/1976 Supreme Court of the State of New York, New York County, to be a marital asset. The court directed that upon final determination of that potential award, the parties agree that these funds are a marital asset to be distributed in two equal shares.
The final judgment of divorce signed by Circuit Court Judge Theotis Bronson on February 3, 2007, contemplated that the potential judgment against the defendants consisting of an the attorney's fees which S. M. Pires paid to his attorney in the referenced Pires litigation is martial property subject to equitable distribution. Judge Bronson's order contemplated that the potential asset was being pursued in active litigation and would be finally determined when it was reduced to a final, enforceable judgment.
The next question is whether the potential marital asset contemplated by Judge Bronson's judgment of divorce had been determined. Plaintiff has not referenced or annexed in her motion papers any judgment that fits this description. The fact that plaintiff contends that the amount is undisputed based on evidence she submitted in support of that contention does not mean that it has been reduced to a judgment. The court finds that plaintiff did not establish that such a judgment yet exists. Therefore, although, the Florida Court has decided that the potential asset is a marital res subject to the Florida judgment of divorce. It is only subject to same when the amount is finally determined in the form of a judgment. Plaintiff's motion for summary judgment awarding her a sum certain in the amount of $2,088,269.77, together with federal maritime interest, at a rate of 12% per annum from the date of the accident, December 11, 1975, to present is denied.
The court now turns to the defendants' motion. Defendants OAI, Travellers and USFG contend that the complaint fails to state a cause of action against them and should be dismissed pursuant to CPLR § 3211(a)(7). "The main mission of an affirmative pleading such as a complaint is to give "notice" of the event out of which the grievance arises. If the pleading can be said to give that notice, the first pleading requirement is satisfied. If the allegations also cover the substantive material elements that make up the particular cause of action relied on, the second requirement is met and the pleading satisfies the CPLR. The major challenge to an affirmative pleading is a motion under CPLR 3211(a)(7) to dismiss it for failure to state a cause of action; a pleading that meets the two stated requirements defeats that motion" ( see, Siegel, NY Prac. § 208 [4th ed]).
On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( Clement v Delaney Realty Corp. , 45 AD3d 519 [2nd Dept 2007]). Whether the plaintiffs can ultimately establish their allegations is not part of the calculus in determining a motion to dismiss ( EBCI, Inc. v Goldman, Sachs, Co. , 5 NY3d 11 , 19).
Travellers, OAI and USFG's CPLR 3211(a)(7) motion
In assessing a motion under CPLR 3211(a)(7) however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint. The criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one (see Roth v. Goldman, 254 AD2d 405 [2nd Dept 1998] citing Leon v. Martinez, 84 NY2d 83, 87-88).
Plaintiff's complaint alleges fifty five allegations of fact in support of three causes of action against all defendants. The first cause of action is for court ordered attorney fees. The second cause of action is pre-verdict interest on an award of $4,176,539.54. The third cause of action is for punitive damages based on the allegations in the complaint.
Defendant Travellers is not mentioned in the fifty five allegations of fact stated in the complaint. Defendant OAI is only mentioned once in the ninth allegation of fact. That fact alleges that OAI was the exclusive North American steamship agent for shipowner Frota and was authorized to accept service of process for said entity. Defendant USFG is only mentioned once in the eleventh allegation of fact. That fact alleges that USFG merged with St. Paul Fire and Marine Insurance Company (hereinafter St. Paul) and has assumed their obligation under an appeal bond dated May 31, 1995.
Defendant Travellers has demonstrated that the complaint does not articulate any transactions or occurrences by Travellers in connection with the three stated causes of action. General Obligation Law § 5-701(a)(2) provides that every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking is a special promise to answer for the debt, default or miscarriage of another person. Defendant OAI. has demonstrated that the only allegation of fact articulated in the complaint is that it is an agent of defendant Frota. The legal status of being an agent of Frota standing alone does not support any cause of action stated in the complaint. Furthermore, an agent may not be bound by acts of its principal unless the agent explicitly agrees to be so bound in writing ( PNC Capital Recovery v Mechanical Parking Systems, Inc., 283 AD2d 268-270 [1st Dept 2001]).
USFG has demonstrated that the only allegation of fact articulated in the complaint is that it had merged with an assumed the obligation of St. Paul under an appeal bond dated May 31, 1995. In the absence of more, the mere status of being the surety on an appeal bond does not support a claim against them for the three stated causes of action. The affidavits and exhibits submitted by plaintiff in opposition to defendants motion for dismissal do not cure the deficiency of the complaint. The complaint and the exhibits do not state a cause of action against defendants Travellers, OAI and USFG.
Frota's CPLR 3211(a)(8) motion
Defendant Frota seeks dismissal of the complaint pursuant to CPLR § 3211(a)(8) on the basis that no service of process has been made upon Frota. Defendant Frota annexes the affirmation of Will1am Byrne. William Byne's affirmation contains five allegations of fact. He affirms that he was the former president of OAI and that he received a copy of the complaint. He states that OAI is not and has not been the agent of Frota for almost ten years and was not Frota's agent on the day of the delivery of the complaint. The inference raised by defendant Frota is that plaintiff attempted to obtain jurisdiction upon it by serving OAI. Frota does not indicate how OAI was served.
On a motion to dismiss for lack of personal jurisdiction pursuant to CPLR § 3211(a)(8), plaintiff has the burden of establishing the fact of jurisdiction ( Krajewski v Osterlund, Inc., 111 AD2d 905 [2nd Dept 1985]). Plaintiff has offered no evidence to show that the court has personal jurisdiction over Frota. Plaintiff did not annex an affidavit of service or offer an explanation for its failure to do so. Plaintiff has failed to make a prima facie showing of jurisdiction or even to show that a hearing is required to resolve the matter (( Krajewski v Osterlund, Inc., 111 AD2d 905 [2nd Dept 1985] citing Ring Sales Co. v Wakefield Eng, 90 AD2d 496, 497 [2nd Dept 1982]).
Frota's motion to dismiss is therefore granted. In light of the Court's ruling, the court need not reach defendants alternative relief requested.
CONCLUSION
Plaintiff's motion for summary judgment is denied. Defendants Travellers, OAI, USFG and Frota's motion to dismiss the complaint is granted.
The foregoing constitutes the decision and order of the court.