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Cotton v. Kiperman

Cotton v Kiperman 2024 NY Slip Op 31435(U) April 22, 2024 Supreme Court, Kings County Docket Number: Index No. 515660/2023 Judge: Francois A. Rivera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 04/23/2024 04:23 PM INDEX NO. 515660/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/23/2024

At an IAS Tenn, Part 52 of the Supreme Court of the State of New York, held in . . .

and forthe County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 22rtd day Qf April 2024

HONORABLE FRANCOIS A. RIVERA --------------~------~-------------------------------------X JOSEPH A. COTTON & THE ESTATE OF ANGELINAADITARANTO& ADMINISTRATOR JOSEPH A. COTTON,

Plaintiffs 1 DECISION & ORDER Index No. 515660/2023 -against-

REGINA KIPERMAN, ESQ. and RK LAW P.C,

Defendants. ---. -- .-- ... --- ·. ----- ·------------... -----. -------------------- .--- .--X Recitation in acc.ordance with CPLR 22l9(a) of the papers considered on the notice of motion, filed on November 20, 2023, under motion sequence number three, by Regina Kiperman, Esq. aud·RK Law P.C{hereinafterthedefendants or movants) for an ordet pursuant to CPLR § 321 l(a)(S), 321 l(a)(7), artd 321l(c) dismissing the complaint ofJosephA Cotton & The Estate of Angelina A. Ditaranto and Ad1ninisttator Joseph A. Cotton (hereinafter the plaintiffs}. The motion is opposed. -Notice ofmotion -Affi1mation in support Exhibits A-C "Memorandum of law in support --Affidavit in opposition Exhibits A-B ~Affirmation in reply Exhibit 1-2 -Sur reply Exhibit 1

FILED: KINGS COUNTY CLERK 04/23/2024 04:23 PM INDEX NO. 515660/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/23/2024

In reply to plaintiff's opposition papers, the defendant a.gain submitted the Surrogate order and a copy of the Joseph A. Cotton's verified objection to Regina Kipennan'smotion which yielded the Surrogate order. The Surrogate order of Judge Graham established the following. Regina Kiperman, Esq. commenced a miscellaneous proceeding (hereinafter the miscellaneous proceeding) seeking a deten11ination pursuant to SCPA § 2110, of legal fees, costs and disbursements incurred in connection with her representation on behalfof the Joseph A, Costello, the Administrator, since her retention on or aboutMarch 17, 2021, through July 2022. The Administrator objected to the attorney's fees requested. The parties consented to the issues being decided by the Court on their submissions. Judge Graham found the following facts. A review of petitioner's affirmation of legal services reveals that the firm reviewed the documents presented by the respondent and engaged with discussions with Computershare and counsel for Computershare. Thereafter, the firm filed the petition for turnover of assets and sought a restraining order against Computershare to prevent Conlputershare from.transferring the assets to Mary in her individual capacify. Upon the signing of the order to show cause, the firm served the documents to the interested parties and then engaged in negotiations with Computershare, negotiations with TD Bank, attendedrrtultiple Court conferences, conductedconfetence calls with counsel, and conducted conference calls with respondent explaining the ne:x:t steps in the matter, including the possibility of filing a judicial accounting. In respondent1s objections, respondent alleg;es "overbilling" and thatthe firm worked on the 11 sameturnover document for approx. four months (March thru Aug) and still took another three months" to file the documents with the Court. However, the Finn's hours indicate that the Firm was drafting the petition on or about May 11, 2021, and the petition, along with the attorney afl:innation and order to show cause,were filed with the Court on or about July 21,.2021. This was a complex petition, which included multiple unauthorized stock transfers and eight years·. of improper· divi <lends collected going as far back as 2010, as well as contact with several corporations and their legal department. Therefore, the antount of time spent on drafting the petition seems eminently reasonable. The respondent also alleges that he hired the Firm to prepare, and file amended Letters of Administration to remove the $10,000 limitation on the Letters ofAdministration, and that the Finn apparently failed to do so. However, the Court's order dated May 05, 2022.; removed the previous restriction on the Administrator1s Letters and increased the sum to $200,000. Additionally, the respondent alleges thatthe petitioner shared confidential information; however, the respondent has provided scant

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FILED: KINGS COUNTY CLERK 04/23/2024 04:23 PM INDEX NO. 515660/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/23/2024

evidence of any wrongdoing. The rest of respondent's objections seems to focus on the interpersonal conflict between the respondent and petitioner as weII as apparent miscommunication between the pa.rties. The Court has carefully reviewed the. servi_ces performed which included drafting the petition for turnover of estate assets, extensive contact with attorneys and attending multiple court conferences. The petitioner's Firtn was able to settle the tnatter by stipulation and the respondent collected over 5,549 shares of ATT stocks,. 1,322 shares of Warner Brothers stock, andtheunpaid dividend checks that Computershare had been·accumulating. In addition, the Court order directed that Mary return misappropriated funds to the Estate, and if she failed to do so, judgment would be entered against Mary. The Court notes the complexity of this matter, with the Voluntary Letters of' Administration initially being issued to Mary 2011 and multiple unauthorized transactions takingplace since that titne. It is notable that petitioner succeeded in turning over the misappropriated assets from Mary to the Estate and raising the limitatiory in the Letters from $10,000 to $200,000; this is primarilywhat the petitioner was hired to accomplish. Itis therefore without question that petitionees firm has ably representedtheAdminist tator and increased the value ofthe Estate. After consideration of the cmnplt::x proceedings in the Estate, the nature of the services rendered, the reputation and experience of counsel, the supporting information set forth in the·affinnation of legalservices and having due regard fot the factors relevant to the fixing of attorney's fees (See Matter of Freeman, supra), the Court fixes the fair and reasonable value of legal fees at $20,061.60. The Court directs that the fees be paid out of the Estate, or,if Respondent removedthe assets of the Estate, that the fees be paid personally by Respondent. The defendants claim that the application of resjudicataand collateral estoppel bar the prosecution of the plaintiff's complaintis premised on the Sutrogate order. 1 'Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigating of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party'' (1155 Nobo Assoc1, LLC v New York Hosp. Med Ctr. o.fQueens, I 81 AD3d 937,938 [2d Dept 20201, quoting Djoganopouios v Polkes, 67 AD3d 726, 727 [2d Dept 2009]). "The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation'' (Matter of Hunter; 4 NY3d 260,269 [2005]). Pursuant to this doctrine, a legal malpractice action generally win be barred by the· defendant's ''successful prosecution of a prior action to recover fees for the same. legal services which the [plaintiff] presently allege[s] were negligently performed" (York v 7

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FILED: KINGS COUNTY CLERK 04/23/2024 04:23 PM INDEX NO. 515660/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/23/2024

Landa, 57 AD3d 980 [2d Dept2008], citing.Pirog vlngber, 203 AD2d 348, 348-349 [2d Dept 1994]). "Under New York State law, a determination fixing a defendants' fees in a prior action brought by the defendant against the plaintiff for fees for the same legal services which the plaintiff alleges were negligently performed, necessarily determines that there was no legal malpractice'; (Breslin Realty Development Corp; v Shaw, 72 AD3d 258, 263-64 [2d Dept 201 OJ, citingBlair v. Bartlett, 75 NY 150, 154 [ 1878]). The defendants' evidentiary submis.sion establishes that th¢ defendants' successful prosecuted the motion to recover fees for the same legal services which the plaintiffs allege were negligently performed (York v Landa, 57 AD3d 980, 981-82 [2d Dept 2008], citingPirog vlngber, 203 AD2d 348, 348-349 [2d Dept 19941). It further establishes that the plaintiff's objection to the proceedings were submitted and considered. by the Court in determining the motion. Furthermore, both the plaintiff at1d the defendant consented to the issues being decided by the Court on their submissions. These facts taken together establish thatthe plaintiff had a full and fair opportunity to litigate the issues raised in plaintiff's objection to the miscellaneous proceeding and thatthe issues raised therein were necessarily decided by the Surrogate order. CONCLUSION The motion by defendant.s Regina Kiperman, Esq. and RK Law P.C for an order pursuant to CPLR § 3211 dismissing the complaint of Joseph A. Cotton & The Estate of Angelina A. Ditaranto and Administrator Joseph A. Cotton is granted. The causes of action asserted in the complaint are barred by application of the principal of resjudicata and collateral estoppel. The foregoing constitutes the decision and order of this Court.

ENTER:

J.S.C. HON. FRANCOIS A. RIVERA

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Footnotes

[1] of 8 [* ---1]- - - - - - - - · · · · · · · · · · - · · · - · · · · · · · · · · · · BACKGROUND On May 26, 2023, plaintiff, proceeding prose, c::omrnenc::ed the instant action by filing a summons, complaint, and annexed exhibits 1 with the Kings County Clerk's office (KCCD). The complaint alleges the following salient facts, among other2 . On March 17, 2021, plaintiffs retained the defendants, RI< Law P.C. and Regina Kiperman as counsel for the purpose of assisting the plaintiffs with certain issues relating to the Estate of AngelinaA. Ditaranto. Plaintiffs wanted the defendantstohelp amend theLetters of Administration by removingany limitations, reverse an illegal transfer of5459,shates of AT&Tstock by the former Voluntary Administrator Mary L. Banker held by Cmnputershares Corp.; institute a turnover proceeding to recover dividends and interest collected by Mary L Banker over a JO-year period; recover certain assets held inHSBC Bank; and institute an action against TD Bank. Plaintiffs sought to sue TD Bank because it allowed the Medallion Stamp on the transfer docmnents of the 5459shares of AT&T stock and that allowed for the transfer from the plaintiffs·' Computershares Account into the name of Mary L. Banker. Although the plaintiffs had advised the defendants that Keane Legal Claimant Services (hereinafter KLS) needed to be removed from the tumover as adefendantwith Mary L Banker, the defendants kept including KLS onthe turnover action. The .defendants· kept billing fot the work of revising and reviewing their work on the same turnover document for approximately four months (March through August). The defendants still took another three months to get the turnover and evidence and clocumentation that plaintiff provided filed with the Court Part ofthe bills for the first four months listed above were adjusted only to have doubled for the next two months (June & July). For the next year Regina Kiperman and ,staff continued revising, reviewing, and modifying the same docµments. The plaintiffs constantly emailed and called reminding Regina Kiperman of these discrepancies only to be ignored for months. The defendants kept charging for the documents and revisions and the defendants did not remove KLS for almost a year. The defendants overcharged for making phone calls. Defendant charged for a petition to amend letters of administration that plaintiff had been asking for; for over a year and a half. When it was completed, it was near the end of the case and no longer needed, but the defendants charged for itanyway. The plaintiff wanted TD & HSBC Bank's to both he considered in the laws·uit with Computershares and Mary Banker. TD Bank illegally gave Mary Bankerthe Medallion 1 The tmne;1;:edexhibits were labeled A through H, 1-1 through I~3, and J.

[2] The factual allegations of the complaint are stated as close as possible using the words chosen by the plaintiffs. 2 2 of 8 [* 2] Stamp.That is why TD Bank had to represent Computershares under an Indemnity agreement. Adding to the problem Bruce Goodman, the attorney for TD Bank, wanted money from the Estate to pay for representation When it was a rnanager of the Bank that illegally gave the Medallion Stamp for an illegal transfer of the deceased assets that caused this action and the action that plaintiff has been working on sin<::e March 2017. Prior to receiving Letters of Administration; plaintiff was informed by someone from HSBC Bank, that the decedent had several accounts. HSBC Bank held the decedent's safety deposit box. After plaintiff obtained letters ofadministration, plaintiff asked HSBC bank for infortnationregarding all accounts it held in the name of the decedent or Mary Banker HSBC told the plaintiff that they never had any accounts in the decedent's name. The defendants never made any inquiries ofHSBC Bank. Plaintiffs believe defendant Regina Kiperman shared confidential information with Ms. Wilson, Bruce Goodman and the Legal Department ofTyndall Federal Credit Union, plaintiff's personal bank. On March 6, 2023, Hon. Bernard J Graham signedthe Judicial Subpoena Duces Tecum for RK Law P.C. to appear on the 16th of March 2023 court date and bring mid produce the specified evidence as proof of all allegations of the plai1itiff. The affidavit of service was served on the 7th day ofMarch 2023 at 7:39 PM at 40 Wall Street Suite 2508 New York NY 10005. The defendants did not comply with the court ordered subpoena. Defendant Regina Kipennan threatened the plaintiff by reporting to the courts, Ms. Wilson, and Bruce Goodman things contained in emails and conversation with defendant and staff of RI( Law P.C. On August 8, 2022, plaintiff received an email from the defendant stating the following: ''If you do notsend $40,000 to be placed into my escrow account pursuant to the stipulation of settlement by the end of day today, I will advise Bruce Goodman and the Court that you are in breach of the agreement and will have no choice but to recommend your immediate suspension and removal as fiduciary. Be guided accordingly,'' On an email issued on August 8, 2022, plaintiff proposed to the defendant a settlement ofherpayment offees, Defendant insisted that she be paid immediately on the recovery of any assets of the Estate. The defendant refused any other arrangement. Under the stipulation ofagreement with Computetshares,the attorney provided by TD Bank required an accounting, ofplaintiffis actions as admihistrator. The d¢fendartt .said the a:ccoundng is a Whole different procedure, not associateµ with the stipulation or turnover ord¢r an4 would cost the plaintiffs a11other $20,000.00 to $24,000.00. The order for tumover was signed by Judge Edmead on or around May 5~ 2023 and the Letters were ready byMay 9, 2022. Atthattime plaintiffs' attorney Regina Kipertnan should have had Mary Banker served by overnigfit delivery With. a signature 3

[3] of 8 [* 3] receipt and produced an affidavit of service:; On May 26, 2022, ·plaintiffs sentRegina an email, asking whether Mary Banker had been successfully served. On May 26, 2022, Regina Kiperman replied that itwasreturned and needed to be resent. Plaintiffs replied, ''Regina, ldon'tlmow what is going on, but I do know it doesn'ttakeover 3 weeks to send overnight delivery.·" Plaintiff checked the court records and have so far not been able to locate an affidavitofservice for an order of judgment against Mary Banker. Mary Banker was found liable for approximately $140,000.00 in dividends and another $70,000.00 in interest if not returned to the estate within 10 days of receiving the court order. On June 6, 2022, plaintiff received an email that only said Mary was served. Plaintiffs rec:.:eived an email from one of the staff members ofdefendants advising of an increaseto_the.firm's hourly rate of work effective June I, 2022. On March 6, 2023; Hon. Bernatd J Graham signed the judicial subpoena duces tecum fat RK Law P;C. to appear on the court date of March 16, 2023, and to bring and to prod11ce the specified evidence as pl'oof of all allegations of the plaintiff and his defense during the fee-conference. The affidavit ofservicewas served on March 7,2023 at 7:39 PM at 40 Wall Street, Suite 2508; New York, NY 10005. The defendant did not comply with the court ordered subpoena. By reason ofthe facts and circumstances stated above, The Estate of Angelina A. Ditaranto has been damaged by the defendants in the amount of$209,824.64 that was to be collected fro1TI Mary Banker had the Defendants properly served as set by the State of New York, completed their obligations as a competentattorney of the State ofNew York. Plaintiff Joseph A. Cotton claims damages for Emotional Distress in the mnourtt of$200,000 artd Defamation and/or Breach of Confidentiality in the amount of$500,000 or ainount deemed appropriate together with any other reliefthe Court finds to be justand proper. On November 20, 2023, the defendants filed the instant motion to dismiss the plaintiffs' complaint pursuant to CPLR3211(a)(5) artd CPLR 321 l(a)(7) and-32ll(c). By order issued ort February 26, 2024, the Court gave plaintiff Joseph Cotton until March 11, 2024; to file opposition to the instant motion and gave thedefendants until March 25, 2024, to file a reply. The. matter was adjourned to April 3, 2O:Z4, for avirtual appearance and oral argument. LA'WAND APPLiCATION On a motion to dismiss pursuant to CPLil 3211(a)(7), as inade by the defendants herein, "the court ntust accept the fac~s alleged in tli.e complaint as trqe, c,tcc;ord plaintiffs the benefit ofevery possible favorablei11ference,.-and determine only whether the facts as alleged fit within any cognizable legal theory" (Benjamin v Yeroushalml, 212 AD3d 758,

[760] [2d Dept 2023], quoting Sokol v Leader; 74 AD3d 1180, J 181 [2d Dept201 OJ). ''Where evi derttiary 111ateti aJs are considerl!d -in support of a motion pµrsua.nt to CPLR 4 4 of 8 [* 4] ------------------------------------------------------------- ------------ 32ll(a)(7), and the motion is not converted into one for smnmaryjudgment, the court mustdetermine whether the plaintiffhas a cause of action, not whether the plaintiff has stated one and, unless it has· been shown thata material fact as claimed by the plait1tiffto be one is not a fact at alland unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Recine v Recine, 201 Ab3d 827, 830 [2d Dept2022], quotingAgai vLiberty Mut. Agency Corp.; 118 AD3d 830, 832 [2d Dept 2014]). . . The defendants did not allege or contend that the plaintiffs have failed to plead a cognizable '?aµse of action. Rather defendants' sole contention is that their evidentiary submission est£tblished that the plaintiffs do not have. a cause of action because the causes of action asserted in the plaintiffs' complaint are barred by the doctrine of tes judicata and collateral estoppeL The documents submitted by the defendants in support of the motion were an affirmation ·of counsel, a memorandum oft aw in. support, and three c)nnexed exhibits labeled A through C. Exhibit A is a copy of the instant summons and complaint. Exhibit B is an affidavit of service of the summons and complaint upon the defendants. Exhibit C is a copy of decision and order of the Surrogate Court of the State of New York County ofKings bearing File No. 3010-J043/H on the matter entitled Proceeding by Regina Kiperman, Esq., to Fix and Determine Compensation for Services Rendered in the Matter of the Estate ofAngelina Ditaranto (hereinafter the Surrogate order). In response to the defendants' motion,the plaintiff subinitted a document denominated as an affirmation in opposition3 and three annexed exhibits labeled A through C. ExhibitAwas,a one-page document which appearedincomplete. Exhibit B contained several copies of a verified petition for turnover of estate assets, an order of Justice Carol R 1 Ec:lmead dated May 5, 2023, a copy ofthe retainer agreement between the plaintiff and RK Law P.C., and a copy ofa judicial subpoena duces teculli.. Exhibit C was a document denominated as a verification by Joseph A. Cotton. Plaintiff contends in sum and substance that defe1idanfa' motion for legal fees in Surrogate Court should not be a basis for application of resjudicata or collateral estoppel. He argues that the Surrogate order was not a judgment. Plaintiff also claims, in sum and substance, that he did not have. a full and fair opportunity to litigate his cause of action for defamation, the defendants' shad11g of confidential information, and for infliction of ·emotional distress. 3 The document contained Jqseph A. Cotton ;s signature. The document did not reflect th at it was taken under oath by someone authorized to administer oaths. Nor did Cotton affirm the truth of the statemtmts contained therein pursuarit to CPL R 2106. · The docµment is therefore unswom. 5 5 of 8 [* 5]