Preview
INDEX NO. 206004/2022
FILED: SUFFOLK COUNTY CLERK 0471872023 03:49 PM
NYSCEF DOC. NO. 51 RECEIVED NYSCEF 04/18/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
wanna nanan nn nn nena nnn nnn nnn
YANPING XU, Index No.: 206004/2022
Plaintiff,
-against-
SUFFOLK COUNTY, SUFFOLK COUNTY SHERIFF
OFFICE, ERROL D. TOULON, JR., CHRISTOPHER
GUERCIO, STACEY McGOVERN, PETER KIRWIN,
SUE DESENA, BRIDGETTE SEDENFELDER, BILL P.
PARKAS, McCOYD, PARKAS & RONAN, LLP,
MICHELLE JABLONSKY and RAYMOND E. VAN
ZWIENEN,
Defendants.
wanna nanan nn nn nena nnn nnn nnn
REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION TO
DISMISS AMENDED COMPLAINT BY DEFENDANT
MICHELLE JABLONSKY
Of Counsel: TRAUB LIEBERMAN STRAUS
Lisa L. Shrewsberry, Esq. & SHREWSBERRY LLP
Mid-Westchester Executive Park
Seven Skyline Drive
Hawthorne, New York 10532
Attorneys for Defendant Michelle Jablonsky
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NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/18/2023
TABLE OF CONTENTS
PRELIMINARY STATEMENT
STATEMENT OF FACTS
ARGUMENT
PLAINTIFF FAILS TO STATE A VIABLE CLAIM AGAINST
MICHELLE JABLONSKY FOR VIOLATION OF
NEW YORK JUDICIARY LAW §487
CONCLUSION
WORD COUNT CERTIFICATION
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TABLE OF AUTHORITIES
CASES PAGE(S)
Chibcha Restaurant, Inc. v. David A. Kaminsky & Assoc., P.C.,
102 A.D.3d 544, 958 N.Y.S.2d 135 (1st Dep’t 2013)
Doscher v. Manatt,
148 A.D.3d 523, 48 N.Y.S.3d 593 (1st Dep’t 2017)
O’Callaghan v. Sifre,
537 F. Supp. 2d 594 (S.D.N.Y. 2008)
Platt v. Berkowitz,
203 A.D.3d 447, 160 N.Y.S.3d 592 (1st Dep’t 2022)
Ryan v. N.Y. Tel. Co.,
62 N.Y. 2d 494, 478 N.Y.S.2d 823 (1984)
Seldon v. Spinnell,
95 A.D.3d 779, 945 N.Y.2d 666 (Ist Dep’t 2012) 3-4
Yalkowsky v. Century Apartments Assoc.
A.D.2d 214, 626 N.Y.S.2d 181 (1st Dep’t 1995)
STATUTES
CPLR 3211
New York Judiciary Law §90(2) 1
New York Judiciary Law § 487 i, 1, 2,3, 4,5
OTHER
22 NYCRR 1200
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PRELIMINARY STATEMENT
This memorandum of law is submitted in reply to plaintiff's opposition to, and in further
support of, the motion to dismiss the amended complaint, pursuant to CPLR 321 1(a)(7), by
defendant Michelle Jablonsky (“Attorney Jablonsky”). It must initially be noted that plaintiff's
opposition confirms that her cause of action against Attorney Jablonsky is intended to sound in
breach of New York Judiciary Law §487. Although plaintiffs opposition also mentions purported
claims under New York Judiciary Law §90(2) and 22 NYCRR 1200, such references are to the
New York Rules of Professional Conduct, which do not provide the basis for a private civil action.
Accordingly, this reply will focus upon the purported §487 claim, just as did Attorney Jablonsky’s
moving arguments.
STATEMENT OF FACTS
In opposition, plaintiff explains the basis for her position -- that she believes that she, and
not Raymond Van Zwienen, should have been recognized as the successor trustee -- because,
although she was clearly removed as successor trustee in the first amendment to the Trust, the
second amendment to the Trust did not reiterate such removal. (Plaintiff's Memo. of Law in Opp.
p. 2) Plaintiff's opposition make clear that the Surrogate’s Court and the Appellate Division did
not agree with her interpretation of the Trust amendments, but that she has continued to press such
position in a motion for reargument now pending before the Appellate Division. (Plaintiff's
Memo. of Law in Opp, p. 3)
Against this background, plaintiff clarifies in opposition hereto that her claim against
Attorney Jablonsky herein is entirely based upon the statement in Attorney Jablonsky’s affidavit
to the Surrogate’s Court, dated March 12, 2018 (Ex. “C.” to moving papers), that:
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3 I submit this affidavit at the request of counsel for Petitioner
Raymond E. Van Zwienen, who is the successor trustee of the
William H. Van Zwienen Revocable Trust . . .
(emphasis added). Plaintiff contends that such statement must be viewed as deceitful, because it
conflicts with her (unrecognized) position that she should be the successor trustee. (Plaintiff's
Memo. of Law in Opp., p.6) As discussed below, however, such assertion does not form the
basis for a violation of Judiciary law §487.
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ARGUMENT
PLAINTIFF FAILS TO STATE A VIABLE CLAIM AGAINST
MICHELLE JABLONSKY FOR VIOLATION OF NEW YORK
JUDICIARY LAW §487
Plaintiff has not alleged that Attorney Jablonsky acted in violation of Judiciary Law §487.
In relevant part, Judiciary Law §487 provides that an attorney who “[i]s guilty of any deceit or
collusion, or consents to any deceit or collusion, with intent to deceive the court or any party ...
[i]s guilty of a misdemeanor, and . . . . forfeits to the party injured treble damages, to be recovered
ina civil action.” N.Y. Judiciary Law §487. The issue of who is the rightful successor trustee was
determined against plaintiff in the Surrogate’s Court proceeding. While plaintiff may continue to
disagree that Raymond E. Van Zwienen is the successor trustee of the Trust, this issue was firmly
decided against her. Accordingly, plaintiff is prevented from basing a §487 claim on such grounds
under the doctrine of collateral estoppel. Platt v. Berkowitz, 203 A.D.3d 447, 160 N.Y.S.3d 592
(1 Dep’t 2022); Doscher v. Manatt, 148 A.D.3d 523, 48 N.Y.S.3d 593 (1“ Dep’t 2017). In
opposition, plaintiff confuses the doctrines of res judicata (which requires identical parties) and
collateral estoppel (which does not). However, it cannot be disputed that the issue of who is the
successor trustee has been decided by a prior ruling, against plaintiff, after she had the opportunity
to litigate such issue. Ryan v. N.Y. Tel. Co., 62 N.Y. 2d 494, 478 N.Y.S.2d 823 (1984) (collateral
estoppel precludes party from relitigating in a subsequent proceeding an issue clearly raised in
prior action and decided against such party, whether the causes of action are the same).
In any event, New York law is clear that a party’s remedy for a violation of §487 stemming
from an attorney’s actions in a litigation “lies exclusively in that lawsuit itself... and not in a
second plenary action.” Chibcha Restaurant, Inc. v. David A. Kaminsky _& Assoc., P.C. 102
A.D.3d 544, 545, 958 N.Y.S.2d 135 (1 Dep’t 2013); Seldon v. Spinnell, 95 A.D.3d 779, 780, 945
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N.Y.2d 666 (1 Dep’t 2012); Yalkowsky v. Century Apartments Assoc., 215 A.D.2d 214, 215, 626
N.Y.S.2d 181 (1 Dep’t 1995) (remedy to attack determination in prior proceeding lies exclusively
in that lawsuit itself, and not in a second plenary proceeding collaterally attacking the
determination in the original action). In opposition, plaintiff again confuses the legal argument.
Attorney Jablonsky cannot be sued for her statement that Mr. Van Zwienen is the successor trustee,
when the Surrogate’s Court determined that Mr. Zwienen was actually the successor trustee.
Plaintiff is trying to attack such determination herein, which is improper. Accordingly, any
complaint by plaintiff about Attorney Jablonsky’s conduct belongs in the Surrogate’s Court
proceeding, wherein the determination regarding the proper successor trustee was made. As such,
the allegations against Attorney Jablonsky cannot form the basis of a §487 claim herein.
The remainder of plaintiff's opposition is difficult to follow, and is entirely based upon the
unsupportable position that because plaintiff believes that she is the rightful successor trustee, then
Attorney Jablonsky intentionally deceived the Surrogate’s Court by taking a contrary position.
However, plaintiff's §487 claim against Attorney Jablonsky is based upon her explanation of the
last wishes of her client, in order to see that the Surrogate’s Court understood and effectuated same.
It is now alleged that Attorney Jablonsky’s position was deceitful because plaintiff continues to
disagree with the (already litigated) bases for same. However, such position is completely
conclusory, and even if plaintiff were to somehow convince a court that she is correct, the conduct
of Attorney Jablonsky cannot form the basis of a §487 claim. The rigorous standard discussed
above affords wide latitude in the course of litigation to engage in written and oral expression
consistent with responsible advocacy, thus excluding from liability such statements to a court.
O'Callaghan y. Sifre, 537 F. Supp. 2d 594, 596 (S.D.N.Y. 2008). In light of the stringent pleading
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standard applicable to such claims, plaintiff has not alleged a viable claim against the law firm for
breach of §487, and such claim should be dismissed.
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CONCLUSION
Based upon the foregoing, it is respectfully requested that the amended complaint be
dismissed as against Michelle Jablonsky in its entirety, and with prejudice, together with such
other and further relief as the Court deems just and proper.
Dated: Hawthorne, New York
April 18, 2023
TRAUB LIEBERMAN STRAUS
& SHREWSBERRY LLP
By Kia Lo Shvensterey
Lisa L. Shrewsberry, Esq.
Attorneys for Defendant Michelle Jablonsky
Mid Westchester Executive Park
Seven Skyline Drive
Hawthorne, New York 10532
(914) 347 2600
Ishrewsberry @tlsslaw.com
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WORD COUNT CERTIFICATION
Thereby certify pursuant to Uniform Civil Rules Section §202.8-b(c) that the total number
of words in this Memorandum of Law in Support of Motion to Dismiss Complaint, exclusive of
the caption and signature block, is 1,086, and that this document complies with the word count
limit set forth in Uniform Civil Rules Section §202.8-b(a).
Dated: Hawthorne, New York
April 18, 2023
TRAUB LIEBERMAN STRAUS &
SHREWSBERRY LLP
Dose Lo Sbvewsborry
Lisa L. Shrewsberry, Esq.
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Preview
INDEX NO. 206004/2022 FILED: SUFFOLK COUNTY CLERK 0471872023 03:49 PM NYSCEF DOC. NO. 51 RECEIVED NYSCEF 04/18/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK wanna nanan nn nn nena nnn nnn nnn YANPING XU, Index No.: 206004/2022 Plaintiff, -against- SUFFOLK COUNTY, SUFFOLK COUNTY SHERIFF OFFICE, ERROL D. TOULON, JR., CHRISTOPHER GUERCIO, STACEY McGOVERN, PETER KIRWIN, SUE DESENA, BRIDGETTE SEDENFELDER, BILL P. PARKAS, McCOYD, PARKAS & RONAN, LLP, MICHELLE JABLONSKY and RAYMOND E. VAN ZWIENEN, Defendants. wanna nanan nn nn nena nnn nnn nnn REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT BY DEFENDANT MICHELLE JABLONSKY Of Counsel: TRAUB LIEBERMAN STRAUS Lisa L. Shrewsberry, Esq. & SHREWSBERRY LLP Mid-Westchester Executive Park Seven Skyline Drive Hawthorne, New York 10532 Attorneys for Defendant Michelle Jablonsky 1 of 10 INDEX NO. 206004/2022 FILED: SUFFOLK COUNTY CLERK 0471872023 03:49 PM NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/18/2023 TABLE OF CONTENTS PRELIMINARY STATEMENT STATEMENT OF FACTS ARGUMENT PLAINTIFF FAILS TO STATE A VIABLE CLAIM AGAINST MICHELLE JABLONSKY FOR VIOLATION OF NEW YORK JUDICIARY LAW §487 CONCLUSION WORD COUNT CERTIFICATION 2 of 10 INDEX NO. 206004/2022 FILED: SUFFOLK COUNTY CLERK 0471872023 03:49 PM NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/18/2023 TABLE OF AUTHORITIES CASES PAGE(S) Chibcha Restaurant, Inc. v. David A. Kaminsky & Assoc., P.C., 102 A.D.3d 544, 958 N.Y.S.2d 135 (1st Dep’t 2013) Doscher v. Manatt, 148 A.D.3d 523, 48 N.Y.S.3d 593 (1st Dep’t 2017) O’Callaghan v. Sifre, 537 F. Supp. 2d 594 (S.D.N.Y. 2008) Platt v. Berkowitz, 203 A.D.3d 447, 160 N.Y.S.3d 592 (1st Dep’t 2022) Ryan v. N.Y. Tel. Co., 62 N.Y. 2d 494, 478 N.Y.S.2d 823 (1984) Seldon v. Spinnell, 95 A.D.3d 779, 945 N.Y.2d 666 (Ist Dep’t 2012) 3-4 Yalkowsky v. Century Apartments Assoc. A.D.2d 214, 626 N.Y.S.2d 181 (1st Dep’t 1995) STATUTES CPLR 3211 New York Judiciary Law §90(2) 1 New York Judiciary Law § 487 i, 1, 2,3, 4,5 OTHER 22 NYCRR 1200 3 of 10 INDEX NO. 206004/2022 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/18/2023 PRELIMINARY STATEMENT This memorandum of law is submitted in reply to plaintiff's opposition to, and in further support of, the motion to dismiss the amended complaint, pursuant to CPLR 321 1(a)(7), by defendant Michelle Jablonsky (“Attorney Jablonsky”). It must initially be noted that plaintiff's opposition confirms that her cause of action against Attorney Jablonsky is intended to sound in breach of New York Judiciary Law §487. Although plaintiffs opposition also mentions purported claims under New York Judiciary Law §90(2) and 22 NYCRR 1200, such references are to the New York Rules of Professional Conduct, which do not provide the basis for a private civil action. Accordingly, this reply will focus upon the purported §487 claim, just as did Attorney Jablonsky’s moving arguments. STATEMENT OF FACTS In opposition, plaintiff explains the basis for her position -- that she believes that she, and not Raymond Van Zwienen, should have been recognized as the successor trustee -- because, although she was clearly removed as successor trustee in the first amendment to the Trust, the second amendment to the Trust did not reiterate such removal. (Plaintiff's Memo. of Law in Opp. p. 2) Plaintiff's opposition make clear that the Surrogate’s Court and the Appellate Division did not agree with her interpretation of the Trust amendments, but that she has continued to press such position in a motion for reargument now pending before the Appellate Division. (Plaintiff's Memo. of Law in Opp, p. 3) Against this background, plaintiff clarifies in opposition hereto that her claim against Attorney Jablonsky herein is entirely based upon the statement in Attorney Jablonsky’s affidavit to the Surrogate’s Court, dated March 12, 2018 (Ex. “C.” to moving papers), that: 4 of 10 INDEX NO. 206004/2022 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/18/2023 3 I submit this affidavit at the request of counsel for Petitioner Raymond E. Van Zwienen, who is the successor trustee of the William H. Van Zwienen Revocable Trust . . . (emphasis added). Plaintiff contends that such statement must be viewed as deceitful, because it conflicts with her (unrecognized) position that she should be the successor trustee. (Plaintiff's Memo. of Law in Opp., p.6) As discussed below, however, such assertion does not form the basis for a violation of Judiciary law §487. 5 of 10 INDEX NO. 206004/2022 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/18/2023 ARGUMENT PLAINTIFF FAILS TO STATE A VIABLE CLAIM AGAINST MICHELLE JABLONSKY FOR VIOLATION OF NEW YORK JUDICIARY LAW §487 Plaintiff has not alleged that Attorney Jablonsky acted in violation of Judiciary Law §487. In relevant part, Judiciary Law §487 provides that an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party ... [i]s guilty of a misdemeanor, and . . . . forfeits to the party injured treble damages, to be recovered ina civil action.” N.Y. Judiciary Law §487. The issue of who is the rightful successor trustee was determined against plaintiff in the Surrogate’s Court proceeding. While plaintiff may continue to disagree that Raymond E. Van Zwienen is the successor trustee of the Trust, this issue was firmly decided against her. Accordingly, plaintiff is prevented from basing a §487 claim on such grounds under the doctrine of collateral estoppel. Platt v. Berkowitz, 203 A.D.3d 447, 160 N.Y.S.3d 592 (1 Dep’t 2022); Doscher v. Manatt, 148 A.D.3d 523, 48 N.Y.S.3d 593 (1“ Dep’t 2017). In opposition, plaintiff confuses the doctrines of res judicata (which requires identical parties) and collateral estoppel (which does not). However, it cannot be disputed that the issue of who is the successor trustee has been decided by a prior ruling, against plaintiff, after she had the opportunity to litigate such issue. Ryan v. N.Y. Tel. Co., 62 N.Y. 2d 494, 478 N.Y.S.2d 823 (1984) (collateral estoppel precludes party from relitigating in a subsequent proceeding an issue clearly raised in prior action and decided against such party, whether the causes of action are the same). In any event, New York law is clear that a party’s remedy for a violation of §487 stemming from an attorney’s actions in a litigation “lies exclusively in that lawsuit itself... and not in a second plenary action.” Chibcha Restaurant, Inc. v. David A. Kaminsky _& Assoc., P.C. 102 A.D.3d 544, 545, 958 N.Y.S.2d 135 (1 Dep’t 2013); Seldon v. Spinnell, 95 A.D.3d 779, 780, 945 6 of 10 INDEX NO. 206004/2022 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/18/2023 N.Y.2d 666 (1 Dep’t 2012); Yalkowsky v. Century Apartments Assoc., 215 A.D.2d 214, 215, 626 N.Y.S.2d 181 (1 Dep’t 1995) (remedy to attack determination in prior proceeding lies exclusively in that lawsuit itself, and not in a second plenary proceeding collaterally attacking the determination in the original action). In opposition, plaintiff again confuses the legal argument. Attorney Jablonsky cannot be sued for her statement that Mr. Van Zwienen is the successor trustee, when the Surrogate’s Court determined that Mr. Zwienen was actually the successor trustee. Plaintiff is trying to attack such determination herein, which is improper. Accordingly, any complaint by plaintiff about Attorney Jablonsky’s conduct belongs in the Surrogate’s Court proceeding, wherein the determination regarding the proper successor trustee was made. As such, the allegations against Attorney Jablonsky cannot form the basis of a §487 claim herein. The remainder of plaintiff's opposition is difficult to follow, and is entirely based upon the unsupportable position that because plaintiff believes that she is the rightful successor trustee, then Attorney Jablonsky intentionally deceived the Surrogate’s Court by taking a contrary position. However, plaintiff's §487 claim against Attorney Jablonsky is based upon her explanation of the last wishes of her client, in order to see that the Surrogate’s Court understood and effectuated same. It is now alleged that Attorney Jablonsky’s position was deceitful because plaintiff continues to disagree with the (already litigated) bases for same. However, such position is completely conclusory, and even if plaintiff were to somehow convince a court that she is correct, the conduct of Attorney Jablonsky cannot form the basis of a §487 claim. The rigorous standard discussed above affords wide latitude in the course of litigation to engage in written and oral expression consistent with responsible advocacy, thus excluding from liability such statements to a court. O'Callaghan y. Sifre, 537 F. Supp. 2d 594, 596 (S.D.N.Y. 2008). In light of the stringent pleading 7 of 10 INDEX NO. 206004/2022 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/18/2023 standard applicable to such claims, plaintiff has not alleged a viable claim against the law firm for breach of §487, and such claim should be dismissed. 8 of 10 INDEX NO. 206004/2022 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/18/2023 CONCLUSION Based upon the foregoing, it is respectfully requested that the amended complaint be dismissed as against Michelle Jablonsky in its entirety, and with prejudice, together with such other and further relief as the Court deems just and proper. Dated: Hawthorne, New York April 18, 2023 TRAUB LIEBERMAN STRAUS & SHREWSBERRY LLP By Kia Lo Shvensterey Lisa L. Shrewsberry, Esq. Attorneys for Defendant Michelle Jablonsky Mid Westchester Executive Park Seven Skyline Drive Hawthorne, New York 10532 (914) 347 2600 Ishrewsberry @tlsslaw.com 9 of 10 INDEX NO. 206004/2022 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/18/2023 WORD COUNT CERTIFICATION Thereby certify pursuant to Uniform Civil Rules Section §202.8-b(c) that the total number of words in this Memorandum of Law in Support of Motion to Dismiss Complaint, exclusive of the caption and signature block, is 1,086, and that this document complies with the word count limit set forth in Uniform Civil Rules Section §202.8-b(a). Dated: Hawthorne, New York April 18, 2023 TRAUB LIEBERMAN STRAUS & SHREWSBERRY LLP Dose Lo Sbvewsborry Lisa L. Shrewsberry, Esq. 10 of 10