On September 11, 2015 a
Motion,Ex Parte
was filed
involving a dispute between
Robert Zink,
and
Midland Funding, Llc,
Selip & Stylianou, Llp,
for Tort
in the District Court of Erie County.
Preview
FILED: ERIE COUNTY CLERK 11/05/2015 11:43 AM INDEX NO. 810928/2015
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/05/2015
STATE OF NEW YORK: COUNTY OF ERIE
SUPREME COURT
ROBERT ZINK,
Plaintiff,
Index # 810928/2015
vs. MEMORANDUM
DECISION
SELIP & STYLIANOU, LLP; and
MIDLAND FUNDING, LLC,
Defendants.
JASON A. SHEAR, ESQ.
Attorney For Plaintiff
561 Ridge Road
Buffalo, New York 14218
(716) 566-8988
ALEX PONZE, ESQ.
Defendant Pro Se
199 Crossways Park Drive
Woodbury, New York 11797
Hon. Catherine Nugent Panepinto, J.5.C.
Defendant SELIP & STYLIANOU, LLP, brought a motion to dismiss
pursuant to CPLR S3211 (a)(7) with an attorney affirmation with exhibits and
reply affirmation. Plaintiff submitted an attorney affirmation in opposition.
Plaintiff appeared for oral argument on October 28,2015 and Defendant did
not. This Court reserved decision.
Defendant argues for dismissal because the venue in the underlying
matter was proper. Defendant, apparently as counsel to co-defendant
MIDLAND FUNDING, LLC, sued Plaintiff for collection of a debt in
Lackawanna City Court. The matter was discontinued with prejudice in May,
2015. Among other things, Defendant argues Lackawanna was proper
because it is contiguous to Buffalo, where Plaintiff resides. Plaintiff argues
among other things, that pursuant to the Fair Debt Collection Practices Act,
(FDCPA) the only proper venue was Buffalo, where he lives and signed the
subject contract. Neither party submitted Plaintiff's complaint, which
apparently ple~ds for actual and statutory damages and attorney fees,
among other things.
The FDCPA, in pertinent part, states:
(a) Any debt collector who brings any legal action on a debt against
any consumer shall -
(2) in the case of an action not described in paragraph (1), bring such
action only in the judicial district or similar legal entity -
(A) in which such consumer signed the contract sued upon; or
(B) in which such consumer resides at the commencement of
the action.
15 USC ~1692
"The FDCPA's term 'judicial district' as applied to a case
where a debt collector sues a consumer in one of New York
State's city courts, extends no farther than the boundaries of
the city containing that court and the towns within the same
county that are contiguous by land thereto. "
Hess v. Cohen & Slamowitz LLP, 637 F3d 117 at 123 (2nd Circ., 2011)
Here, Plaintiff neither resides in the city of Lackawanna, where
Defendant sued him, nor in a town within the same county contiguous by
land thereto. Plaintiff resides in Buffalo; a separate city altogether with its
own city Court. This Court recognizes Defendant's argument that Plaintiff's
residence is by mileage closer to Lackawanna's city Court than it is to
Buffalo's. However, at oral argument Plaintiff counsel argued that in fact,
because of public transportation and other issues, Lackawanna still presents
challenges to Plaintiff. Hence, the reasoning of the Hess Court is borne out
"We see no indication that Congress, by requiring debt
collection suits to be brought in the appropriate 'judicial district'
intended courts to engage in a case-by-case assessment of
the actual burden imposed on the debtor or of the debt
collector's intentions in bringing the suit...we adopt a standard
that enables debt collectors to predict with accuracy and ease
whether suing a consumer in a given forum would violate the
FDCPA's venue provisions."
Id., at 126
Given that Buffalo has its own city Court, Defendant should have
predicted with accuracy and ease that it was the proper venue in which to
sue Plaintiff. To the extent Defendant may think the Hess decision supports
2
its claim that Lackawanna's Court is a proper venue, this Court notes,
"We express no view on whether a consumer could state a
claim for a FDCPA venue violation ifhe were sued by a debt
collector in a city court that is within the same county and
contiguous by land to the town in which the consumer resided."
Id. At footnote #5.
Erego, Defendant's motion is hereby denied in its entirety. Plaintiff is
hereby directed to submit the appropriate order on notice.
Hon. Catherine Nug nt Panepinto
Supreme Court Justice
Dated: October :~ 0 ,2015
Buffalo, New York
ENTER
3
Preview
FILED: ERIE COUNTY CLERK 11/05/2015 11:43 AM INDEX NO. 810928/2015 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/05/2015 STATE OF NEW YORK: COUNTY OF ERIE SUPREME COURT ROBERT ZINK, Plaintiff, Index # 810928/2015 vs. MEMORANDUM DECISION SELIP & STYLIANOU, LLP; and MIDLAND FUNDING, LLC, Defendants. JASON A. SHEAR, ESQ. Attorney For Plaintiff 561 Ridge Road Buffalo, New York 14218 (716) 566-8988 ALEX PONZE, ESQ. Defendant Pro Se 199 Crossways Park Drive Woodbury, New York 11797 Hon. Catherine Nugent Panepinto, J.5.C. Defendant SELIP & STYLIANOU, LLP, brought a motion to dismiss pursuant to CPLR S3211 (a)(7) with an attorney affirmation with exhibits and reply affirmation. Plaintiff submitted an attorney affirmation in opposition. Plaintiff appeared for oral argument on October 28,2015 and Defendant did not. This Court reserved decision. Defendant argues for dismissal because the venue in the underlying matter was proper. Defendant, apparently as counsel to co-defendant MIDLAND FUNDING, LLC, sued Plaintiff for collection of a debt in Lackawanna City Court. The matter was discontinued with prejudice in May, 2015. Among other things, Defendant argues Lackawanna was proper because it is contiguous to Buffalo, where Plaintiff resides. Plaintiff argues among other things, that pursuant to the Fair Debt Collection Practices Act, (FDCPA) the only proper venue was Buffalo, where he lives and signed the subject contract. Neither party submitted Plaintiff's complaint, which apparently ple~ds for actual and statutory damages and attorney fees, among other things. The FDCPA, in pertinent part, states: (a) Any debt collector who brings any legal action on a debt against any consumer shall - (2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity - (A) in which such consumer signed the contract sued upon; or (B) in which such consumer resides at the commencement of the action. 15 USC ~1692 "The FDCPA's term 'judicial district' as applied to a case where a debt collector sues a consumer in one of New York State's city courts, extends no farther than the boundaries of the city containing that court and the towns within the same county that are contiguous by land thereto. " Hess v. Cohen & Slamowitz LLP, 637 F3d 117 at 123 (2nd Circ., 2011) Here, Plaintiff neither resides in the city of Lackawanna, where Defendant sued him, nor in a town within the same county contiguous by land thereto. Plaintiff resides in Buffalo; a separate city altogether with its own city Court. This Court recognizes Defendant's argument that Plaintiff's residence is by mileage closer to Lackawanna's city Court than it is to Buffalo's. However, at oral argument Plaintiff counsel argued that in fact, because of public transportation and other issues, Lackawanna still presents challenges to Plaintiff. Hence, the reasoning of the Hess Court is borne out "We see no indication that Congress, by requiring debt collection suits to be brought in the appropriate 'judicial district' intended courts to engage in a case-by-case assessment of the actual burden imposed on the debtor or of the debt collector's intentions in bringing the suit...we adopt a standard that enables debt collectors to predict with accuracy and ease whether suing a consumer in a given forum would violate the FDCPA's venue provisions." Id., at 126 Given that Buffalo has its own city Court, Defendant should have predicted with accuracy and ease that it was the proper venue in which to sue Plaintiff. To the extent Defendant may think the Hess decision supports 2 its claim that Lackawanna's Court is a proper venue, this Court notes, "We express no view on whether a consumer could state a claim for a FDCPA venue violation ifhe were sued by a debt collector in a city court that is within the same county and contiguous by land to the town in which the consumer resided." Id. At footnote #5. Erego, Defendant's motion is hereby denied in its entirety. Plaintiff is hereby directed to submit the appropriate order on notice. Hon. Catherine Nug nt Panepinto Supreme Court Justice Dated: October :~ 0 ,2015 Buffalo, New York ENTER 3