Lutin v Perlberger 2024 NY Slip Op 31879(U) May 29, 2024 Supreme Court, New York County Docket Number: Index No. 158734/2023 Judge: Dakota D. Ramseur discusses how a plaintiff might claim “extortion” when it really means “harassment” and how “forged” documents might not be enough for a Judiciary Law 487 claim.

“Pro se plaintiff, Gary Lutin (plaintiff), commenced this action for extortion, fraud, and pursuant to Judiciary Law§ 487, against defendants, Ralph Perlberger, the Law Offices of Ralph Perlberger (collectively, the Perlberger defendants), Eric P. Schutzer (Schutzer) and The Schutzer Group, PLLC (collectively, the Schutzer defendants), stemming from Perlberger’s representation of plaintiff in another matter and the Schutzer defendants’ efforts to collect fees from plaitniff due to Perl berger. The Schutzer defendants now move pursuant to CPLR 321 l(a)(l), (5) and (7) to dismiss the complaint. The motion is opposed. For the following reasons, the motion is granted. As relevant to the instant motion, on July 2, 2001, the New York City Civil Court granted Perlberger a $37,043.75 money judgment against plaitniff in the action entitled Perlberger v Lutin, Index No. TS 1781-00/NY (the 2001 Judgment). The 2001 Judgment covered fees plaintiff owed the Perlberger defendants for legal services rendered in two commercial litigations: Lutin v New Jersey Steel Corporation, et al. and D.S. Atkinson, Inc. v Lutin Central Services Co., Inc. The Civil Court simultaneously dismissed plaintiffs counterclaims against the Perl berger defendants for legal malpractice in those matters. On May 24, 2018, Perlberger commenced an action in Supreme Court, New York County entitled Perlberger v Lu tin, Index No. 154885/2018, by the filing of a summons and motion for summary judgment in lieu of complaint, seeking to renew the 2001 Judgment (the Renewal Action). By order dated August 13, 2018, another justice of this court granted Perlberger’ s motion over plaintiffs opposition and directed the parties to settle an order on notice. On June 5, 2019, the County Clerk entered the renewal judgment against plaintiff in the amount of $97.594.11 (Renewal Judgment). On February 25, 2020, plaintiff filed a motion to vacate the Renewal Judgment for lack of jurisdiction. On April 27, 2020, another justice of this court denied the motion. Prior to July 9, 2019, Perlberger retained Schutzer to represent him in connection with efforts to collect the duly entered Renewal Judgment. On July 9, 2019, Schutzer served plaintiff with a copy of the Renewal Judgment and notice of entry, together with a notice to judgment debtor, a restraining notice and an information subpoena (NYSCEF doc. no. 38 at ,r,r 35-36, ex 13 ). Schutzer then emailed the documents to plaintiff on July 30, 2019. On December 6, 2019, Schutzer commenced a special proceeding on behalf of Perlberger in Supreme Court, New York County, entitled Perlberger v Lutin, Index no. 161842/2019, seeking to compel plaintiff and others to respond to outstanding information subpoenas and to impose sanctions. On December 28, 2020, another justice of this court denied both the Petition and plaintiffs cross-motion. On March 16, 2022, Schutzer served a new subpoena for documents and testimony on plaintiff via NYSCEF in the Renewal Action. On May 11, 2022, Schutzer served a new subpoena duces tecum and ad testificandum on plaintiff via NYSCEF in the Renewal Action. On November 16, 2022, Schutzer filed a motion in the Renewal Action seeking to hold plaintiff in contempt for disobeying the May 2022 Subpoena and to compel him to comply therewith. On May 24, 2023, another justice of this court denied the motion for contempt. Plaintiffs complaint alleges that the Schutzer defendants attempted to extort plaitniff with forged records. Plaintiff primarily alleges that the Schutzer defendants used forged documents in the various actions pending before the court, claiming that: “[t]he set of papers were falsely presented as filings in the case of the 2018 Renewal Action, including what appeared to be a Notice of Entry captioned for the Supreme Court of the State of New York, New York County in the case Perlberger v. Lutin, Index No. 154885/2018, dated 7/9/2019 and signed by Eric P. Schutzer on behalf of the Schutzer Group PL as ‘Attorneys for Plaintiff,’ accompanied by similarly captioned and Schutzer-signed papers captioned as a ‘Notice to Judgment Debtor or Obligor’ and a ‘Restraining Notice.”‘

“Here, plaintiff fails to plead facts stating a claim for both “fraud on the court” and under Judiciary Law§ 487. Plaintiff essentially alleges that the Schutzer defendants falsely claimed they filed certain documents as part of the Renewal Action, and that those statements resulted “[i]n the improper impositions of costs and burdens not only on Plaintiff and the court but also on non-party organizations” and further that the court in the Renewal Action did not “hear evidence of a previous settlement of Perl berger’ s claims.” However, plaitniff fails to allege a deception as to material facts, the Schutzer defendants’ intention to deceive, “[o]r that that [plaintiff] suffered damages that were proximately caused by the alleged deceit” (id. at 776). Again, plaintiff requests that: “If the Complaint does not satisfy the pleading requirements established by that case, or by other relevant cases, Plaintiff requests the Court’s direction to amend the Complaint accordingly.” As discussed in the preceding section, plaitniff failed to provide any factual basis to support his request for leave to amend the complaint, and thus, the request is denied (see JP Morgan Chase Bank, NA. at 582). Accordingly, as plaitniff failed to plead facts suggesting that the Schutzer defendants intentionally deceived plaintiff or the Court or any damages flowing therefrom, plaintiff s claims for “fraud on the court” and under Judiciary Law § 487 are dismissed.”