Kakushadze v Skin Cancer & Aesthetic Surgery, P.C. 2025 NY Slip Op 31149(U) April 3, 2025 Supreme Court, Kings County Docket Number: Index No. 500196/2023 Judge: Ingrid Joseph seems to be (the decision does not discuss representation of plaintiff) the kind of issues that arise in pro-se cases.

“Plaintiff Zurab Kakushadze (“Plaintiff”) commenced this action against Defendants Skin Cancer & Aesthetic Surgery, P.C. (“SCAS”), Irene Vergilis-Kalner (“Vergilis-Kalner”) and Arkady Kalyuzhny (“Kalyuzhny”) ( collectively, “Defendants”), 2 asserting causes of action for ( 1) fraud, (2) violation of New York General Business Law§ 349 (a), (3) violations of New York Judiciary Law§ 487, and (4) a declaratory judgment. 3 The crux of Plaintiff’s action concerns medical records requested from SCAS on July 18, 2022, that were allegedly not provided in electronic form and were incomplete. Defendants move for an order: (i) pursuant to CPLR 3012 (b), dismissing Plaintiffs’ Complaint on the grounds that it was not timely served within 20 days after their Demand for a Verified Complaint; or alternatively, (ii) pursuant to CPLR 3211 (a) (7), dismissing Plaintiff’s causes of action (Mot. Seq. No. 1). Plaintiff opposes the motion.4 The Court will address each prong of Defendants’ motion separately. In their motion seeking dismissal under CPLR 3102 (b ), Defendants concede that SCAS was served with the Summons with Notice through the Secretary of State on January 4, 2023. They assert that on February 3, 2023, SCAS filed a Notice of Appearance and a Demand for a Verified Complaint. While Plaintiff did file a complaint on January 20, 2023, Defendants argue that this was not filed in response to a SCAS’s Demand for a Verified Complaint or in response to the Notice of Appearance. Thus, Defendants aver that Plaintiff did not timely serve his complaint, as required by CPLR 3012 (b). In opposition, Plaintiff argues that the statute is silent as to the deadline to electronically file a complaint. Once SCAS’s counsel consented to e-filing, Plaintiff contends that she was automatically served with the complaint. In addition, Plaintiff argues that he informed counsel, via email on February 3, 2023, that the complaint was previously e-filed and provided her with the relevant NYSCEF document number. In reply, Defendants maintain that Plaintiff did not follow the procedure outlined in CPLR 3012 (b) because the complaint was not served after the written demand was made. As an initial matter, the Court notes that CPLR 3012 (b) provides that the “court upon motion may dismiss the action if service of the complaint is not made” in compliance with this subsection (CPLR 3012 [b] [emphasis added]). Pursuant to CPLR 2001, “the court may permit a mistake, omission, defect or irregularity … to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded” (CPLR 2001). The Court of Appeals advised the following: In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant–notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections (Ruffin v Lion Corp., 15 NY3d 578, 582 [201 O] [internal quotation marks and citations omitted]). Here, it is undisputed that Plaintiff’s Verified Complaint was already e-filed at the time SCAS’s counsel field a Notice of Appearance and Demand for Complaint. Plaintiff’s alleged failure to serve the complaint in response to SCAS’s Demand for Complaint “assuming arguendo there was a requirement that plaintiff do so although the complaint was already e-filed, is at worst, the kind of ‘technical, nonprejudicial’ mistake that occurs during the commencement phase of an action, including some aspects of service of process that could be disregarded pursuant to CPLR §2001″ (Hobbins v Linden Ctr. for Nursing & Rehabilitation, 2023 NY Slip Op 32658[U], *4-5 [Sup Ct, Kings County 2023] [emphasis in original]). Accordingly, that branch of Defendants’ motion seeking dismissal under CPLR 3102 (b) is denied.”

“Lastly, the Court addresses that portion of Defendants’ motion seeking to vacate Plaintiff’s third cause of action asserting that Kalyuzhny violated New York Judiciary Law § 487. Under Judiciary Law § 487 (1 ), an attorney who is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party … forfeits to the party injured treble damages, to be recovered in a civil action” (Judiciary Law § 487 [l]). “Relief pursuant to Judiciary Law § 487 is not lightly given … , and requires a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys” (Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d 1092, 1093 [2d Dept 2021] [internal citations and quotation marks omitted]). “A cause of action alleging a. violation of Judiciary Law § 487 must be pleaded with specificity” (Betz v Blatt, 160 AD3d 696, 698 [2d Dept 2018]). In their motion, Defendants argue that Kalyuzhny is the Practice Manager at SCAS who also happens to be an attorney. Since Kalyuzhny was not acting in his capacity as an attorney, Defendants contend that § 487 does not apply. Even if it did apply, Defendants maintain that this cause of action fails because Plaintiff cannot establish that Kalyuzhny engaged in intentional deceit. In opposition, Plaintiff asserts that he is bringing this cause of action for Kalyuzhny’s acts and fraud in the medical malpractice action as an attorney. In particular, Plaintiff avers that Kalyuzhny acted as an attorney for SCAS before Hall Booth Smith, P.C. was retained by the insurance carrier. According to Plaintiff, in opposing his motion for a default in the medical malpractice action, SCAS claimed that its default was a result of law office failure. Since Hall Booth Smith, P.C. was not retained until after the default motion was filed, Plaintiff asserts that the “law office failure” is by Kalyuzhny. In reply, Defendants argue that Kalyuzhny is not acting as an attorney in the medical malpractice action. With respect to the law office failure, Defendants assert that it relates to administrative actions of the insurance carrier, not Kalyuzhny. Further, Defendants maintain that Plaintiff has not pied facts showing Kalyuzhny was engaged in intentional deceit or an extreme pattern of legal delinquency. Assuming arguendo that Kalyuzhny was acting as SCAS’s attorney during his communications with Plaintiff, the Court finds that Plaintiff failed to plead “sufficient facts to demonstrate an intent to deceive the court or any party” (Schiller v Bender, Burrows and Rosenthal, LLP, 116 AD3d 756, 759 [2d Dept 2014]; Grasso v Guarino, 227 AD3d 872, 873 [2d Dept 2024]).”