The court’s Decision and Order is based upon consideration of the following papers: CPLR 2219(a) Recitation NOTICE OF MOTION & AFFIDAVITS ANNEXED 1 OPPOSITION/CROSS-MOTION 2 REPLY/OPPOSITION TO CROSS-MOTION EXHIBITS Deft. A-E; Pl. A-F DECISION AND ORDER In a summons and complaint filed on December 26, 2018, Plaintiff Joseph Moore, appearing pro se, brings forth this action against Defendant, the law firm that represented his landlord in a prior Housing Court action. Plaintiff alleges, inter alia, that Defendant caused damage to Plaintiff’s property and the loss of use of said property. On the summons application form annexed to the complaint, Plaintiff wrote that Defendant violated the “rules that govern the courts, unlawful eviction, fraudulent petition holdover, fraudulent deed, theft of property, destruction of property.” With regards to the property damage claim, Plaintiff alleges that Defendant “stole his property and used an ax and bar bell to destroy the entire house.” As to the fraud claim, Plaintiff alleges that Defendant submitted fraudulent evidence to the Housing Court in the summary proceeding, that a lease was never produced in the Housing Court matter and that the deed transferring the property to landlord, Barbara Thomas, was fraudulent. Before the court is Defendant’s motion pursuant to CPLR §3212 for an order granting summary judgment in its favor, an order imposing sanctions and attorney fees and costs and for other such relief the court deems just and proper. Defendant states they were the attorneys for the landlord during the successful eviction proceeding against Plaintiff. Defendant claims that the firm did not act in any capacity other that of attorneys for the landlord, that the firm has not had any interaction with any personal property belonging to Plaintiff, that it never entered into a contract with Plaintiff and that it is not liable to him for any of the claims alleged in the complaint. Defendant also claims that a marshal’s warrant was duly issued in Housing Court and executed by the sheriff. In support of its arguments, Defendant submits the Decision/Order from Housing Court awarding judgment of possession to its client, Barbara Thomas, and issuing a warrant forthwith but stayed for 30 days to allow Plaintiff to vacate1. The Decision/Order of Housing Court Judge McClanahan, dated May 5, 2018, further held that Barbara Thomas was entitled to possession and that through a deed admitted into evidence, she established her rightful ownership of the property. Additionally, Judge McClanahan specifically determined that Plaintiff’s claim that the Property was fraudulently transferred to Ms. Thomas was not supported by the facts. Defendant’s submissions also indicate that Plaintiff subsequently commenced an action in Supreme Court seeking an award of compensatory damages arising from the same alleged fraudulent conveyance of the property. In that matter, Plaintiff moved by order to show cause before the Honorable Carolyn Wade seeking to stay the warrant of eviction and to renew his claim of a fraudulent conveyance. By Decision/Order dated August 23, 2018, the Supreme Court denied Plaintiff’s application to stay the warrant. In her Decision, Judge Wade noted that Judge McClanahan had already determined that the claims of fraud were unsubstantiated. In opposition to the motion, Plaintiff claims that Defendant committed fraud by submitting a fraudulent 10 Day Notice and a forged deed to the Housing Court Judge and by failing to produce a lease during the Housing Court proceeding. Plaintiff also opposes the motion claiming that Defendant entered the property, stole Plaintiff’s property and used an ax and bar bell to destroy the entire house. While the court is cognizant that Plaintiff is representing himself and courts will routinely afford pro se litigants some latitude, “(a) litigant appearing pro se acquires no greater right than any other litigant and such appearance may not be used to deprive defendants of the same rights enjoyed by other defendants” (Banushi v. Lambrakos, 305 AD2d 524 [2d Dept. 2003]; Mirzoeff v. Nagar, 52 A.D.3d 789 [2d Dept. 2008]; Shillingsford v. Geiss, 40 Misc.3d 129[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Upon review of the submissions and oral argument, the court finds that Defendant sustained its prima facie burden for summary judgment and that Plaintiff has not established proof in evidentiary form that a triable issue of fact exists (see Zuckerman v. City of New York, 49 NY2d 557 [1980]). It has long been recognized that “[t]he public interest…demands that attorneys, in the exercise of their proper functions as such, shall not be civilly liable for their acts when performed in good faith and for the honest purpose of protecting the interests of their clients” (Hahn v. Wylie, 54 A.D.2d 629 [1st Dept. 1976]). “Absent a showing of fraud or collusion, or of a malicious or tortious act, an attorney is not liable to third parties for purported injuries caused by services performed on behalf of a client or advice offered to that client” (Levine v. Graphic Scanning Corp., 87 A.D.2d 755 [2d Dept. 1982]; Hahn v. Wylie, 54 A.D.2d 629; Burger v. Brookhaven Medical Arts Bldg., Inc., 131 A.D.2d 622 [2d Dept. 1987]). Here, Plaintiff’s allegation regarding fraudulent documentation was previously adjudicated by Judge McClenahan. Judge McClenahan clearly held that the allegations of fraud on the part of the landlord were not supported in fact. The claim against Defendant herein rests on the very documents that were presented to Judge McClenahan which were admitted into evidence and formed the basis for the Housing Court’s Decision/Order. The decision of Judge McClenahan is law of the case. This court is not an appellate court and cannot and will not disturb the findings of another trial judge. As to the claim of property damage, the court finds that Plaintiff’s allegations are baseless as there is no evidence that Defendant ever came into contact with Plaintiff’s property. Defendant merely represented the landlord. Even if this court should assume Plaintiff’s property was damaged, liability would not rest on the landlord, much less the landlord’s attorneys. As a matter of law, the landlord cannot be liable for any claimed property damage (see generally Sialeu v. New York City Housing Authority, 124 A.D.3d 623 [2d Dept. 2015]). In an eviction that is carried pursuant to a lawfully issued warrant, a landlord, is not liable to a tenant for any damage caused by the marshal (Funding Assistance Corp. v. Mashreq Bank, 277 A.D.2d 127, 127 [2000]; see Campbell v. Maslin, 91 A.D.2d 559 [1982], affd 59 N.Y.2d 722 [1983]; Foxworth v. Tjutjulis, 15 Misc.3d 129[A], 2007 N.Y. Slip Op 50606[U] [App Term, 2d & 11th Jud Dists 2007]; see also Ide v. Finn, 196 AD3d 304 [1st Dept. 1921]; Slepoy v. Kliger, 26 Misc.3d 126[A] [App Term, 2d Dept., 2d, 11th & 13th Jud Dists 2009]). Pursuant to the May 15, 2018 Housing Court Decision/Order, a lawful warrant of eviction was issued. Therefore, as a matter of law, liability for property damage cannot rest on the landlord or the attorneys for the landlord as is claimed herein. Accordingly, Defendant’s motion for summary judgement is granted to the extent that Plaintiff’s claims are dismissed. The branch of Defendant’s motion to impose sanctions and award attorney’s fees and costs is denied. The case is dismissed in its entirety. This constitutes the decision and order of this court. Dated: September 16, 2019 Brooklyn, NY
