The following numbered papers read on these motions by defendants Victor Mevorah, Esq., and Jeffrey B. Hulse, Esq., to dismiss. PAPERS NUMBERED Notices of Motion-Affidavits-Exhibits EF 11-46 Upon the foregoing cited papers, and after Microsoft Teams conference, it is ordered that the motions by defendants Victor Mevorah, Esq., and Jeffrey B. Hulse, Esq., to dismiss the complaint pursuant to CPLR 321(a), CPLR 3211(a)(1), (3) and (7), and for sanctions, are consolidated for disposition, and determined as follows: Plaintiffs commenced this action asserting causes of action for civil conspiracy, conversion, breach of contract, quantum meruit, fraudulent inducement, and Federal Civil RICO. The gist of plaintiffs’ allegations is that defendants conspired to have plaintiffs perform legal work for them which they never intended to pay plaintiffs for, resulting in damages. Plaintiffs allege that defendants Leonard Oliva, Ronald DiGirolomo, Joseph DiGirolomo, and Larry Blumstein (together “Restaurant Defendants”), were previously involved in the restaurant business and operated three restaurants known as “Ciao Baby.” A number of claims were brought against both the businesses and their shareholders, and plaintiffs were retained by some of the Restaurant Defendants to represent them in either fighting or settling these claims. One of these claims involved two loans from non-party People’s United Bank (“People’s”), which commenced an action against defendants Leonard Oliva and Elva Oliva under Index No.: 609570/16 (“Underlying Action”). Plaintiffs DiGirolomo & Associates, P.C., and Alfred DiGirolomo, Jr. (“Alfred”) represented the Olivas in the Underlying Action. Defendants Victor Mevorah, Esq. and Jeffrey B. Hulse, Esq. represented the Olivas and People’s, respectively, in the Underlying Action. The Olivas commenced a third-party action in the Underlying Action, alleging that DiGirolomo & Associates, P.C., and Alfred fraudulently represented to the Olivas that certain claims against the restaurants and them had settled. The Olivas contend that DiGirolomo & Associates, P.C., and Alfred then provided the Olivas with forged stipulations of settlement and collected substantial sums of money from Mr. Oliva to ostensibly pay the settlements, but instead diverted the funds for personal use. The Nassau County District Attorney ultimately charged Alfred with one count of grand larceny in the 2nd Degree and five counts of criminal possession of a forged instrument in the 2nd Degree. On April 4, 2019, Alfred pled guilty to the crime of grand larceny in the second degree, a class C felony. By order dated September 25, 2019, Alfred was disbarred by the Appellate Division, Second Department, effective as of April 4, 2019. The order disbarring Alfred specifically commands him to “desist and refrain from (1) practicing law in any form…(2) appearing as an attorney or counselor-at-law before any court…(4) holding himself out in any way as an attorney and counselor-at-law” (Matter of DiGirolomo, 177 AD3d 97, 98 [2019]). After Alfred was disbarred, he and plaintiffs DiGirolomo & DiGirolomo, P.C., and DiGirolomo & Associates, P.C. (together “Corporate Plaintiffs”) commenced this action. Defendants Victor Mevorah, Esq. and Jeffrey B. Hulse, Esq. each now move to dismiss the complaint as against them. Pursuant to CPLR 321(a), corporations must appear by counsel. Here, the summons is signed by Alfred as an attorney, however, he was disbarred at the time it was filed and served, and the complaint is signed by Alfred, pro se. Thus the Corporate Plaintiffs did not appear by an attorney and therefore the complaint is a nullity and improperly commenced as to them (see DeMartino v. Golden, 150 AD3d 1200, 1201 [2017]; Cinderella Holding Corp. v. Calvert Ins. Co., 265 AD2d 444 [1999]). The complaint, insofar as it is asserted on behalf of the Corporate Plaintiffs, must be dismissed (see Id). Inasmuch as the causes of action are asserted by Alfred, they are dismissible as to the movants pursuant to CPLR 3211(a)(7) for failure to state a cause of action. Aside from initially identifying both Mr. Mevorah and Mr. Hulse as attorneys and residents of Nassau County, neither defendant is mentioned at all as part of the causes of action for civil conspiracy, conversion, breach of contract, quantum meruit, and fraudulent inducement. Thus these causes of action must be dismissed as to them. As to the final cause of action, for violation of the RICO statute, plaintiffs simply assert that Mr. Mevorah and Mr. Hulse were attorneys in other lawsuits involving the parties, and then once again alleges that plaintiffs were not paid legal fees that they were owed. There is no allegation that plaintiffs performed any legal work for Mr. Mevorah or Mr. Hulse or that they owed plaintiffs any legal fees. Nor are there any factual allegations that Mr. Mevorah or Mr. Hulse in any way prevented or conspired to prevent their codefendants from paying plaintiffs their legal bills. Additionally, any cause of action for civil remedies under the RICO statutes must allege a “pattern of racketeering activity,” which activities are enumerated at 18 USCA §1961 (1), which sets forth the many different “predicate offenses” which must be alleged. Here, the complaint does not allege any of these predicate offenses. Thus plaintiffs’ last cause of action for Federal Civil RICO must be dismissed as to Mr. Mevorah and Mr. Huse. Lastly, the motions, insofar as they seek sanctions, are denied. Accordingly, the motions are granted to the extent that the complaint is dismissed as to defendants Victor Mevorah, Esq. and Jeffrey B. Hulse, Esq. Any request for relief not expressly granted herein is denied. This constitutes the decision and order of the court. Dated: March 29, 2021
