Segarra v. Messina

153 F.R.D. 22, 1994 U.S. Dist. LEXIS 2345, 1994 WL 61339
CourtDistrict Court, N.D. New York
DecidedFebruary 25, 1994
DocketNo. 93-CV-284
StatusPublished
Cited by8 cases

This text of 153 F.R.D. 22 (Segarra v. Messina) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Segarra v. Messina, 153 F.R.D. 22, 1994 U.S. Dist. LEXIS 2345, 1994 WL 61339 (N.D.N.Y. 1994).

Opinion

MEMORANDUM-DECISION AND ORDER

McAVOY, Chief Judge.

I. BACKGROUND

Pursuant to Fed.R.Civ.P. 12(b)(6), all facts in the complaint are presumed to be true.

Plaintiff is an attorney and an Albany resident; defendant Florence Messina (Messina) is a New Jersey resident and defendant Kevin Fogarty (Fogarty) is a New York resident. The complaint traces the history of plaintiffs relationship with William J. Foley (Foley) from the time they first met in 1957 until Foley’s death in July 1988. The complaint alleges that a close relationship existed between plaintiff and Foley leading to Foley’s relocation in 1981 from his native Brooklyn to plaintiffs home in Albany.

The complaint alleges that Foley disliked defendant Messina, his niece, and that he executed a will which left Messina nothing. Plaintiff met Messina for the first time in November, 1982, when she visited Foley (who was then residing with the plaintiff) to question Foley about a power of attorney granted to plaintiff.

On March 1, 1984, plaintiff with his spouse and Foley purchased a home as joint tenants with right of survivorship, funded in part with Foley’s money, in lieu of Foley’s offer to make plaintiff a gift.

Plaintiff alleges that the defendants’ first wrongful act was committed in or about June, 1986 when Fogarty and Messina, as part of an alleged conspiracy, visited a rental property in Brooklyn, New York, owned by [25]*25Foley. It is alleged that they advised the tenants not to make rental payments to Foley because they were going to take away Foley’s property and control it themselves. On August 20, 1986, allegedly in furtherance of this conspiracy, Messina, with Fogarty’s assistance, petitioned Kings County Supreme Court for the appointment of a conservator over Foley’s estate. In February 1987, a “hotly-contested” four day hearing commenced resulting in the appointment of Fo-garty as conservator. According to the complaint, the subject matter of the conservator-ship hearing was not a hearing on Foley’s abilities, “but an attempt to discredit and malign plaintiff.” (Pltf. Compl. ¶ 25). Plaintiff appealed the order of appointment which resulted in a remand back to Supreme Court. The matter was, however, declared moot when Foley died on July 2, 1988.

On July 22, 1988, a will dated February 6, 1984, was offered for probate in Albany County Surrogate’s Court. In September 1988, Fogarty applied for letters of administration over the estate but the application was denied.

Messina and her brother John McNiece filed objections to the offered will asserting undue influence and lack of testamentary capacity. They also alleged that plaintiff had dishonestly dealt with Foley. Discovery proceedings were held concerning the will contest. During an examination before trial, plaintiff allegedly discovered that Fogarty had committed numerous acts of misfeasance and malfeasance in connection with his con-servatorship of Foley’s estate. The complaint alleges that Fogarty committed acts of perjury and “perpetuated the fraud” when Fogarty’s attorneys allegedly submitted an affirmation to the state court dated July 11, 1989 denying the payment of unauthorized legal fees and also denying the breaches of fiduciary duty complained of by plaintiff. Plaintiff further alleges that Fogarty had received and wasted monies intended for the personal use and welfare of Foley, monies which were provided for by the Veteran’s Administration. The complaint also alleges that an additional act of perjury was committed when Fogarty caused his attorneys to apply to the state court for the payment of legal fees which included those fees already received by him. The complaint alleges that these actions constitute the filing of false information under New York Penal Law § 170.351 and thus, are violative of 38 U.S.C. § 6103(a) (dealing with fraudulent application for veteran’s benefits).

Finally, the complaint alleges that Fogarty committed additional perjury and “perpetuated the fraud” via an affidavit submitted by Fogarty’s attorneys sworn to on April 5,1989 seeking the payment of legal fees, including fees incurred in connection with Fogarty’s application for letters of administration before the Albany County Surrogate’s Court. The complaint alleges that this application for fees was unwarranted, was not in the best interest of the estate, was in breach of fiduciary duty and constituted over-reaching and common-law extortion in violation of 38 U.S.C. § 6101(a).

The complaint alleges that on February 22, 1990, Messina, joined by her brother John McNiece, entered into a stipulation of settlement wherein they agreed to withdraw their objections to the will and to plaintiffs relationship with Foley. In exchange, they would receive a payment of $125,000 plus $13,000 in legal fees. The stipulation was later “made into a final contract of settlement” when the court issued a decree on April 26,1990. Based on this settlement, the Surrogate’s Court declared that Foley was of sound mind when he executed the will and admitted the offered will into probate under the terms of the parties’ settlement stipulation.

The plaintiff alleges that due to the poor condition of Foley’s estate caused by Fogarty’s misconduct as conservator, plaintiff was unable to pay Messina and John McNiece in accordance to the terms of the contract.

On or about June 12, 1991, Messina and Fogarty filed a disciplinary complaint against plaintiff with the Committee on Professional Standards for the Third Judicial Department [26]*26alleging that plaintiff had been unethical in dealing with Foley and his creditors. The plaintiff states that these allegations were mere conjecture and “uttered with a plan to further impugn the honesty and character of the plaintiff.” The complaint alleges that in an appearance before the committee on December 1, 1992, Fogarty farther committed perjury by stating under oath that he knew nothing about Messina’s application in King’s County Supreme Court for conservatorship.

From these acts, plaintiff alleges mail fraud, wire fraud, obstruction of justice and several state law violations as predicate acts to his civil RICO claim. The plaintiff also brings two pendent state claims for misrepresentation and defamation. Plaintiff seeks $10,000,000 for injury to his reputation and $343,711 for injury to Foley’s estate.

Before delving into our analysis, a brief description of the procedural background of the case at bar is in order. The defendants’ original motion to dismiss pursuant to Fed. R.Civ.P. 8(a), 9(b) and 12(b)(6) was made returnable on August 9, 1993. The motion was adjourned four times for various reasons and was ultimately made returnable on February 14, 1994. Prior to the return date of February 14, 1994, the defendants made two additional motions: (1) motion for summary judgment pursuant to Fed.R.Civ.P. 56; and (2) motion for sanctions pursuant to Fed. R.Civ.P. 11 and also pursuant to the inherent powers of the court.

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Bluebook (online)
153 F.R.D. 22, 1994 U.S. Dist. LEXIS 2345, 1994 WL 61339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/segarra-v-messina-nynd-1994.