Antolini v. Rosenblum

Background

Dino Antolini sued Kenneth Rosenblum, Bernice Rosenblum, Village Realty LLC, Jorge Guzman, and Lamano West Village LLC. The complaint asserted claims under Title III of the Americans with Disabilities Act, New York law, New York City law, and common-law negligence. Antolini alleged that he uses a wheelchair and could not access the premises because of architectural barriers.

The defendants argued that Antolini’s lawyer, Stuart H. Finkelstein, had filed the case without Antolini’s authorization as part of an alleged scheme involving numerous fraudulent Americans with Disabilities Act lawsuits. They pointed to references in the complaint to “Café Katja” and “79 Orchard Street,” even though the action concerned Lamano West Village at 39 Christopher Street, and they noted that photographs in this complaint mirrored photographs in another action filed for Antolini. They also relied on allegations in a criminal complaint concerning Finkelstein’s conduct in other cases.

Rulings on fraud and required disclosures

The court denied the defendants’ motion to dismiss based on fraud on the court. It held that the defendants had not provided clear and convincing evidence that Finkelstein committed fraud in this action. The complaint’s errors and repeated photographs could have resulted from carelessness, and the criminal investigation, either alone or combined with those errors, was insufficient to establish fraud in this case.

The court nevertheless granted the defendants’ motions to compel. By November 30, 2020, Finkelstein had to file a statement signed under penalty of perjury describing how he was retained by Antolini and attach any engagement letter or explain why none existed. Antolini had to file a similar statement describing how he retained Finkelstein to bring and prosecute this action and attach relevant documents. The court stated that it would take any further investigative steps it considered necessary after receiving those statements. The defendants’ motion for a hearing was denied without prejudice.

Counsel disqualification and other requested relief

The court denied the motion to disqualify Finkelstein. The defendants did not show that his testimony was necessary and substantially likely to prejudice Antolini. The court also rejected the argument that Finkelstein should be disqualified for unauthorized practice of law, finding that argument too indirect to justify disqualification.

Because the court did not dismiss the action or disqualify Finkelstein, it denied the defendants’ requests for a stay, referrals, and attorneys’ fees and costs. The court also denied the defendants’ other requested relief.

Amendment

The court granted Antolini’s cross-motion to amend the complaint. The amendment was allowed so Antolini could correct the erroneous references to Café Katja and 79 Orchard Street. The amended complaint was due by November 30, 2020.

Disposition and classification

The motions to compel were granted. The motions to dismiss, disqualify counsel, hold a hearing, stay the case, make referrals, and award attorneys’ fees and costs were denied. Antolini’s cross-motion to amend the complaint was granted. This is a procedural order because the court addressed case administration, alleged litigation misconduct, counsel, and pleading corrections without deciding the underlying disability-access claims.