On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4472-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2011
Before Judges Grall and Alvarez.
This appeal arises from the dismissal of a complaint filed to recover damages resulting from alleged misconduct in prior litigation. We affirm the grant of summary judgment in favor of defendants.
The claims plaintiffs assert in the dismissed complaint, which is the subject of this appeal, cannot be understood without reference to the initial litigation. In 1997, plaintiffs Zinvoy and Galina Grinbaum, husband and wife, borrowed $40,000 from Galina's parents, defendants Ida and Sam Fox. In 2002, the Foxes sued the Grinbaums to recover the amount due on the Grinbaums' promissory note and the Grinbaums filed a counterclaim. In 2004, the litigation on the note was settled; the Grinbaums agreed to pay the Foxes $25,000.
Before the 2004 settlement, the Foxes sought leave to preserve the testimony of Galina Grinbaum's ninety-one-year-old maternal grandmother, Asya Chatskaya. Questioning Asya's competency, the Grinbaums opposed her de bene esse deposition. Galina Grinbaum submitted a certification describing her grandmother's conditions as follows: confusion, delusions and the early stages of Parkinson's disease. The doctor who has treated her for depression for years states that she has macular degeneration, gait difficulties, and found her at times to be suffering from hallucinations and delusions. [W]hile at the Daughters of Israel Nursing [H]ome . . . [she] was given psychiatric drugs including a generic version of the antipsychotic medication, Haldol.
Other relatives of Asya, who were deposed during discovery, did not share Galina's perception of Asya's condition. Galina's sister, Anna Suffir, said her grandmother was not delusional, and Galina's uncle and aunt, Samuil and Inna Chatsky, considered Asya to be in reasonable health given her age.
In any event, the Foxes' attorney, Nathan P. Wolf, was permitted to take Asya's testimony in the presence of the Grinbaums' lawyer prior to trial. A video-recording was made. The Grinbaums' attorney asked Mr. Wolf to voir dire Asya to ascertain whether she was competent to testify, stressing that he was not alleging that she was generally incompetent. Mr. Wolf complied. The Grinbaums' attorney asked during cross-examination additional questions about Asya's condition and inquired as to whether she would consent to him reviewing her medical records. She refused. During her testimony, Asya stated that Galina Grinbaum had spoken to her about repaying the loan to Galina's parents. Specifically, Asya claimed her granddaughter said, "[T]his $40,000, my mother will not see[.]"
Despite Galina Grinbaum's concerns about Asya's competency and her refusal to release her medical records, the Grinbaums settled the case without attempting to subpoena Asya's medical records. After the settlement was incorporated in a judgment, plaintiffs did not move pursuant to Rule 4:50-1(c) to vacate the settlement due to fraud, misrepresentation or other misconduct by an adverse party.
In April 2007, three years after the action on the note was settled, Asya died. Zinvoy Grinbaum, acting as the executor of Asya's estate, obtained Asya's medical records and learned that she had been treated for dementia from 2002 until her death.
The Grinbaums' discovery of Asya's treatment for dementia is the basis for the claims they assert in the complaint at issue on this appeal. The Grinbaums allege that Samuil and Ida Chatsky, Anna Suffir and her husband Sion Suffir, along with Mr. Wolf and his wife Francine Wolf, conspired to aid the Foxes in the litigation on the promissory note by engaging in conduct amounting to fraud, misrepresentation, concealment of evidence, deprivation of constitutional rights and fraud upon the court. In addition, the Grinbaums charged Mr. Wolf with negligence, legal malpractice and professional misconduct. Finally, on behalf of Asya's estate, Zinvoy Grinbaum sought damages for defendants' wrongful actions that deprived the decedent of the companionship of her granddaughter and great-grandchildren and her constitutional rights.
The Law Division judge dismissed all of the Grinbaums' claims against all of the defendants on their motions for summary judgment.*fn1 The judge concluded that all claims based on the allegedly false statements made by the various defendants about Asya's mental condition were barred by the litigation privilege. The judge further determined that the plaintiffs could not establish fraud based on concealment of evidence about Asya's mental condition because the Grinbaums had not subpoenaed Asya's medical records after the de bene esse deposition.
On appeal, the Grinbaums contend that the judge erred in relying on the litigation privilege because it does not apply in civil actions alleging fraud upon the court, perjury or a violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. §§ 1692 to 1692p. In reviewing a ...