December 9, 2011
ZINOVY GRINBAUM AND GALINA GRINBAUM, HIS WIFE, AND ESTATE OF ASYA CHATSKAYA, PLAINTIFFS-APPELLANTS,
NATHAN P. WOLF, FRANCINE WOLF, SAMUIL CHATSKY, INNA CHATSKY, SAM FOX, IDA FOX, ANNA SUFFIR, AND SION SUFFIR, DEFENDANTS-RESPONDENTS, AND ELLIOT SUDLER, DEFENDANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 grant of summary judgment, we employ the same standards as the motion court,
Whitfield v. Bonanno Real Estate Group, 419 N.J. Super. 547, 551 (App. Div. 2011), and review de novo the trial court's conclusions of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Summary judgment is appropriate if the evidence presented "show[s] that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In determining whether there is a genuine issue of fact, we ask whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Assuming, without deciding, that a party who has committed a fraud upon the court may not invoke the litigation privilege, we conclude that defendants were entitled to dismissal in this case because the Grinbaums failed to establish the elements essential to obtain relief on that ground.*fn2 Fraud upon the court is established by showing "'clearly and convincingly  that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense.'" Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237, 251 (App. Div. 2007) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)).
The Supreme Court has indicated "[p]erjurious testimony alone and not accompanied or concealed by other and collateral acts of fraud may be a ground for relief [from judgment] as a fraud upon the court in a proper case." Shammas v. Shammas, 9 N.J. 321, 328 (1952). This case, however, was settled. Accordingly, no perjurious testimony was offered at trial and Shammas is inapplicable.
The Grinbaums' allegation of fraud upon the court is based on alleged interference with the presentation of their defense by witnesses who falsely attested to Asya's competence and their adversary's failure to disclose Asya's medical records. There is no evidence in this record that any witness expressed an opinion about Asya's mental condition, and the record indicates that Asya made the decision to deny the Grinbaums and their attorney access to her medical records. In short, the Grinbaums' proofs fell short of establishing a fraud upon the court.
The Grinbaums' claims that the litigation privilege is unavailable in an action based on false statements made in a civil proceeding lacks sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E); see Viviano v. CBS, Inc., 251 N.J. Super. 113, 125 (App. Div. 1991) (noting that our courts have deemed the litigation privilege to be "[a]n absolute privilege for words spoken in the course of a judicial proceeding . . . necessary to promote testimonial candor by shielding witnesses from fear of subsequent civil suits" and have deemed criminal penalties to provide "sufficient sanctions against perjury"), certif. denied, 127 N.J. 565 (1992).
We summarily reject the Grinbaums' final claim, which is that the litigation privilege is not available in an action under the FDCPA. The Grinbaums did not and could not assert a claim under the FDCPA because the Act applies to debt collectors not creditors. Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000).
Having concluded that the trial court properly relied on the litigation privilege to grant defendants summary judgment on all claims involving false statements, we affirm the dismissal of those claims. In addition, we note our agreement with the trial court's decision to grant summary judgment on the claim of fraudulent concealment. The Grinbaums could not prevail on that claim as a matter of law because they could not establish at least one of the essential elements of that claim - "[t]hat the defendants in the fraudulent concealment action had a legal obligation to disclose" Asya's medical records over her objection.