A state judge is letting a patent-holding company proceed with claims that a Long Island attorney deceived the court when he applied ex parte for a temporary restraining order that blocked the company from disposing of assets—a ruling the attorney says he plans to appeal.
Supreme Court Justice John Jones Jr. in Suffolk County (See Profile) refused to dismiss a complaint alleging Robert Del Col of Smithtown knowingly made deceptive statements when applying for a temporary restraining order in a long-running litigation against DataTreasury, a holder of patents related to check imaging technology. (Read the motion to dismiss.)
“Based upon a review of defendant’s evidentiary submissions, it is determined that Del Col has not demonstrated prima facie entitlement to summary judgment dismissing the complaint,” Jones wrote on July 5 in DataTreasury v. Del Col, 11-26774.
In January 2011, Del Col, representing a former employee suing DataTreasury in Suffolk County Supreme Court, made an application for an ex parte temporary restraining order seeking to block the company and its principals from selling, disposing or transferring property and assets.
Del Col claimed the application had to be done without notice to the opposition because the company was fleeing the jurisdiction in violation of court orders, secreting assets and tampering with witnesses, among other things.
County Court Judge Ralph Gazzillo (See Profile) granted the application on Jan. 21, 2011, but the Appellate Division, Second Department, vacated the temporary restraining order on Feb. 2.
DataTreasury responded with a suit last September against Del Col, seeking unspecified damages for attorney misconduct under Judiciary Law §487. (Read DataTreasury’s complaint.)
The statute states that a lawyer who is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party…is guilty of a misdemeanor.”
DataTreasury argued that Del Col had known the company moved to Texas from Melville in 2006; and knew it was represented by a number of firms that could have responded to a New York court motion if notice was given.
Moreover, the complaint said, Del Col had talked with one attorney about a joint record for an appeal in the underlying case the night before the application for the ex parte order was filed.
DataTreasury argued that Del Col relied on his charges of witness tampering in a contempt motion against the company in relation to the underlying case to bolster his argument for a temporary restraining order. But DataTreasury said Del Col did not reveal to the court that he had withdrawn the contempt motion with prejudice.
In court papers, Del Col, acting pro se, maintained he acted in good faith.
Moreover, he noted that DataTreasury did not file its action against him after he moved for the temporary restraining order but waited until after Del Col sought sanctions in a related federal court action.
Jones refused to throw out the DataTreasury suit and rejected Del Col’s request for sanctions and $10,000 in legal fees.
With regard to the allegation that the company was fleeing the jurisdiction, Jones pointed to Del Col’s phone conversation with DataTreasury’s attorney Scott Mollen, a partner at Herrick, Feinstein, the night before the application for the temporary restraining order.
“Thus, Del Col knew that DataTreasury was represented by the firm Herrick Feinstein, and that DataTreasury had not fled the jurisdiction. Del Col also knew that DataTreasury was still actively participating in the underlying action, and had subjected itself to the jurisdiction of the New York Court,” Jones wrote.
Moreover, Del Col submitted “no evidence” to support his witness tampering claims, said Jones.
“We are grateful that Judge Jones so carefully examined the record and recognized that DataTreasury should have this opportunity to have its day in court on these very serious allegations,” Mollen said in an interview.
Del Col in an interview said he planned to appeal the ruling, calling it “a narrow view of all the evidence” and saying that ultimately he would be “shown to have taken the right course of action to protect my client’s interest.”
“Quite frankly, the decision jumps to quite a few conclusions that are mistaken,” said Del Col, later adding, “I don’t think that the judge’s decision objectively viewed the evidence and context at the time it was filed.”
The underlying case stems from an employment agreement between DataTreasury’s ex-COO Michael Trimarco and the company. Under the agreement, Trimarco had the option of purchasing shares of DataTreasury stock for 10 years.
When Trimarco left the company in 2003, he tried exercising his option but the company refused, alleging acts of disloyalty, fraud and dishonesty while at DataTreasury.
Trimarco is alleged to have tried to set up a competing company while at DataTreasury with another employee, according to Mollen.
Mollen is one of several attorneys representing DataTreasury in the Trimarco action and the sole attorney representing it in the action against Del Col.
When the company blocked the stock options, Trimarco fired back with a breach of contract suit in 2003, Trimarco v. DataTreasury, 03-30324. The case is scheduled for trial in September before Supreme Court Justice Emily Pines in Suffolk County (See Profile).
Meanwhile, in February 2010, Del Col was indicted by the Nassau County District Attorney’s Office on allegations of second-degree grand larceny.
According to Mollen, DataTreasury, as the complainant, reported that another client of Del Col’s and subsequent co-defendant, Ted Doukas, had offered to testify favorably in unrelated patent litigation in exchange for payment from DataTreasury.
The prosecutor who presented the charges was a former assistant district attorney who had been appointed a “special assistant district attorney.”
Both the lower court and appeals panel agreed the district attorney’s office did not have the authority to appoint the prosecutor who presented the charges to the grand jury.
Del Col noted that he and the co-defendant have filed a civil rights suit against the Nassau County District Attorney’s Office and others. (Read Del Col’s complaint.)
Among the claims asserted in Del Col v. Rice 11-cv-5133, are conspiracy, abuse of process, malicious prosecution and false arrest.
@|Andrew Keshner can be contacted at firstname.lastname@example.org.