Ciampa et al v. Law Offices of Igor Dodin, PLLC

Filing 21

ORDER granting 19 Motion for Summary Judgment. The Clerk of Court is directed to enter judgment for defendant dismissing the action. Ordered by Judge Leonard D. Wexler on 10/4/2013. C/M by ecf; copy emailed to judgment clerk. (Mahon, Cinthia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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PAUL CIAMPA, LISA HUNT, DORIS HUNT,
Plaintiffs,
-against-

MEMORANDUM AND ORDER
CV 12-1727 (LDW) (GRB)

LAW OFFICES OF IGOR DODIN, PLLC,
Defendant.
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WEXLER, District Judge
Plaintiffs Paul Ciampa, Lisa Hunt, and Doris Hunt bring this action against the
Law Offices of Igor Dodin, PLLC. for alleged violation of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et. seq. Defendant moves to dismiss the
complaint under Rule 12(b) of the Federal Rules of Civil Procedure (“FRCP”) or,
alternatively, for summary judgment under FRCP 56.1

I. BACKGROUND
For purposes of this decision, the relevant background can be summarized as
follows. On or about June 27, 2005, defendant represented Vlad Sidorenko
(“Sidorenko”) in a closing on real property in Hewlett, New York (the “Property”). In or
about June 2010, Sidorenko, as landlord, rented the Property to plaintiffs. In January

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Also, in the alternative, defendant requests a “transfer of venue” to this district’s Brooklyn court.
Because, as discussed herein, the Court agrees with defendant that dismissal is appropriate, the
Court need not address defendant’s alternative request to “transfer” this action to Brooklyn.

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2011, plaintiffs stopped paying the monthly rent, $2,600, owed to Sidorenko. In April
2011, Sidorenko contacted defendant, requesting assistance in recovering unpaid rent
from plaintiffs. By letter dated April 15, 2011 (the “April 15 Letter”), defendant
demanded that plaintiffs pay the past due to Sidorenko, totaling $10,400.00, and advised
that summary proceedings would be commenced if payment was not made within three
days from plaintiffs’ receipt of the letter.
Subsequently, no rent was paid, and Sidorenko retained attorney Alan Smilowitz,
Esq. (“Smilowitz”) to commence a non-payment and eviction proceeding. That action
was commenced and ultimately settled in the amount of $7,000. Sidorenko also
commenced an action against plaintiffs in Kings County Civil Court for physical damage
plaintiffs caused to the Property. That action resulted in a judgment for Sidorenko in the
amount of $10,800.
Plaintiffs commenced the present action against defendant for alleged violation of
the FDCPA based on defendant’s April 15 Letter. Plaintiffs allege that defendant is a
“debt collector” under the FDCPA, and that defendant violated various provisions of the
FDCPA. In particular, plaintiffs allege that the April 15 Letter contained false statements
and misrepresentations; was designed to trick plaintiffs; and was harassing, deceptive,
and misleading.
Defendant moves to dismiss the action or, alternatively, for summary judgment,
primarily arguing that it is not a “debt collector” within the meaning of the FDCPA. In

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support of its motion, defendant submits, inter alia, an affirmation of its sole attorney,
Igor Dodin (“Dodin”). Dodin maintains that his practice primarily consists of
transactional work for buyers and sellers of real estate within the state of New York, but
that in recent years he has also handled immigration, estate planning and administration,
bankruptcy, and personal injury matters. According to Dodin, his firm “neither represents
collection clients, nor derives any revenue from this area of practice.” Affirmation of
Igor Dodin (“Dodin Affirmation”) ¶ 4. In this respect, Dodin further maintains, that in 10
years of practice, he has sent only two or three communications for debt collection
purposes, “upon personal request of acquaintances or very good clients.” Dodin
Affirmation ¶ 5. Regarding the present action, Dodin maintains that Sidorenko is a
personal acquaintance and that Dodin sent only one communication to plaintiffs, the April
15 Letter, for no fee. Dodin claims that when no response was received from plaintiffs,
he referred the matter to attorney Smilowitz.
Given that the parties have completed discovery, and that plaintiffs have had an
adequate opportunity to oppose defendant’s motion for summary judgment, the Court will
address defendant’s motion for summary judgment.

II. DISCUSSION
A. Summary Judgment Standard

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To obtain summary judgment under FRCP 56, the party seeking judgment must
demonstrate that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834
F.2d 54, 57 (2d Cir. 1987). The burden of showing the absence of a genuine dispute as to
any material fact rests on the party seeking summary judgment. McLee v. Chrysler Corp.,
109 F.3d 130, 134 (2d Cir. 1997).
B. “Debt Collector” Under the FDCPA
Under the FDCPA, a “debt collector” is defined as a person either (1) involved “in
any business the principal purpose of which is the collection of any debts,” or (2) “who
regularly collects . . . debts owed . . . another.” 15 U.S.C. § 1692a(6). Plaintiffs do not
contend that the principal purpose of defendant’s business is the collection of debts, but
that defendant “regularly” collects debts owed another. As the FDCPA provides, a
person can be considered a “debt collector” if he “regularly” renders debt collection
services, even if those services are not a principle purpose of his business. See Goldstein
v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 61 (2d Cir. 2004).
Whether a lawyer or law firm “regularly” engages in debt collection activity within the
meaning of § 1692a(6) must be “assessed on a case-by-case basis in light of factors
bearing on the issue of regularity.” Id. at 62. In making this determination, the Second

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Circuit in Goldstein identified certain illustrative factors a court should consider,
including:
(1) the absolute number of debt collection communications
issued, and/or collection-related litigation matters pursued,
over the relevant period(s), (2) the frequency of such
communications and/or litigation activity, including whether
any patterns of such activity are discernable, (3) whether the
entity has personnel specifically assigned to work on debt
collection activity, (4) whether the entity has systems or
contractors in place to facilitate such activity, and (5) whether
the activity is undertaken in connection with ongoing client
relationships with entities that have retained the lawyer or
firm to assist in the collection of outstanding consumer debt
obligations.
Id. at 62-63. The plaintiff “bears the burden of proving the defendant’s debt collector
status.” Id. at 60-61.
Upon consideration, in light of the factors identified Goldstein, the Court
concludes that the evidence is not sufficient to support a finding that defendant is a “debt
collector” within the meaning of the FDCPA, particularly given Dodin’s claim that in 10
years as a sole practitioner handling real estate and other matters, he has sent only two or
three communications for debt collection purposes, and that he neither represents
collection clients nor derives any revenue from that area of practice. Plaintiffs are
required, in responding to defendant’s summary judgment motion, to make a showing
sufficient to support a determination that defendant was a “debt collector” at the time it
issued the challenged communication. See Celotex Corp., 477 U.S. at 323. Despite
having concluded discovery, plaintiffs have not submitted evidence to show a genuine

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dispute of material fact as to defendant’s debt collector status. Indeed, rather than
challenging Dodin’s claim to have engaged in only very limited debt collection activity
over a 10-year period, plaintiffs merely argue that whether a lawyer is a “debt collector”
under the FDCPA requires a case-by-case determination and that defendant fails to
submit evidence to prove “what fraction of his business these [debt collection efforts]
account for.” Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Motion, at 3.
Because there is no genuine dispute of material fact as to whether defendant is a “debt
collector” under the FDCPA, defendant’s motion for summary judgment is granted.

III. CONCLUSION
For the above reasons, defendant’s motion for summary judgment is granted. The
Clerk of Court is directed to enter judgment for defendant dismissing the action.
SO ORDERED.
_______________/s/_______________
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Central Islip, New York
October 4, 2013