Opinion
Index No. 152313/2022
04-18-2023
Christos Tsamasiros, Plaintiff, v. Davey Jones III, Defendant.
Attorney for Plaintiff: Michael M. Rabinowitz, Esq., RABINOWITZ AND GALINA. Attorney for Defendant: Richard A. Altman, Esq., Law Office of Richard A. Altman.
Unpublished Opinion
Attorney for Plaintiff: Michael M. Rabinowitz, Esq., RABINOWITZ AND GALINA.
Attorney for Defendant: Richard A. Altman, Esq., Law Office of Richard A. Altman.
Ronald Castorina, Jr., J.
The following e-filed documents listed on NYSCEF (Motion #001) numbered 4-19 were read on this motion.
Upon the foregoing documents, and after oral argument conducted on March 23, 2022, Motion Sequence #001 is resolved as follows, it is hereby:
ORDERED, that the Defendant's motion pursuant to CPLR § 3016 [a], CPLR § 3211 [a] [1], and CPLR § 3211 [a] [7] for dismissal of the Plaintiff's complaint with prejudice and without leave to replead is GRANTED, and it is further;
ORDERED, that the Defendant's motion pursuant to New York Civil Rights Law § 70-a [a], CPLR 8303-a, and 22 NYCRR 130.1-1 for counsel fees, sanctions and/or costs is DENIED, and it is further;
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Memorandum Decision
I. Procedural History
Plaintiff commenced the instant action for libel and slander by service of a summons and verified complaint on or about December 20, 2022. Plaintiff alleges that the Defendant published libelous false and misleading statements about or concerning the Plaintiff causing him stress and anxiety. Plaintiff further alleges that Defendant made slanderous false and misleading statements about the Plaintiff causing damage to his reputation, stress, and anxiety.
Plaintiff seeks (1) Defendant to pay damages for the alleged libelous statements about the Plaintiff in an amount to be determined at trial, within the jurisdiction of this Court for damages to his reputation, and for stress and anxiety; (2) Defendant to pay a punitive damages for the alleged libelous statements about the Plaintiff in the amount of $1,000,000.00 [One Million Dollars and No Cents]; Defendant to pay damages for the alleged slanderous statements about the Plaintiff in an amount to be determined at trial, within the jurisdiction of this Court for damages to his reputation, and for stress and anxiety; (4) Defendant to pay a punitive damages for the alleged slanderous statements about the Plaintiff in the amount of $1,000,000.00 [One Million Dollars and No Cents]; and (5) Defendant to pay interest, Plaintiff's costs, disbursements and reasonable attorney fees and such other relief as the Court deems just and proper.
Defendant Davey Jones III filed Motion Sequence #001 on January 27, 2023, seeking (a) to dismiss the complaint with prejudice and without leave to replead, pursuant to Civil Practice Law and Rules (CPLR) § 3016 [a], CPLR § 3211 [a] [1], CPLR § 3211 [a] [7], and CPLR § 3211 [g]; and (b) for such further relief as may be just, including counsel fees, sanctions and/or costs pursuant to New York Civil Rights Law § 70-a [a], CPLR 8303-a, and 22 NYCRR 130.1-1 for Plaintiff allegedly failing to state or possess a cause of action, and that the action is one involving public petition. Plaintiff filed opposition on February 28, 2023. Defendant filed reply on March 7, 2023. Oral argument was heard on March 23, 2023
II. Facts
This action stems from an ongoing dispute and internal power struggle between members of the Excelsior Sportsman's Club hereinafter referred to as the Club, a New York not-for profit organized in 1922 for the purpose of aiding in the enforcement of the laws and regulations for the preservation and protection of fish and game in the State of New York. The Club is a participant in the New York State Department of Environmental Conservation's Forest Tax Abatement program (see Real Property Tax Law § 480 [a]), which allows for professional management of the State's forests by private organizations. The Club owns and is responsible for approximately 1,700 acres of forest land in Sullivan County, New York and receives a significant reduction in its land taxes.
In October 2021, Defendant's father, was elected to the Club's Board of Directors of the Club, and subsequently Chairman of the Board. On that same day, the Plaintiff was ousted as President of the Club. Soon after, political intrigue worthy of an upstate New York version of Macbeth began to entrench the parties' respective sides as rivals and the ongoing battle for control of the Club moved into open warfare.
Move was met with counter move. On or about July 13, 2023, Plaintiff dispatched correspondence to the membership seeking attendance at a special meeting on August 7, 2022, to discuss the Club's board of director's and the executive board's decision to allow a guest to stay at the property in violation of the bylaws. (NY St Cts Filing [NYSCEF] Doc No. 8). On or about the same date Plaintiff sent out a list of charges against the current administration of the Club. Plaintiff states, "It is a disgrace to have leadership pick and choose what bylaws they will enforce and what bylaws they will decide to set aside for what I believe is a personal reason." (see id).
At the August 7, 2022 meeting, Plaintiff allegedly was successful in obtaining a vote to suspend Defendant's father and another ally from their respective positions. (NY St Cts Filing [NYSCEF] Doc No. 7). On August 14, 2022, the Board of Directors met and among the topics discussed was the possible removal of the Club's Secretary, and other internal issues. (see id). Defendant's father and the other party, who were "suspended" both served in their official roles without objection from anyone present, including the Plaintiff. (see id).
The conflict between the Club's warring factions continued to escalate at a rapid pace. Plaintiff continued to fire literary shots across the Defendant's familial bow. On or about September 1, 2022, Plaintiff dispatched another report from the front to the members of the Club. Plaintiff's letter states, "I was asked by one of the Board of Directors' members why did I oppose [Defendant's Mother] becoming the Treasurer. Was it because I did not think she could do the job? My reply was I absolutely do think she is very capable of doing the job; however, I do not trust her. She has shown over and over that her only interest in the Club is the money. This has been shown both in action and in words." (NY St Cts Filing [NYSCEF] Doc No. 9).
Plaintiff goes on in his indictment to describe the actions he allegedly witnessed involving the Defendant and his mother. "[O]utside [the Clubhouse] was parked a minivan and in the back of the van was crates of paperwork. Inside were both [the Defendant's mom] and the [Defendant] completely emptying the safe, packing contents into the box and I assume taking it to their house." (see id). This correspondence contains a laundry list of allegations against the Defendant, his mother, and his father.
The gauntlet had been thrown down and the die cast. Defendant crossed his Rubicon and sent out a response to Plaintiff's charges to the Club Membership on or about September 30, 2022. Plaintiff's complaint does not list any specific statements that were made by the Defendant, but only states the Defendant made certain false and misleading statements about him (NY St Cts Filing [NYSCEF] Doc No. 6), which have caused him public contempt and ridicule. (NY St Cts Filing [NYSCEF] Doc No. 17). Plaintiff alleges that this letter was libelous and damaged his reputation causing him stress and anxiety. Plaintiff further alleges that on or about September 30, 2022, Defendant also made unspecified false and misleading statements about him to Club members and others. Plaintiff alleges these verbal statements were slanderous and damaged his reputation causing him stress and anxiety.
In October 2022, Defendant received correspondence from counsel to the Plaintiff stating,
Upon review of said September 30, 2022 [letter] it is our view that certain of the statements [SIC] contained therein contain statements which are libelous. Further, we are advised that you may have made certain oral statements in furtherance of said letter which amount to slander. Unfortunately, your improper conduct has led to [Plaintiff] suffering certain damages and potential loss to reputation. In that regard, [Plaintiff] has engaged our firm to pursue a claim for damages due to your conduct. (NY St Cts Filing [NYSCEF] Doc No. 11).
Plaintiff maintains that the Defendant's false statements have caused the Club's membership to have a lower view of him and reduced his electability to a Club leadership position. Some Club members are also in the same industry as the Plaintiff and the Defendant's statements have had a negative effect on Plaintiff's ability to obtain business, both from Club members and their associates.
III. Sufficiency of the Complaint
"The elements of a cause of action for defamation are a 'false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se'" (see Arvanitakis v Lester, 145 A.D.3d 650 [2d Dept 2016] quoting Salvatore v Kumar, 45 A.D.3d 560 [2d Dept 2007] quoting Dillon v City of New York, 261 A.D.2d 34 [1st Dept 1999]). "The complaint must set forth the particular words allegedly constituting defamation (see CPLR 3016 [a]), and it must also allege the time, place, and manner of the false statement and specify to whom it was made (see id citing Dillon v City of New York, 261 A.D.2d 34 [1st Dept 1999]).
A. Omission of Exact Words Claimed to be Defamatory
" CPLR 3016 [a] provides that in an action to recover damages for libel or slander, the particular words complained of shall be set forth in the complaint. A cause of action sounding in defamation which fails to comply with these special pleading requirements must be dismissed[.]" (see CSI Group, LLP v Harper, 153 A.D.3d 1314 [2d Dept 2017] citing Fusco v Fusco, 36 A.D.3d 589 [2d Dept 2007]; Simpson v Cook Pony Farm Real Estate, Inc., 12 A.D.3d 496 [2d Dept 2004]). "Failure to state the particular person or persons to whom the allegedly defamatory statements were made also warrants dismissal" (see id citing Simpson v Cook Pony Farm Real Estate, Inc., 12 A.D.3d 496 [2d Dept 2004]).
"In a defamation action, '[t]he complaint must set forth the particular words allegedly constituting defamation, and it must also allege the time when, place where, and manner in which the false statement was made, and specify to whom it was made'" (see Kimso Apts., LLC v Rivera, 180 A.D.3d 1033 [2d Dept 2020] quoting Epifani v Johnson, 65 A.D.3d 224 [2d Dept 2009] citing CPLR 3016 [a]; Buxbaum v Castro, 104 A.D.3d 895 [2d Dept 2013]; Dillon v City of New York, 261 A.D.2d 34 [1st Dept 1999]).
"Compliance with CPLR 3016 [a] is strictly enforced" (see Lemieux v Fox, 135 A.D.3d 713 [2d Dept 2016] citing Horbul v Mercury Ins. Group, 64 A.D.3d 682 [2d Dept 2009]). "It is well-settled law that a cause of action sounding in defamation which fails to comply with the special pleading requirements contained in CPLR 3016 [a] that the complaint set forth 'the particular words complained of', mandates dismissal" (see Gill v Pathmark Stores, 237 A.D.2d 563 [2d Dept 1997] quoting Monsanto v Electronic Data Systems Corp., 141 A.D.2d 514 [2d Dept 1988]).
CPLR 3211 [a] [7] provides that a "party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action[.]" "In considering a motion pursuant to CPLR 3211 [a] [7] to dismiss a complaint for failure to state a cause of action, the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (see Green 333 Corp. v RNL Life Science, Inc., 186 A.D.3d 1334 [2d Dept 2020] citing Cortlandt St. Recovery Corp. v Bonderman, 31 N.Y.3d 30 [2018]; Korsinsky v Rose, 120 A.D.3d 1307 [2d Dept 2014]).
"On a motion to dismiss for failure to state a cause of action, 'the pleading is to be afforded a liberal construction'" (see Nassau Operating Co., LLC v DeSimone, 206 A.D.3d 920 [2d Dept 2022] quoting Leon v Martinez, 84 N.Y.2d 83 [1994] citing CPLR § 3026 ). "The facts alleged in the complaint must be accepted as true, and the plaintiff is entitled to receive the benefit 'of every possible favorable inference'" (see id quoting Leon v Martinez, 84 N.Y.2d 83 [1994]). However, "[d]ismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim" (see id quoting Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137 [2017] citing Myers v Schneiderman, 30 N.Y.3d 1 [2017]).
The verified complaint alleges in Plaintiff's first cause of action that on or about September 30, 2022, Defendant "made certain false and misleading statements about [Plaintiff]" and that Defendant "published said letter by disseminating same to certain members of the hunting club" (NY St Cts Filing [NYSCEF] Doc No. 6). The verified complaint further alleges that "[a]s a result of the actions of [Defendant], by making libelous statements about or concerning [Plaintiff], [Plaintiff] has been damaged in an amount to be determined at trial" and "due to the maliciousness of the false statements made by [Defendant] and to serve as a warning to others who make false statements." (see id) Plaintiff "seeks punitive damages in the amount of One Million Dollars." (see id).
In Plaintiff's second cause of action Plaintiff alleges in the verified complaint that on or about September 30, 2022, Defendant "did make certain verbal statements to Club members and others regarding [Plaintiff]" and that those verbal statements "were false and misleading." (see id). "Said verbal statements were made by [Defendant] to certain members of the hunting club" and as a result of Defendant "making slanderous statements about or concerning [Plaintiff], [Plaintiff] has been damaged in an amount to be determined at trial." (see id). The second cause of action further "seeks an award of punitive damages due to the maliciousness of the false statements made by [Defendant] and to serve as a warning to others who make false statements. (see id). Plaintiff "seeks punitive damages in the amount of One Million Dollars." (see id).
Plaintiff's verified complaint fails to set out the exact language alleged to be defamatory. The omission from the verified complaint of the allegedly libelous or slanderous language cause the complaint to fail to comply with the requirements of CPLR § 3016 [a], which require the particular words complained of to be set forth in the complaint. Plaintiff further concedes that his complaint "admittedly does not comply with the pleading requirement of CPLR § 3016 [a]." (NY St Cts Filing [NYSCEF] Doc No. 16).
"In opposing a motion pursuant to CPLR § 3211 [a] [7], a plaintiff may submit affidavits for 'a limited purpose only,... to remedy defects in the complaint'" (see Woss, LLC v 218 Eckford, LLC, 102 A.D.3d 860 [2d Dept 2013] quoting Rovello v Orofino Realty Co., 40 N.Y.2d 633 [1976] citing Sokol v Leader, 74 A.D.3d 1180 [2d Dept 2010]). Plaintiff's affidavit fails to do so and further fails to demonstrate that he has any defamation claim pertaining to any of the statements alleged to be defamatory.
Plaintiff maintains in his affidavit that Defendant accused him of "lack of transparency," "not involving the general membership in decision-making, and not following bylaws." (NY St Cts Filing [NYSCEF] Doc No. 17). Defendant is also alleged to have accused Plaintiff of saying "there will be no discussion"; accused Plaintiff of "lying when [he] informed Club members that [he] observed Defendant's mother [of] emptying the safe contained in the Club's clubhouse without authorization"; accused Plaintiff of "[accusing] other people of not doing things that [he] can do and choose [] not to"; accused Plaintiff of "stating to a Club member '[d]o not speak to me like that ever again or I will rip your f***ing throat out and toss it on the floor"; and accused Plaintiff to have "purposefully misused people's proxies in an attempt to suspend officers from the Club." (see id).
Plaintiff contends in his affidavit that "these statements were made with malice and ill-will towards [him]" (see id). Plaintiff states that "all of these statements were made, upon information and belief, solely to the members of the Club, which is private. They were made in regard to the leadership of the Club and its governance. They were not made to the public at-large. They were directed to a private audience of Club members[.]" (see id).
There is no conceivable way that these words can be construed as defamatory. The statements referred to in the Plaintiff's affidavit are plainly the Defendant's opinions and are merely critical of the Plaintiff's tenure as the Club's president. Any other conclusion would open any harsh criticism of an organization's leadership to a defamation suit. The words are not accusations of crimes, nor of unethical professional conduct. The vague suggestions of damages are insufficient and there is no basis to permit the complaint to be amended.
B. Common-Interest Privilege
"Courts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether" (see Porges v Weitz, 205 A.D.3d 13 [2d Dept 2022] citing Liberman v Gelstein, 80 N.Y.2d 429 [2d Dept 1992]). "A statement is protected by a qualified privilege 'when a person makes a bona fide communication upon a subject in which he or she has an interest, or a legal, moral, or social duty to speak, and the communication is made to a person having a corresponding interest or duty'" (see id quoting Garson v Hendlin, 141 A.D.2d 55 [2d Dept 1988]). "The rationale for applying the privilege in these circumstances is that so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded" (see id Liberman v Gelstein, 80 N.Y.2d 429 [2d Dept 1992]).
"There is 'no bright line test by which the courts identify with exactitude those occasions which are privileged and those which are not'" (see id quoting Garson v Hendlin, 141 A.D.2d 55 [2d Dept 1988]). "Of particular relevance here, courts have applied the so-called common interest privilege to shield from defamation litigation statements made 'in a good faith effort'" (see id quoting New York Horse Rescue Corp. v Suffolk County Socy. for the Prevention of Cruelty to Animals, 164 A.D.3d 909 [2d Dept 2018]).
Defendant cites the First Department case, Ming v Hoi, 163 A.D.2d 268 [1st Dept 1990], in which the facts involve very similar circumstances as pertaining to the concept of common interest privilege. Plaintiff, a member of a not-for-profit fraternal and benevolent association sued its president and others for defamation, arising from a notice about the removal of plaintiff from a committee of the association.
Defendants in Ming v Hoi, moved to dismiss the complaint for... failure to state a cause of action for libel, and for other relief including sanctions. The IAS court found that plaintiff had not set forth the exact words of the alleged defamation as required by CPLR 3016 [a], that the words did not appear to be libelous per se, that even if they were, a qualified privilege attaches to internal communications of membership associations, lodges, etc. (44 NY Jur 2d, Defamation and Privacy, § 78), and that, therefore, in the absence of a showing of actual malice, the words were not actionable. (see Ming v Hoi, 163 A.D.2d 268 [1st Dept 1990]).
The First Department in Ming v Hoi affirmed the dismissal for the same three reasons that exist here; (1) pleading was deficient for failure to set forth the exact words of the defamation; (2) the words used were not actionable; and (3) a qualified privilege attaches to internal communications of membership associations, lodges, etc. (see id). The First Department also reversed the lower court's granting of leave, for a second time, to amend the complaint, and dismissed it with prejudice. "Defendants contend that the complaint should be dismissed with prejudice. Upon a motion to dismiss, a pleading will be liberally construed and such motion will not be granted unless, as here, the moving papers conclusively establish that no cause of action exists Here, the plaintiffs have failed to set forth a triable claim and thus dismissal with prejudice is appropriate." (see id citing CPLR 3211 [a] [7]; Ragto, Inc. v. Schneiderman, 49 N.Y.2d 975 [1980]).
Plaintiff states that "all of these [alleged defamatory] statements were made, upon information and belief, solely to the members of the Club, which is private. They were made in regard to the leadership of the Club and its governance. They were not made to the public at-large. They were directed to a private audience of Club members[.]" (NY St Cts Filing [NYSCEF] Doc No. 17). This is the essence of the common-interest privilege.
"A communication made by one person to another upon a subject in which both have an interest is protected by a qualified privilege." (see Stillman v Ford, 22 N.Y.2d 48 [1968] citing Shapiro v Health Ins. Plan of Greater New York, 7 N.Y.2d 56 [1959]; Ashcroft v Hammond, 197 NY 488 [1910]; Byam v Collins, 111 NY 143 [1888]).
The parties here were involved "in a dispute about the policy of an institution in which they all were deeply interested. In defending their respective positions, each faction accused the other of misrepresenting its views in order to win support. Whether or not, in the final analysis, any of these accusations were true or false is hardly relevant. As long as the statements were motivated not by ill will or personal spite but by a sincerely held desire to protect the institution, they are not actionable." (see id).
The evidence presented demonstrates an ongoing dispute between the parties and their respective positions regarding control of the organization that they both belong to. The communications by both parties have been directed at the membership of the organization and pertained directly to activities involving the organization. Plaintiff has failed in any way to allege that the Defendant's communication to the membership was motivated by anything more than his desire to protect the hunting club that both were members of.
C. Dismissal of the Complaint with Prejudice
In this matter (1) the Plaintiff has failed to set out the exact words of the alleged defamatory language in his verified complaint; (2) the statements made by the Defendant in reference to the organization and made to members of the parties' mutual organization were not defamatory; (3) the statements made by the Defendant in reference to the organization and made to members of the parties' mutual organization were subject to the common-interest privilege; and (4) statements were not made for the purpose solely of ill will or personal spite.
Accordingly, the Defendant's motion pursuant to CPLR § 3016 [a], CPLR § 3211 [a] [1], and CPLR § 3211 [a] [7] for an order dismissing the Plaintiff's complaint with prejudice and without leave to replead is GRANTED, with prejudice.
IV. Costs and Legal Fees under the Anti-Slapp Amendments of 2020
Civ. Rights Law § 70-a provides as follows:
Actions involving public petition and participation; recovery of damages
1. A defendant in an action involving public petition and participation, as defined in paragraph (a) of subdivision one of section seventy-six-a of this article, may maintain an action, claim, cross claim or counterclaim to recover damages, including costs and attorney's fees, from any person who commenced or continued such action; provided that:
(a) costs and attorney's fees shall be recovered upon a demonstration, including an adjudication pursuant to subdivision (g) of rule thirty-two hundred eleven or subdivision (h) of rule thirty-two hundred twelve of the civil practice law and rules, that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law;
(b) other compensatory damages may only be recovered upon an additional demonstration that the action involving public petition and participation was commenced or continued for the purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights; and
(c) punitive damages may only be recovered upon an additional demonstration that the action involving public petition and participation was commenced or continued for the sole purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights.
2. The right to bring an action under this section can be waived only if it is waived specifically.
3. Nothing in this section shall affect or preclude the right of any party to any recovery otherwise authorized by common law, or by statute, law or rule.
Civ. Rights Law § 76-a provides:
Actions involving public petition and participation; when actual malice to be proven
1. For purposes of this section:
(a) An "action involving public petition and participation" is a claim based upon:
(1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or
(2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.
(b) "Claim" includes any lawsuit, cause of action, cross-claim, counterclaim, or other judicial pleading or filing requesting relief.
(c) "Communication" shall mean any statement, claim, allegation in a proceeding, decision, protest, writing, argument, contention or other expression.
(d) "Public interest" shall be construed broadly, and shall mean any subject other than a purely private matter.
2. In an action involving public petition and participation, damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue.
3. Nothing in this section shall be construed to limit any constitutional, statutory or common law protections of defendants to actions involving public petition and participation.
" Civil Rights Law § 76-a was passed to protect citizens facing litigation arising from their public petitioning and participation, by deterring Strategic Litigation Against Public Participation, also known as SLAPP suits." (see Singh v Sukhram, 56 A.D.3d 187 [2d Dept 2008] citing 600 W. 115th St. Corp. v Von Gutfeld, 80 N.Y.2d 130 [1992]). Civil Rights Law § 76-a applies to an "action involving public petition and participation" and a claim based on (1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition." Civil Rights Law § 76-a further defines the term "'Public interest' shall be construed broadly, and shall mean any subject other than a purely private matter."
Plaintiff states that all of the Defendant's alleged defamatory "statements were made... solely to the members of the Club, which is private. They were made in regard to the leadership of the Club and its governance. They were not made to the public at-large. They were directed to a private audience of Club members[.]" (NY St Cts Filing [NYSCEF] Doc No. 17).
Defendant concurs that he "replied to his [the Defendant's] claims [to the Club's membership] by a letter to the membership on September 30, 2022." (NY St Cts Filing [NYSCEF] Doc No. 7).
The communication at issue took place solely among members of a private organization and not in a place open to the public or a public forum in connection with an issue of public interest as required under Civ. Rights Law § 76-a [1] [a] [1].
The Defendant's letter concerns allegations regarding the management of a not-for-profit environmental organization charged with protecting New York's woodlands, raising the issue of whether the communication itself is "lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest" (see Civ. Rights Law § 76-a [1] [a] [2]), when read in conjunction Civ. Rights Law § 76-a [1] [d] requiring "Public interest" to be construed broadly, and meaning any subject other than a purely private matter.
The statements that the Defendant alleges to be of "public interest" under Civ. Rights Law § 76-a [1] [a] [2], include allegations that Plaintiff lacked transparency, did not involve the general membership in decision-making, and was not following bylaws. (NY St Cts Filing [NYSCEF] Doc No. 17). Further statements of alleged public interest include Plaintiff allegedly saying "there will be no discussion"; accusations of Plaintiff "lying when [he] informed Club members that [he] observed Defendant's mother [of] emptying the safe contained in the Club's clubhouse without authorization"; accusations of Plaintiff "[accusing] other people of not doing things that [he] can do and choose [] not to"; accusations of Plaintiff "stating to a Club member '[d]o not speak to me like that ever again or I will rip your f***ing throat out and toss it on the floor"; and accusations of Plaintiff having "purposefully misused people's proxies in an attempt to suspend officers from the Club." (see id).
"In one sense the word 'public' applies to all places to which the general public is invited as distinguished from private places; but public in the sense as used in this and other statutes means those places in which the public has an interest as affecting the safety, health, morals, and welfare of the community[.]" (see Ness v Pan American World Airways, 142 A.D.2d 233 [2d Dept 1988]).
While the not-for-profit Excelsior Sportsman's Club is a participant in the New York State Department of Environmental Conservation's Section 480a Forest Tax Abatement program, which allows for professional management of the State's forests by private organizations, even under the requirement for the term public interest to be construed broadly, the communications in this matter did not involve any "other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition" as defined by Civ. Rights Law § 76-a [1] [a] [2].
22 NYCRR § 130-1.1 provides as follows:
(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Part. This Part shall not apply to town or village courts, to proceedings in a small claims part of any court, or to proceedings in the Family Court commenced under article 3, 7 or 8 of the Family Court Act.
(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a partnership, firm, corporation, government agency, prosecutor's office, legal aid society or public defender's office with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.
(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, or should have been apparent, or was brought to the attention of counsel or the party.
(d) An award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court's own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.
CPLR 8303-a provides:
(a) If in an action to recover damages for personal injury, injury to property or wrongful death, or an action brought by the individual who committed a crime against the victim of the crime, and such action or claim is commenced or continued by a plaintiff or a counterclaim, defense or cross claim is commenced or continued by a defendant and is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs and reasonable attorney's fees not exceeding ten thousand dollars.
(b) The costs and fees awarded under subdivision (a) of this section shall be assessed either against the party bringing the action, claim, cross claim, defense or counterclaim or against the attorney for such party, or against both, as may be determined by the court, based upon the circumstances of the case. Such costs and fees shall be in addition to any other judgment awarded to the successful party.
(c) In order to find the action, claim, counterclaim, defense or cross claim to be frivolous under subdivision (a) of this section, the court must find one or more of the following:
(i) the action, claim, counterclaim, defense or cross claim was commenced, used or continued in bad faith, solely to delay or prolong the resolution of the litigation or to harass or maliciously injure another;
(ii) the action, claim, counterclaim, defense or cross claim was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law. If the action, claim, counterclaim, defense or cross claim was promptly discontinued when the party or the attorney learned or should have learned that the action, claim, counterclaim, defense or cross claim lacked such a reasonable basis, the court may find that the party or the attorney did not act in bad faith.
"The complaint, however, was not 'without any reasonable basis in law or fact,' and the plaintiff's conduct did not warrant an award of costs or an attorney's fee to the defendant ( CPLR 8303-a [c] [ii]). (see Black-Kelly v Marley, 83 A.D.3d 981 [2d Dept 2011]). The Court is within its discretion in denying that branch of the defendant's motion which was for costs, attorney's fees, and sanctions. (see id).
Accordingly, Defendant's motion for counsel fees, sanctions and/or costs pursuant to New York Civil Rights Law § 70-a [a], CPLR 8303-a, and 22 NYCRR 130.1-1 is DENIED, with prejudice .
Decretal Paragraphs
It is hereby ORDERED that the Defendant's motion pursuant to CPLR § 3016 [a], CPLR § 3211 [a] [1], and CPLR § 3211 [a] [7] for dismissal of the Plaintiff's complaint with prejudice and without leave to replead is GRANTED, with prejudice, and it is further;
ORDERED, that the Defendant's motion pursuant to New York Civil Rights Law § 70-a [a], CPLR 8303-a, and 22 NYCRR 130.1-1 for counsel fees, sanctions and/or costs is DENIED, with prejudice, and it is further;
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
The foregoing shall constitute the Decision and Order of this Court.