Opinion
Index No. 159665/2023
09-11-2024
Chirag C., Plaintiff, v. Kathleen D., THOMAS D., JACLYN D., Defendant.
Chirag C.: Tanya Branch and James Snashall, of Quintairos, Prieto, Wood & Boyer D. Defendants: Cory Morris, of The Law Offices of Cory Morris
Unpublished Opinion
Chirag C.: Tanya Branch and James Snashall, of Quintairos, Prieto, Wood & Boyer D. Defendants:
Cory Morris, of The Law Offices of Cory Morris
Dakota D. Ramseur, J.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 72, 73, 76, 77, 78, 92 were read on this motion to/for DISMISSAL.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 80, 81, 82, 83, 84, 89, 90, 94, 95, 96, 97, 98, 101, 102, 103, 104 were read on this motion to/for QUASH SUBPOENA, FIX CONDITIONS.
In October 2023, plaintiff Chirag C. commenced this action against defendants Kathleen D., Thomas D., and Jaclyn D., asserting causes of action for a violation of New York Civil Rights Law §79-n (2), harassment, negligent infliction of emotional distress, defamation, conspiracy, and false imprisonment. In Motion Sequence 002, defendants have moved to dismiss in lieu of an answer pursuant to CPLR 3211 (a)(1), (a)(5), (a)(7), and (g). Plaintiff opposes the motion in its entirety. For the following reasons, the motion to dismiss is granted in part.
BACKGROUND
This action arises out of a particularly acrimonious breakup and two-year-long custody battle in New York Family Court between plaintiff and non-party Jamie D., during which-according to plaintiff-Jamie's mother (Kathleen), father (Thomas), and sister (Jaclyn) allegedly made false reports/statements to police and the court as part of a harassment campaign against him.
In or around 2017, plaintiff, a Hindu American of South Asian descent, entered into a relationship with Jamie, who, along with her family, is white and Roman Catholic. Thereafter, Jamie D. became pregnant with their first child and gave birth to "CC" on XX/XX, 2018. (NYSCEF doc. no. 74 at ¶ 61, amended complaint.) Plaintiff and Jamie were to have their wedding ceremony on May 16, 2021. (Id. at ¶ 67.) However, for disputed reasons, the wedding was cancelled the day of. (See id. at ¶ 264; NYSCEF doc. no. 44 at ¶¶ 50-55, defendants' statement of material facts.)
In his complaint, plaintiff alleges that Kathleen, Thomas, and Jaclyn D. expressed animosity towards him and his extended family based upon race, religion, and ethnicity, for example, by using racial slurs/disparagements towards him and CC, by refusing to welcome or socialize with plaintiff's family in New York or hold the planned wedding in Jamaica, and by allegedly telling members of his wedding party "You f--- Indians go back home" (NYSCEF doc. no. 74 at ¶ 266) and calling them "frauds and killers" (Id. at ¶¶ 266-267). None of the above conduct occurred later than May 2021. In August 2021, plaintiff alleges that Jaclyn D. unlawfully contacted the New York Police Department and falsely reported that he posed a physical danger to Jamie. (Id. at ¶¶ 296-297.) Based on Jacyln's alleged misrepresentations, plaintiff avers that the NYPD falsely detained him. (Id. at ¶ 301.) That same month, on or about August 18, 2021, he commenced the custody petition in New York Family Court (the "Family Action"). A day or two later, he informed Jamie of the new petition, after which he picked up CC from their school. Jamie's family allegedly reacted by making four calls to emergency services to get police to plaintiff's apartment, which ultimately resulted in him consenting to turn CC over to the D. family. (Id. at ¶¶ 311-354.) Lastly, plaintiff alleges that Kathleen, Thomas, and Jaclyn D. engaged in a pattern of making misrepresentations to the Court in the Family Action in a concerted effort to discredit him based on their racial, religious, and ethnic bias against him. This included by providing the Court with false affidavits and/or false testimony (some of which relate to plaintiff's alleged violence toward Jamie). (NYSCEF doc. no. 1 at ¶¶ 356-365, original complaint.) By Decision and Order dated May 12, 2023, Justice Tandra Dawson awarded physical and legal custody to Jamie D. with plaintiff receiving visitation rights. (NYSCEF doc. no. 66, Family Court Order.)
Plaintiff asserts nine causes of action :
Plaintiff filed an amended complaint on December 26, 2023 (NYSCEF doc. no. 74), to which defendants filed a notice of rejection on December 29, 2023 (NYSCEF doc. no. 79, rejection). CPLR 3025 (a) provides that a plaintiff may amend its complaint without court approval within twenty days of service of the original pleading, anytime before the period for responding to it expires, or within twenty days after service of a responsive pleading. By moving to dismiss in lieu of an answer, defendants have extended the period for responding until after notice of entry of the decision herein and, therefore, extended the time in which plaintiff could amend their complaint as of right. (See Estate of Tammy Colleen Feenin v Bombace Wine & Spirits, Inc.,1888 A.D.3d 1001, 1003 [2d Dept 2020].) As such, plaintiff was not required to file a redlined amended complaint as required under CPLR 3025 (b). Nonetheless, the asserted causes of action in the amended complaint, as laid out below, are identical to those asserted in the original complaint.
Count (1): Violation of New York Civil Rights Law § 79-n (2)-premised on defendants' early August 2021 calls to the police under the pretense of a false threat to Jamie D.'s safety;
Count (2): Harassment-premised primarily on "repeated calls to the police" that were intended to harass, harm, and injure him (all of which occurred in 2021);
Count (3): Negligent Infliction of Emotional Distress;
Count (4): Defamation-premised on false statements made on May 16, 2021, in which Kathleen and Jaclyn told wedding guests that plaintiff was "a fake person," "fake," a killer, that he had threatened them, contrived a car theft, and entered in the marriage as a ruse;
Count (5): Defamation-premised on defendants' August 9, 2021 statements made to police that he was dangerous and/or abusive;
Count (6): Defamation-premised on defendants' August 20, 2021 statements to police;
Count (7): Civil Conspiracy;
Count (8): False Imprisonment-premised on police detaining him on August 9, 2021;
Count (9): False Imprisonment-premised on police detaining him on August 20, 2021.(NYSCEF doc. no. 74 at ¶¶ 375-474, counts one through nine.)
As described above, defendants move in lieu of answer to dismiss the complaint pursuant to CPLR 3211 (a) (5) as one or all of plaintiff's causes of action are barred by the statute of limitations, CPLR 3211 (a) (7) for failure to state a cause of action, and CPLR 3211 (g) as the matter involves a matter of "public petition and participation" for which plaintiff does not have a substantial basis in law.
DISCUSSION
Dismissal under CPLR 3211 (a) (5 )
Plaintiff's causes of action for defamation-Counts (4) through (6)-have a one-year statute of limitations period. (Biaggi v O'Flynn, 216 A.D.3d 484, 484 [1st Dept 2023].) Since the limitation period for defamations starts to run from each statement's publication date (id), plaintiff was required to commence the instant action before, respectively, May 16, August 9, and August 20, 2022, or one-year from when defendants made each defamatory statement at the wedding and to the NYPD. As the commenced this action on October 2, 2023, each of these causes of action are time-barred. The same applies to Counts (8) and (9) for false imprisonment. CPLR 215 (3), entitled "Actions to be commenced within one year," applies the one-year limitation period to false imprisonment causes of action. Because plaintiff failed to commence this action within one year of August 9, 2021 (for Count 8) or August 20, 2021 (for Count 9), they are also time-barred.
Plaintiff contends that the statute of limitations period for each of these causes of action is not one year but instead two under CPLR 215 (9). Plaintiff is mistaken. First, even if the applicable limitation period were two years, these causes of action would still be time-barred as plaintiff commenced this action more than two years after the limitation periods started to run. Second, Rule 215 (9) provides that, "notwithstanding [the one-year limitation period], an action that may be brought to recover damages for injury arising from domestic violence, as defined in § 459-a of the social service law, shall be commenced within two years." (See CPLR 215 [9].) In turn, § 459-a (1) defines a "victim of domestic violence" as any person who is the victim of an act (if committed by "a family or household member") "which would constitute a violation of the penal law," including but not limited to acts constituting "disorderly conduct, harassment aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, strangulation, identity theft, grand larceny or coercion." (Social Service Law § 459-a.) Here, plaintiff has not alleged that he is a victim of domestic violence, demonstrated that defendants-as parents and siblings to Jamie-are "family members" to him as defined in § 459-a (2), identified or remotely suggested defendants violated a penal law statute similar in nature to those explicitly included in § 459-a, or provided any other reason to believe this rule covers defamation or false imprisonment involving the New York Police Department briefly removing him from the apartment, detaining him, and questioning him in front of his neighbors and building employees (see NYSCEF doc. no. 74 at ¶ 352).
Plaintiff's cause of action for negligent infliction of emotional distress (Count 3) is time-barred by CPLR 215 (3). (Havell v Islam, 292 A.D.2d 210, 210 [1st Dept 2002] ["A claim for damages for an intentional tort, including a tort not specifically listed in CPLR 215 (3), is subject to a one-year limitation period"].) In determining which limitation period is applicable-here, CPLR 215 (3) or CPLR 214 (5) for negligence-based personal injury claims-the Court must look to the substance of the allegations rather than to the characterization of those allegations by the parties. (McDonald v Riccuiti, 126 A.D.3d 954, 954 [2d Dept 2015]; see also New York City Health & Hosps. Corp. v McBarnette, 84 N.Y.2d 194, 200-201 [1994] ["'It is necessary to examine the substance of [the] action to identify the relationship out of which the claim arises and the relief sought' in order to resolve which Statute of Limitations is applicable."]) Here, Count (3) is explicitly premised on defendants' intentional conduct.
Under Count (3), in paragraph 393 of the amended complaint, plaintiff alleges that "[d]efendants intentionally called police numerous times in violation of the law... for the purpose of continuing [d]efendants conspiracy to harm [plaintiff]." (NYSCEF doc. no. 74 at ¶ 393.) In paragraph 398, he similarly alleges that "[d]efendants' actions were extreme and outrageous, which included[ed] unlawful phone calls to police on separate dates based on [d]efendants' bias-related animus to [plaintiff] made in furtherance of their ongoing scheme and conspiracy." (Id. at ¶ 398.) Further, it was "[d]efendants' concerted and unified actions [that] caused plaintiff pain and suffering, stress, anxiety, loss of sleep, financial losses, [and] permanent damage in his relationship with... Jamie." (Id. at ¶ 401.) The only assertions of negligence are in paragraphs 394 through 396, in which he asserts defendants were "negligent in not understanding" that their words, actions, and refusal to embrace a different culture can negatively impact plaintiff's racial, religious, and ethnic identity." (Id. at ¶¶ 394-396.) Even if the Court expands its analysis past those allegations contained under Count (3), it is clear that plaintiff's entire complaint, not just the negligent infliction claim, is premised on intentional conduct. (See id. at ¶¶ 99-105, 266-267 [allegations regarding defendants' use of derogatory names toward plaintiff and his extended family before and at the wedding].) This is further confirmed by the fact that nowhere in either the first or amended complaint does plaintiff identify a duty of care that defendants owed toward him but failed to adhere. As such, this cause of action is dismissed as well. (See Trayvilla v Japan Airlines, 178 A.D.3d 746, 747 [2d Dept 2019] [affirming dismissal of negligent infliction of emotional distress and negligence where they were premised only on allegations of intentional conduct].)
The above notwithstanding, Count (1) is not time-barred. A cause of action for violating Civil Rights Law § 79-n is governed under CPLR 214 (2), which sets forth a three-year period for "an action to recover upon a liability, penalty, or forfeiture created or imposed by statute. (See CPLR 214 [2]; A.M.P. v Benjamin, 201 A.D.3d 50, 55-56 [3d Dept 2021] ["The limitation period in CPLR 214 (2) applies to 'claims which, although akin to common-law causes, would not exist but for the statute"].)
Accordingly, while Counts (3), (4), (5), (6), (8), and (9) are dismissed under CPLR 3211 (a) (5), Counts (1), (2), and (7) remain in their entirety.
Dismissal under CPLR 3211 (a) (7 )
On a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), courts afford the pleadings a liberal construction, accept the facts as alleged in the complaint as true, and give the plaintiff the benefit of every possible favorable inference. (Leon v Martinez, 84 N.Y.2d 83, 87 [1994]; JF Capital Advisors, LLC v Lightstone Group, LLC, 25 N.Y.3d 759, 764 [2015].) The court's inquiry is limited to assessing the legal sufficiency of the plaintiff's pleadings; accordingly, its only function is to determine whether the facts as alleged fit within a cognizable legal theory. (JF Capital Advisors, 25 N.Y.3d at 764; Skill Games, LLC v Brody, 1 A.D.3d 247, 250 [1st Dept 2003].)
Plaintiff's Harassment Claim
Count (2) of the complaint is dismissed as "New York does not recognize a common-law cause of action for harassment." (Garza v Nunz Realty, LLC, 187 A.D.3d 467, 467 [1st Dept 2020], quoting Edelstein v Farber, 27 A.D.3d 202, 202 [1st Dept 2006].)
Plaintiff's Civil Conspiracy Claim
Like the above claim for harassment, the Court must dismiss plaintiff's cause of action for conspiracy as "civil conspiracy is not recognized as an independent tort" in New York. (Errant Gene Therapeutics, LLC v Sloan-Kettering Inst. for Cancer Research, 174 A.D.3d 473, 474 [1st Dept 2019]; Hoag v Chancellor, Inc. 246 A.D.2d 224, 230 [1st Dept 1998] ["The allegations of a civil conspiracy, without more, does not in and of itself give rise to a cause of action. The actionable wrong lies in the commission of tortious act, or a legal one by wrongful means, but never upon the agreement to commit the prohibited act standing alone."].) Instead, the allegations charging conspiracy are deemed part of the remaining causes of action to which they are relevant, which, as discussed below, is plaintiff's Civil Rights Law § 79-n claim. (Hoag, 246 A.D.2d at 230 ["New York law permits allegations of conspiracy when they 'serve to enable a plaintiff to connect a defendant with the acts of his co-conspirators where without it he could not be implicated"].)
Plaintiff's New York Civil Rights Law 79-n Claim
Civil Rights Law § 79-n permits an individual who has been targeted based on their race, color, national origin, religion, etc., to recover for damages sustained where: (1) the defendant intentionally causes injuries to another or causes property damage or subjects another to conduct that would constitute first-degree harassment under penal law § 240.25, or (2) the defendant has summoned a police officer without reason to suspect a violation of the penal law or imminent threat to person or property. (See Civil Rights Law § 79-n [2].) In support of its position, defendants' moving papers appear to conflate plaintiff's defamation action with this claim, which seeks recovery for his emotional distress, expense, mental anguish, and loss of time with his child as distinct from any reputational harm. For example, they argue that (1) their statements are protected as opinion, meaning they cannot be subjected to liability under § 79-n (NYSCEF doc. no. 43 at 19, memo of law in support), and (2) plaintiff has not pleaded a defamation-based § 79-a cause of action with the requisite specificity as required by CPLR 3016 because the complaint relies upon hearsay and does not contain the particular words uttered (id. at 23). These arguments do not address § 79-a as a cause of action distinct from defamation. Further, if the Court accepts as true the allegations related to the events concerning defendants' calls to the NYPD on two separate occasions, which it must as they are plausibly stated among the surrounding discriminatory context, then plaintiff has sufficiently pled a § 79-a cause of action. Defendants do address the sufficiency of the cause of action in reply but only then by erroneously arguing that plaintiff must come forward, on this motion to dismiss, with "substantial credible evidence to support that claim." (NYSCEF doc. no. 85 at 23, reply memo of law.)
Throughout his reply memorandum of law, in various forms, defendants' counsel contends that the plaintiff's opposition is inadequate or insufficient to defeat this motion to dismiss because it fails to "cite to the evidence." None of his citations, however, support the proposition that a plaintiff must come forward with evidence of his own when opposing dismissal under CPLR 3211 (a) (7) for failure to state a cause of action. Every citationZuckerman v New York (49 N.Y.2d 557 [1980]), Columbia Ribbon & Carbon Mfg. Co. v A-1-A Corp. (42 N.Y.2d 496 [1977]), Doe v Intercontinental Hotels Group, PLC (193 A.D.3d 410 [1st Dept 2021])-relates to either a summary judgment motion or one based on documentary evidence. To the extent that defendants' motion is based on documentary evidence under CPLR 3211 (a) (1), they did not seek, let alone establish, that any of the exhibits submitted on this motion may be admitted as such.
Dismissal under CPLR (g) (1)
Under CPLR 3211 (g) (1), a motion to dismiss "shall be granted" where the moving party has demonstrated that the subject of the motion involves "public petition and participation" as defined by §76-a of New York's Civil Rights Law (known as New York's anti-SLAPP statute) unless the responding party "demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification, or reversal of existing law." (CPLR 3211 [g] [1].) §76-a defines an "action involving public participation" as a claim based upon "(a) (1) any communication in a place open to the public or a public forum in connection with an issue of public interest." (Civil Rights Law §76-a.) That same section requires "public interest" to be construed broadly and shall mean any subject other than a purely private matter. (Id.) Reading these two provisions together, once the defendant has established that the subject of the action is both (1) based on communications in a public forum, and (2) concerns the public interest, then the Court must switch the burden to the plaintiff to demonstrate that its claim has a substantial basis in the law. (See Karl Reeves, C.E.I. NY Corp v Associated Newspapers, Ltd., 2024 NY Slip Op 01898 at * 7 [1st Dept 2024].)
In this action, plaintiff's remaining causes of action-under Civil Rights Law §79-n and Civil Conspiracy-are not premised on communications made in a public forum concerning an issue of public interest. Defendants have not advanced an argument as to how the alleged statements made to the NYPD were in a public forum of the type recognized by New York State or Federal Courts. (See, e.g., Aristocrat Plastic Surgery, P.C. v Silva (206 A.D.3d 26, 30-31 [1st Dept 2022] [online review aggregator for plastic surgeons is public forum]; Center for Med. Progress v Planned Parenthood Fedn. of Am., 551 F.Supp.3d 320, 322 [SDNY 2021] [communications on Twitter as to civil and criminal actions pending against the plaintiff made in public forum concerning public interest issue]; Great Wall Med. P.C. v Levine (74 Misc.3d 1224 [A] at *1 [Sup. Ct. NY County 2022] [statements posted on Yelp, ZocDoc, and Facebook concerning the defendant's experience with the plaintiff's medical practice all communicated in public forum]; Nelson v Ardrey, 2024 NY Slip Op 041417 [2d Dept 2024].)
Defendants contend that they have demonstrated requisite public-forum and public-interest prongs because plaintiff "cannot escape the clear intent of the New York anti-SLAPP law that those who call law enforcement or participate in court proceeding cannot be the subject of a lawsuit for their participation." Yet this assertion is unaccompanied by a citation to the legislative record or caselaw. But even taking the argument on its face, it cannot be the basis for dismissal of the § 79-n cause of action, which explicitly provides a remedy against those "who call law enforcement" where there is no basis to believe a crime is occuring or someone is under imminent danger. As such, were the Court to hold that this action is based on public participation as defined in CPLR 3211 (g), plaintiff has demonstrated a substantial basis in law for this action.
Lastly, while it appears that the truth of defendants' statements would constitute a defense to a 79-n claim, i.e., that plaintiff did pose a danger to Jamie and CC or, at the very least, that the had a rational reason to believe this to be true, there are obviously issues of fact which preclude the Court from granting dismissal of this claim.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that defendants Kathleen D., Thomas D., and Jaclyn D.'s motion to dismiss pursuant to CPLR 3211 is granted to the extent that Counts (2) through (9) are dismissed, but otherwise denied as to Count (1); and it is further
ORDERED that the parties shall appear at 60 Centre Street, Courtroom 341 on October 22, 2024 at 9:30 a.m. for a status conference with the Court; and it is further
ORDERED that counsel for defendants shall serve a copy of this order, along with notice of entry, within ten (10) days of entry.
This constitutes the Decision and Order of the Court.