Moore v Latovitzki

[*1] Moore v Latovitzki 2008 NY Slip Op 51564(U) [20 Misc 3d 138(A)] Decided on July 10, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 10, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-1240 Q C.

Teddy Moore, Appellant,

against

Jacob Latovitzki, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered July 12, 2007, deemed from a judgment entered July 23, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 12, 2007 order denying plaintiff's motion for the entry of a default judgment and granting defendant's cross motion to dismiss, dismissed the action and awarded defendant $90 in costs.

Judgment reversed without costs, so much of the order entered July 12, 2007 as granted defendant's cross motion to dismiss the cause of action alleging breach of contract, the 3 causes of action alleging slander and the 20 causes of action alleging theft vacated and defendant's cross motion to dismiss denied as to said 24 causes of action.

The amended complaint filed by plaintiff asserted a cause of action for breach of contract, 20 causes of action for theft, 3 causes of action for slander and 17 causes of action for libel. Plaintiff sought to recover $25,000 for each of the aforementioned causes of action. Plaintiff subsequently moved to enter a default judgment, and defendant cross-moved to, inter alia, dismiss the complaint for lack of subject matter jurisdiction in that the amount sought exceeded the monetary jurisdictional limit of the court. The court denied plaintiff's motion for the entry of a default judgment and granted that branch of defendant's cross motion which sought to dismiss the complaint for lack of subject matter jurisdiction.

The New York City Civil Court Act provides that the court has jurisdiction over actions for the recovery of money where the amount sought to be recovered does not exceed $25,000 (CCA 202). Section 211 of the New York City Civil Court Act provides that "[w]here several causes of action are asserted in the complaint and each of them would be within the jurisdiction [*2]of the court if sued upon separately, the court shall have jurisdiction of the action." In his complaint, plaintiff alleged, inter alia, that defendant made a slanderous statement about him in front of others on 3 separate occasions and that defendant stole 20 pieces of mail from his mailbox on separate days. Each of the foregoing allegations stated a separate and distinct cause of action which would be within the court's jurisdiction if sued upon separately (see CCA 211). Accordingly, plaintiff's 3 causes of action for slander and 20 causes of action for theft, as well as plaintiff's cause of action for breach of contract for defendant's alleged breach of a lease agreement, did not exceed the court's monetary jurisdiction and should not have been dismissed.

However, it is well settled that a single publication of a defamatory statement, as involved herein, gives rise to only one cause of action for libel (see Firth v State of New York, 98 NY2d 365 [2002]; Gregoire v Putnam's Sons, 298 NY 119 [1948]). Therefore, the 17 causes of action for libel for defendant's alleged act of posting a sign on a building for 17 days which contained an allegedly libelous statement about him set forth facts establishing one primary right of the plaintiff and one wrong done by the defendant which involved that right (see 1 NY Jur 2d, Actions § 40; see also Payne v New York, Susquehanna & W.R.R. Co., 201 NY 436 [1911]). Since said causes of action stated but one cause of action for libel seeking damages exceeding the $25,000 monetary jurisdictional limit of the court (CCA 202), the Civil Court lacked subject matter jurisdiction over same and, as a result, plaintiff's causes of action for libel must be dismissed (see Eden v St. Luke's-Roosevelt Hosp. Ctr., 47 AD3d 443 [2008]).

In view of the foregoing, we find that plaintiff's contention on appeal, that defendant's cross motion to dismiss the amended complaint for lack of subject matter jurisdiction constituted "frivolous conduct" for which sanctions may be imposed (Rules of the Chief Administrator [22 NYCRR] § 130.1-1 [a], [b]), is lacking in merit.

Further, the court below properly denied plaintiff's application for the entry of a default judgment for defendant's failure to answer the amended complaint since plaintiff failed to present proof of valid service of the amended complaint (see CPLR 3215 [f]; Daniels v King Chicken & Stuff, Inc., 35 AD3d 345 [2006]).

Accordingly, the judgment is reversed, so much of the order entered July 12, 2007 as granted defendant's cross motion to dismiss the cause of action alleging breach of contract, the 3 causes of action alleging slander and the 20 causes of action alleging theft is vacated and defendant's cross motion to dismiss is denied as to said 24 causes of action.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 10, 2008