Jaliman v Selendy

[*1] Jaliman v Selendy 2005 NY Slip Op 50482(U) Decided on March 17, 2005 Supreme Court, Westchester County Dillon, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2005
Supreme Court, Westchester County

Michael Jaliman, Plaintiff,

against

Janine Selendy, PETER ADLER, CATHY ADLER, and MICHAEL MOREY, Defendants.



12820/04



MR. MICHAEL JALIMAN

Plaintiff Pro Se

9 Blossom Lane

Brewster, NY 10509

BETH BIRD POCKER, ESQ.

Attorney for Defendants Janine Selendy, Cathy Adler

and Michael Morey

5 Patterson Road

Pound Ridge, NY 10576-1521

MORIAN NIBLACK, ESQ.

BENJAMIN OSTRER & ASSOCIATES, P.C.

Attorneys for Defendant Peter Adler

111 Main Street

P.O. Box 509

Chester, NY 10918

Mark C. Dillon, J.

This action arises out of alleged defamatory statements against the plaintiff, Michael Jaliman ("Jaliman"), uttered by defendant Peter Adler ("Adler") at a meeting of the Beekman Democratic Committee on July 13, 2004. Jaliman was a candidate for the United States House of Representatives, 19th Congressional District, which comprises Westchester, Rockland, Putnam, Dutchess and Orange Counties or portions thereof. Adler was President of the Dutchess County Democratic Club and a member of the Dutchess County Democratic Party's Executive Committee. Defendant Janine Selendy ("Selendy") was also a candidate for the same House seat, and Jaliman and Selendy faced each other in a Democratic primary election held September 14, 2004. Defendants Michael Morey ("Morey") and Cathy Adler were the manager and deputy manager, respectively, of the Selendy campaign. Peter and Cathy Adler are husband and wife.

FACTS

In the Spring of 2004, Adler, in his capacity as a member of his party's County Executive Committee, interviewed the plaintiff in connection with his interest in running for Congress. The conversation addressed a variety of issues. According to Adler, Jaliman stated during the meeting that he had espoused communist or socialist principles during his youth. Jaliman denies any affiliation with the Communist Party or with espionage activities. See, Plaintiff's Affidavit in Opposition, para 85. Adler formed an opinion as a result of this meeting that Jaliman lacked core convictions, would agree with a speaker on anything said, and did not fully appreciate the boundaries between federal and local issues. Adler encouraged Jaliman to consider running, instead, for the State Assembly and suggested that he [Jaliman] should gain more familiarity with local democratic politics.

Adler claims that on July 11, 2004, he found on his doorstep an envelope left by an anonymous source containing handwritten notes, photographs and information that purportedly involved Jaliman. A portion of the information suggested a possible connection between Jaliman, Rafidian Partners, L.P. and one of its partners, Mr. Chalabi. There were similarities between the information and the well-known figure, Ahmad Chalabi of the Rafidian Bank, who has been charged with the embezzlement of three million ($3,000,000) dollars of bank funds and who, more recently, has been accused of forwarding intelligence secrets to Iranian authorities. [*2]

On July 13, 2004, the Beekman Democratic Committee conducted, inter alia, a closed session of its membership. It included discussion of the party's candidates for the

19th District House seat occupied then, and now, by Republican Representative Sue Kelly. During that meeting, Adler summarized his views of the plaintiff and his preference for the Congressional candidacy of Selendy. In particular, Adler stated that Jaliman lacked knowledge of certain issues; molded viewpoints to suit the audience; had espoused communist or socialist principles in his youth; and according to documents anonymously-received, was possibly connected with Rafidian Partners, L.P. and someone named Chalabi. Adler conveyed conflicted information as to whether Jaliman was Buddhist,

Muslim or Jewish. Adler maintains that all of his comments were qualified as his impressions or were derived from documents, the accuracy of which were not confirmed.

Jaliman learned of Adler's comments through a third person present at the meeting of the Beekman Democratic Committee. The plaintiff's amended complaint alleges that the disputed utterances were never subject to qualifiers.

On August 8, 2004, the plaintiff issued the first of various press releases addressing what had transpired the previous month at the Beekman Democratic Committee meeting. The plaintiff's own press releases brought issues regarding his religion, background, affiliations, citizenship and political leanings to the broader public's attention. These press stories, which consisted of a challenge to ballot petitions in Supreme Court, Putnam County under Index No. 1140/04 (Rooney, A.J.S.C.), a federal law suit over redistricted boundaries (Jaliman v. Pataki, Docket No. 04 Civ. 7977 (S.D.NY 2004) (Robinson, J.)), the plaintiff's failure to timely file financial disclosures required by the Federal Election Commission ("FEC"), and the commencement of the instant litigation, all rendered the plaintiff's congressional campaign unusually controversial.

This action was commenced by the filing of a summons with notice and complaint on August 20, 2004 and an amended complaint dated September 15, 2004. By his complaint and amended complaint, the plaintiff alleges that he was defamed by Adler stating that he [Jaliman] was a communist, an affiliate of the notorious Ahmad Chalabi, an Iranian, and that he presented himself to different audiences as Orthodox Jew, Buddhist and Muslim. It is further alleged that the statements were uttered "at the direction, and/or behest, of the Janine Selendy campaign," presumably defendants Selendy, Cathy Adler and Morey.

The defendants deny liability in their answers and amended answers, and interposed counterclaims against the plaintiff for libel and malicious prosecution. [*3]

By Order To Show Cause filed August 20, 2004, the plaintiff sought an injunction against the defendants from reiterating the alleged defamatory statements. A Temporary Restraining Order ("TRO") was denied by the assigned Justice (Smith, J.), who thereafter conducted a six (6)-hour evidentiary hearing on September 8, 2004 on the requested preliminary injunction. Justice Smith found, at the conclusion of the hearing, that the plaintiff had failed to make the necessary showing of irreparable harm, likelihood of success on the merits, and a tipping of equities in his favor, and consequently, a preliminary injunction was denied. Sanctions were requested by the defendants, which Justice Smith denied without prejudice pending the outcome of the action.

Jaliman defeated Selendy in the Democratic Party primary conducted

September 14, 2004 by an approximate margin of sixty (60%) percent to forty (40%)

percent. Jaliman was thereafter defeated by incumbent Congresswoman Sue Kelly in the general election conducted November 2, 2004, by a wide margin.

By notice motion, defendant Adler seeks an Order pursuant to CPLR Rule 3212 granting Summary Judgment and awarding sanctions and/or counsel fees. Defendants Cathy Adler and Morey support the application. Defendant Selendy seeks the same relief but also cross-moves for Summary Judgment on her counterclaim. The plaintiff opposes all of the applications. The bases for Summary Judgment involve the plaintiff's alleged failure to exhaust administrative remedies under 9 N.Y.C.R.R. §6201.3, qualified privilege, the absence of evidence of actual malice, and the lack of special damages. By cross-motion untimely filed (CPLR §2214), the plaintiff seeks an Order awarding Summary Judgment dismissing the defendants' counterclaims and awarding legal fees, which shall be addressed on the merits given the plaintiff's pro se status.

CONCLUSIONS OF LAW

Summary Judgment is designed to expedite all civil cases by eliminating claims which can properly be resolved as a matter of law. Andre v. Pomeroy, 35 NY2d 361, 364 (1974). It is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues. Kolivas v. Kirchoff, 2005 NY Slip. Op. 00132, 2004 WL 3087868 (2nd Dept. 2005). The parties seeking Summary Judgment have the burden of tendering evidentiary proof in a form admissible at trial to show that they are entitled to Summary Judgment as a matter of law. Friends of Animals v. Association of Fur Manufacturers, 46 NY2d 1065 (1979); Khagahn v. Rye Town Park Commission, 8 AD3d 447 (2nd Dept. 2004). Upon establishing a prima facie entitlement to Summary Judgment, the burden then shifts to the opposing party to demonstrate by evidentiary facts that genuine issues of fact exist to preclude Summary Judgment. Alvarez v. Prospect Hospital, et. al., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d [*4]557, 562 (1980); Indig v. Finkelstein, 23 NY2d 728 (1968); Burns v. City of Poughkeepsie, 293 AD2d 435 (2nd Dept. 2002). In assessing the record "all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion and all doubts as to the existence of a genuine

issue for trial should be resolved against the moving party." Demarco v. Bansal, 826 F. Supp. 785 (S.D.NY, 1993) (applying New York law), quoting Brady v. Town of Colchester, 863 F.2d 205, 210 (2nd Cir. 1988).

Notwithstanding the general proposition that the ultimate resolution of actions is best left to the trier of fact, mere conclusory and unsubstantiated assertions not supported by competent evidence are insufficient to defeat a motion for Summary Judgment. Zuckerman v. City of New York, 49 NY2d 557 (1980); Bullard v. Bender, 251 AD2d 526 (2nd Dept. 1998). Thus, a party opposing a Summary Judgment motion must assemble and lay bare affirmative proof to demonstrate that genuine triable issues of fact exist. Hoot Group, Inc. v. Caplan, 9 AD3d 448 (2nd Dept. 2004); Nel Taxi Corp. v. Eppinger, 203 AD2d 438 (2nd Dept. 1994). The issue must be shown to be real, not

feigned, since sham or frivolous issues will not preclude Summary Judgment. Sprung v. Jaffe, 3 NY2d 539 (1957).



Exhaustion of Administrative Remedies

Defendants argue that Summary Judgment should be granted and the plaintiff's complaint dismissed as Jaliman failed to exhaust administrative remedies required of him under Election Law §§3-103 and 3-106 and 9 N.Y.C.R.R. §6201.1, et. seq.

Election Law §3-103 vests authority in the state's Board of Elections. Section

3-106 (1) directs the Board of Elections to adopt a "fair campaign code" setting forth ethical standards of conduct for persons, political parties and committees engaged in elections. The fair campaign code is embodied at 9 N.Y.C.R.R. §6201.1. The Board of Elections, at its own initiative or upon complaint, may investigate alleged violations of the code (Election Law §3-106 (3)), and upon finding that a violation occurred, impose civil penalties not exceeding one thousand ($1,000) dollars. Election Law §3-106 (4).

Defendants maintain that the plaintiff failed to exhaust these available remedies in that no written complaint was filed with the Board of Elections, and that the Court therefore lacks subject matter jurisdiction to hear the action. Jaliman maintains that he spoke on August 17, 2004 with Stanley Zalen of the Board of Elections, who dissuaded him from pursuing further complaint with the Board.

The plaintiff's failure to file a written complaint with the Board of Elections in [*5]pursuit of administrative remedies under the fair campaign code is not fatal to his cause of action for defamation. Seltzer v. Orlando, 225 AD2d 456, 457 (1st Dept. 1996), lv. to app. den., 88 NY2d 813 (1996), app. den., 88 NY2d 919 (1996). While administrative remedies must first be exhausted in certain areas of electioneering, such as from the dissemination of fraudulent campaign literature (Austin v. Delligatti, 137 Misc 2d 530 (Sup. Ct., Nassau Co. 1987)), there is no legal authority that the right to sue for an independent tort, such as defamation, is subsumed by the Election Law. Accord, Giannelli v. St. Vincent's Hospital and Medical Center of New York, 160 AD2d 227, 230 (1st Dept. 1990) (common law right to damages for defamation not abridged by administrative remedies available to physicians by the Public Health Council under the Public Health Law).

Whether The Alleged Statements Are Slander Per Se

The defendants argue that Summary Judgment is warranted in their favor as the plaintiff won the Democratic Party primary held September 14, 2004, and that the plaintiff is therefore unable to prove the necessary element of special damages. The plaintiff maintains that the alleged defamatory utterances constitute slander per se so that special damages need not be proven.

The plaintiff's complaint and amended complaint describe damage to his "good name, reputation and credit" in an "amount to be determined at trial." No pecuniary damages are set forth as would meet the specific pleading requirements for defamation claims under CPLR Rule 3016 (a). Thus, if the alleged utterances are slanderous per se, the plaintiff's pleading is sufficient; if the alleged utterances are not slanderous per se, special damages must be specifically alleged and ultimately proven. Ruder & Finn Incorporated v. Seaboard Surety Company, 52 NY2d 663, 669 (1981); Drug Research

Corporation v. Curtis Publishing Company, 7 NY2d 435, 440 (1960); Chiavarelli v. Williams, 256 AD2d 111, 113 (1st Dept. 1998).

Slander per se, for which special damages need not be pleaded or proven, is limited to four categories of statements; namely, 1) that the plaintiff committed a crime, 2) that the statement tends to injure the plaintiff's business, trade or profession, 3) loathsome disease, or 4) unchastity imputed to a woman. Matherson v. Marchello, 100 AD2d 233, 236 (2nd Dept. 1984). The plaintiff argues that the first two categories have been made relevant here. The Court disagrees.

Assuming that all statements were uttered by Adler as alleged and without qualifiers, it is not a crime to be a member of the communist party. Courts have held that accusations of communist affiliations do not constitute slander per se as injurious to a business, trade or profession. See, Nadrowski v. Wazeter, 23 NY2d 899, 900 (1969); [*6]Gurther v. Union Parts Manufacturing Co., 285 A.D.643, 648 (1st Dept. 1955), aff'd.,

1 NY2d 5 (1956). The plaintiff's candidacy for Congress is not even a business, trade, or profession, but instead represents a mere time-limited avocation and potential career as a public servant. The plaintiff's actual business, trade and profession is in the field of organizational consulting for which any communist affiliation is not incompatible with the proper conduct of such a business. Golub v. Enquirer/Star Group, Inc., 89 NY2d 1074, 1076 (1997).

Nor is it slanderous per se to accuse an individual of being a business partner of Ahmed Chalabi or affiliated with a Rafidian Bank entity. Such a partnership would not be a crime and is not specific to or injurious of the plaintiff's business, trade or profession as an MBA-trained organizational consultant.

The plaintiff alleges in his pleadings that he was described by Adler as a "complete fraud, a Moslem representing himself as a Jew, and . . . an Iranian national." See, plaintiff's complaint, para 3 and amended complaint, para. 5. Certainly, there is no crime in being Moslem, or Jewish, or of Iranian heritage. It does not harm one's business, trade or profession as an organizational consultant to allegedly belong to either religion or to be of Iranian background.

The essence of the alleged religious-based statements, stemming from confusion over the plaintiff's religious and ethnic background, is in the nature of Adler's opinion that Jaliman was a "fraud." Whether particular words are defamatory presents a legal question to be resolved by the Court in the first instance. Golub v. Enquirer/Star Group, Inc., supra, at 1076; Weiner v. Doubleday & Company, Inc., 74 NY2d 586, 592 (1990). Expressions of opinion, even if false or inaccurate, are constitutionally protected and not subject to private action for defamation. Steinhilber v. Alphonse, 68 NY2d 283, 286 (1986). Adler's comment that the plaintiff is a fraud by presenting himself differently to different groups is mere opinion expressed in normal parlance and is not actionable, even if the opinion is unfounded. Id.

The plaintiff has not alleged, and he does not argue in his submissions, that he incurred pecuniary damages in the form of his loss in the general election.

No other defamatory statements are specifically attributed to Adler in the complaint and amended complaint. Since none of the allegations against Adler rise to the level of slander per se, and since special damages are not plead, the plaintiff's pleadings as to Adler are deficient and must be dismissed. Liberman v. Gelstein, 80 NY2d 429, 434-35 (1992); Aronson v. Wiersma, 65 NY2d 592, 594 (1985). The Court is not inclined to permit the plaintiff leave to further amend his complaint (CPLR §3025) as the [*7]arguments in his papers make clear that he has incurred no pecuniary damages, and in fact, handily won his party's nomination despite several well-publicized controversies. Any potential further amendment to the complaint would therefore lack sufficient merit. Sunrise Plaza Associates, L.P. v. International Summit Equities Corp., 228 AD2d 300 (2nd Dept. 2001); Intagliata v. Peele Company, 227 AD2d 450 (2nd Dept. 1996). To the extent the plaintiff could conceivably argue that the alleged defamatory statements caused his defeat in the general election, such an assertion would constitute nothing more than impermissible speculation, guess or surmise insufficient to defeat an otherwise meritorious motion and cross-motion for Summary Judgment. Ramsay v. Mary Imogene Bassett Hospital, 158 AD2d 754, 755-56 (3rd Dept. 1990), app. den., 76 NY2d 702 (1990); SRW Associates v. Bellport Beach Property Owners, 129 AD2d 328, 332 (2nd Dept. 1987).

The re-publication of the alleged defamation in newspapers circulated among the general public causes no different result. Press attention to the plaintiff's political, ethnic and religious background was generated by the plaintiff's issuance of several press releases in August and September of 2004, by which the plaintiff self-publicized the very statements which he now claims damaged his reputation. The plaintiff's repeated self-publications of alleged defamatory material is most curious, perhaps even bizarre. Using self-generated press accounts as evidence of damaged reputation is even less tenable. New York does not recognize a cause of action for defamatory words that are voluntarily re-published by the plaintiff himself. Wieder v. Chemical Bank, 202 AD2d 168, 170 (1st Dept. 1999), lv. to app. den., 83 NY2d 759 (1994); Weintraub v. Phillips, Nizer, Benjamin, Krim & Ballon, 172 AD2d 254, 255 (1st Dept. 1999).

Qualified Immunity Afforded to Political Committees

The utterances alleged by the plaintiff were made at a closed-door portion of a meeting of the Beekman Democratic Committee. As a general rule, communications made on any subject matter in which the party communicating has an interest or duty is qualifiedly privileged if made to a person having a corresponding interest or duty, even if containing incriminating matter that would otherwise be defamatory. Liberman v. Gelstein, supra, at 439 (1992). Examples of common interest communications, as identified in Liberman v. Gelstein, include those between co-employees (Loughry v. Lincoln First Bank, 67 NY2d 369, 376 (1986)), members of faculty tenure committees (Stukuls v. State of New York, 42 NY2d 272, 279-80 (1977)), and member physicians of a health insurance plan (Shapiro v. Health Insurance Plan of Greater New York, 7 NY2d 56, 60 (1959)). A qualified privilege, where applicable, can be pierced by a plaintiff's showing of actual malice. Prozeralik v. Capital Cities Communications, Inc., 82 NY2d 466, 474 (1993); Stillman v. Ford, 22 NY2d 48, 53 (1968). [*8]

The various political parties typically use committees to assess and select individuals as political candidates and potential public officeholders. The functions performed by all political committees are noble and necessary. Members of such committees must feel free to speak candidly with colleagues regarding the strengths, weaknesses and suitability of potential candidates for public office. The need for candor among persons involved in the candidate selection process has given rise to the "public official rule," which protects the public interest in having a free flow of information regarding public officials. See, Garrison v. Louisiana, 379 U.S. 64, 77 (1964). Persons who wish to be candidates for public office fall within the scope of the "public official rule." McGowen v. McDermott, 47 AD2d 657, 658 (2nd Dept. 1975), aff'd., 38 NY2d 953 (1976).

The McGowen v. McDermott action is instructive. A candidate for school board had represented to a nominating committee that she had voluntarily left a teaching position, and the candidate received the committee's endorsement. Thereafter, the committee's chairman reported to his colleagues that he had learned that the candidate had been asked to leave the former teaching position, resulting in the committee's withdrawal of its endorsement. The candidate commenced a defamation action against the committee's chairman, which was later dismissed in the absence of evidence of actual malice necessary to circumvent qualified privilege. The Appellate Division described the chairman's conduct and statements as a "proper regard for the conscientious discharge of duty." McGowan v. McDermott, supra, at 658.

There does not appear to be any reported case specifically addressing whether a political party's candidate-screening procedure is subject to qualified immunity. The McGowen case, involving school board endorsements, comes the closest. This Court holds that the statements uttered during the closed-door session of the Beekman Democratic Committee, and during sessions of similarly-constituted committees of political parties, enjoy a qualified privilege from liability for defamation, absent evidence of actual malice. A recognition of qualified immunity furthers the purpose behind the "public official rule." Thus, for Summary Judgment to be defeated, there must be evidence raising at least a question of fact that the utterances were a product of actual malice.

The Plaintiff's Status as a "Public Figure"

If the plaintiff was a "public figure" at the time of the alleged defamatory statements, then anything said of him is subject to qualified privilege unless motivated by actual malice. Sweeney v. Prinsoners' Legal Services of New York, Inc., 84 NY2d 786, 792 (1995); Toker v. Pollack, 44 NY2d 211, 219 (1978); Stillman v. Ford, supra, at 53 (1968). [*9]

Public figures are defined as persons who have assumed roles of special prominence in the affairs of society. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). The essential element is whether the publicized person has taken affirmative steps to attract public attention. James v. Gannett Co., Inc., 40 NY2d 415, 422 (1976). Under certain circumstances, the issue of whether a particular person is a "public figure," to trigger the need for proof of actual malice, is a question of fact. See, Maule v. NYM Corporation, 54 NY2d 880, 882 (1981). Where facts of a plaintiff's status are not in dispute, the court may determine whether a plaintiff is a public figure as a matter of law. Rosenblatt v. Baer, 783 U.S. 75 (1966); O'Neil v. Peekskill Faculty Association, 120 AD2d 36, 43 (2nd Dept. 1986), app. dism'd., 69 NY2d 984 (1987); Dattner v. Pokoik, 81 AD2d 572, 573 (2nd Dept. 1981), app. dism'd., 54 NY2d 750 (1981). Here, documentary evidence that is not in dispute establishes that Jaliman's petitions to appear on the ballot for the 19th District congressional seat were circulated and signed by voters as early as July 7, 2004. The circulation of nominating petitions on July 7, 2004 is an affirmative step by the plaintiff that transformed him, by that time, into a public figure as a matter of law, continuing when the defamation allegedly occurred on July 13, 2004. Moreover, in early August 2004, the plaintiff thrust himself into the public spotlight when he issued his own press releases. See, Blum v. State, 255 AD2d 878 (4th Dept. 1998), lv. app. den., 93 NY2d 802 (1999).

Actual Malice

Since statements at the Beekman meeting are subject to qualified privilege, and since the plaintiff is deemed to be a public figure, as a matter of law, all roads lead to the issue of actual malice.

Malice is defined as actual knowledge by the speaker of the statement's falsity or reckless disregard for the truth. New York Times Company v. Sullivan, 376 U.S. 254, 279-80 (1964). Actual malice turns upon the speaker's state of mind, which is often not amenable to Summary Judgment (Rinaldi v. Viking Penguin, Inc., 52 NY2d 422, 437-438 (1981); Gaeta v. New York News, Inc., 62 NY2d 340, 350 (1984); Arrigoni v. Valella, 110 AD2d 601, 604 (1st Dept. 1985)) and which instead is a jury question. Hamilton v. Eno, 81 NY2d 116, 129-30 (1880); Petrus v. Smith, 91 AD2d 1190, 1191 (4th Dept. 1983). However, actual malice cannot be demonstrated by speculation, surmise, conjecture and suspicion (Shapiro v. Health Insurance Plan of Greater New York, supra, at 60; Kasachkoff v. The City of New York, 107 AD2d 130, 135 (1st Dept. 1985), app. dism'd, 65 NY2d 722 (1985), app. dism'd., 67 NY2d 645 (1986), aff'd., 68 NY2d 654 (1986)) nor by mere conclusory or unsubstantiated allegations or assertions. Dano v. Royal Globe Insurance Company, 59 NY2d 827, 829 (1983); Kasachkoff v. The City of New York, supra, at 60. The issue on a motion for Summary Judgment is whether the plaintiff can establish with convincing clarity that the defendant knew statements were [*10]false. Anderson v. Liberty Lobby, 477 U.S. 242, 255-56 (1986); Goldblatt v. Seaman, 225 AD2d 585, 586 (2nd Dept. 1996).

The mere falsity of a statement is insufficient to establish an inference of actual malice (Kasachkoff v. The City of New York, supra, at 135-36, citing Ashcroft v. Hammond, 197 NY 488, 496 (1910)), unless the statement be so extravagant in its denunciations or so vituperative in character as to justify an inference of malice. Id., at 136; Toker v. Pollack, supra, at 219.

Here, the plaintiff provides no affidavit from any person actually present at the Beekman Democratic Committee meeting. The plaintiff proffers no evidence of actual malice on the part of any defendant, and instead relies upon insufficient speculation, conjecture, surmise, suspicion, and unsubstantiated or conclusory assertions. The plaintiff's reliance upon what is "plausible" is insufficient. Further, the statements themselves are not so extravagant or vituperative as to evidence actual malice or an inference thereof, given the context and purpose of the Beekman Democratic Committee meeting at which the statements were made. Actual malice is not demonstrated, despite a six (6)-hour hearing conducted in connection with the plaintiff's earlier application for a preliminary injunction.

Defendants Selendy, Morey and Cathy Adler

The plaintiff's pleadings are very specific in attributing the "primary" defamatory utterances solely to Peter Adler. Selendy, Morey and Cathy Adler are named as defendants by the allegation that the defamation was uttered "at the direction, and/or behest, of the Selendy campaign." See, plaintiff's amended complaint, paras. 4 and 6. Thus, Jaliman seeks to vicariously or inferentially impute liability for Peter Adler's statements to Selendy, Morey and Cathy Adler.

It is not alleged that Peter Adler was employed by the Selendy campaign. As such, vicarious liability on a theory of respondeat superior cannot be imputed to Selendy, Morey or Cathy Adler. Loughry v. Lincoln First Bank, N.A., 67 NY2d 369, 376 (1986);

Sanderson v. Bellevue Maternity Hospital, Inc., 259 AD2d 888, 891-92 (3rd Dept. 1999); Murray v. Watervliet City School District, 130 AD2d 830, 831 (3rd Dept. 1987).

In the absence of vicarious liability, the plaintiff's defamation claims against Selendy, Morey and Cathy Adler depend upon the inference, drawn by the plaintiff, that the statements were coordinated by and among all defendants. The plaintiff's "evidence" consists of the marriage between Peter and Cathy Adler; Cathy Adler's role as deputy manager of the Selendy campaign; the chain of command between Cathy Adler and manager Morey; and the chain of command between the campaign's management team [*11]and Selendy.

In his submissions, Jaliman states that "opposition research" was conducted by "Adler or others on the Selendy campaign" (plaintiff's affidavit in opposition, para. 42) (emphasis added)), without stating precisely who conducted the research. Jaliman therefore argues that it is "plausible" that opposition research would be shared among the defendants, and further, that the defendants cannot credibly deny discussion of the alleged defamatory material with each other before Adler made his remarks to the Beekman Democratic Committee. Id., at paras. 42-44.

The plaintiff confuses "plausibility" with "evidence." Defendants Selendy, Morey and Cathy Adler meet their initial burden on Summary Judgment, that they not be held liable as a matter of law for the utterances of another person. The marital relationship between Peter and Cathy Adler does not in and of itself permit an inference that one acted as the agent of the other. Four Winds Hospital v. Keasbey, 92 AD2d 478, 479 (1st Dept. 1983), aff'd. as modified, 59 NY2d 943 (1983). Moreover, the plaintiff's argument that there was collusion between all defendants to defame him, as a matter of tactic and strategy, is in the nature of civil conspiracy, which is not recognized as a compensable tort in New York. Alexander & Alexander of New York, Inc. v. Fritzen, 68 NY2d 968, 969 (1986); Ward v. City of New York, ___ AD2d ___ (2nd Dept. Feb. 7, 2005), 2005 WL 301160; Pappas v. Passias, 271 AD2d 271, 272 (2nd Dept. 2000). The liability of defendants Selendy, Cathy Adler and Morey stands or falls with the underlying defamation claim. Ward v. City of New York, supra; Sokol v. Addison, 293 AD2d 600, 601 (2nd Dept. 2002)), which cannot stand absent their uttering statements themselves.

In any event, the plaintiff fails to meet his burden, which shifts to him, of providing any evidence whatsoever that Adler's remarks to the Beekman Democratic Committee were coordinated among the defendants. Instead, the plaintiff speaks to what might be plausible, which is the language of impermissible speculation, conjecture, guess and surmise. Accord, Ramsay v. Mary Imogene Bassett Hospital, supra, at 755-56; SRW Associates v. Bellport Beach Property Owners, supra, at 332. Accordingly, Summary Judgment is awarded in favor of defendants Selendy, Morey and Cathy Adler.

The plaintiff's amended complaint sets forth for the first time a grab bag of alleged defamatory statements attributed to defendants Selendy, Cathy Adler and Morey. These include allegations that Jaliman was described as "crazy," that he spread untruths, failed to vote in a prior election, was a "puppet," and had otherwise engaged in electoral fraud that became the subject matter of ballot challenges litigation in Supreme Court, Putnam County. [*12]

All of the "additional" allegations of slander contained in the plaintiff's amended complaint must be dismissed. CPLR Rule 3212 (g). The amended complaint fails to set forth the particularity required by CPLR Rule 3016 (a) to state a cause of action. Specifically, the amended complaint fails to state dates, times, places and the manner of any of the additional statements (Lesesne v. Lesesne, 294 AD2d 507, 508 (2nd Dept. 2002); Sirianni v. Rafaloff, 284 AD2d 447, 448 (2nd Dept. 2001); Grynberg v. Alexanders, Inc., 133 AD2d 667, 668 (2nd Dept. 1987), app. den., 70 NY2d 616 (1988), rearg. den., 71 NY2d 994 (1988)), or in certain instances the precise words alleged (Varella v. Investors Insurance Holding Corp., 185 AD2d 309, 310 (2nd Dept. 1992), lv. to app. granted, 80 NY2d 762 (1992), aff'd., 81 NY2d 958 (1993), rearg. den., 82 NY2d 706 (1993); Erlitz v. Segal, Lilling &. Erlitz, 142 AD2d 710, 712 (2nd Dept. 1998)), the identity of the specific persons to whom the statements were uttered (Simpson v. Cook Pony Farm Real Estate, Inc., 12 AD3d 496 (2nd Dept. 2004); Gill v. Pathmark Stores, Inc., 237 AD2d 563 (2nd Dept. 1997); Arsenault v. Forquer, 197 AD2d 554, 556 (2nd Dept. 1993)), and specifies no special damages. Moreover, the "additional" slander allegations appear to constitute, in the context uttered, rhetorical, loose, figurative or hyperbolic speech that is not actionable. Accord, Falk v. Anesthesia Associates of Jamaica, 228 AD2d 326, 328 (1st Dept. 1996); Chernick v. Rothstein, 204 AD2d 508, 509 (2nd Dept. 1994); Bryant v. Kinder, 204 AD2d 377, 378 (2nd Dept. 1994).

The Application for Monetary Sanctions

All defendants seek an Order imposing monetary sanctions. 22 N.Y.C.R.R.

§130-1.1 (a) and (c) provide that courts may sanction parties that engage in "frivolous conduct." Conduct is frivolous if, inter alia, it is completely without merit in law and cannot be supported by reasonable arguments for an extension, modification or reversal of existing law, or if it is undertaken primarily to harass or maliciously injure another.

22 N.Y.C.R.R. §130-1.1 (c) (1) and (c) (2).

The imposition of sanctions, if any, depends upon the facts and circumstances of the individual case. Sanctions have been imposed in defamation actions where it is determined that the existence of privilege rendered the action legally meritless (Hirschfeld v. Daily News, L.P., 269 AD2d 248, 250 (1st Dept. 2000), lv. to app. den., 271 AD2d 386 (2000); Carniol v. Carniol, 288 AD2d 421, 422 (2nd Dept. 2001)) or where the action was undertaken for the purpose of harassment. See, Carniol v. Carniol, supra, at 422. Conversely, sanctions will not be imposed in unsuccessful defamation actions which were arguable and not frivolous. Gelmin v. Quicke, 224 AD2d 481, 484 (2nd Dept. 1996); Hammer v. Berg, 193 AD2d 716, 717-18 (2nd Dept. 1993).

The Court views the issue of sanctions differently as to defendant Peter Adler from defendants Selendy, Cathy Adler and Morey. The claim against Peter Adler, while [*13]perilously close to being frivolous, nevertheless raised sufficient questions as to qualified privilege, the plaintiff's status as a public figure, the nature and intent of statements, and actual malice. Sanctions are therefore not appropriate in favor of Peter Adler, who actually spoke the primary alleged defamatory words.

The same cannot be said, however, as to the remaining defendants. Selendy, Cathy and Morey were initially sued for alleged defamatory words that none of them ever uttered. The plaintiff's claim to damages was based upon speculation and conjecture rather than upon actual evidence. The speculation and conjecture was premised upon a de facto civil conspiracy amongst all the defendants for the plaintiff to be defamed, even though civil conspiracy is not itself recognized as a tort in New York. Alexander & Alexander of New York, Inc. v. Fritzen, supra, at 969; Ward v. City of New York, supra; Pappas v. Passias, supra, at 272.

The plaintiff's complaint lacked, at all times, even threadbare merit as to defendants Janine Selendy, Cathy Adler and Michael Morey. Given the absence of merit, the litigation against them can only be explained as having been motivated by the desire to harass the defendants. The plaintiff has improperly usedindeed, abusedthe good auspices of the court for the purpose of grinding a political axe. The prior assigned Justice warned the plaintiff on September 8, 2004, when the injunction hearing was held, that sanctions would be considered if the law suit was continued and if circumstances

warranted the imposition of monetary penalties. The plaintiff failed to heed the warning of the court and has continued grinding his axe.

The plaintiff's intent to harass defendants Janine Selendy, Cathy Adler and Michael Morey is further evidenced by the manner in which he has simultaneously used the alleged statements to affirmative advantage. The plaintiff issued press releases on multiple occasions self-publicizing the utterances that he now describes as damaging to his reputation. At approximately the same time, he commenced litigation claiming general damages in an effort, early on, to obtain an injunction against the defendants from further negative utterances prior to his primary and general election.

Courts should not be used by candidates for public office as a political campaign tool. It was declared long ago that the right of free speech is not absolute, and a person falsely shouting fire in a theater, creating a panic, would not be protected by the First Amendment. Schenck v. United States, 249 U.S. 47, 39 (1919) (Holmes, J.). However, the right to free and open political discourse must always be jealously guarded. Efforts to muzzle any individual's right to speak, in the context of a political campaign or nominating procedure, is chilling and dangerously totalitarian, particularly if directed against persons who were initially accused of having actually said nothing as were [*14]Selendy, Cathy Adler and Morey.

22 N.Y.C.R.R. §130-1.1 (a) provides that sanctions may take the form of reimbursement of another party's reasonable attorneys' fees. An award of reasonable attorneys' fees appears in this instance to be the most just measure of addressing the plaintiff's frivolous conduct while compensating the defendants for expenses they legitimately incurred in responding to this litigation.

The submissions of defense counsel do not include billing statements or other evidence on which the amount of counsel fees can be determined. In any event, the plaintiff has the right to be heard as to what amount is "reasonable." It is the intention of the Court to award defendants Selendy, Cathy Adler and Morey the full amount of reasonable attorneys' fees, costs and disbursements incurred during the litigation from its inception through and including the next wave of submissions on which counsel fees are determined. However, a modest downward adjustment to the full amount is appropriate to account for attorneys' fees incurred that are specific to the assertion of counterclaims.

Cross-Motion for Summary Judgment on Counterclaim

Defendants Selendy, Cathy Adler and Morey seek an Order pursuant to CPLR Rule 3212 granting Summary Judgment on their counterclaims asserted in their amended answers to the plaintiff's amended complaint, all dated October 4, 2004.

Each of these three defendants assert an almost identically-worded counterclaim. They allege that the plaintiff knowingly and willfully filed a frivolous and false defamation action with malicious and political intent. It is further alleged that the plaintiff's action impugned the defendants' reputation for honesty and integrity in their professional and political arenas. The ad damnum clauses each seek five hundred thousand ($500,000) dollars in general damages and an award of attorneys fees.

The submission of defendants' counsel construes the counterclaims as seeking the imposition of sanctions for frivolous conduct. Summary Judgment must be technically denied as New York does not recognize an independent cause of action for sanctions. Osborn v. Wemer, N.Y.L.J. Oct. 14, 2003, p. 20, col. 3 (Sup. Ct., Westchester Co. 2003) (Dillon, J.), citing, Yankee Trails, Inc. v. Jardine Insurance Brokers, Inc., 145 Misc 2d 282, 283 (Sup. Ct., Rensselaer Co. 1989) and King Enterprises, Ltd. v. Mastro, 2001

W.L. 1328712 (NY City Civ. Ct. 2001). In any event, an application for sanctions has been independently granted, supra.

To the extent that the counterclaims may be construed as alleging defamation by [*15]the plaintiff resulting in damage to the defendants' reputations, Summary Judgment must be denied as the allegations are not pleaded with the particularity required by CPLR Rule 3016 (a). Ott v. Automatic Connector, Inc., 193 AD2d 657 (2nd Dept. 1993), Horowitz v. Aetna Life Insurance, 148 AD2d 584, 586 (2nd Dept. 1989); Monsanto v. Electronic Data Systems Corporation, 141 AD2d 514, 516 (2nd Dept. 1988). Pursuant to CPLR Rule 3212 (g), any counterclaim for defamation is dismissed.

The counterclaims might alternatively be viewed under liberal notice pleading as alleging abuse of process. Decisional authorities require that any such claim be pleaded with particularity, which is lacking here. Jaroslawicz v. Cohen, 12 AD2d 160 (1st Dept 2004). In any event, the undisputed facts of this action cannot legally support a claim for abuse of process. Its elements are 1) regularly issued civil or criminal process, 2) with an intent to do harm without excuse or justification, and 3) the use of the process in a perverted manner to obtain a collateral objective. Board of Education of Farmingdale Union Free School District v. Farmingdale Classroom Teachers Association, Inc., Local 1889, AFT-CIO, 38 NY2d 397, 403 (1975). While these elements might, at first blush, appear to fit the facts as found by the Court, abuse of process pertains to the improper use of process after its issuance and does not apply where, as here, it is alleged that a party acted maliciously [or frivolously] in bringing the action in the first instance. Curiano v. Suozzi, 63 NY2d 113, 117 (1983); Hauser v. Bartow, 273 NY 370, 373 (1937).

Likewise, if the counterclaims are viewed as alleging the "catch-all" of prima facie tort, Summary Judgment is warranted as there is no allegation or proof of special damages. Friehofer v. Hearst Corporation, 65 NY2d 135, 142-43 (1985); Vigoda v. DCA Productions Plus Inc., 293 AD2d 265 (1st Dept. 2002).

The defendant's counterclaims cannot be viewed as seeking damages for malicious prosecution, as a necessary element of such a claim is the existence of an underlying criminal proceeding (see, Hollender v. Trump Village Cooperative, Inc., 58 NY2d 420, 425 (1983); Martin v. City of Albany, 42 NY2d 13, 16 (1977)), which is lacking here.

Accordingly, the counterclaims of defendants Selendy, Cathy Adler and Morey raise no compensable claims and are therefore dismissed.

Dismissal of Adler's Counterclaim for Libel

By cross-motion, the plaintiff seeks dismissal of all counterclaims on the ground that none state a cause of action. Many of the plaintiff's arguments as to defendants Selendy, Cathy Adler and Morey are mooted by the Court's dismissal of their counterclaims. Plaintiff pro se seeks dismissal of Adler's counterclaim of libel, arguing a "litigation privilege." There is, of course, a privilege that attaches to statements uttered [*16]during court proceedings (Levy v. State of New York, 58 NY2d 733, 734 (1982); Toker v. Pollack, supra, at 220), but here, the counterclaim is addressed to press statements and

e-mails by the plaintiff prior to or outside of the judicial proceeding itself. The plaintiff's arguments fail to provide a basis for Summary Judgment against Adler's counterclaim. The plaintiff's dependent request for an award of counsel fees, despite the absence of counsel, is denied.

CPLR Rule 3212 (g) authorizes a court, in resolving Summary Judgment motions, to search the record and render any Order as may aid the disposition of the action. See generally, Star v. Badillo, 225 AD2d 610 (2nd Dept. 1996); Hong Kong and Shanghai Banking Corporation Limited v. 335 Oser Avenue Associates, 223 AD2d 676 (2nd Dept. 1996). Here, defendant Peter Adler asserts two (2) counterclaims, one for malicious prosecution and one for libel. The counterclaim for malicious prosecution is dismissed sua sponte due to the absence of any underlying criminal proceeding. Hollander v. Trump Village Cooperative, Inc., supra, at 425; Martin v. City of Albany, supra, at 16.

The counterclaim for libel pertains to the plaintiff's press releases and e-mails to third persons accusing Peter Adler of defaming the plaintiff to stir up "anti-Moslem prejudices" for the benefit of the Selendy campaign, thereby damaging Adler's reputation

for honesty in the community. In other words, Adler alleges that he was defamed by being publically accused of defaming the plaintiff.

This counterclaim by Adler must be, and is, dismissed pursuant to CPLR Rule 3212 (g). The plaintiff's press releases, made in the heat of an election campaign, must be analyzed in the context in which they were published. Brian v. Richardson, 87 NY2d 46, 51 (1995); Gross v. New York Times Co., 82 NY2d 146, 153 (1993). The context includes the entirety of the press releases, as well as their tones and apparent purpose. Steinhilber v. Alphonse, supra, at 293. None of the statements contained in the plaintiff's various press releases and e-mails rise to the level of libel per se and, consequently, special damages need to be pleaded and proven by Adler to sustain his libel claim. Since the counterclaim seeks twenty-five thousand ($25,000) dollars of general damages and fails to particularize special damages, no cause of action is stated. Liberman v. Gelstein, supra, at 434-35, Aronson v. Wiersma, supra, at 594.

The Court has considered the remainder of the contentions of the parties and finds them to be without sufficient legal merit or mooted by other aspects of this Decision.

In light of the foregoing, it be and is hereby

ORDERED, that the motion of the defendant, Peter Adler, and the cross-motion of [*17]the defendants, Janine Selendy, Cathy Adler and Michael Morey, for Summary Judgment against the plaintiff's claims pursuant to CPLR Rule 3212 is granted and the plaintiff's amended complaint dismissed; and it is further

ORDERED, that the motion of the defendant, Peter Adler, for the imposition of monetary sanctions upon the plaintiff pursuant to 22 N.Y.C.R.R. §130-1.1 is denied; and it is further

ORDERED, that the cross-motion of defendants Janine Selendy, Cathy Adler and Michael Morey for the imposition of monetary sanctions upon the plaintiff pursuant to

22 N.Y.C.R.R. §130-1.1 is granted to the extent that the plaintiff shall reimburse said defendants for the full reasonable amount of attorneys' fees, costs and related disbursements incurred in the defense of this action from inception to conclusion, in a specific amount to be determined by a further noticed motion that is to be served on or before March 31, 2004 and returnable on submission on such date as dictated by the CPLR based on the date of service; and it is further

ORDERED, that the cross-motion of the defendants, Janine Selendy, Cathy Adler and Michael Morey, for Summary Judgment in their favor on the counterclaims asserted in their amended answers to the plaintiff's amended complaint is denied; and it is further

ORDERED, that the cross-motion of the plaintiff, Michael Jaliman, for Summary Judgment dismissing all counterclaims are denied for the reasons argued, but granted on other grounds pursuant to CPLR Rule 3212 (g) and the counterclaims dismissed; and it is further

ORDERED, that the cross-motion of the plaintiff, Michael Jaliman, for an award of counsel fees pursuant to 22 N.Y.C.R.R. §130-1.1 is denied; and it is further

ORDERED, that since the sole remaining issue in the action pertains to the assessment of counsel fees that shall be addressed by motion, no further appearance date need be scheduled at this time.

Dated: March 17, 2005

White Plains, New York [*18]

_________________________________

HON. MARK C. DILLON

JUSTICE OF THE SUPREME COURT

TO: