Talker v Talker

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Talker v Talker 2012 NY Slip Op 31622(U) June 14, 2012 Supreme Court, New York County Docket Number: 105127/11 Judge: Cynthia S. Kern Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART Justice - Index Number : 105127/2011 TALKER, NATALIE vs . TALKER, ALBERT SEQUENCE NUMBER : 002 INDEX NO. MOTION DATE MOTION SEQ. NO. DISMISS , were read on thlr motion tonor The followlng papem, numbered 1 to Notios of MotJonlOrdor to Show Cauie Anrwrrlng Affldavltl Replying Affldavlts -Affldavb - Exhlblbs - Exhlbb IN d d . IWd. 1No(#). Upon the foregoing papers, It lo ordered that thls motion Is is decided in accordance with the annexed decision# Dated: I 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 6 0 CASE DISPOSED NON-FINAL DISPOSITION 0GRANTED [7 GRANTED IN PART 0OTHER DENIED 0SETTLE ORDER 0SUBMIT ORDER 0DO NOT POST FIDUCMRY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW Y O N : Part 5 5 NATALIE TALKER, Index No. 105 127/11 Plaintiff, DECISION/ORDER -against- FILED ALBERT TALKER, Defendants. HON. CYNTHIA S. KERN, J.S.C. NEW YORK COUNTY CLEHK'S OFFICE Recitation, as required by CPLR 22 19(a), of the papers considered in the review of this motion for : Papers Numbered Notice of Motion and Affidavits Annexed .................................... Answering Affidavits.. .................................................................... Cross-Motion and Affidavits Annexed. .......................................... Answering Affidavits to Cross-Motion.. ......................................... Replying Affidavits. ..................................................................... Exhibits ...................................................................................... 1 2 3 Plaintiff commenced the instant action to recover damages stemming from the publication of a book written by defendant in violation of a Final Restraining Order (FRO) against defendant. Defendant now moves pursuant to CPLR 5 32 I I (a)( I), (a)(2), (a)(4), (a)(7) and (a)@>to dismiss plaintiffs complaint on the grounds that (1) a defense is founded upon , documentary evidence; (2) this court lacks subject matter jurisdiction over the instant matter; (3) there is another action pending between the same parties for the same cause of action in another court; (4)the complaint fails to state a cause o f action; and ( 5 ) this court lacks personal jurisdiction over defendant. Additionally, d.efendant moves pursuant to CPLK 4 3 I26(3) to strike [* 3] plaintiffs complaint for failure to disclose certain discovery. For the reasons set forth below, defendant s motion is denied. The relevant facts are as follows. On December 3,2008, plaintiff was awarded an FRO against defendant which allegedly prohibited defendant from either acquiring or disseminating information about plaintiff. Plaintiffs complaint alleges that on or about February 14, 201 1, defendant published a book titled Psychologists With No God which plaintiff alleges contains extensive and intimate details of [her and her two children s] lives. The book is currently available on Amazon.com and at Barnes & Noble. As an initial matter. defendant s motion to dismiss plaintiff s complaint pursuant to CPLR 5 321 1 (a)(7) and (a)(2) for failure to state a cause of action and lack of subject matter jurisdiction is denied as this court has already denied defendant s motion to dismiss the complaint on those grounds in a decision and order dated March 2,2012. To the extent that defendant moves to reargue this court s previous decision denying his motion to dismiss on those grounds, this court denies such reargument as defendant has not alleged that the court overlooked or misapprehended matters of fact or law, as required by CPLR 222 1(d)(2). Defendant s motion to dismiss the complaint pursuant to CPLR 3 321 1 (a)(l) on the ground of documentary evidence is likewise denied as the book, on which this action is bused. does not dispose of plaintiffs claim. In order to prevail on R defense founded on documentary evidence pursuant to CPLR tj 321 1 (a)(l), the documents relied upon must definitively dispose of plaintiffs claim. See Bronxville Knoll,r, Inc. v, Webster Town Purrnership, 22 1 A.D.2d 248 (1 Dept 1995j. Additionally, the documentary evidence must be such that it resolves all factual issues 8s a matter of law, Goshen v. Murual Ltfe Inx Co. q f N e w York, 98 N.Y.2d 3 14 (2002). 2 5 c [* 4] P .- Defendant asserts that the book, on which this action is based, stems from an imaginary short story that was written at the end of 2007 during therapy sessions before the FRO was awarded to plaintiff and that the content of the book does not mention any real names and has a disclaimer clause printed on its cover. However, the book was written after the issuance of the FRO. Further, the FRO issued to plaintiff prohibited defendant from either acquiring or disseminating information about plaintiff. It did not merely prohibit defendant from mentioning plaintiffs real name. Therefore, the documentary evidence on which defendant relies does not dispose of plaintiffs claim at this time. Thus, defendant s motion to dismiss the complaint on the ground of documentary evidence must be denied. Defendant s motion to dismiss the complaint pursuant to CPLR 8 32 1 1 (a)(4) on the ground that there is another action pending between the same parties for the same cause of action in a court of any state or the United States is also denied. Defendant asserts that there is a matrimonial case involving custody of the parties children in the family court of New Jersey, Union County, a criminal action filed by the State of New Jersey against the plaintiff and an appeal pending on the Judgment of Divorce. However, defendant has not shown that any of these actions were brought for the same relief or involve the same cause of action as the instant action. Thus, defendant s motion to dismiss the complaint pursuant to CPLR 5 32 1 1 (a)(4) must be denied. Defendant s motion to dismiss the complaint pursuant to CPLR 0 321 1 (a)@) on the ground of lack of personal jurisdiction is also denied. Defendant asserts that this court lacks personal jurisdiction over him because plaintiff lives in New Jersey and defendmlt lives in Pennsylvania and that defendant oiily maintains an office in New York while he resides in 3 [* 5] Pennsylvania. However, it is clear that at the start of this action, defendant resided in New York. While defendant may have bought property in Pennsylvania after the action was commenced, as evidenced by a mortgage agreement produced by defendant, that does not preclude this court from maintaining personal jurisdiction over defendant as he resided in New York at the start of this action. Moreover, the papers attached to defendant s motion, such as his Memorandum of Law, the Note of Issue, defendant s Demands for Bills of Particular and defendant s Request for the Production of Documents all show that defendant s address is 375 South End Avenue, Suite 14R, New York, New York as that is the address defendant has been providing to the court all along. Nowhere does defendant provide his alleged Pennsylvania address. Thus, defendant s motion to dismiss the complaint pursuant to CPLR 0 321 I (a)(S) must be denied. Finally, defendant s motion pursuant to CPLR 5 3 126(3) to strike plaintiffs complaint on the ground that she failed to respond to defendant s demand for a bill of particulars is also denied. Pursuant to CPLR 5 3 126(3), If any party ...willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: 3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party. Plaintiff has shown that she has, in fact, responded to defendant s demand for a bill of particulars and has attached said response to her opposition papers. Moreover, a compliance conference was scheduled in this case for March 26, 2012 to discuss any outstanding discovery in this matter but defendant failed to appear. Plaintiff only filed the Note of Issue after said conference came and went without any word from defendant. Thus, as defendant has not shown that plaintiff wilfully 4 [* 6] t-- failed to disclose any discovery in this case, defendant's motion pursuant to CPLR 5 3 126(3) to strike plaintiffs complaint is denied. Accordingly, defendant's motion is denied in its entirety. This constitutes the decision and order of the court. 5

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