Kendall v Hutchinson

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Kendall v Hutchinson 2012 NY Slip Op 32172(U) August 9, 2012 Supreme Court, New York County Docket Number: 100245/2012 Judge: Anil C. Singh 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 HON.ANIL C. SJNOH SWREMECOtJRTJUS~ PRESENT: PART JusUcr - A INDEX NO. MOTION DATE MOTION SEQ. NO. FILED NEW YOHK COUNTY CLERKS OFFICE Datod: 1. CHECK ONE: I ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: J.S.C. H ........................... MOTION I : S &SE 0 NON-FINAL DISPOSITION DISPOSED GRANTED ................................................0SEllLE ORDER DO NOT POST DENIED OTHER r]GRANTED IN PART 0SUBMIT ORDER C] FIDUCIARY APPOINTMENT REFERENCE [* 2] I I DECISION AND ORDER Index No. 100245/12 FILED 1 ; Defendants Bill Hutchinson ( Hutchinson ), John Doyle ( Doyle ), Mortimer N E W YOHK Zuckcrman ( Zuckerman ), and Daily News, . I L ,P., CLERK S OFFICE ( Daily News ) move to dismiss the I complaint pursuant to CPLR 321 l(a)(l) and 321 l(a)(7). Plaintiff opposes the motion. I Plaintiff Cyril Kendall commenced this defamation action seeking damages based on an ! A article that was published by The Daily News, newspaper owned by defendant Daily News, I L.P. The article in question appeared in the Daily News print edition and on its website on I October 3,201 1. I Kendall is an inmate at Orleans Correciional Facility in Albion, New York. In 2003, he I was charged with defrauding a number of charities by claiming to have lost a son named .I Wilfred in the World Trade Center on September 1 1, 2001, and accepting substantial 1 I charitable gifts based on this fraud. When investigative authorities discovered that Wilfred I was fictitious, Kendall was arrested and chargld with grand larceny and fraud. 9 i I Page 1 of 6 Ii . 7 [* 3] As part of his defense at trial, Kendall hgued that his indictment was not valid due to a J j mis-typed indictment number from the transcript of his formal indictment. This "dummy i indictment" theory was rejected by the court as frivolous. !j Following a jury trial, Kendall was codicted on all four felony counts and sentenced to a II lengthy prison term. The convictions were upheld by the Appellate Division ( v. w, w 27 A.D.3d 355 [l" Dcpt., ZOOS]). Leave to ap&al was denied by the Court of Appeals (Pconle v, I Kendall. 6 N.Y,3d 895 [2006]). the defendants describe the conviction of plainhf based on court records: I) Kendall was convicted of grand Iarcenj and fraud after cheating several charities of benefits, including grief counseling for himself and burial funds for a son prosecutors maintained never existed. I I) He claimed his youngest son,Wilfred, 29, w s killed in the terror attacks while a attending a job interview on the 91st flhor of the north tower, 'I Kendall, the father of 12 children, presknted the charities with a photograph of his dead son and a birth certificate. Investikators later determined the photo was of Kendall at a younger age and that the birth certificate was a forgery. His biggest target was the American R"d Cross, which was bilked of $1 19,000 the most fraudulently obtained by a sin le individual. (Motion to Dismiss, exhibit B). II i 1 Page 2 of 6 I 1 [* 4] 1 1 In his complaint, plaintiff insists that ht:was never properly charged and coovicted, so the Article as written was false, Based on a transcribt dated July 23,2003, plaintiff contends that the I 1 case People v. Kendall was dismissed (Opp., exhibit A), This claim is founded on a rnis-typed I Indictment Number. In all instances prior to J h y 23,2003,the record correctly shows I Indictment No, 3565-2002. On July 23,2003, the record states the slightly different Indictment No. 3525-2002, which in all past proceedings was recognized as a clerical error. I 1 I Kendall urges this Court to find that a single appearance of a slightly different indictment J number should reasonably be interpreted to rnch that the entire c q e was dismissed. Kendall I claims that because it was dismissed, the casd with Indictment No. 3565-2002 never led to his I conviction. I I Defendants assert that the complaint shchd be dismissed for two reasons. I First, defendants argue that Kendall is ~ollaterally estopped from relitigating his /I conviction. While defendants do not referencckPLR 32 1 l(a)(5), which specifics that collateral 1. estoppel is grounds for dismissal, it is clear fro their legal rnernohda that they intend to I invoke the doctrine of collateral estoppel. 1 The doctrine of collateral estoppel bars relitigation of an issue which has necessarily I been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling (v [2ndDept, 20091; see also m o c k v. State of , 6 0 A.D.3d :lo09 I New York, 64 N.Y.2d 224 [ 19841). I I I Defendants contend that because Kendall argued the issue of the mis-typed indictment 3 number during his criminal trial, he is collaterally estopped from using this argument in support 1 Page 3 of 6 .I I 1 I I I [* 5] I :I i I of his defamation claim. More specifically, by insisting that the defendants lied by stating that hc i was convicted of the charges, Kendall asks this!Court to reconsider. the prior judicial decisions I I regarding his conviction. a Kendall w s convicted of larceny and fraud charges. The jury s verdict and the sentence I were upheld on appeal. Ultimately, there is no lneed for this Court to weigh its opinion on this 1 matter, The past decisions are consistent and conclusive. Kendall s conviction is valid. Because I 9 this defamation case arises from issues he had full and fair opportunity to contest in the I criminal case, Kendall may not re-litigate the issue of his conviction in this civil action. 1 I Skcond, defendants assert that by accurately reporting the criminal proceedings, they I chnnot be found liable, in accordance with N.Y. Civil Rights Law I 8 74, which states: C A civil action cannot be maintained against any person, f r ,or im corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding, or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published. -I Judicial interpretation of section 74 his made it clear that an article need not be a verbatim account or even a precisely accurate ieport of an official proceeding to be a fair and true 1. report of such a proceeding (Freeze R inht Refria & A.C. Sews, v, Cltv of N ew York* 101 I A.D.2d 1751 83 [ 1I Dcpt., 19841). I 1 Plaintiffs criminal conviction has been upheld consistently on appeal, and the article I language misleading or subject to misinterpretation. ! provides a fair and true report of Kendall s past judicial proceedings. In no way is the article s I Moreover, while section 74 is often cited in cases where the reliability of a publication s source is potentially questionable, that is not the case here (see, for example, w w s k y v, I I Page 4 of 6 I I I [* 6] I .II ! I ;I r, Civilctti, 69 A.D.3d 110, 113 [Zd Dept., 20091 (stating that once it is established that the I I publication is reporting on a judicial proceeding, how a reporter gathers his information ! concerning a judicial proceeding is immaterial !provided his [or her] story s a fair and I substantially accurate portrayal of the events in question )). I I In this case, the official proceedings accurately summarized in the article are from Kendall s indictment, conviction in court, and ubsequent appeals,I none of which is of uncertain legitimacy. This Court agrees with both of the defe ndants arguments against Kendall s defamation 1 claims. There is simply no legal basis for Kendall s argument. Accordingly, there is no stated 4 cause of action as a matter of law. i Furthermore, plaintiffs claim of property rights violation with regard to oficial records I I used for the article, is entirely frivolous. Under New York law, there is a broad presumption I 1 that the public is entitled to access to judicial proceedings and court records ( I BcrensPn, 76 A.D.3d 345 [ 1 Dept, 201 01; seealso Mancheski v. Gabell1 OrouD Capital 39 A.D.3d 499, SO1 [2007]; Gor~hor!Dom. VI. I A.D.3d 322,324 [2006]; b s . c a l - I. V I U C v, APP m. Co.. B,V, Fin, WQ of Gtdton R rks 28 I 274 A.D.2d 1,6 ~ [2000]). Exceptions to public availability to court records exist, but are not applicable in this cas I -the only exception relating to criminal cases is for sealed records (CPL 160.50), and Kendall s ;I #I records were not sealed. As this suggests, all of the records which the plaintiff purports I ownership of are public and are certainly not t e exclusive private property of the plaintiff. Kendall has a history of filing frivolous motions, including a claim of mental defect solely based upon a judge one time calling hid delusional. Now, Kendall charges the defense .I J Page 5 of 6 I 1 [* 7] perjury. I si series of charges and accusations, Kendall offefs no documentary evidence, legal authority, or .i reasonable argument in support of his asaertiods and, thus, fails to adequately state a cause of action. For the above reasons, it is ORDERED that the motion is granted, d the complaint is dismissed with prejudice. Date: Ani1 C . Singh New York, New York I AIJG 1 7 2012 I i I 1 I I I Page 6 of 6 I NEW YORK COUNTY CLERKS OFFICE

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