Forras v Rauf

[*1] Forras v Rauf 2012 NY Slip Op 52479(U) Decided on September 26, 2012 Supreme Court, New York County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 26, 2012
Supreme Court, New York County

Vincent Forras, on behalf of himself and all others of and in the City of New York, County of New York, similarly situated, Plaintiffs

against

Feisal Abdul Rauf, CORDOBA HOUSE/ PARK 51, CORDOBA INITIATIVE, SOHO PROPERTIES, and all other aliases known and unknown, Defendants



111970/2010



For Plaintiffs

Larry Klayman Esq.

Raymond Negron Esq.

Freedom Watch, Inc.

2000 Pennsylvania Avenue N.W., Washington, DC 20006

For Defendants

Adam Leitman Bailey Esq.

120 Broadway, New York, NY 10271

Lucy Billings, J.

I.BACKGROUND

Plaintiff sues to recover damages for a public and private nuisance, intentional and negligent infliction of emotional distress, and assault arising from defendants' planned construction of a mosque and Islamic cultural center at Park Place and Church Street, New York County, near Ground Zero, which has sparked public controversy. Plaintiff leases office space, which he also allegedly uses as a part-time residence, at 257 Church Street, approximately 8-10 blocks north of Park Place.

Defendants move to dismiss plaintiff's complaint based on its failure to state a claim. C.P.L.R. § 3211(a)(7). Plaintiff cross-moves for sanctions against defendants and their attorneys, and defendants separately move for sanctions against plaintiff and his attorneys, based on their adversaries' controversial public statements both in court documents and otherwise. 22 N.Y.C.R.R. § 130-1.1. Defendants' motion also is based on the [*2]unexcused absence of plaintiff's attorneys at a scheduled court appearance. For the reasons explained below, the court grants defendants' motion to dismiss the complaint in its entirety and their motion for sanctions to the limited extent delineated, but otherwise denies the parties' motions.

II.DEFENDANTS' MOTION TO DISMISS THE COMPLAINT

A.Applicable Standards

Upon defendants' motion to dismiss the complaint pursuant to C.P.L.R. § 3211(a)(7), the court must accept the complaint's allegations as true, liberally construe them, and draw all reasonable inferences in plaintiff's favor. Nonnon v. City of New York, 9 NY3d 825, 827 (2007); Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 316, 326 (2002); Harris v. IG Greenpoint Corp., 72 AD3d 608, 609 (1st Dep't 2010); Vig v. New York Hairspray Co., L.P., 67 AD3d 140, 144-45 (1st Dep't 2009). In short, the court may dismiss a claim based on C.P.L.R. § 3211(a)(7) only if the allegations completely fail to state a claim. Leon v. Martinez, 84 NY2d 83, 88 (1994); Harris v. IG Greenpoint Corp., 72 AD3d at 609; Frank v. DaimlerChrysler Corp., 292 AD2d 118, 121 (1st Dep't 2002); Scott v. Bell Atl. Corp., 282 AD2d 180, 183 (1st Dep't 2001).

Despite this forgiving standard, the very distance between plaintiff's premises and defendants' activity of which plaintiff complains poses an obvious impediment to showing any nuisance, extreme or outrageous conduct as required for infliction of emotional distress, or assaultive conduct that would emanate from a religious institution to cause injury several blocks away. Plaintiff alleges increased anxiety and fear due to Islamic rituals in one room inside the building at 45-51 Park Place, but nothing akin to a congregation's animated, frenzied, threatening, or assaultive behavior outside the building, let alone spewing out to its environs.

B.Nuisance Claims

A public nuisance claim requires factual allegations that defendants substantially interfered with the exercise of a common right of the public that offended public morals; impeded use of a public place; or injured or endangered property, health, safety, or comfort. 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 NY2d 280, 292 (2001); Copart Indus. v. Consolidated Edison Co. of NY, 41 NY2d 564, 568 (1977); Wall St. Garage Parking Corp. v. New York Stock Exch., Inc., 10 AD3d 223, 227 (1st Dep't 2004). An individual seeking recovery for a public nuisance must have suffered special injury beyond the common injury to public rights. 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 NY2d at 292; Wall St. Garage Parking Corp. v. New York Stock Exch., Inc., 10 AD3d at 227.

Plaintiff, even in his proposed amended complaint, pleads his own physical and psychological effects, but only from the attack on September 11, 2001, and economic harm, but only in common with the public who use the areas around Ground Zero. Thus, while plaintiff's allegations, accepted as true, may demonstrate special physical and psychological injuries, they are [*3]from the attack in 2001, not defendants' more recent actions. His alleged injuries from defendants' recent actions, on the other hand, are the same as the injury to the community: interference with use of business premises, increased costs for security, and reduced property values. Wall St. Garage Parking Corp. v. New York Stock Exch., Inc., 10 AD3d at 228; Rebecca Moss, Ltd. v. 540 Acquisition Co., 285 AD2d 416 (1st Dep't 2001). Even if the injury to him is greater than to the public, the harm is not of a different kind. 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 NY2d at 293; Roundabout Theatre Co. v. Tishman Realty & Constr. Co., 302 AD2d 272, 273 (1st Dep't 2003).

A private nuisance claim requires factual allegations that defendants' action or omission substantially, intentionally, and unreasonably interfered with plaintiff's right to use and enjoy real property. Copart Indus. v. Consolidated Edison Co. of NY, 41 NY2d at 570; Berenger v. 261 W. LLC, 93 AD3d 175, 182 (1st Dep't 2012); Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 AD3d 38, 41 (1st Dep't 2011); 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 AD3d 330, 334 (1st Dep't 2010). Defendants' objectionable conduct must be continuous or recurring. Berenger v. 261 W. LLC, 93 AD3d at 182; Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 AD3d at 43. In claiming a nuisance from construction of the mosque, since it has not yet been built, plaintiff pleads only defendants' intentions and not their actual conduct, let alone any continuous or recurrent interference with his rights. 225 E. 64th St., LLC v. Janet H. Prystowsky, M.D. P.C., 96 AD3d 536, 537 (1st Dep't 2012). See Duane Reade v. Reva Holding Corp., 30 AD3d 229, 230, 237-38 (1st Dep't 2006); Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 AD3d at 43. Any conduct by defendants that plaintiff does allege is protected speech, other expression, or assembly. U.S. Const., Amend. 1; NY Const. art. I, §§ 8, 9(1); Golden v. Clark, 76 NY2d 618, 627 (1990); People ex rel. Arcara v. Cloud Books, 68 NY2d 553, 556 (1986).

As injuries, plaintiff claims interference with use of his leased business premises, increased costs for security at the premises, and their reduced value. Even if, as a tenant, he has incurred the increased security costs, or reduced property value has increased his costs, rather than reducing his rent, he acknowledges that he incurred those costs due to fears engendered by the attack September 11, 2001, not due to defendants' interference with the use of his leased space or any other action by defendants.

C.Emotional Distress Claims

To establish plaintiff's claim of intentional infliction of emotional distress, plaintiff must show (1) that defendants engaged in extreme and outrageous conduct, (2) with intent to cause or in disregard of a substantial probability that the conduct would cause severe emotional distress, (3) a causal connection between defendants' acts and plaintiff's injury, and (4) severe emotional distress. Howell v. New York Post Co., 81 NY2d 115, 121 (1993); Suarez v. Bakalchuk, 66 AD3d 419 (1st Dep't [*4]2009). Negligent infliction of emotional distress must be based on defendants' breach (1) of a duty owed to plaintiff (2) that unreasonably endangered him or caused him to fear for his own safety. Bernstein v. East 51st St. Dev. Co., LLC, 78 AD3d 590, 591 (1st Dep't 2010); Sheila C. v. Povich, 11 AD3d 120, 130 (1st Dep't 2004). Extreme and outrageous conduct is also an element of negligent infliction of emotional distress. Bernstein v. East 51st St. Dev. Co., LLC, 78 AD3d at 592; Lau v. S & M Enters., 72 AD3d 497, 498 (1st Dep't 2010); Goldstein v. Massachusetts Mut. Life Ins. Co., 60 AD3d 506, 508 (1st Dep't 2009); Berrios v. Our Lady of Mercy Med. Ctr., 20 AD3d 361, 362 (1st Dep't 2005).

To support the element of extreme and outrageous conduct, plaintiff must show that defendants' conduct was "beyond all possible bounds of decency" and "utterly intolerable in a civilized community." Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 NY3d 15, 22-23 (2008); Howell v. New York Post Co., 81 NY2d at 122; Murphy v. American Home Prods. Corp., 58 NY2d 293, 303 (1983); Suarez v. Bakalchuk, 66 AD3d 419. Simply stated, defendants' use of their property as a mosque and Islamic cultural center near Ground Zero alleged by plaintiff is not extreme and outrageous conduct.

Although plaintiff suggests fear for his safety due to defendants describing him as an enemy of Islam, his complaint nowhere alleges any threatening conduct by defendants. See Berrios v. Our Lady of Mercy Med. Ctr., 20 AD3d at 363. Nor has plaintiff alleged that defendants breached any duty owed to him so as to unreasonably endanger his safety or cause him to fear for his safety. Bernstein v. East 51st St. Dev. Co., LLC, 78 AD3d at 591.

Just as plaintiff may allege threatening activities in the Ground Zero area that cause a nuisance, so, too, he may allege that they cause him emotional distress, but the connection between defendants' conduct and those activities is lacking. For all these reasons, plaintiff's claims for intentional and negligent infliction of emotional distress fail. Lau v. S & M Enters., 72 AD3d at 498; Goldstein v. Massachusetts Mut. Life Ins. Co., 60 AD3d at 508; McRedmond v. Sutton Place Rest. & Bar, Inc., 48 AD3d 258, 259 (1st Dep't 2008); Berrios v. Our Lady of Mercy Med. Ctr., 20 AD3d at 362-63.

D.Assault Claim

Assault requires a showing of physical conduct causing plaintiff apprehension of immediate harmful contact. Nicholson v. Luce, 55 AD3d 416 (1st Dept 2008); Holtz v. Wildenstein & Co., 261 AD2d 336 (1st Dep't 1999); Charkhy v. Altman, 252 AD2d 413, 414 (1st Dep't 1998); Hassan v. Marriott Corp., 243 AD2d 406, 407 (1st Dep't 1997). Plaintiff bases his assault claim on the report of Robert Cancro M.D., which the complaint incorporates, that plaintiff suffers post-traumatic stress disorder and is in immediate fear of injury and death from the mosque and defendant Rauf's published statements.

Plaintiff's assault claim fails for at least two reasons. [*5]First the mosque, which has not yet been constructed, poses no threat of immediate harmful contact. Holtz v. Wildenstein & Co., 261 AD2d 336. Second, plaintiff nowhere alleges any physical conduct that caused an apprehension of harmful contact. Hassan v. Marriott Corp., 243 AD2d at 407. See Nicholson v. Luce, 55 AD3d 416.

III.THE PARTIES' MOTIONS FOR SANCTIONS

The parties seek sanctions against each other and their attorneys, claiming that their sole purpose has been to harass each other and attract media attention and that their actions therefore were frivolous. Conduct is frivolous if it is completely meritless and insupportable by a reasonable argument for extension, modification, or reversal of current law or is undertaken to harass or injure another person. 22 N.Y.C.R.R. § 130-1.1(c); Cadlerock Joint Venture, L.P. v. Sol Greenberg & Sons Intl., Inc., 94 AD3d 580, 581-82 (1st Dep't 2012); Newman v. Berkowitz, 50 AD3d 479, 480 (1st Dep't 2008). The parties' and their attorneys' controversial statements related to their litigation do not amount to frivolous conduct. Therefore the court denes plaintiff's cross-motion for sanctions and defendants' motion for sanctions insofar as it is based on such conduct.

While filing meritless claims may constitute frivolous conduct, Visual Arts Found., Inc. v. Egnasko, 91 AD3d 578, 579 (1st Dep't 2012), since plaintiff articulated legally cognizable claims, but an incomplete factual basis for them, his conduct in filing the claims was not entirely frivolous. Parkchester S. Condominium Inc. v. Hernandez, 71 AD3d 503, 504 (1st Dep't 2010); Newman v. Berkowitz, 50 AD3d at 480; Adelaide Prods., Inc. v. BKN Intl. AG, 38 AD3d 221, 227 (1st Dep't 2007); Parametric Capital Mgt., LLC v. Lacher, 26 AD3d 175 (1st Dep't 2006). No evidence establishes that plaintiff's claims, although poorly pleaded, were pursued solely to harass defendants or other persons. Komolov v. Segal, 96 AD3d 513, 514 (1st Dep't 2012); Parkchester S. Condominium Inc. v. Hernandez, 71 AD3d at 504; Peach Parking Corp. v. 346 W. 40th St., LLC, 52 AD3d 260, 261 (1st Dep't 2008). See Cadlerock Joint Venture, L.P. v. Sol Greenberg & Sons Intl., Inc., 94 AD3d at 582. Nevertheless, should plaintiff commence a further similar action, the history of this litigation may lead to a finding that he and his attorneys have engaged in vexatious, frivolous litigation. See Komolov v. Segal, 96 AD3d at 514; Pentalpha Enters., Ltd. v. Cooper & Dunham LLP, 91 AD3d 451, 452 (1st Dep't 2012). Finally, insofar as defendants seek sanctions for the failure of plaintiff's attorneys to appear for oral argument March 3, 2011, leading to an adjournment to April 5, 2011, the attorneys' absence March 3, 2011, remains unexplained, entitling defendants to their costs, including attorneys' fees, for their needless and duplicative appearances. Hughes v. Farrey, 48 AD3d 385; Borgenicht v. Bloch, 280 AD2d 306, 307 (1st Dep't 2001).

IV.DISPOSITION

In sum, the court grants defendants' motion to dismiss the [*6]complaint based on its failure to state a claim. C.P.L.R. § 3211(a)(7). The court denies plaintiff's cross-motion for sanctions and grants defendants' separate motion for sanctions only to the extent of awarding costs, including reasonable attorneys' fees, of $1,500.00 for the unexplained failure of plaintiff's attorneys to appear for oral argument March 3, 2011, 22 N.Y.C.R.R. § 130-1.1(a), but otherwise denies defendants' motion for sanctions. Plaintiff's attorneys shall, without charge to their client, reimburse defendants for attorneys' fees of $1,500.00 by delivering payment of that amount to defendants' attorneys and shall provide written proof of that payment to the Clerk of Part 46 within 30 days after service of this order with notice of entry. In the event this proof of payment is not timely provided, the Clerk of the court, upon service of this order with notice of entry and an affirmation or affidavit reciting the nonpayment, shall enter a judgment of $1,500.00 in favor of defendants and against plaintiff's attorneys jointly and individually.

DATED: September 26, 2012

_____________________________

LUCY BILLINGS, J.S.C.