Flacks v New York City Bd. of Elections
Annotate this CaseDecided on July 13, 2007
Civil Court of the City of New York, New York County
Alan Flacks, Plaintiff(s)/, Petitioner(s),
against
New York City Board of Elections, et al., Defendant(s)/, Respondent(s).
SCH 585/2006
Manuel J. Mendez, J.
Upon a reading of the foregoing cited papers on this motion to dismiss this Small Claims action and this cross motion pursuant to CPLR§ 510(2)to change venue to Kings County, it is the decision and order of this court that the Cross motion is denied, the motion is granted and the claim is dismissed.
Claimant brings this action against the defendants sounding in Defamation. The summons alleges the following claim: "Action to recover monies arising out of Defamation per-se defendant conspired with malice with other defendants to defame imputing unfitness to work. Date of occurrence 10-20-2005."
Defendants move to dismiss the claims on the ground that claimant failed to file a Notice of Claim, a pre-requisite when suing the City of New York or one of its agencies [ see General Municipal Law §50-e]. Claimant opposes the motion and cross moves for a change of venue to Kings County alleging that an impartial trial cannot be had in the County of New York. He indicates in his cross moving papers that " I verily believe and upon information I will not be able to obtain a fair trial or due process as all parties are personally know to NY County Civil Branch judges. It is difficult to express the political ramifications to any NY County Civil Court [*2]Judge, with all due respect. In addition, one named party defendant is appointed by the Dem. County leader and his relationship with the county leader presents a problem as do all of the other defendants [being sued as individuals and not city employees], further the incumbent county leader plays a significant role in the selection and promotion of the judiciary here. The issues are complex and political, and fairness and equity require a venue change."
Defendants oppose the cross motion for change of venue on inconvenience grounds, that New York County is the place where Claimant Chose to bring the action and that New York County is the proper place of venue, as it is the place where the claim arose.
LEGAL ANALYSIS
Change of Venue:
Venue is proper in New York County as all parties reside there, the claim arose there, and the plaintiff designated this county as the place of trial ( see CPLR§503 (a) ... " the place of trial shall be in the county in which one of the parties resided when it was commenced ;or, if none of the parties then resided in the state, in any county designated by the plaintiff...";CPLR§504...." the place of trial of all actions against counties, cities, towns, villages, school districts and district corporations or any of their officers, boards or departments shall be, for: (1) a county, in such county; (3) the city of New York, in the county within the city in which the cause of action arose, or if it arose outside the city of New York, in the county of New York.";NYCCCA§304(b) " An action against the City of New York....shall be brought in the county within said city where the cause of action arose. If the cause of action arose outside the city of New York, the action shall be brought in the county of New York."; CPLR§509 " Notwithstanding any provision of this article, the place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is changed to another county by order upon motion or by consent as provided in subdivision (b) of rule 511).
A motion to change venue is one to be made by the defendant, not the plaintiff who originally designated the place of trial [See CPLR§511; NYCCCA§306]. A change of venue requires a showing of a strong possibility that a fair trial cannot be obtained in the county selected( Krupka v. County of Westchester, 160 AD2d 681, 553 NYS2d 777[App. Div. 2nd. Dept. 1990]).
Claimant herein has failed to provide this court with any factual or legal basis for transferring this case to kings County. Plaintiff has charged practically the entire Judiciary of the Civil Court in New York County with at least a passive sympathy for the defendants. This charge is so remote and disingenuous as to be wholly without merit ( See Heights Democratic Club, Inc., v. Brewer, 187 Misc. 616, 61 N.Y.S. 755[1946]). That some judges in New York County have recused themselves from this case is not a sufficient basis to transfer this matter( See Behrins & Behrins, P.C., v. Chan, 14 Misc 3d 1204(A), 831 NYS2d 358). That the judges in New York County may be acquainted with some of the parties is also of no consequence.( See Heights Democratic Club, Inc., v. Brewer; Behrins & Behrins, P.C., v. Chan, 14 Misc 3d [*3]1204(A),Supra).
Recusal as a matter of due process is required only when the judge has a direct, personal, substantial or pecuniary interest in reaching a conclusion, or when he displays a deep-seated favoritism or antagonism that would make fair judgment impossible (Briffel v. County of Nassau, 31 AD3d 79, 817 NYS2d 71, 2006 NY Slip Op. 04278 [A.D. 2nd. Dept. 2006]; Judiciary Law § 14). Absent a legal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of recusal. When recusal is sought based upon "impropriety" as distinguished from legal disqualification, the judge is the sole arbiter. In the absence of a violation of express statutory provisions, bias or prejudice or unworthy motive on the part of a judge, unconnected with an interest in the controversy, will not be a cause of disqualification, unless shown to affect the result ( People v. Moreno, 70 NY2d 403, 516 NE2d 200, 521 NYS2d 663 [1987]).
Accordingly, for these reasons the motion to change venue and transfer this matter to kings County is denied.
Notice of Claim:
"The right to bring suit against a municipality may be granted upon such conditions as the legislature, in its wisdom sees fit to impose. One such condition precedent is the notice of claim requirement. It serves the legitimate purposes of avoiding stale claims against the government and permitting the municipal corporation the opportunity to investigate the circumstances surrounding the claims and its merits."(15 NY Practice, New York Law of Torts § 17:26). GML§ 50-e provides that "in any action founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a Municipal Corporation.... the notice of claim shall comply with and be served...within ninety(90) days after the claim arises..."( See GML§ 50-e). When the action is against a municipal employee for a tort committed in the scope employment a notice of claim must be served against the municipality, since the municipality, which assumes the liability of the employee, is the real party in interest( See 15 NY Practice, New York Law of Torts § 17:78; GML§ 50-i). However, if the claim is solely against a municipal employee for a violation of a constitutional right and the municipality is not made a party to the action, no notice of claim is required (15 NY Practice, New York Law of Torts§ 17:30 ; O'Hara v. Sears Roebuck & Co., 286 A.D. 104, 142 NYS2d 465 [App. Div. 4th Dept. 1955]).
Claimant failed to file and serve a Notice of Claim upon the Municipal Corporation with regard to the present claim. The only notice ever served deals with a claim for wages for work done in September 2006, not for defamatory statements in October 2005. The claim being asserted herein is not for a violation of a constitutional right, and the Municipal Corporation has been made a party to the action, therefore any claim against an employee for a tort committed in the scope of his employment must be preceded by the service of a notice of claim. Failure to comply with the notice of claim requirement deprives the court of subject matter jurisdiction and [*4]operates as a complete bar to the action, even when the matter is brought in the Small Claims Part of the Civil Court ( Ragosto v. Triborough Bridge & Tunnel Authority, 173 Misc 2d 560, 663 NYS2d 462 [App. Term 1st. Dept. 1997], "The informal and simplified procedural rules generally applied in small claims practice cannot be stretched beyond their breaking point to excuse a fatal deficiency in a plaintiff's substantive case.").
To avoid dismissal claimant states he is suing the individual parties as "individuals not City employees." It should be noted that with the exception of defendants Doty and Botfeld all the defendants were served at the offices of the defendant N.Y.C. Board of Elections and all the defendants are employees of the N.Y.C. Board of Elections. There is one single allegation of defamation occurring on one single occasion and involving all of the defendants, including the N.Y.C. Board of Elections. Since Claimant also named the N.Y.C. Board of Elections as a defendant it was required to file and serve a Notice of Claim, whether it was suing the remaining defendants as individuals or as employees( see O'hara v. Sears,286 A.D.104, Supra).
Accordingly, the claim against defendant N.Y.C. Board of Elections and the individual defendants is dismissed for failure to comply with the notice of claim requirements.
Statute of Limitations:
The Statute of Limitations for defamation is one year ( CPLR§ 215(3)). The claim against defendant Richman was filed on January 3, 2007. The alleged defamatory statement was uttered on October 20, 2005. The claim against this defendant should have been brought no later than October 20, 2006. This claim was filed over two months after the statute of limitations had expired.
Accordingly, the claim against defendant Richman is dismissed for failure to file within the limitations period.
Defamation:
"Defamation has long been recognized to arise from the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons and to deprive him of their friendly intercourse in society."(Evans v. Waldo, 2006 WL 2689819 [E.D.NY 2006]; quoting, Dillon v. City of New York, 261 AD2d 34, 704 NYS2d 1 [App. Div. 1st. Dept. 1999]).
Defamation actions have been tried in the Small Claims Part of the Civil Court( See Kabia v. Koch, 186 Misc 2d 363, 713 NYS2d 250[Civ. Ct. NY County 2000]; Terillo v. New York Newsday, 137 Misc 2d 65, 519 NYS2d 914; Cleg v. Bon Temps, Ltd., 114 Misc 2d 805, 452 NYS2d 825 [Civ. Ct. NY County 1982]). [*5]
Generally in a defamation action the pleadings must state with specificity the time, place, manner and person to whom the alleged false statements were made (See CPLR§ 3016(a); Lesesne v. Lesesne, 292 AD2d 507, 740 NYS2d 352, 2002 NY Slip Op. 02364; Varela v. Investors Ins. Holding Corp., 185 AD2d 309, 586 NYS2d 272 [App. Div. 2nd. Dept. 1992]). Failure to comply with this requirement results in the dismissal of the claim for failure to state a cause of action ( See Lewittes v. Blume, 18 AD3d 261, 795 NYS2d 13 [App. Div. 1st. Dept. 2005]; Ott v. Automatic Connector, Inc., 193 AD2d 657, 598 NYS2d 10 [App. Div. 2nd. Dept. 1993]; Varela v. Investors Ins. Holding Corp.,185 AD2d 309, Supra). The reason for the requirement of specific pleading in defamation cases is to give adequate notice to the defendant as to the occurrence constituting the wrong and to discourage the institution of vexatious actions ( 5 Carmody-Wait 2d § 29:277 Intentional Torts, Words Spoken or Published). However, as long as the words are set forth, a general allegation suffices to plead that they were spoken of the plaintiff.
The Small Claims Summons fails to comply with the pleadings requirements in a defamation action. It does not state the specific words, time, place, manner or person to whom the alleged false statements were made. This defect is not fatal to the claim because it is being made in the Small Claims Part of the Civil Court and the general pleadings requirements are not applicable. "The Small Claims Court shall not be bound by statutory provisions or rules of practice, procedure, pleading or evidence ( NYCCCA § 903;1803;1804; Loakman v.Transport Workers Union of Greater New York, 11 Misc 3d 936, 816 N.Y.S. 336, 2006 NY Slip Op. 26071).
However, the Summons alleges that the defendants "CONSPIRED ..WITH OTHER DEFENDANTS TO DEFAME". This defect is fatal to the claim because New York does not recognize the independent tort of conspiracy or conspiracy to defame ( See Dobies v. Brefka, 263 AD2d 721, 694 NYS2d 499, 1999 NY Slip Op. 06688 [App. Div. 3d Dept. 1999]).
Accordingly, the claim is dismissed as against all defendants.
CONCLUSION
For the foregoing stated reasons the cross motion to transfer this matter to Kings county is denied. The motion to dismiss is granted and the claim is dismissed as to all defendants for failure to file and serve a notice of claim, against defendant Richman for failure to file within the statute of limitations, against all defendants as New York does not recognize the independent tort of conspiracy to defame.
This constitutes the decision and order of this court.
Dated: July 13, 2007
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