Ulloa v Kuhel

[*1] Ulloa v Kuhel 2008 NY Slip Op 50637(U) [19 Misc 3d 1110(A)] Decided on March 28, 2008 Supreme Court, Ulster County Zwack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2008
Supreme Court, Ulster County

Richard Enrique Ulloa, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, Plaintiff,

against

Mark Kuhel, Defendant.



07-5508



Appearances: Richard Enrique Ulloa

Plaintiff Pro Se

22 Ridge Mountain Road

Stone Ridge, New York 12484

J. Michael Bruhn, Jr., Esq.

Attorney For Defendant

85 John Street

P.O. Box 4487

Kingston, New York 12402

Henry F. Zwack, J.

This is a motion brought by defendant in a defamation action seeking dismissal of [*2]the complaint for want of personal jurisdiction and for failure to state a cause of action. This lawsuit arises out of a number of statements allegedly made by defendant, both orally and in writing, before the Town Board of the Town of Ulster at a number of public meetings. Defendant contends that dismissal is warranted because he was not properly served with the summons and complaint or, in the alternative, because his statements are not actionable.

First, there is no want of personal jurisdiction over the defendant. As defendant concedes, plaintiff's process server delivered the summons and complaint to defendant's fourteen-year-old son at defendant's residence. At the time of service, the process server verified the young man's identity, learned that defendant was not at home at the time, and left the summons and complaint with the son. Defendant also concedes that his son promptly delivered the papers directly to him upon his return.

CPLR 308(2) specifically provides for personal service upon "a person of suitable age and discretion at the actual . . . dwelling place . . . of the person to be served." There is no particular minimum age given in the statute, nor does the case law interpreting it provide any per se minimum age (see Room Additions, Inc. v Howard, 124 Misc 2d 19, 19-20 [NYC Civ Ct 1984], and cases cited therein). The circumstances of the present case suggest inferentially that defendant's teenage son was indeed the type of person contemplated by the statute as one who could reasonably be expected to deliver the legal papers to defendant and, thereby, apprise the interested party of the pendency of the action (Cf. Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314 [1950]). Thus, personal jurisdiction over defendant has been established here.

Turning to the merits, then, the gravamen of the complaint in this action is that, during a period of time when plaintiff had pending before the Town Board an application seeking permission to build a commercial structure on land owned by him, defendant appeared at public meetings of the Board. At these meetings defendant, who resides across the street from plaintiff's land, stated that plaintiff was renting out his property as a "half-way house" and suggested, in graphic language, the possibility that the tenants who resided on plaintiff's property were substance abusers and potentially dangerous criminals. Plaintiff not only denies the truth of defendant's assertions, but also contends that he had previously spoken to defendant and had explained to him that his property was not being run as a "half-way house" and that its tenants were law-abiding family people. Plaintiff claims that his reputation and business have been harmed by defendant's deliberately false and defamatory comments.

Even assuming, for the purposes of this motion, that defendant's statements are in fact defamatory, the complaint must nonetheless be dismissed. The Courts of this State have long recognized the absolute privilege that attaches to statements made in the course of judicial and quasi-judicial proceedings (see Marsh v Ellsworth, 50 NY 309, 311-312 [1872]). This protection has been extended to administrative proceedings and hearings before town and village boards (see Allan and Allan Arts, Ltd. v Rosenblum, 201 AD2d 136 [2d Dept 1994], and cases cited therein). The statements at issue in this case were [*3]made by an individual who, as an adjoining neighbor to the property subject to a pending application before the Town Board, had standing to object to the issuance of the requested relief; the statements were directly related to the uses to which plaintiff allegedly had put his property; and the statements were intended to influence the outcome of the Board's deliberations. As such, defendant's statements enjoy the type of protection accorded to the open and free exchange of ideas central to the workings of a representative democracy (see id. at139-140).

Moreover, defendant's statements, whether made directly before the Town Board or repeated privately to other community members in order to encourage their opposition to plaintiff's application, also enjoy statutory protection against civil action (see Civil Rights Law § 76-a). Indeed, this case is strikingly similar to T.S. Haulers, Inc. v Kaplan, (2001 WL 1359106 [Sup Ct Suffolk Cty 2001] [Hall, J.]). In Kaplan, the defendants had made negative public comments, some of which were quoted in the press, concerning mining activity being conducted by the plaintiffs, who had sought from the local Town Board the issuance of special permits to allow them to continue mining operations on their lands. In dismissing the plaintiffs' defamation action, the Court noted that Civil Rights Law § 76-a was intended to protect citizens against having to face a private lawsuit as a result of statements made in the course of public discussions of impending government action. The Court went on to emphasize (at n 4) that whether the allegedly defamatory statements had been uttered during official proceedings or outside of those proceedings was not relevant to the analysis: controlling was the fact that the statements were made by interested parties who sought to encourage opposition to the granting of the permits requested by the plaintiffs. Thus, whether defendant's statements in the present case were confined to Town Board meetings or were reiterated in private conversations with neighbors outside those proceedings, plaintiff's complaint cannot be sustained.

Accordingly, it is

ORDERED that defendant's motion to dismiss the complaint for failure to state a cause of action is granted.

This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorney for defendant. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:March, 2008

Troy, New York

______________________________________

Henry F. Zwack [*4]

Acting Supreme Court Justice