Forras v Rauf

Annotate this Case

Download PDF

Forras v Rauf 2012 NY Slip Op 32845(U) September 26, 2012 Sup Ct, New York County Docket Number: 111970/2010 Judge: Lucy Billings 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 PRESENT: LUCY E39LLiNGS 1 s.. C PART 4 6 7 INDEX NO, FORMS, VINCENT vs. RAUF, FEISAL ABDUL MOTION DATE MOTION SEQ. NO. I SEQUENCE NUMBER : 001 I) MOTION CAL. NO. DISMISS ACTION :his motion to/for PAPERS NUMBERED hotice ot Motion/ Order to Show Cause - Affidavits - Exhibits ... ! 3 Answering Affidavits - Exhibits z,+5.I r g b -4 Replying Affidavits Cross-Motion: d Yes 0 No 4w: Upon the foregoing papers, it is od r d r ee - FILED NEW YORK COUNTY CLERK S OFFICE Da LUCY BlLLlNGS Check one: FINAL DISPOSITION Check if appropriate: n NON-FINA~wSPOSlTION 0 DO NOT POST u SUBMIT ORDER/ JUDG. J.S. C. fl REFERENCE n SETTLE ORDERI JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 _ _ - _ _ _ _ - - _ _ _ _ - - I - -X _ VINCENT FORRAS, on behalf of himself and a11 others of and in t h e City of New York, County of New York, similarly situated, _ _ - - - - - - - - - - - - - Index No. 111970/2010 Plaintiffs DECISION AND ORDER - against - FEISAL ABDUL RAUF, CORDOBA HOUSE/ PARK 51, CORDOBA INITIATIVE, SOH0 PROPERTIES, and all other aliases known and unknown, APPEARANCES: For Plaintiffs Larry Klayman E s q . Raymond Negron Esq. Freedom Watch, Inc. 2000 Pennsylvania Avenue N.W., Washington, DC 20006 For Defendants Adam Leitman Bailey E s q . 120 Broadway, New York, NY 10271 LUCY BILLINGS, J.S.C.: I. BACKGROUND Plaintiff sues to recover damages f o r 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 c e n t e r at Park P l a c e and Church Street, New York County, near Ground Zero, which has s p a r k e d public controversy. Plaintiff leases office space, which he also allegedly uses as a part-time residence, at 257 forras.142 1 - - - - [* 3] 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 cross-moves for sanctions againt defendants and their attorneys, and defendants separately move f o r sanctions against plaintiff and his attorneys, b a s e d on their adversaries' controversial public statements both in court documents and otherwise. 2 2 N.Y.C.R.R. § 130-1.1. Defendants' motion a l s o is based on plaintiff's failure to serve an amended complaint timely. Defendants further move to dismiss any permitted amended complaint on the grounds earlier raised. Plaintiff separately moves to amend his cornplaint and join additional defendants. C.P.L.R. § 3025(b). Plaintiff withdrew his motion f o r class explained below, the court grants defendants' motion to dismiss the complaint'in its entirety and their motion for sanctions to the limited extent delineated, b u t otherwise denies the parties' motions. 11. DEFENDANTS' MOTION TO DISMISS THE COMPLAINT Amlicable Standards A. 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 t r u e , liberally construe them, and draw a l l reasonable inferences in plaintiff's favor. Nonnon v. Citv of New York, 9 N.Y.3d 825, 827 (2007); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 316, 326 (2002); Harris v . IG GreenDoint forras.142 2 [* 4] Corp., 7 2 A . D . 3 d 608, 609 (1st Dep't 2010); Vis v. New York HairsDray Co., L.P., 67 A.D.3d 140, 144-45 (1st Dep't 2009). In short, the court may dismiss a claim based on C.P.L.R. § 3211(a) (7) o n l y if the allegations completely fail to state a claim. Leon v. Martinez, 84 N.Y.2d 83, 88 (1994); Harris v. IG Greenpoint Corp., 72 A.D.3d at 609; Frank v. DaimlerChrvsler cor^., 292 A.D.2d 1 1 8 , 121 (1st Dep't 2002); Scott v. Bell Atl. Corp., 282 A.D.2d 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 a k i n to a congregation's animated, frenzied, threatening, or assaultive behavior outside the building, let alone spewing out to its environs. E. Nuisance Claims A public nuisance claim requires factual allegations t h a t 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 N.Y.2d 280, 292 (2001); Copart Indus. v. Consolidated Edison C o . forras.142 3 [* 5] I of N.Y., 41 N.Y.2d 564, 568 (1977); Wall St. Garaqe Parkins Corp. v. New York Stock Exch., Inc., 10 A.D.3d 223, 227 (1st Dep t 2004). A n individual seeking recovery f o r a public nuisance must have suffered special injury beyond the common i n j u r y to public rights. 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d at 292; Wall St. Garaqe Parkinq Corp. v. New York Stock Exch., Inc., 10 A.D.3d at 227. Plaintiff, even in h i s proposed amended complaint, pleads h i s 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 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 c o s t s for security, and reduced property values. Wall St. Garaqe Parkinq Corp. v. New York Stock Exch., Inc., 10 A.D.3d at 228; Rebecca Moss, Ltd. v. 540 Acquisition Co., 285 A.D.2d 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. Foods v. Finlandia C t r . , v. Tishman Realty & 532 Madison Ave. Gourmet 96 N.Y.2d at 293; Roundabout Theatre Co. Constr. Co., 302 A.D.2d 272, 273 (1st Dep t 2003). A private nuisance claim requires factual allegations that forras.142 4 [* 6] ~ defendants action or omission substantially, intentionally, and unreasonably interfered with plaintiff s right to use and enjoy Copart Indus. v. Consolidated Edison Co. of N.Y., rea1 property. , 93 A .. D . 1 7 5 3a Dep t 2012); Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 A.D.3d 3 8 , 41 (1st Dep t 2011); 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 A.D.3d 330, 334 (1st Dep t 2010). Defendants objectionable conduct must be continuous or recurring. Berenqer v. 261 W. LLC, 93 A.D.3d at 182; Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 A.D.3d at 43. In claiming a nuisance from construction of the mosque, since it has not yet been built, plaintiff pleads only any continuous or recurrent interference with his rights. 225 E. 64th St., LLC v. Janet H. Prystowsky, M.D. P.C., 96 A.D.3d 536, 63 st Dep$ *t 2%012 A.D.3d 229, 230, I 30 237-38 (1st Dep t 2006); Chelsea 18 Partners, LP v. Sheck Y e e Mak, 90 A.D.3d at 43. Any conduct by defendants that plaintiff does allege is protected speech, other expression, or assembly. U.S. Const., Amend. I; N.Y. Const. Art I , 9(1); Golden §§ 8, v. Clark, 76 N.Y.2d 618, 627 (1990); People ex rel. Arcara v. Cloud Books, 68 N.Y.2d 553, 556 (1986). As injuries, plaintiff claims interference with use of his leased business premises, increased c o s t s 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 r e n t , he forras.142 5 [* 7] acknowledges that he i n c u r r e d those costs due to f e a r s 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 N.Y.2d 115, 121 (1993); Suarez v. Bakalchuk, 6 6 A.D.3d 419 (1st Dep't 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 A.D.3d 590, 591 (1st Dep't 2010); Sheila C. v. Povich, 11 A.D.3d 120, 130 (1st Dep't 2004). Extreme and outrageous conduct is a l s o an element of negligent infliction of emotional distress. Bernstein v. E a s t 51st St. Dev. Co., LLC, 78 A.D.3d at 592; Lau v. S&M Enters., 72 A.D.3d 497, 498 (1st Dep't 2010) ; Goldstein v. Massachusetts Mut. Life Ins. Co., 60 A.D.3d 506, 508 (1st Dep't 2009); Berrios v. Our Lady of Mercy Med. Ctr., 20 A.D.3d 361, 362 (1st Dep't 2005). To support t h e element of extreme and outrageous conduct, forras.142 6 [* 8] I ' plaintiff must show that defendants' conduct was llbeyond all possible bounds of decency" and "utterly intolerable in a civilized community.Il Marmelstein v. Kehillat N e w Hempstead: The Rav Aron J o f e n Community Synaqoque, 11 N . Y . 3 d 1 5 , 22-23 (2008); Howell v. New York Post Co., 81 N.Y.2d a t 122; Murphy v. American Home Prods, Corp., 58 N.Y.2d 293, 303 (1983); Suarez v. Bakalchuk, 6 6 A . D . 3 d 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 f o r 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 A.D.3d at 363. Nor has plaintiff alleged that defendants breached any duty owed to h i m so as to unreasonably endanger his safety or cause him to fear for his safety. Bernstein v. East 51st St. D e v . C o . . LLC, 78 A.D.3d 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, b u t t h e connection between defendants' conduct and those activities is lacking. For a l l these reasons, plaintiff's claims for intentional and negligent infliction of emotional distress fail. Lau v. S & M Enters., 72 A.D.3d at 4 9 8 ; Goldstein v. Massachusetts Mut. Life Ins. Co., 60 A . D . 3 d at 508; McRedmond v. Sutton Place Rest. forras.142 7 & [* 9] Bar, Inc., 48 A.D.3d 258, 259 (1st Dep't 2008); Berrios v. Our Lady of Mercy Med. C t r . , D. 20 A.D.3d at 362-63. Assault Claim Assault requires a showing of physical conduct causing plaintiff apprehension of immediate harmful contact. Nicholson v. Luce, 55 A.D.3d 416 (1st Dept 2008); Holtz v. Wildenstein & co I . 261 A . ~ . 2 d336 (1st Dep't 1999); Charkhy v. Altman, 252 A.D.2d 413, 414 (1st Dep't 1998); Hassan v. Marriott C O T P . , A.D.2d 4 0 6 , 4 0 7 (1st Dep't 1997). 243 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. First the mosque, which has not yet been constructed, poses no threat of immediate harmful contact. 261 A.D.2d 336. Holtz v. Wildenstein & Co., Second, plaintiff nowhere alleges any physical conduct that caused an apprehension of harmful contact. Hassan v. Marriott Corp., 243 A.D.2d at 407. See Nicholson v. Luce, 55 A.D.3d 416. 111. THE PARTIES' SUBSEQUENT MOTIONS A. Plaintiff's Motion to Amend the Complaint Plaintiff served an amended complaint as of right based on the parties' mistaken belief that defendants had not yet answered. C.P.L.R. 3 3025(a). Since defendants had answered, plaintiff moved to amend his complaint. forras.142 8 C.P.L.R. § 3025(b). At [* 10] oral argument July 14, 2011, plaintiff withdrew the motion insofar as it sought to join additional defendants. Plaintiff's amended complaint merely repeats the original complaint's rhetoric and vitriolic allegations and adds irrelevant factual details that do not cure any of the deficiencies in pleading discussed above. Thus even if the court considered plaintiff's amended complaint, the claims pleaded still fail. Therefore the court denies plaintiff's motion to amend his complaint based on the lack of merit to the proposed amended complaint's pleaded claims. BGC Partners, Inc. v. Refco Sec., LLC, 96 A.D.3d 601, 603 (1st Dep't 2012); Sepulveda v. Daval, 70 A.D.3d 4 2 0 , 421 (1st Dep't 2010); Board of Mqrs. of Alexandria Condominium v. Broadway/72nd ASSOC., 285 A.D.2d 423, 424 (1st Dep't 2001). B. Defendants' Second Motion to Dismiss the C o r n D l a i n t Defendants moved a second time to dismiss the complaint due to plaintiff's failure-to serve an amended complaint according to the stipulated schedule and repeated the grounds set f o r t h in defendants' first motion f o r dismissal. Because the court grants their first motion to dismiss the complaint, the court denies their second motion as academic. C. Motions for Sanctions The parties seek sanctions against each other and their t their sole p en to harass each other and attract media attention and that their actions therefore were frivolous. Defendants also request sanctions in connection with their second motion for dismissal because forras.142 9 [* 11] plaintiff did not timely serve an amended complaint. Conduct is frivolous if it is completely meritless and insupportable by a reasonable argument f o r extension, modification, or reversal of current law or is undertaken to harass or injure another person. 22 N.Y.C.R.R. Cadlerock Joint Venture, L . P . v. Sol Greenberq & § 13O-l.l(c), Sons Intl., Inc., 94 A.D.3d 580, 581-82 (1st Dep't 2012); Newman v. Berkowitz, 50 A.D.3d 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 f o r sanctions insofar as it is based on such conduct. While filing meritless claims may constitute frivolous conduct, Visual Arts Found., Inc. v. Eqnasko, 91 A . D . 3 d 578, 579 (1st Dep't 2012), since plaintiff articulated legally cognizable claims, but an incomplete factual basis f o r them, his conduct in filing the claims was not entirely frivolous. Parkchester S . Condominium Inc. v . Hernandez, 71 A.D.3d 503, 504 (1st Dep't 2010); Newman v. Berkowitz, 50 A.D.3d at 480; Adelaide P r o d s . , I n c . v. BKN Intl. AG, 38 A.D.3d 221, 227 (1st Dep't 2007); Parametric Capital Mqt., LLC v. Lacher, 26 A.D.3d 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. Seqal, 96 A.D.3d 513, 514 (1st Dep't 2012); Parkchester S. Condominium Inc. v. Hernandez, 71 A.D.3d at 504; forras.142 10 [* 12] ! . * Peach Parkinq Corp. v. 346 W. 40th St., LLC, 52 A.D.3d 260, 261 (1st Dep't 2008). Greenberq & Cadlerock Joint Venture, L . P . v . S o l Sons Intl., Inc., 94 A.D.3d 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. Seqal, 96 A.D.3d at 514; Pentalpha E n t e r s . , Ltd. v. Cooper & Dunham LLP, 91 A.D.3d 451, 452 (1st Dep't 2012). Since plaintiff attributed his late amended complaint to a delay in receiving a transcript of court proceedings outlining the original complaint's deficiencies, plaintiff's untimeliness was not ill-willed and therefore did not amount to frivolous conduct. Eqqert v. GCD Rec. Studios, 90 A.D.3d 425 (1st Dept 2011). Neither did this untimeliness or plaintiff's adjournment requests unduly delay the progress of the action. His unauthorized sur-replies only delayed this decision. Insofar as defendants s e e k sanctions for the failure of plaintiff's I attorneys to appear for oral argument March 3, 2011, leading to an adjournment to April 5, 2011, however, the attorneys' absence March 3 , 2011, remains unexplained, entitling defendants to their costs, including attorneys' fees, f o r their needless and duplicative appearances. Hushes v. Farrey, 48 A.D.3d 385; Borqenicht v. Bloch, 280 A.D.2d 306, 307 (1st Dep't 2001). IV. DISPOSITION In sum, the court grants defendants' motion to dismiss the original complaint based on its failure to state a claim. forras.142 11 [* 13] C.P.L.R. § 3211(a)(7). The court denies plaintiff's motion to amend his complaint, because his proposed amended complaint remedies none of his original complaint's deficiencies, C.P.L.R. § 3025(b), and denies defendants' second motion to dismiss the complaint as academic. The c o u r t denies plaintiff's cross-motion f o r sanctions and grants defendants' separate motion for sanctions only to the extent of awarding costs, including reasonable attorneys' fees, of $1,500.00 f o r the unexplained failure of plaintiff's attorneys to appear for oral argument March 3, 2011, 2 2 N.Y.C.R.R. § 130- l.l(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 c o u r t , upon service of this order with notice of entry and an affirmation or affidavit reciting t h e nonpayment, shall enter a judgment of $1,500.00 in favor of defendants and against plaintiff's attorneys jointly a n F ILED individually. NOV 132412 DATED: September 26, NEW YORK - , ' / h ' v T Y CLERK'S OFFICE 2012 LUCY BILLINGS, J.S.C. forras.142 12

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.