Corsini v Morgan

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Corsini v Morgan 2013 NY Slip Op 31348(U) June 20, 2013 Supreme Court, New York County Docket Number: 152066/2012 Judge: Kathryn E. Freed 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. [*FILED: NEW YORK COUNTY CLERK 06/24/2013 1] INDEX NO. 152066/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 06/24/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ./ PART_..j __ PRESENT: Justice Index Number: 152066/2012 CORSINI, GERARD INDEX NO. _ _ _ ___ VS. MOTION DATE ________ MORGAN, ELIZABETH SEQUENCE NUMBER: 001 MOTION SEQ. NO. _ _ ___ DISMISS ACTION The following papers, numbered 1 to ___ , were read on this motion to/for Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - -------------------------I No(s)..__________ I No(s). _ _ _ _ __ I No(s). _ _ _ _ __ Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Upon the foregoing papers, It is ordered that this motion is w o i= rn ::I .., g '. ;; '" c .... ,j , J ¢ .... ... ' .. . ;; . w /. ~ . It: It: w w u.. It: >- ;..:. ..J!!!. ..J z ::I 0 u.. rn t; ~ W 3; It: (!) W Z It: - rn 3: _ 0 W rn ..J ..J c( 0 o o ::lE ~ o u.. Z ~ i= It: 0 u.. ~ Dated: .. I I;,~ '.~~ .' ..:.1: ¢ -..~-~-';'Y·"~ _::-~:';:'-SD 2 0 Zm3 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ ____~:::::::..._ _ _ _ _ _ ' J.S.C. 0 0 0 ~-Js·c. <:·~ a .. ~-J~O~;~F~~~~~:POSITION CASE DISPOSED GRANTED 0 DENIED 0 0 GRANTED IN PART 0 SETILE ORDER o DO NOT POST 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 5 ---------------------------------------x GERARD CORSINI, Plaintiff, -against- Index No. 152066/12 ELIZABETH MORGAN a/k/a BETSY MORGAN AND ELIZABETH CARY, JONATHAN CARY, AARON SHMULEWITZ, BELKIN BURDEN WENIG & GOLDMAN, LLP, DAN MCKAY (also s/h/a JOHN DOE 1), OFFICERS BUTTACAVOLE, ALYSE, COLON, SGT, ANITRA and DETECTIVE ERIC PATINO of the 10TH PRECINCT OF THE POLICE DEPARTMENT of the CITY OF NEW YORK. THE CITY OF NEW YORK, MAYOR MICHAEL BLOOMBERG and POLICE COMMISSIONER KELLY OF THE CITY OF NEW YORK, and JOHN DOES 1-20 and JANE DOES 1-20, Defendants. --------------~~------~~------~--------x HON. KATHRYN E. FREED: Motion sequence nos. disposition. In motion 001 through sequence no. 004 are 001, consolidated for defendants Aaron Shmulewitz, Esq. and Belkin Burden Wenig & Goldman (Belkin) move: (a) pursuant to CPLR initial complaint; § 3211 (a) (1) and (7), to dismiss plaintiff's (b) pursuant to 22 NYCRR § 130-1.1 et seq., for sanctions to be imposed against plaintiff, who is an attorney; and (c) for an order setting this matter down for a hearing to determine 'the amount of attorney's fees, costs and disbursements to which the movants are entitled. 1 [* 3] In motion sequence no. (City), Michael R. 002, defendants The City of New York Bloomberg s/h/a Mayor Michael Bloomberg, Police Commissioner Raymond W. Kelly (collectively, CPLR § 3211 (a) Kelly s/h/a and Police Commissioner the Municipal Defendants) move, pursuant to (7), for an order dismissing the initial complaint, as to them. In motion sequence no. 003, defendants Elizabeth Morgan a/k/a Betsy Morgan and Elizabeth Cary, Jonathan Cary, and Daniel J. McKay (also s/h/a John Doe 1) move, pursuant to CPLR 3211 § (a) (1) and (7), to dismiss plaintiff's amended complaint, pursuant to CPLR 8303 and 22 NYCRR § 130-1.1 et seq., § for sanctions to be imposed against plaintiff, and for an order setting this matter down for a hearing on the amount of attorney's fees, costs and disbursements to which the movants are entitled. In motion purportedly, YORK" move, seq. no. 004, the Municipal Defendants, and, nonparty "THE POLICE DEPARTMENT OF THE CITY OF NEW pursuant to CPLR § 3211 (a) (7), dismissing the amended complaint as a nullity, for an order: (1) as served without leave of court, and (2) dismissing the initial complaint. By letter dated September 10, 2013, Shmulewitz and Belkin request that their motion to dismiss apply to the amended complaint. This action arises out of plaintiff's anger that his neighbors, Morgan and Cary, license the use of their t6wn house as a site for commercial photography 2 shoots. The block on which [* 4] plaintiff and his neighbors live is zoned residential. at all relevant times employed by Morgan and Cary. McKay was Shmulewitz, who is employed by Belkin, was at all relevant times Morgan and Cary's real estate lawyer. Insofar as is relevant here, CPLR § 3025 (a) provides that a party may amend a pleading "once without leave of court ... within twenty days after service of a pleading responding to it." 2103 (b) CPLR § (2) provides that "where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period ... " The Municipal Defendants served their answer to the complaint by mail on July 20, 2012. Accordingly, plaintiff had the 20 days provided by CPLR § 3025, plus the five days provided by CPLR § 2103 (b), that is, until August 14, 2012, to serve an amended complaint without leave of court. The Municipal Defendants acknowledge that plaintiff served his first amended complaint upon them on August 14, 2012. Accordingly, that dismiss branch of their second motion that seeks amended complaint as a nullity is being denied. to the Moreover, inasmuch as the service of an amended complaint supersedes the original complaint, leaving the amended complaint as '" the only complaint in the action'" (Plaza PH2001 LLC v. Plaza Residential Owner LP, 98 A.D.3d 89, 99 [1st Dept. 2012]), quoting Hummingbird Assoc. v. Dix Auto Serv., 273 A.D.2d 58, 58 [1st Dept. 3 2000]), the Municipal [* 5] Defendants' motions to dismiss the original complaint are moot. While a party may choose, here, as Shmulewitz and Belkin have chosen and as the defendant in the case cited immediately below chose, to have their motions, which were addressed to an initial complaint, apply to an amended complaint Proskauer Rose, Real ty (Sage Corp. v. 251 A.D.2d 35, 38 [1st Dept. 1998]), the Municipal Defendants, for reasons best known to themselves, have not done so. The amended complaint alleges the following seven causes of action: (1) assault, prosecution, (against and false imprisonment, intentional Morgan, Cary, false arrest, malicious infliction Shmulewitz, of emotional Belkin, distress defendant police officers Buttacavole and Alyse, defendant Sergeant Anitra, John Doe 3, and the Municipal Defendants); (2) slander and intentional infliction of emotional distress (against Morgan, Cary, Shmulewitz, Belkin, McKay, constitutional distress and Jane rights (against Doe and and Kelly); infliction of (3) violation intentional defendant Bloomberg, 1); police infliction officer distress (against of criminal prosecution and disciplinary Shmulewitz, Belkin, Morgan, and Cary); of emotional distress McKay, John Doe 2, Jane Doe 4 emotional the City, and intentional Cary, their (5) improper threats proceedings (against (6) intentional infliction (against Morgan, Cary, and of Morgan, driver (John Doe 2), Shmulewitz, and Belkin); plaintiff's Colon, (4 ) assault and battery, emotional of 1); and Shmulewitz, (7) false Belkin, arrest, [* 6] intentional infliction of emotional plaintiff I s First and distress, Fourth Amendment and violation of rights (against Morgan, Cary, Shmulewitz, Belkin, the City, Bloomberg, Kelly, and defendant Detective Eric Patino). The first cause of action, which jumbles five separate torts, arises out of the April 29, 2011 arrest of plaintiff by Sergeant Anitra and police officers Buttacavole, Alyse, and John Doe 3. against Morgan, Cary, Shmulewitz, and Belkin, As the claims must be dismissed because a private person, who has not played an active role in an arrest, but only sought the assistance of the police and provided them with information, leaving the officers free to make their own judgment as to whether to make the arrest, cannot be held liable Narvaez for v. either malicious City of New prosecution or 83 York, A.D.3d false 516 imprisonment. (1st Dept. 2011) (malicious prosecution); Petrychenko v. Solovey, 99 A.D.3d 777, 779 (2d Dept. 2012) (false imprisonment); see also Du Chateau v. Metro- North Commuter R.R. Co., 253 A.D.2d 128, 131 (1st Dept. 1999). The amended complaint alleges only that Morgan, Cary, Shmulewitz, and Belkin "induced defendants Amended to caused falsely complaint allegation is ~ and conspired" arrest 10. insufficient and That to with falsely the police imprison plaintiff. conclusory vague and entirely support the claims prosecution and false imprisonment, infliction of emotional distress. 5 officer of malicious or the claim of intentional Finally, with regard to this [* 7] cause of action, the claim of assault must be dismissed, as against Morgan, allege Cary, that Shmulewi t z, any of them and Bel kin because plaint iff does not engaged in "physical conduct placing plaintiff in imminent apprehension of harmful contact." Holtz v. Wildenstein & Co., 261 A.D.2d 336, 336 (1st Dept. 1999). The Court notes that the only allegation against Shmulewitz and Belkin in the first cause of action is the conclusory statement, unsupported by any allegation of fact, that they "aided and abetted" Morgan, Cary, and McKay (against whom the first cause of action is not alleged) to "induce [], cause [] defendants]." and conspire [] Amended complaint <JI with [the police officer 10. The second cause of action is based upon a number of alleged oral statements by Morgan and others. on April 21, 2011, Morgan said plaintiff fails to identify), to Plaintiff alleges that: persons ather house (1) (whom "He's just gotten worse and worse. People on the block say he's just becoming crazier and crazier"; (2) on April 25, 2011 Morgan said in front of neighbors and passersby that plaintiff was "crazy," "a stalker," "totally nuts," and "a crazy stalker"; (3) an unidentified person who was delivering some boxes to Morgan and Cary shouted at plaintiff that he was a stated "psycho" who "needs help"; that plaintiff "takes (4) pictures on June of 9, 2011, [Morgan's] McKay kids and probably puts them on the internet"; and (5) on June 29, 2011, Jane Doe 1 stated that plaintiff was a "perv," a "stalker," "interested [* 8] in young girls," "a creepy porno nut," and that he was "crazy." Amended complaint ~~ 17-21. As an initial matter, statements number 3 and number 5, above, are alleged to have been made by persons unknown to plaintiff. While the amended complaint alleges that "Morgan, Cary, McKay (John Doe 1), Shmulewitz and Belkin aided and abetted one another and conspired among themselves pursuant to a common plan designed and devised by and/or created with the substantial assistance of defendants Shmulewitz and Belkin ... to have false and defamatory statements alleges [about no facts plaintiff] to published evidence any in such public," plan or plaintiff conspiracy. Accordingly, statements number 3 and 5 are not actionable against any of the named defendants. Because opinions are constitutionally protected speech that is not actionable as defamation (Rinaldi v. Holt, Reinhart & Winston, 42 N.Y.2d 369, Carva, 380, cert denied 434 US 969 [1977]; Guerrero v. 10 A.D.3d 105, 111 [1st Dept. 2004]), a statement must be factual, and thus capable of being shown to be false, be actionable. Thomas H. v. Paul B., 18 N. Y. 3d 580, in order to 584 (2012). Whether a statement is one of fact is for the court to determine. Steinhilber v. Alphonse, 68 N.Y.2d 283, 290 (1986). In addition to ascertaining whether the challenged statement can be proven true or false, the court must determine "whether the specific language in issue has a precise meaning which 7 is readily understood" and [* 9] "whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to '" signal ... readers or listeners that what is being read or heard is likely to be opinion, not fact."'" Brian v. Richardson, 87 N.Y.2d 46, 51 (1995), quoting Gross v. New 82 N.Y.2d 146, 153 (1993), quoting Steinhilber v. York Times Co., 68 N.Y.2d at 292. Alphonse, Accordingly, a plaintiff alleging slander must quote not only the specific words objected to, as required by CPLR also enough of the complete statement to 3016 (a), but § enable the determine whether the words complained of assert facts, convey an opinion. court to or merely See Dillon v. City of New York, 261 A.D.2d 34, 38 (1st Dept. 1999) Statement number 2 consists of isolated words context. Accordingly, those words are not actionable. Morgan's alleged statements, that plaintiff is lacking any Similarly, "crazy," "a stalker," "totally nuts," and "a crazy stalker," are words lacking any context. between Moreover, plaintiff and in the context of the ongoing acrimony Morgan, those understood by those who heard them as hyperbolic" expressions of exasperation. words would "[1] oose, Id. clearly be figurative, or at 38. Morgan's statement, that plaintiff has "just gotten worse and worse," is indefinite in meaning, and her statement about what people on the block are saying is a report of the speech of others, [* 10] which does not lend a definite and ascertainable meaning to the "worse and worse" statement. Consequently, these statement are not actionable. It is well settled that truth is an absolute defense to a claim of defamation. 85 A.D.3d 473 See e.g. Panghat v. New York Downtown Hosp., (1st Dept. 2011). Plaintiff does not allege that McKay's statement, that plaintiff photographs Morgan's children, is false. As for the second part of McKay's statement, that plaintiff probably posts the photographs on the internet, the word "probably" indisputably indicates that McKay was voicing an opinion, rather than asserting a fact. Moreover, as a general rule, slander is not actionable absent an allegation that the plaintiff has suffered special damages, that is, the loss of "something having economic or pecuniary value." Liberman v. Gelstein, 80 N.Y.2d 429, 434-435 internal quotation marks omitted). this rule, however, to wit, with a serious crime; her trade, business (ii) or (1992) (citation and There are four exceptions to "statements: (i) charging plaintiff that tend to injure another in his or profession; (iii) that plaintiff loathsome disease; or (iv) imputing unchastity to a woman." 435. has a Id. at Plaintiff does not claim that he has suffered economic damage as the result of the statements discussed above. The only one of the exceptions to the general rule that is even remotely applicable here is the first. 9 [* 11] Stalking in the fourth degree is a class B misdemeanor. Law 120.45. § As the Appellate Division, Penal Fourth Department, has observed, class B misdemeanors are the lowest grade of crime. such a crime, of itself, crimes must be Pozzi, is considered a serious crime, considered to be serious then all Cavallero crimes. If v. 28 A.D.3d 1075, 1077 (4th Dept 2006). The fourth cause of action alleges that: on April 25, 2011, John Doe 2 "threw" plaintiff against the iron fence in front of Morgan and Cary's house; on April 26, 2011, an unidentified truck driver who was delivering materials to Morgan and Cary's house punched plaintiff in the stomach; and, later that evening, another unidentified truck driver assaulted plaintiff (in an unspecified manner), while stating that plaintiff is a "psycho" who needs help. This cause of action alleges, without alleging a single supporting fact, that: employment Belkin, who conduct" John Doe 2 was acting within the scope of his "and pursuant to the plan devised by Shmulewitz and substantially (amended complaint assisted <]I and aided and abetted the 35); the truck driver who punched plaintiff did so "at the direction, inducement and prompting" of Morgan plan and Shmulewitz Cary and "pursuant Belkin"; to and the the second devised driver by defendants acted "at the prompting of defendants Morgan, Cary and McKay [against whom this cause of action is not alleged] as aided and abetted by defendants Shmulewitz and Belkin and in furtherance of the plan devised by 10 [* 12] them." Amended complaint <JI 37. In sum, this cause of action makes not a single allegation of fact against Morgan, Cary, Shmulewitz, or Belkin, or, needless to say, McKay. The fifth cause of action is based exclusively on a December 2, 2010 "cease plaintiff. and desist" letter that Shmulewitz sent to The amended complaint alleges that the letter falsely states that Morgan and Cary do not conduct photography shoots at their house, falsely states that the people carrying props and photographic equipment are Morgan's improperly threatens prosecution of, against plaintiff, unless and Cary's guests, and and disciplinary procedures plaintiff stops photographing the commercial activities taking place at Morgan and Cary's house. In fact, however, the letter, which plaintiff attaches as exhibit H to his affidavit in opposition to the motion of Morgan, Cary, and McKay, states that plaintiff has falsely stated that Morgan has a commercial photo studio in her house (as distinguished from licensing the use of her house for photographic shoots), and that she is, thereby, violating the law, repeatedly accosted Morgan at and that plaintiff has her house and in the street and repeatedly accosted and photographed guests and visitors on their way into and out of her house. Even had the letter stated what plaintiff represents it to have stated, and even if it had, thus, violated a disciplinary rule, as plaintiff argues that it does, the violation of a disciplinary rule does not, of itself, give rise to 11 [* 13] a cause of action. William Kaufman Org. Graham V. James, & 269 A.D.2d 171, 173 (1st Dept. 2000). The sixth cause of action alleges that, McKay, knowing of plaintiff's April 29, on June 11, 2011 arrest, 2011, rang the downstairs buzzer for plaintiff's apartment, several minutes after defendant Sergeant Anitra had left the apartment and, when plaintiff answered, shouted "New York Ci ty police," thereby causing plaintiff to fear that he was about to be arrested again. clearly reprehensible, McKay's alleged act does not Although constitute conduct "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency. '" A.D.3d 507, 508 Co. , 81 plaintiff, (1st Dept. 2011), quoting Howell N.Y.2d commencement Rogin V. of 115, a 122 summary (1993) . In nonpayment Rogin. 90 New York Post V. a Rogin, proceeding landlord's against the despite knowing that she had an equitable defense to that action, was held not to constitute intentional infliction of emotional photograph distress. of the In Howell, plaintiff on defendant's the grounds publication of a of a psychiatric hospital was held insufficient to support a claim. The seventh cause of action arises out of the August 31, 2011 arrest of plaintiff by Detective Patino. The allegation against Morgan, Cary, Shmulewitz, Belkin, and McKay is that: "Morgan and Cary, aided and abetted by and in conspiracy with defendants Shmulewitz, Belkin and McKay and in furtherance of the above-mentioned'common plan, induced, caused and conspired with defendant Patino acting on 12 [* 14] behalf of himself and [the Municipal Defendants], with their full knowledge and approval ... to falsely arrest and falsely imprison plaintiff ... " Amended complaint phrase "aided ~ and allegation of a Here, again, 46. abetted," conspiracy, and does the mere repetition of the of not the entirely suffice to conclusory state- a claim against Morgan, Cary, Shmulewitz, Belkin, or McKay. Although plaintiff's claims against Morgan, and Cary, and even more so his claims against Shmulewitz and Belkin, are meritless, plaintiff's filing of the amended complaint does not, of itself, warrant the imposition of sanctions. Accordingly, it is hereby ORDERED that, in motion sequence no. 001, the motion of defendants Aaron Shmulewitz, Esq. and Belkin Burden Wenig & Goldman is granted in part and the amended complaint is severed and dismissed as against said defendants with costs and disbursements as calculated by the Clerk of Court upon appropriate bill of costs, and the the submission of an remainder of the motion is the of denied; and it is further ORDERED that, in motion sequence no. 002, motion defendants The City of New York (City), Michael R. Bloomberg s/h/a Mayor Michael Bloomberg, and Police Commissioner Raymond W. Kelly s/h/a Police Commissioner Kelly further 11 is denied as moot; and it is [* 15] ORDERED that, in motion sequence no. 003, the motion of defendants Elizabeth Morgan a/k/a Betsy Morgan and Elizabeth Cary, Jona than Cary, and Daniel J. McKay (also s /h/ a John Doe 1) is granted in part and the amended complaint is severed and dismissed as against calculated said by defendants the appropriate bill of Clerk costs, with of costs and disbursements as Court upon the submission of an the motion is the of and the remainder of denied; and it is further ORDERED that, in motion sequence no. 004, motion defendants The City of New York, Michael R. Bloomberg s/h/a Mayor Michael Bloomberg, and Police Commissioner Raymond W. Kelly s/h/a Police Commissioner Kelly is denied; and it is further ORDERED that the Clerk is directed to enter judgment accordingly; and it is further ORDERED that the rest of this action shall continue. Dated: June 20, 2013 ENTER: JUN 2 0 2013 on. Kathryn &. Freed HON. KlZ-rIDtYN FREED JUSTICE OF SUPREME. COURT

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