Kenny v Williams
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Kenny v Williams 2013 NY Slip Op 33612(U) December 13, 2013 Supreme Court, Bronx County Docket Number: 3036131/2013 Judge: Lucindo Suarez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Dec 26 2013 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: l.A.S. PART !9 ···-------------·····---------------································X JOHN KENNY, DECISION AND ORDER Plaintiff, Index No. 30361312013 - against - MICHAEL WILLIAMS and AL-A \VDA, THE PALESTINE RJGHT TO RETURN COALITION, Defendants. ------············---------············----------············-------X PRESENT: Hon. Lucindo Suarez Upon plaintiff's notice of motion dated September 26, 2013 and the affirmation and exhibi1s sub1nitted in support thereof: the Opposition to Motion to Dismiss and Counter~f\-1otion tOr Su111mary Judgment dated October 20. 2013 of defendant Al-Awda, the PaJestine Right to Return Coalition and the affirmation, affidavit and exhlbJts submitted in support thereof; plaintiffs affirmation in opposition dated October 30, 2013 and the exhibit submitted therewith; plaintiff's affirmation in reply dated October 30, 2013 and the exhibit submitted tl1erewith; and due deliberation; the court finds: "fhis action alleges assault by defendant tvfJchaeJ Williams ("Williams") during a rally organized by defendant Al·Awda, the Palestine Right to Return Coalition ("Al-Awda"), As to Al· Awdai jJlaintiif alleges the faiJures to screen particlpants, prevent lhe assault and maintain adequate ' sccu1ity to prevent injury to passers-by, PlaintitT moves pursuant to CPL,R 32 l l(a)(7) {failure to state a cause of action) to dismiss Al-i\.,...;da's counterclaims, together with its ancillary claims for punitive damages and attorney's fees, relying solely on such pleading, 1 1 The court notes th al the notice of motion sought an order dismissing '·Plaintiffs claims <lfJJ.inst the Defendant" This obvious error is, disregarded, see CPLR 200 I, as the affinnation ciearly identified the relief sought and Al~Awda fully and substantJvely responded to th.emotion. [* 2] FILED Dec 26 2013 Bronx County Clerk "On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a)(7), lt is well settled that courts must liberally construe a pleading, accept aU the facts alleged therein to be Lrue, and accord those allegations the benefit of evef)' possible favorable inference in order to determine whether those facts fit within any C(,gnizable legal theory!' Molina v, Phoenix Sound, Inc, 297 A.D.2d 595, 596, 747 N.Y.S.2d 227, 229 (!st Dep't 2002). ¢'Initially, the sole criterion is whether the pleadJng states a cause of action, and if from its four comers tUctual allegations are discerned w·hich taken together manifest ru1y cause of action cognizabJe at law a n1otion for dismissal will fail." Guggenhcimer v. Ginzburg, 43 N.Y.2d 268, 275, 372 N.E.2d 17, 20, 401 KY.S.2d 182. 185 (]977). 1'he court has recognized "the right of plaintiffs 'to seek redress, and not have the courthouse doors closed at the very inception of an action, where the pleading meets a minimal standard necessary to resist dismissaJ of a complaint' If we determine that plaintiffs are entitled to relief on any reasonable vie\\' of the facts stated, our inquiry is complete and we must declare the complaint legally sufficient." Campaign jor Fiscal Equity v. State, 861'.Y.2d 307, 318, 655 N.E.2d 661, 667, 631 N.Y.S2d 565, 571 (1995) (internal citations omitted); see also See EBC I, Inc. v. Goldman Sachs & Co., 5 N.Y.3d 11, 832 N.E.2d 26, 799 N.Y.S.2d 170 (2005). l'he pleading receives ''tl1e benefit of every plausible tavorable inference, the court's task beil1g only to determine if the facts alleged comport with a cognizable lega1 theory." Ramerica Im'/, Inc. v. ;\!if-Spec Indus Corp, 293 A.D2d 420, 420, 740 N. Y.S.2d 857, 857-58 (I st Dep't 2002) (emphasis added). The pleading need merely state "in some recognizable form any cause of action known to our Jaw." Sheroff v. Dreyfus Corp., 50 A.D.3d 877, 877-78, 855 N.Y.S.2d 902, 903 (2d Dep't 2008). The proponent is not required to show in response that its allegations will ulttrnateJy be proven, See Leon v .A.fartinez, 84 N. Y.2d 83, 638 N.E.2d 5 l l, 614 N.Y.S.2d 972 2 [* 3] FILED Dec 26 2013 Bronx County Clerk (1994). "[A]ffidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims." Rovella v. Orofino Realty Co., 40 N.Y.2d 633, 635, 357 N.E.2d 970, 972, 389 N.Y.S.2d 314, 316 (1976). The court may consider "other," Tenuta v. Lederle Lab., 90 N.Y.2d 606, 687 N.E.2d 1300, 665 N.Y.S.2d 17 (1997), or "additional," CPC Int'/Jnc. v. McKesson Corp., 70 N. Y.2d 268, 514 N.E.2d 116, 519 N. Y.S.2d 804 (1987), documents submitted in opposition to the motion. 1-lowever, "the factual allegations [of the complaint] must be enough to raise a right to relief above the speculative level." Icahn v. Lions Gate Entertainment Corp., 2011 N.Y. Misc. LEXIS 1336, at ***17 (Sup Ct N.Y. County 2011). "[C]onclusory allegations - claims consisting of bare legal conclusions with no factual specificity," Godfrey v. Spano, 13 N.Y.3d 358, 373, 920 N.E.2d 328, 334, 892 N.Y.S.2d 272, 278 (2009), are not entitled to the presumption of truth and the accord of every favorable inference, see Caniglia v. Chicago Tribune-New York News Syndicate, 204 A.D.2d 233, 612 N. Y.S.2d 146 (I st Dep't 1994). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Jqbal, 556 U.S. 662, 678 (2009). Such allegations "arc insufficient to survive a motion to dismiss." Godfrey, 13 N. Y.3d at 373, 920 N.E.2d at 334, 892 N.Y.S.2d at 278. The first counterclaim alleges that plaintiff commenced this action "with the intention of harassing, defaming, limiting and punishing Defendant Al-Awda's right and ability to engage in protected free speech activities" and that "Al-Awda has been impaired in its ability to engage in, and secure the participation of others in, protected free speech and free association activities." Plaintiff argues that the claim, containing only legal conclusions unaccompanied by any factual allegations, is ii1sufficiently pl ed. The absence of factually specific allegations is fatal to Al-Awda's claim, see 3 [* 4] FILED Dec 26 2013 Bronx County Clerk GodfreJ', supra, and defendant's submissions did not bolster the claim. The second counterclain1 alleges that plaintiff'"sustains his otherwise frivolous and harassing complaJnt against Defendant .J\l-Awda by making knowingly false material statements and claims with reckless disregard for the falsity of the underlyir.g claim so as to cause, and to induce this Court to cause, the obstruction. impediment, delay and prevention of Al~Awda's right to engage in the protected activitles of free speech and freedom of association" and that "Al-Aw<lahas been impaired in its ability to engage in, and scc1rre the participation of others in, protected free speech and free association activities!' TI1is counterclain1 suffers fron1 the same lack of specific factual allegation as the first counterclaim. See Godfrey, supra. Even if it did not, the counterclaim must be dis1nissed as duplicative of Al-Awda 's counterclaim alleging malicious prosecution. See .<>antoro v, Town ofSmithtown, 40 kDJd 736, 835 N,Y,S.2d 658 (2d Dep't 2007); Yuen v, Yuk Lin Sun, 32 Misc,3d 1237[A], 938 N.Y,S,2d 231 (Sup Ct N,Y, County 2011), The third counterclaim alleges that plaintiff'lcommitted aprima.facie tort against the Clain1ants herein by fil1ng this action with an intent to cause harm to Defendant Al~Awda \Vithout excuse or justification so as to cause Defendant Al~A v:,rda to incur special damages.'' The cause of action suffers from the same lack of specific factual allegation as the other counterclaims, See Goqfrr:y, s11pra. It alleges no special damages, and is therefore deficient. See Phillips v. New }J"ork Daily News, 111AD3d420, 974 NY.S.2d 384 (lst Dep't 2013); Christopher Lisa Matthew Policano, inc. v, North American Precis Syndicate, Inc,, 129 A,D.2d 488, 514 N.Y,S.2d 239 (1st Dep't 1987); Daiton v, Umon Bank of Switzerland, 134 A.D.2d 174, 520 N.Y,S,2d 764 (!st Dep't 0 1987). Furthermore, the counterclaim sounds in the traditional tort of malicious prosecution, and 'a party will not be permitted to plead prin1r1filcie tort in the alternative to malicious prosecution, sine('. the forn1er V>'aS not designed to 'become a "catch-all'' a!terna:ive for every cause of ac-tion \.vhich 4 [* 5] FILED Dec 26 2013 Bronx County Clerk cannot stand on its legs,"' Lemherg v. John Blair Co1nrnuns., 251 .A.,D.2d 205, 206 1 674 N. Y.S.2d 355, 356 (!st Dep't 1998). The cause of action furthennore fails to allege that disinterested malevolence was plaintiff's sole motive in con1mencing the action. See Posner v. Le1t"is~ 18 K.Y .3d 566 nl, 965 N,E.2d 949, 942 N.Y.S2d 447 (2012); Chrislopher Lisa Alai/hew Po/icano, Inc,, supra. Al-/\wda's submissions in opposition support plaintiff's clain1 that he was1 in fact, assaulted by WiHiams, a participant in the rally it admits to organizing; plaintiff accordingly had an alternati.ve basis for commencing tl1e action. ·rhe fourth counterclaim alleges rna!icious prosecution. Such a claim requires proof of the commenceme11t or continuation of a proceeding against the claimant by the defendant, termination of the proceeding in favor of tlte claimant, the, absence of probable cause for the proceeding, actual malice and special injury. See Wiiheimina Model.<, Inc, v. Fleisher, 19 A.DJd 267, 797N,Y,S.2d 83 ( lst Dep't 2005). The underlying action need not be a criminal proceeding, Notwithstanding the lack of any allegation that any proceeding has terminated in Al~Awda's favor, the counterclaim faiis to allege arty damage, let alone facts establishing "some concrete harm that is considerably more cumbersome tl1an the physical, psychological or financial den1ands of defendlng a lawsuit." Kaye v Trump, 58 ADJd 579, 580, 873 N.Y.S.2d 5, 6 (!st Dep'l 2009), appeal denied, 13 N.YJd 704, 915 N.E'.:.2d 1179, 887 N.l::'.S.2d 1 (2009). Furthermore, "wl1en the underlying action is civil in nature the want of probable c.3.use must be patent." Perryman v. Village ofSaranac Lake, 4 l I AD.3d 1080, 1081, 839 N.Y.S.2d 290. 292 (3d Oep't 2007), Al,Awda admitted to having organized the rally~ tl1ere was therefore reason to include. it as a defendant. See Wilhelmina .Models. inc,, supra. All counterclaims aUeged that plaintiff acted individually and in conspiracy with others, New York does not recognize a separute cause of action for civll conspiracy, although "a plaintiff 5 [* 6] FILED Dec 26 2013 Bronx County Clerk may plead conspiracy in order to connect the actions of the individual defendants with an actionable underlying tort and establish that those acts flow from a common scheme or pJan," American Preferred Prescription. Inc, v. Health Mgmt,, 252 AD,2d 414, 416, 678 N.Y.S.2d l, 3 (!st Dep't t 998). The claim stands or falls with the underlying tort. See Ferrandino & S'on, Inc. v. Wheaton B!drs, Inc, LLC, 82 A,DJd 1035. 920 N,Y.S.2d 123 (2d Dep't 2011 ), Inasmuch as the underlying claims are being dismissed 1 this claim, too, fails. Furthermore, there can be no c)aim for punitive damages in the absence of a viable underlying claim. See Rocanova v. Equ;table Life Assur. Soc 'y, 83 N, Y.2d 603, 634 N,E.2d 940, 612 >LY.S.2d 339 (l 994). Finally, "[!]t is well established that in the absence of specific statutory authority counsel tees 'are merely incidents of litigation and thus are not compensable."' Jn re Green, 51N.Y.2d627, 629-30, 416 N.E.2d 1030, 1032, 435 KY 5.2d 695, 6% (1980), reh 'g denied, 52 l\.Y .2d 1073 (l 981) (citations omitted); see also Brt1ith..vaite v. 409 Edgecombe Ave, HDFC, 294 A.D.2d 233, 742 N.Y,S.2d 280 (1st Dep't 2002), Al·Awda's opposition did not provide further support for the counterclaims. Al-A\vda cross-moves for summary j1tdgment dismissing the complaint It argues that plaintiff struck the first blow and that the altercation occurred after and away from the ra11y. Even assuming that Al~A\vda 's evidence, including what appears to be excerpted testimony, was all in admissible form. it failed to estab\isl1prima facie entitlement to summary judgment. The aftirmative defense of self~defense is \Villiams' to assert, if at all. See Carp v, lvfarcus, 138 A.D.2d 775, 525 N.Y.S.2d 395 (Jd Dep't 1988). "The nocessity of protecting one's self against attack is a defense against liability for assault and battery as a justification for acts Which otherwise would constitute the tort, provided such acts do not exceed in their nature or force the necessity r1f the occasion." 6A NY Jur Assault - Civil Aspects§ 11 (emphasis added). Evidence of self6 [* 7] FILED Dec 26 2013 Bronx County Clerk defense/provocation may be considered in mitigation of compensatory damages. See Totaro v. Scar/atos, 63 A.D.3d 1144, 882 N.Y.S.2d 258 (2d Dep'r 2009). "A person is not ordinarily justified in using a dangerous weapon ir1 self-defense \Vhere the attacking party is not armed but commlts the battery by means of fists or in some other manner not essentially dangerous to life or limb." 6A NY Jur Assault - Civil Aspects § 12. llere it ls acknowledged that WBtiams struck plaintiff with a blunt instrument 1 and Al-Awda's submissions do noi establish the justification of the use of such force. With respect to the tlming oftl1e incident, one purported witness testJfied to being unsure \vhether the incident occurred after the rally ended. The witness further testified that the events occurred "in less than an hour," suggesting that the events could have commenced during the course of the rally and continued for a period of time. With respect to the location of tlv.: incidr:nt, one purported witness testified that he or she \Vaiked only two blocks from where he or she was at the rally to a pizza place where the assault occurred and that the pizza place "tvasn't right next ro" the rally. The affidavit of a member of Al-Awda who participated in a meeting with the New York City Police Department when securing the pennit for the rally averred that ''a countless number[) of NYPD ofticers and Lielltenan[S and Detectives were present. They set up barricades at the rally points and escorted the rally during the marching portion of the rally," "there t"1ere many marshalls also working with the NYPD to ensure everyone's safety" and "the rally began and ended without incident" '"fO]ne who collects large numbers of people for gain or profit rriust be vigilant to protect them and ... this duty includes the responsibility of using all reasonable care to protect individuals and property from injury due to causes reasonubl)' to be anticipated." Monaceili v. Armstrong, 64 A.D.2d 428, 433, 409 N.Y.S.2d 899, 902 (4th Dep't 1978), affirmed, 49 N.Y.2d 971, 4061'.E.2d 7 [* 8] FILED Dec 26 2013 Bronx County Clerk 804, 428 N.Y.S.2d 949 ( 1980). It is apparent from its at11davit that Al-Awda at11rmatively undertook secutity functions. Cf Plante i:. Hinton, 271 A.D.2d 781, 706 N.Y.S.2d 215 (3d Dep't 2000); Dinardo v. The City 0{New York, 2002 N.Y. Misc. LEXIS 908 (App Tenn !st Dep't July 29, 2002). The mention of a "marching portion'' implies that there were other "portions" to the event that were not on the marching route, the only specific place where police officers \Vere averred to be present. AlwAwda's proof, however, fails to mention the size, scope or geographical area of the events organized by Al-.t\ wda such that its "many" marshal ls and the hyperbolic '"countless" officers may be deemed adequate, nor does it establish that the incident did not occur near any '"portion" of the events organized by Al-i\wda or near any ''rally points." Al-Awda has not demonstrated prima facie that its efforts ;.vere adequate to discharge its duty, nor has it demonstrated the absence of any n1aterial issue of fact. Furthermore, it is apparent that meaningful dlscovery has yet to take place. Accordingly, it is ORDERED, that the motion of plaintiff to dismiss the counterclaims asserted by defendant Al-Awda, The Palestine Right to Return Coalition is granted; and it is furlher ORDERED, that the Clerk of the Court shall enter judgment in favor of plaintiff dismissing the counterclaims of defendant Al-A \'Ida. 1·ne Palesline Right to Return Coalition; and it is further ORDERED, that the cross-motion of defendant Al-.Av.:da, The Palestine Right to Return ' Coalition for sumn1ary judgnlent is denied. 'fhis constitutes the decision and order of the co ---~L.-7 Dated: December 13, 2013 8
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