Seldon v Crow

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Seldon v Crow 2013 NY Slip Op 33709(U) April 9, 2013 Sup Ct, New York County Docket Number: 105200/2011 Judge: Doris Ling-Cohan 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] SUPREME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY PRESENT: Hon. DORIS LING--COHAN, Justice PART 36 PHILIP SELDON, Index No. : -against- CHEYENNE CROW, "JOHN 'DOCTOR' DOE", 105200/2011 Motion Seq. No.: 007 "JOHN 'MIKE' DOE" DOE", "JOHN 'IRINA' The following papers, numbered 1 to 4 were considered on this motion by defendant to dismiss this case: Papers Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits (Memo) C Reply .A.ffirmation -----·----------11C",__ I· L E D Cross-Motion: ] Yes [ X !li~N@D 2013 t~EVv'YORK ·· . '.,,,..,.~,, ~.·. ·.. \~::~~--~·.~tf: ~ ORDERED that this motion by def~tid~nt eyenne Upon the foregoing papers, it is -off'i(E .. ¢ , ... ! · Cro~ ("Crow") to dismiss is granted, as detailed below. This which action, libel, slander, invasion emotional distress, $25 million seeks ne of privacy, igent for alleged intentional "defamation, in ion infliction of emotional distress, alienation of affection and friendship" (as provided in the summons with notice), is just against in Significantly, case of court's computer records. by decision/ order dated October 11, ldon v. Lewis, Brisbois, 2012, Bisgaard & Smith, LLP, in the Index number 1119156/2010, the Hon. Paul Wooten determined that plaintiff was "a vexatious litigator", and plaintiff commencing any further litigations of New York was enj commenced, "from anyone within the State thout first obtaining leave of the Court". within case was ed on or about May 2011, While the prior to the issuance of such injunction against the commencement of any further Page 1 of 4 [* 2] of any further lawsuits, without permission of the court, the court notes that, in addition to the within case commenced by plaintiff against defendant Crow, plaintiff has also commenced two additional cases against Crow, for virtually the same relief. 1 The court further notes transferred into this that, this case Part's inventory, was only on or about recently January 8, 2013, after the Hon. Eileen Rakower granted plaintiff's motion for recusal, by order dated January 2, 2013. Further, by orders date July Justice 21, 2011 plaintiff's and two defendant Crow, September (2) 21, motions 2011, for a default Rakower judgment denied against based upon plaintiff's failure to establish that Crow was properly served with the pleadings in this case. Presently before this court is defendant Crow's motion which seeks, inter alia, to dismiss this allegedly frivolous lawsuit, based upon defective service of process and that this case seeks the same relief sought in other cases commenced by plaintiff against defendant. In opposition, plaintiff has failed to supply proof of service of the pleadings and has not established personal jurisdiction over defendant Crow. manner that Rather, plaintiff merely asserts in a conclusory defendant's motion "is totally frivolous as he provides no valid basis dismissal". ~2, [to] without merit and this court for the Affidavit in Opposition. It is well settled law that "the burden of proving jurisdiction is upon the party who asserts it", specifically, the plaintiff. The case of Seldon v. Crow, Index number 101656/2012, was dismissed by order dated July 31, 2012, by the Hon. Eileen Rakower, for improper service of the pleadings. In the case of Seldon v. Crow, Index number 103760/2012, pending before this court, defendant Crow has filed an order to show cause seeking, inter alia, dismissal, which is returnable on April 4, 2013, in the Motion Submission Part; both such cases seek virtually identical relief as sought herein. Page 2 of 4 [* 3] Lamarr v. Klein, 35 AD2d 248, 250 (1st Dept 1970); In the Matter of 72A Rlty. Assoc. v. New York City Envl. Control Ed., 275 AD2d 284 (1st Dept 2000). Here, despite being served with defendant's motion to dismiss based upon improper service, come forward to establish that plaintiff has failed to defendant was in fact properly served. Notably, plaintiff was unable to establish proper service of the pleadings, in conjunction with his two (2) prior motions in this case, for the entry of a default judgment against defendant Crow. The court notes that in her decision dated September 21, 2011, Justice Rakower determined that "there is insufficient evidence that [p] laintiff was ever properly served with the summons and complaint ... [as] it appears that Crow no longer resided at the Virginia address where he was purportedly served on May 11, 2011". Thus, the within motion to dismiss is granted, as plaintiff has failed to establish that this court has personal jurisdiction over defendant Crow, which is a condition precedent to the ability to maintain this lawsuit. Moreover, the within claims asserted against defendant Crow, appear to be duplicative of the claims asserted against defendant Crow in the case of Seldon v. Crow et al., Index Number 103760/2012, also pending before this court. Thus, dismissal is warranted on such basis as well. The portion of defendant's motion which seeks an injunction against plaintiff, preventing him from commencing frivolous or harassing nature is deemed moot. future cases of a As indicated above, by order dated October 11, 2012, the Hon. Wooten, granted an even broader injunction, prohibiting plaintiff Seldon from commencing any further without lawsuits against anyone obtaining prior court in the State of New York, permission. Page 3 of 4 However, should [* 4] plaintiff seek to commence an action against Cheyenne Crow, it is ORDERED that plaintiff must attach a copy of this order and Justice Wooten's October 11, 2012 order, to any application for permission. That portion of defendant's motion which seeks a monetary award for, inter alia, travel expenses, is denied, as no basis for such relief has been supplied. Based upon the above, it is further ORDERED that defendant's motion to dismiss is granted; and it is further ORDERED that, within 3 O days of entry of this order, defendant shall serv.e a copy upon plaintiff, with notice of entry. Dated: April!/. 2013 Doris Ling-Cohan, JSC Check One: [ X ] FINAL DISPOSITION [ Check if Appropriate: [ ] DO NOT POST ] NON-FINAL DISPOSITION \ J;\Dismiss\.seldon.crow.wpd \. \ \ ' Page 4 of 4

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