Louisma v Apex Tech. Sch.

[*1] Louisma v Apex Tech. Sch. 2023 NY Slip Op 50986(U) Decided on September 18, 2023 Supreme Court, Kings County Maslow, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 18, 2023
Supreme Court, Kings County

Makendy J. Louisma, Plaintiff,

against

Apex Technical School, Defendant.



Index No. 1624/2018


Goldberg, Segalla, White Plains (Zachary D. Oliva of counsel), for Defendant.
Aaron D. Maslow, J.

The following numbered papers were read on these motions:

Submitted by Defendant
Notice of Motion dated April 14, 2022
Affirmation in Support dated April 11, 2022
Exhibit A — Summons and Complaint
Exhibit B — Answer
Exhibit C — Preliminary Conference Required Notice
Exhibit D — Prior Notice of Motion
Exhibit E — Preliminary Conference Required Notice
Exhibit F — February 13, 2020 Preliminary Conference Order
Exhibit G — Discovery Demands
Exhibit H — Notice to Admit
Exhibit I — Letter Dated January 2, 2020
Exhibit J — February 13, 2020 Preliminary Conference Order
Exhibit K — Responses to Discovery Demands
Exhibit L — Letter Dated March 19, 2020
Exhibit M — Letter Dated March 20, 2020
Exhibit N — March 24, 2020
Exhibit O — Letter Dated April 14, 2020
Exhibit P — Letter Dated August 28, 2020
Exhibit Q — Letter Dated September 14, 2020
Exhibit R — Prior Notice of Motion
Exhibit S — May 21, 2021 Centralized Compliance Part Order
Exhibit T — June 10, 2021 Letter
Exhibit U — June 28, 2021 Transcript of EBT No-Show
Affidavit in Support Dated March 24, 2022
Exhibit A — Retail Installment Obligation
Exhibit B — Plaintiff's Account Billing Statement
Statement of Undisputed Material Facts Dated April 11, 2022
Affirmation of Good Faith Dated April 11, 2022
Affidavit of Service Dated April 14, 2022
Memorandum of Law dated April 11, 2022
Letter to Court Dated June 22, 2023

Upon the foregoing papers and having heard oral argument on the record, the within motion is determined as follows.

Background

Defendant Apex Technical School ("Defendant") has moved for summary judgment pursuant to CPLR 3212 to dismiss the pro se Plaintiff Makendy J. Louisma's ("Plaintiff") Complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), and as untimely pursuant to CPLR 3211 (a) (5) (statute of limitations). Defendant also moved to strike the Complaint under CPLR 3126 due to Plaintiff's alleged chronic discovery failures.

Defendant Apex Technical School is an adult vocational school located in Long Island City, Queens. This institution offers students trade school courses in air conditioning, refrigeration, welding technology, plumbing, and construction, among other fields.

On August 30, 2018, Plaintiff commenced this action against Defendant by filing a Summons and Complaint (see Complaint). In the Complaint, Plaintiff alleged that he enrolled at the Defendant Apex Technical School's air conditioning program in January 2012 (see Complaint ¶ 3). Plaintiff alleged that he completed eleven months of Defendant's air conditioning refrigeration course when he was informed that "his name on his school record did not match his green card" (id. ¶ 4). Plaintiff alleged that as a result, Defendant suspended him from the school in 2013. Plaintiff further alleged that he obtained a new green card "on [sic] the year of 2015" and returned to Defendant that same year, but that Defendant denied his request to resume his trade studies during a meeting in 2015. (Id. ¶¶ 6-7.)

While in the Complaint, Plaintiff appeared to endeavor to interpose a breach of contract cause of action, the Complaint referenced neither a written nor oral contract between Plaintiff and Defendant nor a breach thereof (see id. ¶¶ 1-9). The Complaint also made amorphous references to Defendant's purported attempt to "defame" Plaintiff based on "malice [sic] accusations" (id. ¶ 7). As shall be addressed below, Plaintiff did not allege in the Complaint that the purported defamatory statements in question were ever published to a third party beyond the confines of the private meeting between Plaintiff and an employee of Defendant (see id. ¶¶ 7-9). [*2]Moreover, as detailed below, Plaintiff failed to quote the allegedly defamatory language at issue anywhere in the Complaint (see id. ¶¶ 1-9).

Discussion

Based on a review of Plaintiff's Complaint, stated charitably, Plaintiff asserted two causes of action against Defendant, namely, a breach of contract one as well as a defamation cause of action.

Plaintiff's Breach of Contract Cause of Action is Vague and Conclusory

Plaintiff's breach of contract cause of action was predicated on the following allegations. Specifically, Plaintiff contended that after attending Defendant's school for eleven months, he was suspended in 2013 when it was determined by Defendant that "his name on his school record did not match with his Green Card" (id. ¶ 4). Plaintiff alleged in the Complaint that when he sought to re-enroll in 2015 after he was "able to resolve this immigration issue," Defendant denied his request (id. ¶¶ 5-8).

In the Complaint, Plaintiff did not allege that Defendant was in any way contractually obligated to re-admit him in 2015. Moreover, the Complaint did not refer to any written or oral agreement between Plaintiff and Defendant that would give rise to such an obligation on the part of Defendant vis-a-vis Plaintiff. (See id. ¶¶ 1-9.) Further absent from the Complaint was any allegation that an agreement existed at any time imposing a duty on the part of Defendant to reimburse Plaintiff for past tuition payments made by Plaintiff for classes previously attended by Plaintiff (see id. ¶¶ 1-9).

In sum, Plaintiff's Complaint (1) does not identify a contract between the parties; (2) does not identify a breach on the part of Defendant; and (3) does not identify any damages sustained by Plaintiff on account of any breach. Instead, the Complaint merely alleged that Plaintiff was denied re-admission to the school without reference to any written or oral agreement between the parties establishing Plaintiff's right to be re-admitted in 2015 or to be reimbursed by Defendant. The Complaint effectively alleged that Defendant's refusal to re-admit Plaintiff to the school in 2015 ipso facto gives rise to a viable breach of contract claim. Such stance falls short of a prima facie breach of contract cause of action. Plaintiff's skeletal Complaint as to the breach of contract claim stretches the concept of notice pleading to its outer limits, warranting the dismissal of this cause of action (see CPLR 3211 [a] [7]). As an appellate court has held in dismissing a breach of contract cause of action owing to the vague and conclusory allegations underpinning such cause of action:

The amended complaint alleges in boilerplate fashion that defendant disclosed confidential information to Coca-Cola and that as a consequence plaintiffs were damaged in the sum of $35 million. These vague and conclusory allegations are insufficient to sustain a breach of contract cause of action. . . .Moreover, the complaint is fatally deficient because it does not demonstrate how the defendant's alleged breach of the confidentiality agreement caused plaintiffs any injury. The complaint contains only boilerplate allegations of damage. In the absence of any allegations of fact showing damage, mere allegations of breach of contract are not [*3]sufficient to sustain a complaint, and the pleadings must set forth facts showing the damage upon which the action is based. (E.g., 4 Carmody-Wait 2d, NY Prac §29:25; Ryan Ready Mixed Concrete Corp. v Coons, 25 AD2d 530; Reade v Sullivan, 259 App Div 229.) Since Plaintiffs' first cause of action is deficient in this regard, it must be dismissed.(Gordon v Dino De Laurentiis Corp., 141 AD2d 435, 436 [1st Dept 1988] [emphasis added].)

"[T]o state a claim for breach of contract, a plaintiff must allege: (1) the parties entered into a valid agreement, (2) plaintiff performed, (3) defendant failed to perform and (4) damages. (see Noise In The Attic Prods., Inc. v London Records, 10 AD3d 303, 307 [1st Dept 2004])" (VisionChina Media v Shareholder Representative Servs., LLC, 109 AD3d 49, 58 [1st Dept 2013]).

Further, as was stated in Canzona v Atanasio (118 AD3d 837, 838-839 [2d Dept 2014),

The Supreme Court also properly dismissed the third cause of action, which alleged breach of contract. The essential elements of a breach of contract cause of action are "the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach" (Dee v Rakower, 112 AD3d 204, 208-209 [2013]; see Elisa Dreier Reporting Corp. v Global NAPs Networks, Inc., 84 AD3d 122, 127 [2011]; JP Morgan Chase v J.H. Elec. of NY, Inc., 69 AD3d 802, 803 [2010]). "Generally, a party alleging a breach of contract must 'demonstrate the existence of a . . . contract reflecting the terms and conditions of their . . . purported agreement' " (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 181-182 [2011], quoting American-European Art Assoc. v Trend Galleries, 227 AD2d 170, 171 [1996]). Moreover, "the plaintiff's allegations must identify the provisions of the contract that were breached" (Barker v Time Warner Cable, Inc., 83 AD3d 750, 751 [2011]; see Peters v Accurate Bldg. Inspectors Div. of Ubell Enters., Inc., 29 AD3d 972, 973 [2006]). Here, the plaintiff failed to plead the material terms of the alleged oral loan agreement by which the defendants agreed to repay or reimburse him for his payment of expenditures for the property and boat. The plaintiff's allegations regarding the alleged oral agreement were too vague and indefinite to plead a breach of contract cause of action (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d at 182; Island Surgical Supply Co. v Allstate Ins. Co., 32 AD3d 824, 824 [2006]; Maldonado v Olympia Mech. Piping & Heating Corp., 8 AD3d 348, 350 [2004]; Nathan v J & I Enters., 212 AD2d 677 [1995]).

Dismissal of Plaintiff's breach of contract cause of action is likewise warranted in that the Complaint (a) failed to identify a contract between the parties, (b) failed to identify a breach on the part of Defendant and (c) failed to identify any damages sustained by Plaintiff on account of any breach.

Plaintiff's Defamation Cause of Action Lacks Specificity

Based on a review of the Complaint, Plaintiff's second — and only other — cause of [*4]action consisted of a defamation claim.

Plaintiff's defamation cause of action was structured around the following unorthodox allegations. Plaintiff alleged that Defendant "accuse[d] Plaintiff of malice accusations of homosexual sexual assaults against another unknown male student(s)" and attempted to "defame Plaintiff of unnatural state of mind and to derail Plaintiff of pursuing his technical career. . . ." (Complaint ¶ 7). Plaintiff did not allege that anyone else was present in the room or that the statement in question was published anywhere. Plaintiff simply alleged that Defendant made defamatory comments to him during a private meeting and that these comments revealed that the defendant was "bias" against Plaintiff. (Id. ¶7.) Plaintiff did not allege in the Complaint that the comments in question were ever published to a third party, much less identified any such individuals (see id. ¶¶ 1-9). Further, the precise words Plaintiff alleged were used to "defame plaintiff" are absent from the Complaint. Based on the foregoing, Plaintiff's defamation cause of action shall be dismissed.

To establish a defamation claim, a plaintiff must allege: (1) a false statement, (2) which false statement is published to a third-party, (3) without privilege or authorization and (4) the false statement causes harm (see Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]). "The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se" (Greenberg v Spitzer, 155 AD3d 27, 41 [2017]; see Emby Hosiery Corp. v Tawil, 196 AD3d 462, 463-464 [2021]; Kasavana v Vela, 172 AD3d 1042, 1044 [2019])" (Bowen v Van Bramer, 205 AD3d 674, 674-675 [2d Dept 2022] [quotation marks omitted]).

Moreover, to allege a viable defamation cause of action, Plaintiff was required to set forth "the time, manner and persons to whom the publication was made" (Williams v Varig Brazilian Airlines, 169 AD2d 434, 437 [1st Dept 1991]). Plaintiff's threadbare defamation cause of action fell far short of the heightened pleading with particularity standard applicable in the defamation context.

Dismissal of a defamation cause of action is appropriate where, as here, Plaintiff failed to identify by name to whom the purported statements were published, as the "identity of third persons to whom the allegedly defamatory statements were made or read must be pleaded with specificity, and proven at trial" (Raymond v Marchand, 125 AD3d 835, 836 [2d Dept 2015]). Further warranting the dismissal of Plaintiff's defamation cause of action, CPLR § 3016 (a) expressly requires that the Complaint set forth "the particular words complained of." This requirement, which Plaintiff has not satisfied, is "strictly enforced and the exact words must be set forth" (Gardner v Alexander Rent-A-Car, Inc., 28 AD2d 667, 667 [1st Dept 1967]).

In short, even assuming the truth of Plaintiff's atypical accusations, Plaintiff's defamation cause of action did not give rise to a viable cause of action, warranting its dismissal.

Plaintiff's Defamation Claims are Untimely

Plaintiff's defamation cause of action warrants dismissal on a second independent ground. Plaintiff alleged in the Complaint that the alleged conversations during which an employee of Defendant purportedly defamed Plaintiff took place on an unspecified date or dates in 2015 (see Complaint ¶7). A defamation cause of action is governed by a one-year statute of [*5]limitations and accrues when the allegedly defamatory statements were initially uttered (see Arvanitakis v Lester, 145 AD3d 650, 651 [2d Dept 2016]); CPLR § 215 [3]). Accordingly, taking the allegations in the Complaint as true, Plaintiff had until December 31, 2016 at the latest to file the Complaint. The Complaint was not filed until March 29, 2018, well past after the statute of limitations had expired. Since the statute of limitations for Plaintiff's defamation claim expired long before the action was commenced, dismissal of such cause of action is warranted (see CPLR 3211 [a] [5]).

Conclusion

It is worth bearing repeating that

Although courts will routinely afford pro se litigants some latitude (see, Sloninski v Weston, 232 AD2d 913, lv denied 89 NY2d 809; Sabatino v Albany Med. Ctr. Hosp., supra; Moore v County of Rensselaer, 156 AD2d 784), a pro se litigant "acquires no greater right than any other litigant" and will be held to the same standards of proof as those who are represented by counsel (Roundtree v Singh, 143 AD2d 995, 996; see, Sloninski v Weston, supra). (Duffen v State of New York, 245 AD2d 653, 653-654 [3d Dept 1997.) A defendant will not be deprived of the same rights enjoyed by other defendants merely because a plaintiff has elected to proceed pro se at his own peril (see Banushi v Lambrakos, 305 AD2d 524 [2d Dept 2003]). A pro se plaintiff's pleadings are subject to the same standards as those of plaintiffs represented by counsel (see Gounder v Progressive Credit Union, 55 Misc 3d 145[A], 2017 NY Slip Op 50677[U] [App Term, 2d, 11th & 13th Dists 2017]). Plaintiff herein made an attempt at representing himself and fell far short of the pleading requirements under New York law. Having failed to establish a valid cause of action in his Complaint, dismissal is warranted. An additional ground for dismissal of any claim of defamation is the failure to comply with the statute of limitations.

This Court deems academic Defendant Apex Technical School's motion to strike the Complaint pursuant to CPLR § 3126 due to Plaintiff's alleged chronic discovery failures.

Accordingly, it is hereby ORDERED as follows: Defendant's motion for summary judgment dismissing Plaintiff's complaint is GRANTED, the Complaint is dismissed, and the Clerk shall enter judgment for Defendant.

E N T E R

_______________________________________
HON. AARON D. MASLOW
Justice of the Supreme Court of the State of New York