Opinion
Index No. SC-000806-24/NY
05-21-2024
Sherwin Benlevi Claimant(s), v. Thomas Rukaj, Defendant(s).
Hon. Jeffrey S. Zellan, J.C.C.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Order to show Cause/ Notice of Motion and
Affidavits /Affirmations annexed 1
Answering Affidavits/ Affirmations
Reply Affidavits/ Affirmations
Memoranda of Law
Other
Upon the foregoing cited papers and following oral argument and hearing, defendant's motion to dismiss the claim in this action and recover pursuant to 2020 NY Laws ch. 250 is granted without written opposition to the extent of dismissing the action and scheduling an inquest on the issue of defendant's damages against plaintiff as set forth below.
Claimant, a licensed dentist, commenced this small claims action on March 27, 2024, seeking $5,000 for alleged personal injury. (Statement of Claim, at 1). Defendant served and filed this motion, dated April 10, 2024. Defendant also served and filed a counterclaim for relief pursuant to Civil Rights Law § 70-a. Claimant did not offer written opposition despite prior notice of the motion. Instead, claimant dispatched his brother to appear on his behalf by written power of attorney pursuant to CCA § 1815, who was not ready to proceed to trial as scheduled (thereby defaulting on the counterclaim). After giving both sides an opportunity to be heard, the Court took defendant's motion on submission. Anti-SLAPP is an Exception to the General Rule Against Pre-Trial Motions in Small Claims
The Court has previously noted that a "defendant's burden in seeking dismissal on a motion to dismiss a self-represented claimant's small claim is very high." Fishman v. Allstate Ins. Co., Index No. SC-300-21/BX, 2022 NY Misc. LEXIS 6855, *2 (Civ. Ct., Bronx Co. Jul. 8, 2022) (collecting cases). Ordinarily, "[t]he informality and convenience of small claims practice is necessarily frustrated by requiring pro se litigants to respond to formal motion practice under the CPLR prior to the hearing of their case," and "[s]ubstantial justice will best be rendered by a prompt trial, where defendant can assert its substantive arguments for dismissal" Polanco v. City of New York, 81 Misc.3d 138 (A), *1 (App. Term, 1st Dept. 2023) (reversing pre-trial dismissal of small claim on motion). As defendant correctly notes however, "the court should entertain motion practice if it presents a clear issue of law." Loakman v. Transport Workers Union of Greater NY, AFL-CIO, Local 100, 11 Misc.3d 936, 938 (Civ. Ct., New York Co. 2006). See also, Carratu v. Aromando, Index No. SC-1053-21/BX, slip op, at 1 (Civ Ct., Bronx Co. Apr. 26, 2022) (dismissing small claim brought against City inspector personally to challenge administrative summons). The Court is also expressly required to grant calendar preference to motions to dismiss alleged SLAPP's. See, CPLR 3211(g)(1). Upon the record before the Court, this claim is one of those few exceptions contemplated by Loakman and Carratu where motion practice is appropriate.
"Courts and academics have recognized the particular risks of potential SLAPP actions for years as a lawsuit no doubt may be used as a powerful instrument of coercion or retaliation." Isaly v. Garde, 2023 NY Slip Op 34631(U), *15 (Sup. Ct., New York Co. 2023) (quotations and citations omitted). Because of their corrosive effect on public discourse, courts have said bluntly that "[s]hort of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined." Gordon v. Marrone, 155 Misc.2d 726, 736 (Sup. Ct., Westchester Co. 1992). The Board of Regents (which oversees the practice of dentistry in New York) has also considered the deleterious effect of licensed dentists harassing or intimidating patients, including "willfully harassing, abusing, or intimidating a patient either physically or verbally" as grounds for professional discipline. 8 N.Y.C.R.R. § 29.2(a). SLAPP issues are uncommon in the Small Claims Part in the Court's experience, and while it may be that "the procedural context of the litigation at bar is unprecedented for a SLAPP suit that uniqueness does not obviate its utility as a SLAPP." Gordon, at 736.
Although, following Polanco and Fishman, the remedy to most pre-trial motion practice in small claims actions is typically to schedule a prompt trial, and "[t]he underpinning legislative [anti-SLAPP] framework was crafted with promptness in mind," the clear legislative intent behind Chapter 250 does not favor the ordinary course of essentially holding pre-trial motions in abeyance pending trial given that the very purpose of anti-SLAPP laws is to reduce trials of SLAPP's. Isaly v. Garde, Index No. 160699/2018, 2024 NY Misc. LEXIS 1621, *1 (Sup. Ct., New York Co. Apr. 8, 2024). The societal interest in deterring and halting SLAPP's at the earliest is, as reflected in express statutory language and supporting legislative materials, compelling. See, CPLR 3211(g)(1); and Isaly v. Garde, 2023 NY Slip Op 34631(U), *17 (Sup. Ct., New York Co. 2023) (citing sponsoring and amicus memoranda of Sen. Hoylman-Sigal in discussing legislative intent in regulating SLAPP's). Especially as Chapter 250 was enacted to specifically establish anti-SLAPP protections in substantive - not merely procedural - New York law, anti-SLAPP provisions have force and effect in the Small Claims Part notwithstanding the "informal and simplified procedure on small claims" established by CCA § 1804. See, Isaly v. Garde, 2024 NY Slip Op 30877(U), *10 (Sup. Ct., New York Co. Mar. 18, 2024). Accordingly, the Court will not simply deny defendant's motion without prejudice to seeking relief through trial.
The Claim is a SLAPP Subject to Dismissal Pursuant to Chapter 250
At the outset, the alleged defamatory statement is fatally deficient as a matter of law irrespective of Chapter 250. Defendant posted an online review of claimant's dental practice on Google Reviews that "[t]his place is highly disorganized and unsanitary." (Aff. in Supp., Ex. A). That is an expression of opinion, and "expressions of opinion are not a basis for a claim regardless of the pleading standard." Isaly v. Garde, 2022 NY Slip Op 34108(U), *6 (Sup. Ct., New York Co. 2022), affd., 216 A.D.3d 594 (1st Dept. 2023). Thus, claimant did not state a claim even without the Anti-SLAPP Law pursuant to CPLR 3211(a)(7).
Pursuant to Civil Rights Law § 76-a, "damages may only be recovered" in a claim concerning "ny communication in a place open to the public or a public forum in connection with an issue of public interest if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue." Further, in contrast to ordinary New York practice, a potential SLAPP must be dismissed in response to pre-trial motions "unless the party responding to the motion demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law." CPLR 3211(g)(1) and 3212(h).
It is manifestly apparent from the uncontested record that this claim is the very type of litigation proscribed by Chapter 250. The Appellate Division, First Department has expressly held that "a defendant's reviews on internet recommendation platforms of plaintiff physician's treatment were communications made in connection with an issue of public interest," subject to New York's anti-SLAPP protections enacted by Chapter 250. Aristocrat Plastic Surgery, P.C. v. Silva, 206 A.D.3d 26, 27 (1st Dept. 2022). There is no reason why the same standard should not apply to the expressions of opinion regarding dental treatment, and the Court finds it does so here.
Claimant, by his office manager, sent defendant a cease-and-desist letter threatening legal action "for [defendant's] defamation," which claimant subsequently pursued by this action. (Aff. in Supp., Ex. C). That claimant styled the claim as sounding in personal injury in the statement of claim does not change the inherent character of the instant claim: this is a defamation claim based on a communication in a place open to the public or in a public forum concerning an issue of public interest. As there is no reading of the facts of this case that give rise to a potentially viable claim by claimant, and the Court accordingly dismisses claimant's claims against defendant pursuant to CPLR 3211(g).
The record also raises substantial questions as to whether claimant also improperly commenced this action personally as a small claim rather than as a commercial claim. However, defendant did not raise this objection, and the Court has accordingly assumed (but does not decide) for purposes of this motion that the action was lawfully commenced as a small claim in claimant's personal capacity. That said, the Court will direct the clerk to amend the caption to reflect claimant's business name as noted in the statement of claim.
While "[t]he Court does not minimize [claimant's presumed] incandescent disagreement with defendants' statement[] the common will of this State has considered and accepted that [claimant's] ill-feeling is an accepted consequence to preserving the marketplace of ideas." Isaly v. Garde, 2024 NY Slip Op 30877(U), at *14. To the extent claimant disagrees with the balancing of interests (favoring more speech) that New York has undertaken, claimant's path to relief lies in the Legislature rather than the Small Claims Part of the New York City Civil Court.
The Counterclaims are Referred for Inquest
Courts may default and refer a party to inquest when, as here, the party appears but is not ready to proceed. See, e.g., Lee v. Erdos, Index No. SC-16297-20/NY, slip op., at 1 (Civ. Ct., New York Co. Aug. 9, 2022); and New York Exec. Office v. Operr Tech., Index No. CC-60575-19/NY, 2024 NY Misc. LEXIS 721, *1 (Civ. Ct., New York Co. Feb. 16, 2024) (defaulting appearing parties and referring them to inquest). Defendant submitted proof of service of the counterclaims in this action dated April 10, 2024, which the online records of the United States Postal Service indicate were delivered to claimant on April 13, 2024. See, City of New York v. "Doe," 82 Misc.3d 438, 446 (Civ. Ct., Bronx Co. 2023) (court may take judicial notice of the Postal Service's public-facing tracking information). Claimant had ample notice of defendant's counterclaims, the substance of which were raised in both a formal pleading and in defendant's motion to dismiss, and chose not to appear ready to proceed in response to them.
Given the relative paucity of precedent in considering the relevant anti-SLAPP claims, and in keeping with the legislative intent for promptness in both Chapter 250 and CCA Art. 18, a promptly-scheduled inquest reflective of both claimant's default and the need for additional information is appropriate. See, e.g., Isaly, 2024 NY Slip Op 30877(U), at *13 (ordering hearing on anti-SLAPP remedies), modification denied, 2024 WL 1973049 (Sup. Ct., New York Co. Apr. 30, 2024) (noting that anti-SLAPP was an area of developing law). Claimant's ability to appear and participate in the inquest will also provide an opportunity to litigate the scope of monetary relief. See, Lee; and New York Exec. Office, supra. The inquest will address (1) the scope of attorney's fees sought by defendant pursuant to Civil Rights Law § 70-a(1)(a) following the lodestar method (to the extent claimant is entitled to any attorney's fees as a self-represented litigant in the Small Claims Part, which the Court expressly does not decide here); (2) defendant's counterclaim for compensatory damages pursuant to Civil Rights Law § 70-a(1)(b); and (3) defendant's counterclaim for punitive damages pursuant to Civil Rights Law § 70-a(1)(c).
Because defendant raised all three demands for relief as separate counterclaims in addition to his motion to dismiss, the Court need not decide whether anti-SLAPP remedies may be sought by motion or require a separate counterclaim. Cf., Isaly, 2024 NY Slip Op 30877(U), at *7-10.
The lodestar method is based upon a 12-factor test considering:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent: (7) time limitations imposed by the client or the circumstances; (8) the amount involved, and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.New York Times Co. v. New York Office of the Mayor, 2023 NY Slip Op 32941(U), *3 (Sup. Ct., New York Co. 2023).
To conserve judicial resources, the inquest will be referred to hear and report with recommendations. See, CPLR 3215(b); and e.g., New York Exec. Office, supra.; and Isaly v. Garde, Index No. 160669/2018, 2024 NY Misc. LEXIS 1218 (Sup. Ct., New York Co. Mar. 18, 2024) (referring anti-SLAPP hearing to special master).
Accordingly, it is
ORDERED that the clerk is directed to amend the caption of this action from Sherwin Benlevi v. Thomas Rukaj to Sherwin Benlevi dba Manhattan Best Dental Care v. Thomas Rukaj; and it is further
ORDERED that the instant motion is granted without written opposition to the extent that claimant's defamation claim styled as a personal injury claim is dismissed in its entirety pursuant to CPLR 3211(a)(7) and (g); and it is further
ORDERED that defendant's counterclaims for attorney's fees pursuant to Civil Rights Law § 70-a(1)(a), compensatory damages pursuant to Civil Rights Law § 70-a(1)(b), and punitive damages pursuant to Civil Rights Law § 70-a(1)(c) are referred upon claimant's default pursuant to CPLR 3215(b) to hear and report with recommendations; and it is further
ORDERED that the parties shall contact the Court by email to bkrist@nycourts.gov within 10 days of the date of this Order regarding scheduling of the inquest on defendant's counterclaims as directed by this Order; and it is further
ORDERED that defendant's motion is otherwise denied.
This constitutes the Decision and Order of the Court.