Opinion
493TS2008.
Decided April 20, 2009.
John Peterec-Tolino, for plaintiff, self-represented.
Jeffrey Eisenberg, for defendants, self-represented.
By notice of motion dated February 5, 2009, defendants move pursuant to CPLR 3211(a) for an order dismissing the complaint with prejudice on the grounds that plaintiff did not obtain personal jurisdiction over them and that the claims set forth in the complaint fail to state a cause of action. They also seek an order reversing an order granting plaintiff poor person relief, and awarding sanctions for plaintiff's frivolous conduct in bringing this case. Plaintiff opposes the motions and demands a jury trial of the action.
On March 4, 2009, the original return date of defendants' motion, I granted defendants an adjournment to March 18 to file a reply to plaintiff's opposition papers. On March 18, defendants furnished the court with their reply. After oral argument on the motion, plaintiff submitted by mail an additional affidavit and exhibits, which I partly addressed in my March 31 letter to the parties. He also denied having received a copy of defendants' reply. I do not consider defendants' reply or any subsequent submissions except to the extent indicated in my March 31 letter.
I. BACKGROUND A. Factual background
Defendants Jeffrey Eisenberg and his law firm were retained by Sherri Cohen, plaintiff's fiancÉ, now wife (hereinafter Ms. Peterec), to pursue an action against her former employers for an allegedly discriminatory firing. That action was resolved in a settlement agreement of which plaintiff, who subsequently obtained Ms. Peterec's power of attorney, strongly disapproved. On July 7, 2004 and August 8, 2004, respectively, Ms. Peterec and plaintiff filed a complaint against Eisenberg with the Departmental Disciplinary Committee of the First Judicial Department [Committee]. (Affidavit of Jeffrey S. Eisenberg, dated Feb. 5, 2009 [Eisenberg Affid.], Exhs. D, E). In two letters, each dated February 16, 2005, the Committee notified plaintiff, Ms. Peterec, and Eisenberg of its determination to take no further action on their respective complaints. ( Id., Exh. G).
Thereafter, plaintiff commenced a small claims action against defendants seeking reimbursement in the amount of $5,000 in attorney fees paid by Ms. Peterec; defendants counterclaimed for unpaid fees and litigation expenses. After a trial held on March 5, 2007, the claim and counterclaim were dismissed. ( Id., Exh. K).
On June 4, 2007, plaintiff's complaint against Eisenberg was re-considered by the Committee. ( Id., Exh. F). In a letter dated December 28, 2007, the Committee notified Eisenberg that it had determined to take no further action on the complaint. ( Id., Exh. G).
B. Procedural background
On or about October 29, 2007, plaintiff commenced the instant action in the Supreme Court, seeking from defendants compensatory and punitive damages totaling $868,000, alleging that Eisenberg defamed him during the course of the small claims litigation and disciplinary proceedings. ( Id., Exh. A). With that conduct, plaintiff contends that defendant caused him emotional pain and suffering, emotional distress, and loss of services. ( Id.).
Plaintiff also alleges in his complaint that defendants filed fraudulent briefs and motions in connection with the small claims case, that they committed mail fraud by sending through the United States Postal Service a fraudulently altered contract in an attempt to blackmail or extort money from him through the filing of a counterclaim heard with the small claim, that Eisenberg falsely testified at the small claims trial, and falsely accused him of various criminal acts. He now, however, withdraws his cause of action for perjury and the related causes of action for submitting a false document, "tainted evidence," obstruction of justice, and fraud, as this court does not exercise criminal court jurisdiction and that the issues pertaining thereto "have no bearing in this present case . . ." (Affidavit of John L. Peterec-Tolino, dated Feb. 23, 2009). I thus do not consider the allegedly fraudulent engagement letter dated September 18, 2003 or the allegation that Eisenberg accused plaintiff of having his attorney threaten a grievance against him unless he refunded plaintiff $5,000. ( Id., Exh. E).
In affidavits of service dated and filed on February 11 and 25, 2008, Irwin Cohen states that on February 11, 2008, he mailed plaintiff's summons and complaint to defendants' business address. ( Id., Exh. O).
In a decision and order dated September 25, 2008, Supreme Court denied, without prejudice, plaintiff's motion for an order granting him a default judgment and defendants'
cross-motion to dismiss, and transferred the case to this court pursuant to CPLR 325(d). ( Id., Exh. G). The court also denied, as premature, plaintiff's motion for an order granting him summary judgment.
During oral argument on the parties' motions, and after determining that defendants had not yet filed an answer to plaintiff's complaint, the court explained that "[t]he motions can be removed and made over there [in the Civil Court] if you wish, but not the summary judgment motion." ( Id., Exh. G, transcript, p. 24, lines 7-9). And, in response to plaintiff's question about defendants' cross-motion to dismiss, the court replied, "It's denied without prejudice. He can renew, if he wishes, in Civil Court, just as you can renew your motion for a default judgment in Civil Court, if you wish." ( Id., p. 25, lines 20-25).
II. ARE DEFENDANTS BARRED FROM MAKING THE INSTANT MOTION?
Plaintiff asserts that as defendants' cross-motion to dismiss was denied without prejudice in Supreme Court prior to the transfer of the action to this court, defendants are barred from reasserting the motion here. (Peterec-Tolino Affid.). Defendants maintain that as their motion to dismiss was denied without prejudice, it is properly reasserted in this court. (Eisenberg Affid.).
Where a court denies a motion "without prejudice," it thereby permits the movant to seek the same relief without prior court approval. (Black's Law Dictionary [8th ed 2004], without prejudice [without loss of any rights; in a way that does not harm or cancel the legal rights or privileges of a party]; McMahon v City of New York, 105 AD2d 101 [1st Dept 1984] [phrase "without prejudice" literally means that judgment in first action will not prejudice, i.e. bar, later action]).
Thus, as Supreme Court's denial of defendants' motion to dismiss was without prejudice, there is no bar whatsoever to its renewal in this court. Moreover, given the court's clear and direct response to plaintiff's question concerning defendants' cross-motion to dismiss, plaintiff's opposition to defendants' motion on that ground is entirely without any basis in law or in fact.
III. DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Pursuant to CPLR 3211(a)(8), a party may move for an order dismissing a complaint based on the court's lack of personal jurisdiction. While the ultimate burden of proving jurisdiction rests on the party asserting it, a plaintiff in opposition to a motion to dismiss pursuant to CPLR 3211(a)(8) need only make a prima facie showing that jurisdiction has been obtained over the defendant. ( Alden Personnel, Inc. v David , 38 AD3d 697 [2d Dept 2007]). The evidence must be viewed in the light most favorable to the plaintiff. ( Id.).
Defendants argue that by simply mailing the summons and complaint, plaintiff failed to serve them pursuant to CPLR 308and that therefore, the action must be dismissed, and that the dismissal must be with prejudice as plaintiff will be unable to maintain a new action based on the intentional torts alleged in the complaint which occurred more than one year before any new action could be commenced. (Eisenberg Affid.).
In opposition, plaintiff asserts that he served defendants pursuant to CPLR 308(4) in that unsuccessful attempts were made to serve defendant personally on January 30, 2008 and in December 2007, and that on December 1, 2007 a summons was affixed to the door of defendant's suite. He attaches an affidavit in which Ms. Peterec swears that on December 1, 2007, she personally delivered the summons and complaint at defendants' place of business and that she "taped [the summons and complaint] to Front Door, Suite 810." (Affidavit of John Peterec-Tolino, dated Feb. 23, 2009, Exh. C). Plaintiff explains that he forgot to file Ms. Peterec's affidavit with the court, intimates that defendants sought to avoid process, and asserts that any defect in service may be cured nunc pro tunc. He also maintains that as the intentional torts are ongoing and, given the ease at obtaining leave to amend pursuant to CPLR 3025, he is not time-barred from proceeding. (Peterec-Tolino Affid.).
Although plaintiff alleges that attempts were made to serve defendants personally on January 30, 2008 and in December 2007, he submits no affidavit of service from anyone with personal knowledge as to the details, and to the extent that plaintiff claims to have attempted the service himself, as a party, he may not. (CPLR 2103[a] [papers may be served by any person who is not a party]). Moreover, absent any indication of the dates and times of the attempted service, it cannot be determined whether Ms. Peterec was duly diligent in attempting to serve defendants by personal delivery or substitute service prior to affixing the pleadings to defendants' door. (CPLR 308 [where service of pleadings cannot be made with due diligence by personal delivery or delivery to person of suitable age and discretion, pleadings may be affixed]; Estate of Waterman v Jones , 46 AD3d 63 [2d Dept 2007] [due diligence requirement of attempting personal service, before using "nail and mail" service, may be satisfied with visits on different occasions and at different times to defendant's residence or place of business, if defendant could reasonably be expected to be found at such location at those times]). Additionally, Ms. Peterec neither identified nor described the person she allegedly served. (CPLR 308 [affidavit of service shall identify person of suitable age and discretion and state date, time and place of service]).
Finally, the summons and complaint were not mailed to defendants within 20 days of the December 1, 2007 affixing. (CPLR 308 [affixing and mailing must be effected within 20 days of each other]; New York State Higher Educ. Svces. Corp. v Palmeri, 167 AD2d 797 [3d Dept 1990] [defendant not properly served as mailing of pleadings was done more than 20 days after service]; Stanley Agency, Inc. v Behind the Bench, Inc., 2009 WL 975790, 2009 NY Slip Op 50626[U] [Sup Ct, Kings County] [failure to serve and mail pleadings within 20 days of each other is jurisdictional defect and ground for dismissal of action]).
Consequently, and notwithstanding defendants' actual receipt of the pleadings, service pursuant to CPLR 308(4) was both improper and incomplete ( see Raschel v Rish, 69 NY2d 694 [when service requirements have not been met, it is irrelevant that defendant may have actually received documents]), and cannot be cured by filing an affidavit now ( see eg Potamianos v Convenient Food Mart, Inc., 197 AD2d 734 [3d Dept 1993] [plaintiff did not acquire jurisdiction over defendant as she failed to comply with CPLR 308; absent jurisdiction, court lacked power to grant amendment of summons and affidavit of service]; DeShong v Marks, 144 AD2d 623 [2d Dept 1988] [complaint dismissed as defendant did not use due diligence in attempting to serve defendant; defendant's actual notice of lawsuit did not cure jurisdictional defect]).
Thus, even viewing the evidence in the light most favorable to plaintiff, he has failed to establish, prima facie, that personal jurisdiction was obtained over defendants.
While plaintiff's defamation cause of action was timely when he commenced the action in Supreme Court, in light of the merit of defendants' motion to dismiss for lack of personal jurisdiction, any attempt by plaintiff to commence a new action based on the incidents alleged in the complaint will be futile as they are now time-barred. (CPLR 215).
IV. HAS PLAINTIFF FAILED TO STATE A CAUSE OF ACTION?
Pursuant to CPLR 3211(a)(7), a party may move for an order dismissing one or more causes of action asserted against it on the grounds that the pleading fails to state a cause of action. On such a motion, the court must liberally construe the pleading, accept the facts as true as alleged, and accord the non-moving party the benefit of every possible favorable inference. ( Leon v Martinez, 84 NY2d 83, 87). Moreover, in deciding whether the pleading states a cause of action, the court need only determine whether the facts as alleged fit within any cognizable legal theory. ( Id.). Consequently, a complaint may be dismissed pursuant to CPLR 3211(a)(7) only where it is conclusively established that there is no cause of action. ( Town of North Hempstead v Sea Crest Constr. Corp., 119 AD2d 744, 746 [2d Dept 1986]).
A. Parties' contentions
Defendants maintain that any and all of the statements attributed to Eisenberg are privileged, having been uttered in the course of judicial proceedings, and that plaintiff has thus failed to state a cause of action for defamation. (Eisenberg Affid.).
Plaintiff argues that although Eisenberg's statements were made in the course of judicial or quasi-judicial proceedings, they were not pertinent to the proceedings or were abusive and thus, are not privileged. (Peterec-Tolino Affid.; Memorandum of Law dated Feb. 23, 2009).
The facts pertinent to the motion are not in dispute; rather, the only issue for resolution here is a legal one, namely, whether Eisenberg's statements are defamatory as a matter of law.
B. The alleged defamatory statements
Plaintiff alleges that Eisenberg defamed him "throughout the courthouse" on November 17, 2006, December 19, 2006, February 2, 2007, and February 6, 2007 by making slanderous statements to two Civil Court judges and to the small claims court judge just prior to trial on March 5, 2007. (Peterec-Tolino Affid.). He also alleges that Eisenberg libeled him, and he attaches the following documents: (1) the final page of a document signed by Eisenberg on September 25, 2006 in which he alleged that plaintiff made threatening telephone calls to his home and office and left threatening voice mail messages, and requests that the court direct plaintiff to stay away from his office and refrain from making such calls; (2) a page from Eisenberg's February 2, 2007 motion to dismiss the small claim in which he sought permission to leave the courtroom before claimant "since I have concerns for my safety due to [plaintiff's] repeated threats"; and (3) pages from Eisenberg's response to the Committee dated August 17, 2007, in which he asserted that plaintiff had threatened and harassed him and that he was consistently escorted from the small claims courtroom after appearances in that case, provided copies of correspondence regarding plaintiff's alleged threats and harassment, and alleged that he once observed plaintiff "lurking in my office suite and hiding in an attorney's office who was out that day." ( Id., Exh. E).
Plaintiff also submits selected pages of the September 25, 2008 oral argument on the parties' respective motions which reflect that Eisenberg told the court that earlier that day, he observed defamatory comments about him on the walls of three of the second-floor public men's room stalls at 60 Centre Street, that the handwriting appeared to be plaintiff's, and that he had reported it to a captain at 60 Centre Street. As these new incidents are alleged to have occurred in 2008, almost one year after plaintiff commenced this action, and as the original complaint gives no notice of any new occurrence, the alleged new incidents do not relate back to the original complaint for statute of limitations purposes (CPLR 203[f] [claim asserted in amended pleading is deemed to have been interposed at time claims in original pleading were interposed, unless original pleading does not give notice of new transaction, occurrence, or series of transactions or occurrences]), and may not be considered on this motion.
Plaintiff also submits documents relating to other cases involving defendants and other litigants which I do not consider in deciding the motion before me. ( Id., Exhs. A, H).
C. Governing law
A statement is defamatory if false and made without privilege or authorization to a third party. (Pattern Jury Instructions § 3D.1. [Intro] [2008] [elements of prima facie case of defamation include defamatory statement, published to third party, that is false]). It is well-settled, however, that a statement made in the course of judicial proceedings is absolutely privileged, regardless of the defendant's purpose or motive in making the statement. ( Marsh v Ellsworth, 50 NY 309, 311; Sexter Warmflash, PC v Margrabe , 38 AD3d 163 , 171 [1st Dept 2007]). The privilege attaches to statements made in the course of quasi-judicial proceedings as well. ( Rosenberg v Metro Life Inc., 8 NY3d 359; Wiener v Weintraub, 22 NY2d 330, 331).
The policy underlying the privilege derives from the recognition that "the proper administration of justice depends upon the freedom of conduct on the part of counsel and parties to the litigation." ( People ex rel. Bensky v Warden of City Prison, 258 NY 55, 59-60; Sexter, 38 AD3d at 171). Thus, any harm resulting from barring individuals from recovering for defamatory statements made in connection with litigation is deemed "far outweighed by the need . . . to encourage parties to litigation, as well as counsel and witnesses, to speak freely in the course of judicial proceedings." ( Martirano v Frost, 25 NY2d 505, 507; Sexter, 38 AD3d at 171-172). The privilege extends to all statements made in formal litigation documents and "all pertinent communications among the parties, counsel, witnesses, and the court," whether in or out of court. ( Sexter, 38 AD3d at 174).
A statement will be protected as privileged "if it is at all pertinent to the litigation" ( Youmans v Smith, 153 NY 214, 219; Marsh, 50 NY at 311-213; Pomerance v McTiernan , 51 AD3d 526 , 528 [1st Dept 2008]; Sexter, 38 AD3d at 170; Lacher v Engel , 33 AD3d 10 , 13 [1st Dept 2006] [emphasis supplied]), or even possibly pertinent. ( Martirano, 25 NY2d at 507 [emphasis supplied]). The pertinence of a statement made in the course of a judicial or quasi-judicial proceeding is a question of law for the court to resolve. ( Marsh, 50 NY at 312; Sexter, 38 AD3d at 173).
The test is "extremely liberal" ( Pomerance, 51 AD3d at 528; Sexter, 38 AD3d at 173); the statement need be "neither relevant nor material . . . the barest rationality, divorced from any palpable or pragmatic degree of probability, suffices." ( Sexter, 38 AD3d at 173; Lacher, 33 AD3d 13). Put another way, the privilege "embraces anything that may possibly be pertinent or which has enough appearance of connection with the case so that a reasonable [person] might think it relevant." ( Baratta v Hubbard, 136 AD2d 467, 468 [1st Dept 1988], quoting Seltzer v Fields, 20 AD2d 60, 62-63 [1st Dept 1963], affd 14 NY2d 624).
And, as the Court has itself reiterated, "Nothing that is said in the courtroom may be the subject of an action for defamation unless . . . it is so obviously impertinent as not to admit of discussion, and so needlessly defamatory as to warrant the inference of express malice.'" ( Martirano, 25 NY2d at 508, quoting Youmans, 153 NY at 220). A statement is thus not protected by the privilege, if it is "so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame." ( Martirano, 25 NY2d at 508; Sexter, 38 AD3d at 173). Given this standard, any doubt as to the pertinence of a statement uttered in the course of litigation should be resolved in favor of finding it pertinent. ( Sexter, 38 AD3d at 173, 177).
D. Analysis
Here, it is undisputed that Eisenberg's statements were made in the course of judicial and quasi-judicial proceedings. The sole issue is their pertinence.
As the issue before the small claims court was plaintiff's entitlement to reimbursement of attorney fees and defendants' entitlement to attorney fees, Eisenberg's mention of his concern for his safety in his motion to dismiss was apparently irrelevant and immaterial to the claim and counterclaim, and there was no apparent need to notify the court, as opposed to court security, of it. Their lack of relevance and materiality, however, is immaterial. The same may be said for Eisenberg's written statements in response to plaintiff's and Ms. Peterec's disciplinary complaints.
While it may be inferred that Eisenberg was attempting to prejudice plaintiff by informing the court and the Committee of his fears of plaintiff and the alleged threats, to the extent that the statements bear on the conduct of the proceedings, they are pertinent, or at least any doubt as to their pertinence is resolved in favor of the privilege, notwithstanding the procedural posture of this case. ( See Pomerance, 51 AD3d 526 [motion court's dismissal of defamation action for failure to state cause of action upheld]). While the statements do not reflect well on plaintiff, they are not "so outrageously out of context" or abusive as to permit the conclusion "from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame."
That any doubt as to the motion to dismiss should be resolved in favor of plaintiff does not undermine the legal determination that Eisenberg's statements were pertinent to the proceedings, and thus privileged. Consequently, they fail to state a cause of action for defamation.
Plaintiff's allegations that Eisenberg slandered him to the three civil court judges are fatally conclusory and thus, are insufficient to rebut defendants' assertion of the privilege.
V. SANCTIONS
Defendants' motion for an order imposing sanctions against plaintiff for frivolous conduct in pursuing the instant action is denied without prejudice.
VI. CONCLUSION
For all of these reasons, defendants' motion for an order dismissing the complaint is granted with prejudice; defendants' motion for an order imposing sanctions is denied without prejudice. Given this result, there is no need to address plaintiff's demand for a jury trial or defendants' motion for an order reversing the order granting plaintiff poor person relief. In any event, defendants have no standing to bring a motion addressing plaintiff's entitlement to poor person relief.
This constitutes the decision and order of the court.