Balliet v. Kottamasu

RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION NOTICE OF MOTION             1 AFFIRMATION IN SUPPORT & EXH. ANNEXED    2-3 NOTICE OF CROSS MOTION & OPPOSITION       4-5 AFFIRMATION IN SUPPORT & EXH. ANNEXED    6-7 DEFENDANT REPLY& EXH. ANNEXED                8-9 DECISION AND ORDER MOTION TO DISMISS AND CROSS-MOTION TO DISCONTINUE INTRODUCTION This Honorable Court Decides and Orders after oral argument, upon submission of the foregoing papers, and for the reasons as set forth below: Defendant’s Motion to Dismiss and for attorney fees pursuant to Anti — SLAPP Law, Civil Rights Law 70-a, 76-a and CPLR 3211 (g) is hereby DENIED; Plaintiff’s Cross-Motion to Discontinue pursuant to CPLR 3217 is, with prejudice, GRANTED. PROCEDURAL AND FACTUAL HISTORY Plaintiff commenced this action upon filing on December 11, 2020 Statement of Claim against Defendant Kottamasu in Small Claims Court under Index Number 16010 SCK 2021 for defamation in the amount of $10,000.00 alleging “Defendant used both oral and written means to deliberately defame on behalf of 3rd party.” By Court Order on April 22, 2022 this case was transferred from Small Claims Court to Kings County Civil Court under Index Number CV-008128/22. This Plaintiff commenced two other actions in Kings County Civil Court. The first filed in September 27, 2019 against 70 Lefferts LLC under Index Number CV-028734-19 for the return of security deposit in the amount of $18,000.00 with interest from September 30, 2018. The second case was filed December 5, 2020, by Statement of Claim against three other persons (roommates) under Index Number 16811-1 SCK 2020 in the amount of $5,000.00 alleging that those roommates have intentionally withheld his property after his moving out of the shared space. The common thread with all these three suits concerns the last months of the Plaintiff as a roommate with the other four roommates “in a large, communal unit” as tenants of 70 Lefferts LLC, the Defendant in Index Number CV-028734/19 (affirmation of J. Remy Green, November 26, 2021, 10). Defendant alleges that Plaintiff violated a communal living agreement. However, this alleged agreement was not produced nor explained in an affidavit by someone with personal knowledge of this agreement. Defendant by counsel and again not by someone with personal knowledge, further alleged that Plaintiff was demanded to leave since he violated this agreement which forbade roommates from engaging in sexual harassment (id.). With the three other roommates, Defendant’s significant other (“DSO”) was an additional roommate, for a total of five roommates in this communal unit. It is undisputed by Plaintiff, as conceded at oral argument on April 22, 2022 that he did engage with flirtatious sexual inuendo with DSO. Defendant sent Gmail communication to the Gmail group of five roommates on August 22, 2016, reporting on discussions at a roommates’ meeting held the night before in which Defendant accused Plaintiff of “sexual harassment and sexual abuse” against his DSO (see reply affirmation of J. Remy Green, exhibit 1). Defendant claimed that Plaintiff: commented on “liking” DSO’s body; questioned why Defendant and DSO “did not invite a third sexual partner” into their bed; showed DSO “naked pictures of men on his phone; invited DSO to join him in a threesome because Defendant wasn’t present at the time; and, told DSO that he could “hear things” when they were engaging in sexual relations; and was told by DSO that “the comments were inappropriate” (id.). Plaintiff eventually moved out of the communal living space terminating roommate-tenant relationship with all defendants in all the commenced cases. Defendant Kottamasu moved pursuant to CPLR 325 and 602 (b) to consolidate all suits with the acquiescence of 70 Lefferts LLC, to dismiss defamation action pursuant to CPLR 3211 (g) and for attorney fees pursuant to Civil Rights Law 70-a. On November 30, 2021, Plaintiff, pro-se, filed a procedurally improper “Petition to Withdraw” his defamation suit originally captioned as Index Number SC-016010-21. At oral argument held April 22, 2022, Plaintiff reiterated his filed Petition to Withdraw in order to discontinue the defamation suit and the other suits against his former roommates, whereas continuing to trial on his suit against 70 Lefferts LLC for the return of his security deposit. Although it is uncontroverted that the Plaintiff’s defamation action was commenced after the expiration of the one year statute of limitations¹, Defendant Kottamasu objected to discontinuance of this instant case without awarding of attorney fees pursuant to Anti-SLAPP statute. Consequently, Court so ordered stipulation of discontinuance with prejudice of the other roomates’ suits, denied consolidation and calendared 70 Lefferts LLC for trial, which was eventually settled by Court so ordered stipulation on July 7, 2022. This Court further ordered the transfer of Small Claims Court defamation suit captioned 16811-1 SCK-2020, upon the payment of the appropriate fee by Defendant, to Civil Court captioned in this instant index number to solely decide motion to dismiss and awarding of attorney fees pursuant to Anti-SLAPP law. Civil Court transfer was filed on May 4, 2022 along with Defendant’s amended motion papers to reflect new caption and Civil Court jurisdiction. In compliance with ordered Briefing Schedule, Plaintiff retained counsel and filed Notice of Cross Motion to discontinue pursuant to CPLR 3217 (b) and in Opposition to Defendant’s Motion on May 24, 2022, followed by Defendant’s Reply filed June 15, 2022, upon which Motion and Cross-Motion were marked submitted. DISCUSSION Sullivan v. NY TIMES as Landmark SLAPP Suit Notwithstanding that SCOTUS’ landmark Sullivan² was decided in 1964 predating the introduction of SLAPP³ suit into the legal lexicon, Sullivan is indeed for all intents and purposes in form and substance an archetypical SLAPP suit. SLAPP being the acronym for Strategic Lawsuit Against Public Participation⁴ brought with the intent to effectuate a chilling of the exercise of the First Amendment right to free speech⁵ on matters of public concern and interest. Defamation has been well established by common law as an intentional tort cause of action from the Kings Bench, which, in its much varied state to state codified versions, is most commonly the vehicle upon which SLAPPs are premised. “Generally speaking, slander is defamatory matter addressed to the ear while libel is defamatory matter addressed to the eye”.⁶ New York along with some other state jurisdictions further categorizes defamation as either per se or per quod.⁷ Codification of defamation was exclusively within the states’ ambit until Sullivan required First Amendment free speech protections for a state’s defamation statute to pass Constitutional muster. SCOTUS recognized that Sullivan was indeed a SLAPP suit in essence if not in nomenclature, commenced to inflict litigation as a cudgel to so bludgeon, harass and intimidate the SLAPP Fourth Estate defendant, by inundating with costly, baseless litigious procedural machinations to effectively so restrain its exercise of free speech into capitulation and silence on matters of public interest or concern, as SCOTUS clearly opined that Civil Rights was. Although generally brought as de jure action in law, often times SLAPP’s underpinning unwritten remedial intent in sum and substance is that of de facto action in equity to cease and desist the SLAPP defendant’s speech and robust debate on the public issue of the moment. It is this impact on First Amendment unfettered speech without unconstitutional restraints thereto, that was sought to be redressed by Sullivan. SCOTUS reasoned that such free speech is fundamental to our exceptional experiment in democracy⁸, which mandates heightened scrutiny on any restraint thereto. SLAPPs have been most commonly brought against the Fourth Estate to chill its speech by aggrieved similarly situated Public Official Plaintiff as LB Sullivan or Palinesque Public Figures. However, with the advent of ubiquitous social media platforms, there has emerged a Fifth Estate⁹. Such that, even in the most remote areas of the globe, many have at their veritable fingertips the readily accessible capability to be deemed social media journalist in their own right publishing or blogging alleged objectionable defamation either to the ear or to the eye or both simultaneously with every click of the send button, even from the smallest of a computer device, to wit, a smart watch. On February 21, 1956, Montgomery County indicted Martin Luther King, Jr. along with 89 fellow civil rights activists for boycotting the Jim Crow Blacks sit in the back segregated bus system for violating its anti-boycotting Alabama statute and most unsurprisingly, all found guilty. In an obviously retaliatory and harassing politically motivated prosecution to quash their exercise of the First Amendment free speech by the non-violent peaceable Civil Rights protests, assemblages and petitions for equal rights for Black citizens, shortly thereafter, Montgomery County once again indicted its leader, MLK. This time, for allegations of tax evasion in 1956 and 1958. This obviously blatant pattern of retaliatory political prosecution spurred the formation of the “Committee to Defend Martin Luther King and the Struggle for Freedom” spearheaded by celebrity entertainer Harry Belafonte and other racially diverse renowned celebrities, religious leaders, and civil rights activists. To support MLK’s Civil Rights nonviolent protests and to publicly shame public official government actors for infliction of “unprecedented wave of terror”¹⁰, this Committee published on Tuesday, March 29, 1960, the alleged offending New York Times Advertisement.¹¹ “Heed their Rising Voices” is the sine qua non of Sullivan.¹² Montgomery County Public Service Commissioner LB Sullivan brought state court (SLAPP) suit against New York Times for defamation. LB Sullivan alleged this advertisement was libelous against the county police and therefore, by extrapolation, libelous against him individually as its supervising public official, notwithstanding that he was not named in the Advertisement¹³. He argued, which was adopted as a matter of law by the Alabama courts, since he oversaw the Montgomery County Police Department, all libelous defamatory and false statements¹⁴ against the police department of harassing and terrorizing MLK and Black Alabama residents¹⁵ were also, by implication, defamatory libelous statements against LB Sullivan individually in his capacity as its supervising public official. The Alabama trial court charged the jury accordingly resulting in finding that the New York Times Advertisement was libel per se and verdict awarded money damages to LB Sullivan. After verdict, New York Times sought certiorari to challenge the Constitutionality of Alabama’s defamation statute. SCOTUS granted certiorari and rendered decision in favor of New York Times and reversed Alabama’s judgment for LB Sullivan. SCOTUS Justice Brennan writing for a unanimous court, struck down as unconstitutional Alabama’s defamation statute, as it imposed undue restraint on the First Amendment in violation of the Fourteenth Amendment of The Constitution. Sullivan ushered in the Landmark Libel Law standard requiring First Amendment free speech protections in defamation suits brought by public officials particularly as against the Fourth Estate (SLAPP) defendants. Sullivan’s Libel Law Doctrine held that state statute shall require a showing that an aggrieved public official may only be defamed by the actual malice¹⁶ standard by a showing with clear and convincing evidence that (SLAPP) defendant spoke with knowledge of the statement’s falsity or with reckless disregard of the truth. A very high bar. Such that, (SLAPP) defendant’s mere journalistic negligent innocent error in truthfulness without malicious intent is insufficient in defamation action commenced by a (SLAPP) public official plaintiff acting in his or its official capacity.¹⁷ SCOTUS reasoned that constitutionally protected free speech and free press is much too fundamental to our constitutional form of government to foster and not stifle vigorous and robust debate on matters of public concern and interest, even if critical of government, public affairs or public officials. Notwithstanding SCOTUS Justice Clarence Thomas’ escalating challenge¹⁸, Sullivan remains controlling First Amendment Libel Law stare decisis and its principles are codified in many states, including New York, somewhat insulating those states from its possible overturn by SCOTUS in the future. Over time, Sullivan’s principles have been further expanded beyond government actor public official in subsequent SCOTUS decisions to include public figures¹⁹ and limited public figures,²⁰ significantly broadening the class of SLAPP plaintiff. NEW YORK ANTI — SLAPP STATUTE In 1964 as SLAPP Defendant, the New York Times did not have the benefit of First Amendment protection by an Alabama Anti-SLAPP statute. Designed to inoculate SLAPP defendant’s free speech in the robust discourse and debate on matters of public concern and public interest from the costly time and labor intensive litigation to defend overburdensome meritless SLAPP suits, Anti-SLAPP laws emerged in the early 1990s. With the exclusion of Sullivan’s state of Alabama, many states have legislatively codified Anti-SLAPP laws to further bolster First Amendment free speech procedural litigation protective procedures to enforce Sullivan’s principles and deter filing of meritless SLAPPs. Precursor Anti-SLAPP laws including that of New York’s were considered much too narrow and limited in scope to truly accomplish the intended legislative purpose.²¹ On November 10, 2020, New York Times and similarly situated class of the Fourth Estate and Fifth Estate significantly benefited from the much strengthened, immediately effective, and held retroactive²² amended expansion of New York’s Anti — SLAPP Statute. Other states followed suit by adopting a model Anti-SLAPP law which largely mirrored New York’s amended Anti-SLAPP law, which was drafted by The Uniform Law Commission, The Uniform Public Expression Protection Act (UPEPA).²³ The overarching legislative intent for these significantly strengthened amended expansions of these Anti-SLAPP laws is a shifting of the costly consequences from defendant to plaintiff with the intent to dissuade and deter meritless SLAPPs from being brought in the first instance. New York’s Anti-SLAPP legislative purpose remained unchanged²⁴ as amendments in language were made to Civil Rights 70-a, Civil Rights 76-a, CPLR 3211 (g), and CPLR 3212 (h).²⁵ Although The Fourth Estate is the primary beneficiary of the amended Anti-SLAPP law it is not the exclusive beneficiary thereof. Rather, the amended language was very deliberate to broaden the class of Anti-SLAPP First Amendment defendant protectees²⁶ by stating “any communication” even by a non-press, non-media, non-journalist, non-traditional communicator in “a place open to the public or public forum” evidencing inclusion of the Fifth Estate in the ubiquitous social media platforms, as well as adding “any other lawful conduct” that may take many different forms beyond the mere traditional forms of exercising of the Constitutional right of free speech communicated to the “eye or the ear”²⁷. Certainly, with ever evolving technology being made readily available to the masses, there may be quite creative unimagined manners of expression by “any other lawful conduct” to engage in robust debate on matters of public interest. These Amendments further mandate that “public interest” is to be so “construed broadly” solely to the exclusion of “purely private matters”, which is indeed a very low bar. Moreover, the shifting cost consequences from defendant to plaintiff is indeed a crux of the Anti-SLAPP deterrent procedural remedial safeguards. Such that, where dismissal is granted Civil Rights Law 70-a explicitly statutorily mandates, precluding judicial discretion²⁸, that attorney fees and costs “shall” be paid by SLAPP plaintiff to the SLAPP defendant. Procedurally, defendant’s filing of Anti-SLAPP motion to dismiss triggers statutorily imposed automatic stay until court’s ruling, circumventing any further costly full-scale discovery, pursuant to 3211 (g) (3). However, court may exclusively order “specified discovery” solely to address issues raised in the motion to dismiss pursuant to CPLR 3211 (g) (3), signaling to potential SLAPP plaintiff the heightened pleading standard to withstand Anti-SLAPP pre-discovery dismissal. Although not usually procedurally admitted in a motion to dismiss, admissible affidavits and documentary evidence are allowable pursuant to CPLR 3211 (a) and 3211 (g) (2) (3). Upon SLAPP defendant demonstrating suit involves “public petition and participation” pursuant to 3211 (g) (1) and Civil Rights Law 70-a, burden shifts to plaintiff to prove its SLAPP “has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law.” SLAPP plaintiff’s failure to meet its burden shall result in SLAPP’s dismissal. Consistent with SCOTUS, New York Courts’ expeditious resolution²⁹ is hallmark of Anti-SLAPP law pursuant to CPLR 3211 (g) (1) which requires, “court shall grant preference in the hearing of such motion.” Anti-SLAPP motion to dismiss may be converted sua sponte or by anti-SLAPP defendant as motion for summary judgment where sufficient facts set forth in pleadings, garnered from previous discovery exchanged or provided in admissible affidavits and documentary evidence pursuant to CPLR 3212 (h) which contains the very same CPLR 3211 (g) (1) prioritization language, “court shall grant preference in the hearing of such motion.” In a case of first impression which garnered much public interest, Palin held inter alia that the significantly expanded³⁰ New York Amended Anti-SLAPP law is to be applied retroactively pursuant to its legislative intent premised upon its purpose and history. Consequently, this time, the New York Times benefited not only from stare decisis of Sullivan but also the codification of its actual malice principles in amended New York Anti-SLAPP law passed in the midst of the New York Times’ defense. However, New York expanded the actual malice standard beyond SCOTUS’ public official, public figure and limited public figure to also include private figure to establish “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” (NY CLS Civ R §76-a). In a bit of a highly unusual procedural posture, in the midst of jury deliberation, presiding justice publicly announced that he had decided regardless of jury’s verdict that he would grant directed verdict to the New York Times, causing quite a public stir as his public pronouncement may have influenced the non-sequestered jury’s verdict, which similarly rendered judgment in favor of the New York Times. Court appeared quite flabbergasted that Palin’s SLAPP suit was a pretextual direct attack on Sullivan. To attempt the overturn of this landmark long standing sixty-year public official/figure actual malice libel law stare decisis by this New York District Court of lower jurisdiction.³¹ Alternatively, Palin further sought to seriously weaken Sullivan to set precedent to establish distinguishable fact-based carve outs.³² Palin’s arguments were quite ambitious with such hubris to so cavalierly discard this most well-entrenched beacon of First Amendment free speech stare decisis.³³ Palin SLAPP suit was obviously brought to not merely redress alleged libel against her that was already publicly acknowledged as non-malicious journalistic negligent error and had already been corrected by the New York Times, but rather to provide an opportunity to SCOTUS’ seemingly newly emerging judicial activism³⁴ to up-end decades of well-established libel law in desecration of Stare decisis et non quieta movere.³⁵ Notwithstanding Palin’s retroactivity holding³⁶ and the New York Times’ expenditures of five years of protracted eminently costly litigious procedural machinations in its defense, it may have indeed been too late to inure the full benefit of the Anti-SLAPP’s cost recoupment benefit factor³⁷. Notwithstanding that it has been well established that a matter of public concern is indeed so broadly construed to be a low bar to clear to withstand challenge as a purely private matter for Anti-SLAPP motion to dismiss, in this case at bar, the dispositive issue may be that of what constitutes “public forum”. The alleged Anti-SLAPP offending communication must have been made “in a place open to the public or a public forum in connection with an issue of public interest” (NY CLS Civ R §76-a [a] [1]). Alleged communications of sexual harassment are absolutely matters of public concern and interest.³⁸ However, “[s]tatements falling ‘into the realm of mere gossip and prurient interest’ are not matters of public concern nor are ‘publications directed only to a limited, private audience’” (Aristocrat Plastic Surgery, P.C. v. Silva, 206 AD3d 26, 169 NYS 3d 272 [1st Dept 2022], citing Huggins v. Moore, 94 NY2d 296, 302-303, 726 NE2d 456, 704 NYS 2d 904 [1999]). It is uncontroverted that Plaintiff made flirtatious sexually tinged comments about his Roommate Defendant’s significant other (DSO). Although morally and ethically reprehensible, statements of alleged sexual flirtation with a roommate’s significant other constitutes gossip and are not issues of public interest nor public concern, but rather purely private matter under the circumstances of this instant matter. Indeed, statements of alleged sexual misconduct are considered non-exclusive gender based discrimination and are cognizable matters of public interest and concern. However, Defendant’s argument that “discussions of sexual misconduct” is in the public interest pursuant to Oregon Anti-SLAPP law in and of itself is not dispositive nor compelling.³⁹ The alleged offending #MeToo sexual harassment statements against an Oregon attorney allegedly perpetrated against his co-worker was published in a news media website⁴⁰, undoubtedly a public forum pursuant to New York’s Anti-SLAPP Civil Rights Law §76-a. Whereas, in this case at bar, the alleged offending statements were made within the confines of the private apartment or living space shared by Plaintiff, Defendant, Defendant’s significant other and three other roommates, which does not constitute a place open to the public or a public forum, even if statements were spoken or written in a Gmail email group consisting of five roommates, clearly a private limited audience. Historically, from the medieval times of the Kings Bench which was continued by the fledgling United States, the town crier’s attention grabbing ring of his bell followed by ‘hear ye hear ye chant’, announced matters of public interest and concern including government pronouncements of new taxes, judicial hangings, extra-judicial mob lynchings of Blacks and Native Americans, good and bad news of the moment in the public square.⁴¹ An indispensable public service for the mostly illiterate masses⁴² at the time, delivered in the public forum. A precursor of our modern day “communication in a place open to the public or a public forum in connection with an issue of public interest”, has evolved to include the press, broadcast media, virtual media, books, social media, Yelp, Facebook, Twitter, ZocDoc, TikTok and still the old fashioned mainstay, the modern day town crier protester making her impassioned pronouncements with her bullhorn on the public issue of concern and interest of the moment in a physical public square (see NY CLS Civ R §76-a). In a case of first impression pursuant to New York’s amended Anti-SLAPP law, the First Department Appellate Division held that social media, to wit, Yelp, is a public forum (Aristocrat Plastic Surgery, P.C. v. Silva). And, rejected out of hand the argument that Anti-SLAPP plaintiff’s medical services rendered to Anti-SLAPP defendant are purely private matters and not protected by Anti-SLAPP Law. Although Court did not explicitly define public forum, the cases cited are consistent with what constitutes a public forum. Here, there is no public forum nor place open to the public. Rather these statements were made by Defendant in this instant matter within the confines of an apartment and living space with fellow roommates, for a total of five persons. Neither does Civil Rights Law §76-a (a)(2) resuscitate Defendant’s argument for Anti-SLAPP relief in this matter, where it is here reasoned, pursuant to legislative history and purpose, this is not the setting nor scenario that was intended to be redressed by Anti-SLAPP Law in terms of the unfettered First Amendment Free speech protections, even with its most broad expansive breadth⁴³. If so, any family revelations confessed solely around the Family Thanksgiving Table and repeated in the Family’s exclusive group text, group chat or group email, decidedly not public forums, may potentially fall within the ambit of Anti-SLAPP. Of which, this is not the legislative intent of Anti-SLAPP Law. However, contrast must be made where family member airs unflattering defamatory skeletons in obvious public forum, to wit, non-fiction biography, of these very same type revelatory confessions of public concern and interest gathered at the Family Thanksgiving Table which would indeed render these family skeletons no longer in a purely private forum but rather in a public forum, and therefore within ambit of Anti-SLAPP Law (see Carey v. Carey, 74 Misc 3d 1214 [A], 2022 NY Slip Op 50124 [U], *5 [Sup Ct, NY County 2022]). For the foregoing reasons, This Honorable Court finds that this instant matter is not an action within the ambit of Anti — SLAPP Law pursuant to Civil Rights Law 70-a, 76-a and CPLR 3211 (g), and consequently, Defendant’s Motion to Dismiss and for attorney fees is hereby DENIED; Plaintiff’s Cross-Motion to Discontinue pursuant to CPLR 3217 is, with prejudice, GRANTED. The foregoing constitutes the opinion, decision, and order of This Honorable Court. SO ORDERED: Dated: August 9, 2022