The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 were read on this motion to DISMISS. The following e-filed documents, listed by NYSCEF document number (Motion 002) 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56 were read on this motion for SANCTIONS. This action arises from the October 2021 release of the film Runt. Pro se plaintiff, William Coakley, wrote and directed the film. Nicole Berger, the then-minor daughter of defendants Harvey Berger and Chrysanthi Berger, starred as the female lead alongside the film’s male lead, Cameron Boyce. Before filming began in 2018, plaintiff signed a non-disclosure agreement (NDA) with defendants. The NDA limited plaintiff from disclosing “the identities of Producer’s ultimate principals and financiers and all tangible and non-tangible materials in which such information is contained.” (NYSCEF No. 56 at 5.) In 2019, Boyce tragically died due to an uncommon complication of epilepsy. Despite the film’s success at the Mammoth Film Festival, where it won the Audience Award for Best Feature Film and plaintiff won the Best Director Award, plaintiff was unsatisfied with the finished product and requested that his name be removed from the credits. Plaintiff and defendants entered negotiations to resolve this conflict, during which plaintiff referred to multiple instances of bullying, harassment, sexual harassment, and sexual misconduct that occurred on set. Although defendants encouraged plaintiff to come forward with details of those allegations, so that a law firm could investigate, plaintiff did not do so. After the months of negotiations ended unsuccessfully, plaintiff sent Mr. Berger 109 communications in rapid-fire succession. Plaintiff sent defendants mock movie posters referring to the alleged sexual misconduct that he threatened to release on social media to “gauge public reaction.” He also threatened to write a “tell-all script” about filming the movie. (See NYSCEF No. 7 [mock movie poster]; NYSCEF No. 8 [plaintiff's WhatsApp messages to Mr. Berger discussing plaintiff's intent to disclose details of the movie's making].) Plaintiff later sent text messages threatening defendants with litigation and a public-relations fallout should litigation begin. Concurrently with plaintiff’s communications with defendants, plaintiff also sent text messages to one of the film’s producers detailing plaintiff’s plan to “target[ ]” defendants’ daughter and encourage her to commit suicide. (See NYSCEF No. 20 ["With any luck I can get that little cunt to commit suicide herself…[and] put[ ] the little bitch back on suicide watch herself.”].) That text was followed by images of a woman hanging from a noose, slit wrists, people attempting to jump from bridges, and a man who appears to have shot himself with a firearm. In September 2021, plaintiff, dissatisfied with the finished version of Runt, publicly released a “Director’s Statement.” In that statement, he charged that due to an “especially toxic” investor, Boyce “had to spend significant bandwidth fending off pervasive bullying, harassment, sexual harassment (which targeted other crew members as well), and even an incident of coerced sexual misconduct that left us all dumbfounded.” (NYSCEF No. 1 at 88.) After the release of his Statement, members of the online community began to identify, target, and harass defendants, their business colleagues, and even their daughter and members of her school. In May 2022, plaintiff brought this action, seeking a declaratory judgment about the NDA’s validity and whether it can be enforced to prevent plaintiff from disclosing to the public defendants’ alleged misconduct. As part of his complaint, he allegedly included unredacted information covered by the NDA. In June 2022, defendants filed a responsive motion (mot seq 001) seeking (i) to dismiss plaintiff’s complaint under CPLR 3211 (a) (2), (7) and (10), and CPLR 3001; and (ii) to require plaintiff under 22 NYCRR 216.1 to refile a redacted complaint in conformity with the NDA. After affidavits were submitted supporting defendants’ motion, plaintiff filed a notice of voluntary discontinuance of his suit under CPLR 3217. Defendants then moved for sanctions (mot seq 002), alleging that plaintiff’s suit was harassing and that, as a result of plaintiff’s delay in discontinuing the action before defendants filed their motion to dismiss, they incurred $200,000 in attorney fees. Plaintiff cross-moves for sanctions against defendant. Motion sequences 001 and 002 are consolidated here for disposition. Defendants’ motion to dismiss is granted; and defendants are directed to identify the redactions of plaintiff’s complaint that they believe to be necessary. Defendants’ motion for sanctions is granted; plaintiff’s cross-motion for sanctions is denied. DISCUSSION As an initial matter, this court concludes that plaintiff’s notice of voluntary discontinuance is invalid under CPLR 3217 (a) (1). That provision requires a party seeking voluntarily to discontinue its action to serve its notice of discontinuance before the opposing party serves a responsive pleading. (See BDO USA, LLP v. Phoenix Four, Inc., 113 AD3d 507, 511 [1st Dept 2014] [holding notice of voluntary discontinuance untimely because plaintiff "served it after defendants filed their motions to dismiss"].). Here, plaintiff served the notice after defendants filed their motion to dismiss. Given the notice’s invalidity, this court considers the merits of defendants’ motion to dismiss before going on to address the parties’ respective requests for sanctions. I. Defendants’ Motion to Dismiss (Mot Seq 001) In moving to dismiss, defendants argue that plaintiff lacks a viable cause of action for declaratory relief under CPLR 3001 because no justiciable controversy exists between the parties. The court agrees. This court is not persuaded by defendants’ first argument that plaintiff is seeking only to raise the rights of other individuals (i.e., Boyce), and therefore assertedly lacks standing to seek a declaratory judgment. Plaintiff’s complaint seeks declaratory relief going to plaintiff’s own legal rights, namely his right to disclose information potentially within the scope of the parties’ NDA. That said, this court concludes that the action must be dismissed for want of a justiciable controversy. (See NYSCEF No. 23 at 16-17.) Plaintiff has not alleged that he intends to make any further disclosure of information that might be protected by the NDA — outside the complaint in this action itself — nor that defendants are threatening to sue him for alleged breach of the NDA. Any legal controversy that might arise about the enforceability of the NDA is contingent and hypothetical, and as such is not a proper basis for a declaratory-judgment action. As discussed further below, however, plaintiff’s publication in the complaint of information potentially within the scope of the NDA, although legally privileged against a suit for defamation or the like, amounts to improper self-help. (See id. at 24.) To avoid prejudice to defendants from plaintiff’s improper conduct, the complaint should, as defendant requests, be redacted to remove that information. Defendants shall, within 30 days of entry of this order, propose redactions, supporting their proposal by reference to particular provisions of the NDA. II. Defendants’ Motion for Part 130 Sanctions (Mot Seq 002) Defendants move for sanctions against plaintiff. Defendants argue that he engaged in frivolous litigation by commencing this lawsuit with the sole goal of harassing defendants and that he asserted material factual statements that are false. Defendants’ motion is granted. 22 NYCRR 130-1.1 (a) permits a court to award “costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct.” Conduct is frivolous if “it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or…it asserts material factual statements that are false.” (Id.§130-1.1 [c] [2], [3].) In determining whether litigating conduct is frivolous, “the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.” (Id. §130-1.1 [c].) Defendants assert that the current litigation represents plaintiff’s latest attempt to harass defendants and do what he was unable to do under the NDA’s restrictions—disclose to the public confidential information about the film. They allege he did so by including information in his complaint that was covered by the NDA but left unredacted. (NYSCEF No. 1 at 1; No. 23.) The court agrees with defendants that plaintiff’s actions amount to self-help, which occurs when a party unilaterally takes action, to their advantage, to the prejudice of the other party. (See Sci v. Sci, 2001 NY Slip Op 40441(U), *2-5 [Sup Ct, Nassau County 2001] [imposing sanctions for unilateral issuance of income execution order as impermissible self-help]; see also DeRosa v. Chase Manhattan Mtge. Corp., 15 AD3d 249, 249-250 [1st Dept 2005] [affirming award of sanctions where attorney "unilaterally amended an appellate caption, without leave of court, to substitute [a party],…for the express purpose of pressing an appellate argument that the motion court was…disqualified”].) A party that unilaterally discloses confidential information may be found to have abused the judicial process, and sanctions may be awarded in favor of the injured party. (See Abe v. New York Univ., 169 AD3d 445, 449-450 [1st Dept 2019] [upholding imposition of sanctions for "violation of [a]stipulation regarding the filing of confidential documents”].) Plaintiff claims that he was unaware of “a procedural vehicle through which [he] could have” filed a complaint with redacted information. (NYSCEF No. 32 at 68.) But as defendants point out, a section on the New York State Court website refers unrepresented litigants to privacy and redaction information. This information would have placed plaintiff on notice that there was a “procedural vehicle” to protect confidential information pursuant to an NDA. Being a pro se plaintiff comes with difficulties and learning curves. Yet “[t]he courts are not obliged to indulge the excesses of a pro se litigant at the expense of decorum, judicial economy and fairness to opposing parties.” (Couri v. Siebert, 48 AD3d 370, 371 [1st Dept 2008].) Plaintiff’s use of an unredacted complaint to air out confidential information protected by a valid NDA, without providing reasons for its invalidity, is antithetical to party fairness. Indeed, that complaint was quoted extensively by two media outlets, prejudicing defendants. (See NYSCEF No. 29 at 9.) Plaintiff’s conduct in the months preceding this case only bolsters defendants’ claim that he “inten[ded] to use the courts not as a means of resolving a genuine legal dispute[,]…but rather as a tool to vent his anger.” (NYSCEF No. 29 at 15 [internal quotation marks and citation omitted].) Plaintiff’s graphic, inappropriate, and voluminous text messages to defendants bear out a history of vexatious harassment that eventually culminated in this suit. (See NYSCEF Nos. 20, 21, 23 [alleging defendant Mr. Berger's receipt of 109 communications from plaintiff in six weeks]; cf. People v. Duran, 2009 NY Slip Op 52020(U), *3 [Crim Ct, NY County 2009] [finding that the "volume of communications…[is] sufficient for pleading purposes to establish that the defendant acted with the intent to harass”].) In plaintiff’s own words, these messages were intended to have a “high impact” on defendants for the purported wrongs that they committed. (NYSCEF No. 8.) Plaintiff insists that these messages were merely a manifestation of his “dark humor.” (NYSCEF No. 41 at 45.) But that is no excuse where, as here, “humor is used in an attempt to disguise an attempt to injure.” (Frank v. National Broadcasting Co., 119 AD2d 252, 261-262 [2d Dept 1987].) Regardless of one’s sense of humor, plaintiff’s message to the producer targeting Nicole Berger, then a minor, to drive her to suicide illustrates an ugly attempt to injure. (See NYSCEF No. 20; cf. People v. Torres, 2010 NY Slip Op 50107(U), *4 [Crim Ct, NY County 2010] ["When a defendant is alleged to have sent a text message that includes 'you are such a dirty cunt', it is a reasonable inference at the pleading stage that such a message was sent with either an intent to harass or an intent to annoy and that it was sent in a manner likely to cause annoyance."].) Through his “Director’s Statement,” moreover, plaintiff publicly revealed information that instigated the commencement of a malicious cyber-attack against the defendants, their daughter, and members of their community. (See NYSCEF Nos. 5, 12, 13.) The online harassment was so intense that authorities at their daughter’s high school were forced to block these communications. (NYSCEF No. 5 at 19.) However “righteous” plaintiff feels his retaliations were, the courts will not permit litigation caused by or based on “bad feelings” between parties. (NYSCEF No. 29; Matter of Diorio v. City of Peekskill Common Council, 13 AD3d 523, 525 [2d Dept 2004]). Nor will litigation be permitted to be pursued for such “improper purposes.” (Gordon v. Marrone, 202 AD2d 104, 105 [2d Dept 1994] [affirming that "[l]itigants who use our court system for improper purposes, such as for retribution and harassment, may be sanctioned under the rules designed to deter frivolous conduct”]; see also Matter of Sud v. Sud, 227 AD2d 319, 319 [1st Dept 1996] [upholding imposition of sanctions "to prevent use of the judicial system as a vehicle for harassment, ill will and spite"].) Defendants have persuasively articulated plaintiff’s frivolous conduct in commencing this litigation. Defendants’ motion for sanctions is granted.1 Plaintiff repeatedly states that if he were to pay the full amount requested by defendants to cover their attorney fees, he would be bankrupted. (NYSCEF No. 41 at 72; No. 55 at 20.) But the court is persuaded that in choosing to commence this litigation, plaintiff sought only to advance his months-long crusade to “harass [and] maliciously injure” defendants. It is precisely this sort of behavior that this court should condemn and deter through Rule 130 sanctions. The court finds defendants are entitled to their reasonable attorney fees as a sanction. Defendants shall, within 30 days from entry of this order, file a motion to determine the amount of those fees, supported by appropriate documentation. III. Plaintiff’s Cross-Motion for Sanctions (Mot Seq 002) Plaintiff cross-moves under Part 130 for sanctions against defendants. The motion is denied. Plaintiff argues that defendants’ sanctions motion was itself sanctionably vexatious, harassing, and frivolous within the meaning of §130-1.1. This court is unpersuaded. Defendants submitted to this court text messages, spanning weeks, that document plaintiff’s harassment of defendants. (See NYSCEF Nos. 8, 9, 10, 16, 20, 21.) Defendants also provided reasonable arguments that plaintiff acted in self-help by filing an unredacted complaint. Defendants’ sanctions motion is thus not frivolous or harassing. And given this court’s conclusion that plaintiff’s notice of discontinuance was invalid, this action remained live when defendants moved for sanctions. That motion thus was not an improper effort to prolong the resolution of this action within the meaning of §130-1.1 (c) (2). Accordingly, it is ORDERED that the branch of defendants’ motion seeking dismissal of the complaint under CPLR 3001 and 3211 (mot seq 001) is granted; and it is further ORDERED that the branch of defendants’ motion seeking to require plaintiff to refile a redacted version of the complaint (mot seq 001) is granted to the extent that defendants shall, within 30 days of entry of this order, submit a proposed redacted version of the complaint (by e-filing on NYSCEF and email to [email protected]), supported by appropriate documentation of why the redactions are warranted under 22 NYCRR 216.1, after which this court will enter an appropriate redaction order; and it is further ORDERED that defendants’ motion for Part 130 sanctions (mot seq 002) is granted, and this court awards defendants sanctions in the amount of their reasonable attorney fees in this action; with the amount of those fees to be determined by a properly supported fees motion, to be filed by defendants within 30 days of entry of this order ORDERED that plaintiff’s cross-motion for Part 130 sanctions (mot seq 002) is denied. Dated: October 14, 2022
