Balliet v. With Prejudice Kottamasu

• Docket Number: Index No. CV-008128-22/KI
• Decision Date: 09 August 2022
• Citation: 76 Misc.3d 906,175 N.Y.S.3d 678
• Parties: John D. BALLIET, Plaintiff, v.with prejudice of the other Rajesh KOTTAMASU, Defendant.
• Court: New York Civil Court

76 Misc.3d 906

175 N.Y.S.3d 678

John D. BALLIET, Plaintiff,

v.with prejudice of the other

Rajesh KOTTAMASU, Defendant.

Index No. CV-008128-22/KI

Civil Court, City of New York, Kings County.

Decided on August 9, 2022

Joseph S. Hubicki, Law Offices of Joseph S. Hubicki, 31 West 34th Street, Suite 7012, New York, New York 10001, (917) 538-7259, Counsel for Plaintiff

J. Remy Green, Cohen & Green PLLC, 1639 Centre Street, Suite 216, Ridgewood, New York 11385, (929) 888-9480, Counsel for Defendant

Sandra E. Roper, J.

INTRODUCTION

This Honorable Court Decides and Orders after oral argument, upon submission of the 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 innuendo 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 roommates’ 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...