Baumgarten v. Klotz

• Decision Date: 14 February 2020
• Docket Number: INDEX NO. 601030/2017
• Citation: 2020 NY Slip Op 31276 (U)
• Parties: HERBERT BAUMGARTEN, Plaintiff, v. NANCY KLOTZ, Defendant.
• Court: New York Supreme Court

2020 NY Slip Op 31276(U)

HERBERT BAUMGARTEN, Plaintiff, v. NANCY KLOTZ, Defendant.

INDEX NO. 601030/2017

SUPREME COURT OF THE STATE OF NEW YORK NASSAU COUNTY TRIAL/IAS PART 33

RECEIVED: February 19, 2020

February 14, 2020

NYSCEF DOC. NO. 134

SHORT FORM ORDER

PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice

Motion Seq. No.: 06

Motion Date: 11/25/19

XXX

The following papers have been read on this motion:

   Papers Numbered  Notice of Motion, Affirmation and Exhibits and Memorandum of Law   Affirmation in Opposition   Reply Affirmation and Exhibits  

Upon the foregoing papers, it is ordered that the motion is decided as follows:

Defendant moves, pursuant to CPLR § 3211, for an order dismissing plaintiff's Verified Second Amended Complaint. Plaintiff opposes the motion.

In support of the motion, counsel for defendant submits, in pertinent part, that, "[p]laintiff Herbert Baumgarten's Complaint (the 'Complaint') alleges two causes of action against Defendant Dr. Nancy Klotz (hereinafter 'Dr. Klotz'), namely: (1) violation of Part IV, Title I, Chapter 272 Section 99C(3) of the General Laws of Massachusetts ('Massachusetts Wiretapping Statute'); and (2) defamation. Plaintiff alleges Dr. Klotz violated the Massachusetts Wiretapping Statute by causing an allegedly secretly obtained recording of Plaintiff to be disclosed to the New York Supreme Court in a divorce proceeding between Plaintiff and Deborah Baumgarten (hereinafter 'Deborah'), Dr. Klotz's daughter. Plaintiff then alleges that Dr. Klotz directed Sheree Belsky to post five allegedly defamatory statements relating to the divorce and custody arrangements between Plaintiff and Deborah to a Facebook Group. Plaintiff's entire Complaint should be dismissed as a matter of law, because (1) Plaintiff's Counsel, Maurice Baumgarten, has violated Judiciary Law §470 by failing to maintain an in-state office at the time he commenced this action, or at any point during the pendency of this action; (2) it is the established law of the case, based upon Judge Anthony Parga's prior Orders, that Plaintiff cannot maintain an action alleging a violation of (sic) Massachusetts Wiretapping Statute for actions committed by New York Defendants in New York, which is a one-party consent state, thus requiring dismissal of Count I; (3) Plaintiff failed to state a cognizable claim of defamation against Dr. Klotz, thus mandating dismissal of Count 2; and (4) even if Plaintiff plead (sic) a cognizable claim of defamation, the cause of action must fail as a matter of law as the allegedly defamatory statements are non-actionable opinions protected by the First Amendment."

Counsel for defendant further asserts, in pertinent part, that, "Count One of the Complaint alleges that Dr. Klotz violated the Massachusetts Wiretapping Statute.... Specifically, Plaintiff alleges that he and Deborah Baumgarten, Dr. Klotz's daughter, were married in October 2013.... Thereafter, in May 2015, Plaintiff and Deborah were vacationing in Boston, Massachusetts, when an argument arose between him and Deborah, wherein Deborah made an allegedly 'secret' audio recording of the argument with her cell phone.... Then, in July 2015, Deborah commenced a divorce action against Plaintiff in New York Supreme Court.... Plaintiff alleged that during the divorce action, Dr. Klotz, 'on her own or jointly with Deborah ... causedthe [Seidemann & Mermelstein law] firm to file the recording with the Court.'... Count Two of the Complaint alleges defamation against Dr. Klotz.... By way of background, Plaintiff states that he and Deborah Baumgarten were married to each other until September 12, 2017, wherein the Baltimore City Circuit Court issued a Judgment of Absolute Divorce.... Through their marriage, Plaintiff and Deborah had one minor child, Eva Baumgarten.... Further, as both Plaintiff and Deborah are Orthodox Jews, in addition to a civil divorce, Deborah was required to receive a Jewish divorce document known as a 'Get' from Plaintiff in order for her to re-marry in accordance with Orthodox Jewish practice.... On September 18, 2018, Plaintiff gave Deborah a Get.... Plaintiff alleges five instances of defamation wherein Dr. Klotz 'directed' Sheree Belsky, a long-time neighbor and friend of Dr. Klotz, to publish statements to a Facebook Group, which Ms. Belsky did publish." See Defendant's Affirmation in Support Exhibit A.

Counsel for defendant also asserts, in pertinent part, that, "[p]laintiff filed the original Complaint in this action on February 6, 2017, in Nassau Supreme Court, naming Dr. Klotz as the sole defendant and alleging only that Dr. Klotz violated the Massachusetts Wiretapping Statute.... Then, on March 20, 2017, Plaintiff filed an Amended Complaint, also naming David J. Seidemann, Laurie E. Mermelstein, and Seidemann & Mermelstein (collectively the 'Firm Defendants') as Co-Defendants who had violated the Massachusetts Wiretapping Statute.... On April 24, 2017, the Firm Defendants filed a Motion to Dismiss the Amended Complaint pursuant to CPLR § 3211(a) for failure to state a cause of action..... In their Motion, the Firm Defendants argued that Plaintiff, a resident of Maryland, may not maintain a civil action pursuant to the Massachusetts Wiretapping Statute premised upon conduct that allegedly occurred in New York State against New York residents.... On August 10, 2017, over Plaintiff's opposition, Judge Anthony Parga granted the Firm Defendants' Motion.... In granting the Firm Defendants'Motion, Judge Parga held that 'New York uses an interest analysis, under which the 'law of the jurisdiction having the greatest interest in resolving the particular issue is given controlling effect...where the plaintiff and defendant are domiciled in different states, the applicable law in an action where civil remedies are sought for tortious conduct is that of the site of the injury.... On November 6, 2017, Plaintiff filed a Motion for Leave to File a Second Amended Complaint to allege that the Firm Defendants violated Maryland's recording law instead of Massachusetts's recording law... On January 24, 2018, Judge Anthony Parga denied Plaintiff's Motion for Leave to File a Second Amended Complaint.... In so doing, Judge Parga held that 'in this action, the site of injury was Nassau County, New York,' and therefore he dismissed Plaintiff's Complaint with prejudice as against the Firm Defendants for failure to state a cause of action...." See Defendant's Affirmation in Support Exhibits B-M.

Counsel for defendant argues, in pertinent part, that, "[i]n New York, 'the doctrine of the 'law of the case' is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned.' [citations omitted]. The law of the case doctrine 'operates to foreclose re-examination of the question absent a showing of subsequent evidence or change of law,' and 'applies to all legal determinations that were necessarily resolved on the merits in a prior decision.' [citation omitted]. Plaintiff's first cause of action alleging that Dr. Klotz violated the Massachusetts Wiretapping Statute must be dismissed as it is the law of the case that Plaintiff's claim that a New York defendant violated the Massachusetts Wiretapping Statute in New York cannot be sustained as a matter of law. Plaintiff's Amended Complaint alleged that Dr. Klotz and the Firm Defendants all violated the Massachusetts Wiretapping Statute by causing the allegedly secretly obtained recording to be used in the divorce proceeding between Plaintiff and Deborah Baumgarten in New York State Court.... The Firm Defendants moved to Dismiss Plaintiff's Complaint for failure to state a cause of action,arguing that Plaintiff, a resident of Maryland, may not maintain a civil action pursuant to the Massachusetts Wiretapping Statute, which is in direct conflict with New York State law which allows the taping of conversations if one party to the taping consents, premised upon conduct which allegedly occurred in New York State against New York residents.... Judge Parga agreed with the Firm Defendants, and in an August 10, 2017 Order granted the Firm Defendants' Motion to Dismiss.... Judge Parga determined that New York choice of law applies, that New York is the site of injury for this matter, and therefore a cause of action alleging (sic) violation of (sic) Massachusetts Wiretapping Statute cannot be sustained in New York. Therefore, it is the law of the case that New York law applies, New York is the site of injury for this matter, and therefore, Plaintiff's cause of action alleging Dr. Klotz violated Massachusetts Wiretapping Statute cannot be sustained in New York, and must be dismissed as a matter of law." See Defendant's Affirmation in Support Exhibits C-E.

Counsel for defendant further argues, in pertinent part, that, "[u]nder New York law, the elements of a defamation claim are: (1) a false statement; (2) published to a third party without privilege or authorization; (3) with fault amounting to at least negligence; and (4) that caused special harm or defamation per se. [citation omitted]. Of note, CPLR § 3016(a) requires that in a defamation action, 'the particular words complained of...be set forth in the complaint.' In addition, the complaint must also allege the time, place and manner of the false statement and specify to whom it was made. [citation omitted]. Further, in New York, neither conspiracy to commit a tort, nor a conspiracy to libel is a cognizable cause of action. [citations omitted].... Similarly, here Plaintiff's second cause of action must fail as a matter of law as Plaintiff fails to make a prima facie case for defamation, and conspiracy to defame is not cognizable cause of action. First, in his Complaint, Plaintiff alleges that Dr. Klotz 'directed' Sheree Belsky to publish allegedly defamatory statements to the Facebook Group arising from...