Forras v. Rauf, Index No. 111970/2010

• Decision Date: 14 November 2012
• Docket Number: Index No. 111970/2010
• Parties: VINCENT FORRAS, on behalf of himself and all others of and in the City of New York, County of New York, similarly situated, Plaintiffs v. FEISAL ABDUL RAUF, CORDOBA HOUSE/ PARK 51, CORDOBA INITIATIVE, SOHO PROPERTIES, and all other aliases known and unknown, Defendants
• Court: New York Supreme Court

2012 NY Slip Op 32774

VINCENT FORRAS, on behalf of himself
and all others of and in the City of New York,
County of New York, similarly situated, Plaintiffs
v.
FEISAL ABDUL RAUF, CORDOBA HOUSE/ PARK 51,
CORDOBA INITIATIVE, SOHO PROPERTIES,
and all other aliases known and unknown, Defendants

Index No. 111970/2010

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

DATED: September 26, 2012
DATED: November 14, 2012

DECISION AND ORDER

APPEARANCES:

For Plaintiffs
Larry Klayman Esq.
Raymond Negron Esq.

For Defendants
Adam Leitman Bailey Esq.

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

Plaintiff sues to recover damages for a public and private nuisance, intentional and negligent infliction of emotional distress, and assault arising from defendants' planned construction of a mosque and Islamic cultural center at Park Place and Church Street, New York County, near Ground Zero, which has sparked public controversy. Plaintiff leases office space, which he also allegedly uses as a part-time residence, at 257

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Church Street, approximately 8-10 blocks north of Park Place.

Defendants move to dismiss plaintiff's complaint based on its failure to state a claim. C.P.L.R. § 3211(a)(7). Plaintiff cross-moves for sanctions againt defendants and their attorneys, and defendants separately move for sanctions against plaintiff and his attorneys, based on their adversaries' controversial public statements both in court documents and otherwise. 22 N.Y.C.R.R. § 130-1.1. Defendants' motion also is based on plaintiff's failure to serve an amended complaint timely. Defendants further move to dismiss any permitted amended complaint on the grounds earlier raised. Plaintiff separately moves to amend his complaint and join additional defendants. C.P.L.R. § 3025(b). Plaintiff withdrew his motion for class certification at oral argument July 14, 2011. For the reasons explained below, the court grants defendants' motion to dismiss the complaint in its entirety and their motion for sanctions to the limited extent delineated, but otherwise denies the parties' motions.

II. DEFENDANTS' MOTION TO DISMISS THE COMPLAINT

A. Applicable Standards

Upon defendants' motion to dismiss the complaint pursuant to C.P.L.R. § 3211(a)(7), the court must accept the complaint's allegations as true, liberally construe them, and draw all reasonable inferences in plaintiff's favor. Nonnon v. City of New York, 9 N.Y.3d 825, 827 (2007); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 316, 326 (2002); Harris v. IG Greenpoint

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Corp., 72 A.D.3d 608, 609 (1st Dep't 2010); Via v. New York Hairspray Co., L.P., 67 A.D.3d 140, 144-45 (1st Dep't 2009). In short, the court may dismiss a claim based on C.P.L.R. § 3211(a)(7) only if the allegations completely fail to state a claim. Leon v. Martinez, 84 N.Y.2d 83, 88 (1994); Harris v. IG Greenpoint Corp., 72 A.D.3d at 609; Frank v. DaimlerChrysler Corp., 292 A.D.2d 118, 121 (1st Dep't 2002); Scott v. Bell Atl Corp., 282 A.D.2d 180, 183 (1st Dep't 2001).

Despite this forgiving standard, the very distance between plaintiff's premises and defendants' activity of which plaintiff complains poses an obvious impediment to showing any nuisance, extreme or outrageous conduct as required for infliction of emotional distress, or assaultive conduct that would emanate from a religious institution to cause injury several blocks away. Plaintiff alleges increased anxiety and fear due to Islamic rituals in one room inside the building at 45-51 Park Place, but nothing akin to a congregation's animated, frenzied, threatening, or assaultive behavior outside the building, let alone spewing out to its environs.

B. Nuisance Claims

A public nuisance claim requires factual allegations that defendants substantially interfered with the exercise of a common right of the public that offended public morals; impeded use of a public place; or injured or endangered property, health, safety, or comfort. 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d 280, 292 (2001); Copart Indus, v. Consolidated Edison Co.

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of N.Y., 41 N.Y.2d 564, 568 (1977); Wall St. Garage Parking Corp. v. New York Stock Exch., Inc., 10 A.D.3d 223, 227 (1st Dep't 22004). An individual seeking recovery for a public nuisance must have suffered special injury beyond the common injury to public rights. 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d at 292; Wall St. Garage Parking Corp. v. New York Stock Exch., Inc., 10 A.D.3d at 227.

Plaintiff, even in his proposed amended complaint, pleads his own physical and psychological effects, but only from the attack on September 11, 2001, and economic harm, but only in common with the public who use the areas around Ground Zero. Thus, while plaintiff's allegations, accepted as true, may demonstrate special physical and psychological injuries, they are from the attack in 2 001, not defendants' more recent actions. His alleged injuries from defendants' recent actions, on the other hand, are the same as the injury to the community: interference with use of business premises, increased costs for security, and reduced property values. Wall St. Garage Parking Corp. v. New York Stock Exch., Inc., 10 A.D.3d at 228; Rebecca Moss, Ltd. v. 540 Acquisition Co., 285 A.D.2d 416 (1st Dep't 2001). Even if the injury to him is greater than to the public, the harm is not of a different kind. 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d at 293; Roundabout Theatre Co. v. Tishman Realty & Constr. Co., 302 A.D.2d 272, 273 (1st Dep't 2003).

A private nuisance claim requires factual allegations that

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defendants' action or omission substantially, intentionally, and unreasonably interfered with plaintiff's right to use and enjoy real property. Copart Indus, v. Consolidated Edison Co. of N.Y., 41 N.Y.2d at 570; Berenger v. 261 W. LLC, 93 A.D.3d 175, 182 (1st Dep't 2012); Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 A.D.3d 38, 41 (1st Dep't 2011); 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 A.D.3d 330, 334 (1st Dep't 2010). Defendants' objectionable conduct must be continuous or recurring. Berenger v. 261 W. LLC, 93 A.D.3d at 182; Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 A.D.3d at 43. In claiming a nuisance from construction of the mosque, since it has not yet been built, plaintiff pleads only defendants' intentions and not their actual conduct, let alone any continuous or recurrent interference with his rights. 225 E. 64th St., LLC v. Janet H. Prystowsky, M.D. P.C., 96 A.D.3d 536, 537 (1st Dep't 2012). See Duane Reade v. Reva Holding Corp., 30 A.D.3d 229, 230, 237-38 (1st Dep't 2006); Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 A.D.3d at 43. Any conduct by defendants that plaintiff does allege is protected speech, other expression, or assembly. U.S. Const., Amend. 1; N.Y. Const. Art I, §§ 8, 9(1); Golden v. Clark, 76 N.Y.2d 618, 627 (1990); People ex rel. Arcara v. Cloud Books, 68 N.Y.2d 553, 556 (1986).

As injuries, plaintiff claims interference with use of his leased business premises, increased costs for security at the premises, and their reduced value. Even if, as a tenant, he has incurred the increased security costs, or reduced property value has increased his costs, rather than reducing his rent, he

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