Payne v. Jackson

• Docket Number: Index No. CV-010846-22/NY
• Decision Date: 08 March 2023
• Parties: Juliana Payne, Plaintiff, v. Neil Jackson, Defendant.
• Court: New York Civil Court

2023 NY Slip Op 50180(U)

Juliana Payne, Plaintiff,
v.
Neil Jackson, Defendant.

Index No. CV-010846-22/NY

Civil Court of the City of New York, New York County

March 8, 2023

Unpublished Opinion

Attorney for Petitioner: pro se

Attorney for Respondent: Andrew Borsen,Esq., Borsen Law LLC, 228 Park Ave South, PMB 98207, New York, NY 10003

Ilana J. Marcus, J.

Marcus, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Mot. Seq. 001

PapersPapers Numbered

Plaintiff's Notice of Motion, Affidavit in Support, and Exhibits 1

Defendant's Affidavit in Opposition, and Exhibits 2

Plaintiff's Reply Affidavit, and Exhibits 3

Mot. Seq. 003

PapersPapers Numbered

Defendant's Notice of Motion, Affidavit in Support, and Exhibits 4Plaintiff's Affidavit in Opposition, and Exhibits 5

Defendant's Affirmation in Reply 6

Mot. Seq. 004

PapersPapers Numbered

Plaintiff's Notice of Motion, Affidavit in Support, Memo Law 7

Defendant's Affirmation in Opposition 8

Plaintiff's Affidavit in Reply 9

Ilana J. Marcus, J.

Plaintiff brings this suit against defendant alleging defamation per se. The alleged defamatory statements were made by defendant in a chat box during a Twitch ^[1] livestream by a non-party to this action.

In motion sequence 001, plaintiff, self-represented, moves for summary judgment. In support of the motion, plaintiff submits her affidavit and various exhibits generally consisting of screenshots of computer and phone screens, charts, text messages, receipts, and copies of court papers from a small claims action in the State of California. Plaintiff also states that she provided relevant web stream video clips by USB and by email to the court, however, these videos are not present in the court's file. Defendant opposes plaintiff's motion, to which plaintiff submits reply.

In motion sequence 003 ^[2], defendant moves for dismissal of the complaint. Defendant submits his affidavit, a copy of plaintiff's supplemental complaint, and various exhibits. Plaintiff opposes defendant's motion, to which defendant submits reply.

In motion sequence 004, plaintiff moves for sanctions against defendant pursuant to 22 NYCRR 130-1.1. Defendant opposes plaintiff's motion, and plaintiff submits reply.

The relevant facts constituting the claim, as set forth in plaintiff's supplemental complaint, dated May 10, 2022, are as follows: On May 7, 2021, a non-party going by the alias Kitty Bradshaw made a Twitch livestream broadcast where plaintiff states that Ms. Bradshaw made several false statements about plaintiff (the "Twitch broadcast") (see Deft Mot, Exh B [Pltf supplemental complaint], ¶10). Those statements included, among other things, referring to plaintiff as her stalker; claiming plaintiff attacked and harassed her on social media; calling plaintiff mentally ill, unstable, and delusional in that plaintiff claimed to be in a romantic relationship with another popular Twitch streamer; and stating that she feared for her personal safety because of plaintiff's conduct (see id.). Defendant, Neil Jackson, was virtually present during Ms. Bradshaw's livestream, and commented on Ms. Bradshaw's broadcast through the written chat box function of the video (see id., ¶11). Plaintiff accuses defendant of publishing the following false written statements to the other viewers of Ms. Bradshaw's Twitch broadcast:

[1] "OOO THAT'S ME"

[2] "I hope yo (sic) are listening to this LOL!";

[3] "Our communities need to unite as a gang to virtually jump these people";

[4] "I have several of her names blocked"

(id.). Plaintiff also alleges that sometime in spring 2021, defendant privately messaged Ms. Bradshaw the following: "IGNORE Larry K; this is another single white female creating more screen names; that is jpayne; if you know who that is" (id., ¶14).

Plaintiff claims that she is a children's book author and filmmaker (see id., ¶4) and that defendant's statements accuse plaintiff of a serious crime and injured her business and profession (see id., ¶23).

On October 12, 2021, plaintiff filed a small claims action against Kitty Bradshaw in the State of California, accusing Ms. Bradshaw of defamation (see Deft Mot, Exh C). Specifically, plaintiff claimed that Ms. Bradshaw owed her $3,500.00 because on May 7, 2021, "[w]ith reckless disregard for the truth, [Ms. Bradshaw] began declaring I was her stalker, that she feared I would physically harm her and was afraid for her personal safety during a video livestream (which had over 300 replays) followed by written defamatory statements which has placed me in a false light and damaged my reputation" (id.). On January 21, 2022, the small claims court in California held a trial, where both plaintiff and Ms. Bradshaw appeared (see id., Exh D). That court heard plaintiff's testimony and admitted into evidence the video of the subject Twitch broadcast (see id.

Approximately one month later, on February 25, 2022, the California small claims court entered a judgment in Ms. Bradshaw's favor, stating Ms. "Bradshaw does not owe the plaintiff Juliana Payne any money on plaintiff's claim" (see id., Exh E). On or about April 25, 2022, plaintiff filed a petition for a writ of mandate with the Superior Court of California, contesting the small claims judgment (see id., Exh F). That writ was denied on May 9, 2022 (see id.).

Additionally, by complaint dated March 28, 2022, plaintiff filed another suit against Ms. Bradshaw in the Superior Court of the State of California, charging Ms. Bradshaw with harassment, invasion of privacy-false light, defamation, intentional infliction of emotional distress, intentional interference with prospective economic advantage, and injunctive relief (see id., Exh G). The facts of that case also stemmed from the same Twitch broadcast (see id.). By Notice of Demurrer filed in the Superior Court of the State of California on August 26, 2022, Ms. Bradshaw argued that the California court should sustain the demurrer and dismiss the complaint with prejudice because the California small claims judgment in Ms. Bradshaw's favor has res judicata effect and barred plaintiff's subsequent claim there (see id., Exh H).

A review of the Superior Court of the State of California online records indicates that Ms. Bradshaw's demurrer was sustained without leave to amend on November 14, 2022 ^[3] (The Superior Court of California: County of Los Angeles, Case No. 22STCV10827, https://www.lacourt.org/ [accessed March 8, 2023]).

By way of background for this action, prior to filing the second action against Ms. Bradshaw in California Superior Court, plaintiff filed a case against defendant in the small claims court of New York County on March 11, 2022. The matter was scheduled for first appearance on May 9, 2022. On that date, it was adjourned to June 23, 2022, and then again adjourned to August 4, 2022. On August 3, 2022, plaintiff filed a motion for summary judgment before the small claims court. The following day, on the court's own motion, the case was transferred from the small claims part to the Civil Court of New York County, and plaintiff was ordered to pay any additional filing fees as required by law (see id., Exh A).

On or about August 19, 2022, plaintiff filed her summons and endorsed complaint in Civil Court for the instant action, which accused defendant of defamation per se and sought damages in the amount of $7,000.00. Plaintiff's instant summary judgment motion was thereafter filed in Civil Court on August 24, 2022. On September 9, 2022, the matter was scheduled for its first appearance and both parties appeared. The court granted an adjournment to November 14, 2022, and set that date as the return date on plaintiff's motion for summary judgment. On October 20, 2022, defendant filed its opposition to plaintiff's motion for summary judgment as well as the instant motion to dismiss the complaint. On November 14, 2022, the parties stipulated to an adjournment and the court set a motion schedule requiring plaintiff file her opposition to defendant's motion to dismiss by November 18, 2022, and that responsive papers be filed by November 29, 2022. The court then adjourned the matter to November 29, 2022. Both parties filed their respective papers on or before November 29, 2022; however, on that date, another judge of this court adjourned the matter to January 11, 2023, requiring defendant resubmit his papers in a more orderly fashion.

Plaintiff moved for sanctions on December 6, 2022 (Mot. Seq. 004), and argued that defendant was intentionally delaying the proceedings. Defendant filed opposition to that motion on December 12, 2022, and plaintiff filed her reply by affidavit dated January 6, 2023. All motions were...