Tsamasiros v. Jones

2023 NY Slip Op 50349(U)

Christos Tsamasiros, Plaintiff, v. Davey Jones III, Defendant.

Index No. 152313/2022

Supreme Court, Richmond County

April 18, 2023

Unpublished Opinion

Attorney for Plaintiff: Michael M. Rabinowitz, Esq. RABINOWITZ AND GALINA.

Attorney for Defendant: Richard A. Altman, Esq., Law Office of Richard A. Altman.

Ronald Castorina, Jr., J.

The following e-filed documents listed on NYSCEF (Motion #001) numbered 4-19 were read on this motion.

Upon the foregoing documents, and after oral argument conducted on March 23, 2022, Motion Sequence #001 is resolved as follows it is hereby:

ORDERED that the Defendant's motion pursuant to CPLR § 3016 [a], CPLR § 3211 [a] [1], and CPLR § 3211 [a] [7] for dismissal of the Plaintiff's complaint with prejudice and without leave to replead is GRANTED, and it is further;

ORDERED, that the Defendant's motion pursuant to New York Civil Rights Law § 70-a [a], CPLR 8303-a, and 22 NYCRR 130.1-1 for counsel fees, sanctions and/or costs is DENIED, and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

Memorandum Decision

I. Procedural History

Plaintiff commenced the instant action for libel and slander by service of a summons and verified complaint on or about December 20, 2022. Plaintiff alleges that the Defendant published libelous false and misleading statements about or concerning the Plaintiff causing him stress and anxiety. Plaintiff further alleges that Defendant made slanderous false and misleading statements about the Plaintiff causing damage to his reputation, stress, and anxiety.

Plaintiff seeks (1) Defendant to pay damages for the alleged libelous statements about the Plaintiff in an amount to be determined at trial, within the jurisdiction of this Court for damages to his reputation, and for stress and anxiety; (2) Defendant to pay a punitive damages for the alleged libelous statements about the Plaintiff in the amount of $1,000,000.00 [One Million Dollars and No Cents]; Defendant to pay damages for the alleged slanderous statements about the Plaintiff in an amount to be determined at trial, within the jurisdiction of this Court for damages to his reputation, and for stress and anxiety; (4) Defendant to pay a punitive damages for the alleged slanderous statements about the Plaintiff in the amount of $1,000,000.00 [One Million Dollars and No Cents]; and (5) Defendant to pay interest, Plaintiff's costs, disbursements and reasonable attorney fees and such other relief as the Court deems just and proper.

Defendant Davey Jones III filed Motion Sequence #001 on January 27, 2023, seeking (a) to dismiss the complaint with prejudice and without leave to replead, pursuant to Civil Practice Law and Rules (CPLR) § 3016 [a], CPLR § 3211 [a] [1], CPLR § 3211 [a] [7], and CPLR § 3211 [g]; and (b) for such further relief as may be just, including counsel fees, sanctions and/or costs pursuant to New York Civil Rights Law § 70-a [a], CPLR 8303-a, and 22 NYCRR 130.1-1 for Plaintiff allegedly failing to state or possess a cause of action, and that the action is one involving public petition. Plaintiff filed opposition on February 28, 2023. Defendant filed reply on March 7, 2023. Oral argument was heard on March 23, 2023

II. Facts

This action stems from an ongoing dispute and internal power struggle between members of the Excelsior Sportsman's Club hereinafter referred to as the Club, a New York not-for profit organized in 1922 for the purpose of aiding in the enforcement of the laws and regulations for the preservation and protection of fish and game in the State of New York. The Club is a participant in the New York State Department of Environmental Conservation's Forest Tax Abatement program (see Real Property Tax Law § 480 [a]), which allows for professional management of the State's forests by private organizations. The Club owns and is responsible for approximately 1,700 acres of forest land in Sullivan County, New York and receives a significant reduction in its land taxes.

In October 2021, Defendant's father, was elected to the Club's Board of Directors of the Club, and subsequently Chairman of the Board. On that same day, the Plaintiff was ousted as President of the Club. Soon after, political intrigue worthy of an upstate New York version of Macbeth began to entrench the parties' respective sides as rivals and the ongoing battle for control of the Club moved into open warfare.

Move was met with counter move. On or about July 13, 2023, Plaintiff dispatched correspondence to the membership seeking attendance at a special meeting on August 7, 2022, to discuss the Club's board of director's and the executive board's decision to allow a guest to stay at the property in violation of the bylaws. (NY St Cts Filing [NYSCEF] Doc No. 8). On or about the same date Plaintiff sent out a list of charges against the current administration of the Club. Plaintiff states, "It is a disgrace to have leadership pick and choose what bylaws they will enforce and what bylaws they will decide to set aside for what I believe is a personal reason." (see id).

At the August 7, 2022 meeting, Plaintiff allegedly was successful in obtaining a vote to suspend Defendant's father and another ally from their respective positions. (NY St Cts Filing [NYSCEF] Doc No. 7). On August 14, 2022, the Board of Directors met and among the topics discussed was the possible removal of the Club's Secretary, and other internal issues. (see id). Defendant's father and the other party, who were "suspended" both served in their official roles without objection from anyone present, including the Plaintiff. (see id).

The conflict between the Club's warring factions continued to escalate at a rapid pace. Plaintiff continued to fire literary shots across the Defendant's familial bow. On or about September 1, 2022, Plaintiff dispatched another report from the front to the members of the Club. Plaintiff's letter states, "I was asked by one of the Board of Directors' members why did I oppose [Defendant's Mother] becoming the Treasurer. Was it because I did not think she could do the job? My reply was I absolutely do think she is very capable of doing the job; however, I do not trust her. She has shown over and over that her only interest in the Club is the money. This has been shown both in action and in words." (NY St Cts Filing [NYSCEF] Doc No. 9).

Plaintiff goes on in his indictment to describe the actions he allegedly witnessed involving the Defendant and his mother. "[O]utside [the Clubhouse] was parked a minivan and in the back of the van was crates of paperwork. Inside were both [the Defendant's mom] and the [Defendant] completely emptying the safe, packing contents into the box and I assume taking it to their house." (see id). This correspondence contains a laundry list of allegations against the Defendant, his mother, and his father.

The gauntlet had been thrown down and the die cast. Defendant crossed his Rubicon and sent out a response to Plaintiff's charges to the Club Membership on or about September 30, 2022. Plaintiff's complaint does not list any specific statements that were made by the Defendant, but only states the Defendant made certain false and misleading statements about him (NY St Cts Filing [NYSCEF] Doc No. 6), which have caused him public contempt and ridicule. (NY St Cts Filing [NYSCEF] Doc No. 17). Plaintiff alleges that this letter was libelous and damaged his reputation causing him stress and anxiety. Plaintiff further alleges that on or about September 30, 2022, Defendant also made unspecified false and misleading statements about him to Club members and others. Plaintiff alleges these verbal statements were slanderous and damaged his reputation causing him stress and anxiety.

In October 2022, Defendant received correspondence from counsel to the Plaintiff stating,

Upon review of said September 30, 2022 [letter] it is our view that certain of the statements [SIC] contained therein contain statements which are libelous. Further, we are advised that you may have made certain oral statements in furtherance of said letter which amount to slander. Unfortunately, your improper conduct has led to [Plaintiff] suffering certain damages and potential loss to reputation. In that regard, [Plaintiff] has engaged our firm to pursue a claim for damages due to your conduct. (NY St Cts Filing [NYSCEF] Doc No. 11).

Plaintiff maintains that the Defendant's false statements have caused the Club's membership to have a lower view of him and reduced his electability to a Club leadership position. Some Club members are also in the same industry as the Plaintiff and the Defendant's statements have had a negative effect on Plaintiff's ability to obtain business, both from Club members and their associates.

III. Sufficiency of the Complaint

"The elements of a cause of action for defamation are a 'false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se'" (see Arvanitakis v Lester, 145 A.D.3d 650 [2d Dept 2016] quoting Salvatore v Kumar, 45 A.D.3d 560 [2d Dept 2007] quoting Dillon v City of New York, 261 A.D.2d 34 [1st Dept 1999]). "The complaint must set forth the particular words allegedly constituting defamation (see CPLR 3016 [a]), and it must also allege the time, place, and manner of the false statement and specify to whom it was made (see id citing Dillon v City of New York, 261 A.D.2d 34 [1st Dept 1999]).

A. Omission of Exact Words Claimed to be Defamatory

" CPLR 3016 [a] provides that in an action to recover damages for libel or slander, the particular words complained of shall be set forth in...