FindLaw's New York Civil Court case and opinions. (2023)

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

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 deemed fully submitted by the court on January 11, 2023.

Defendant moves to dismiss pursuant to CPLR 3211(a)(1) and (7), and also argues that plaintiff's claim must be dismissed on the principle of res judicata (see CPLR 3211[a][5]). CPLR 3211(a)(1) provides for dismissal of the action when a defendant submits documentary evidence that conclusively establishes a defense to plaintiff's claim as a matter of law (Whitestone Constr. Corp. v F.J. Sciame Constr. Co. Inc., 194 AD3d 532 [1st Dept 2021]). While plaintiff is afforded every favorable inference, "allegations consisting of bare legal conclusions as well as factual claims either inherently or flatly contradicted by the documentary evidence are not entitled to such consideration" (Stuart Lipsky, P.C. v Price, 215 AD2d 102 [1st Dept 1995]).

CPLR 3211(a)(7) provides for dismissal if the plaintiff "fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137 [2017]). When a defendant moves to dismiss a claim pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (id.).

Plaintiff accuses defendant of defamation per se (see Pltf summons with endorsed complaint). The elements of defamation require that plaintiff show a false statement, published without permission or authority to a third party, that defendant was at least negligent in making the statement, and that the false statement caused plaintiff special harm or constitutes defamation per se (see Dillon v City of New York, 261 AD2d 34 [1st Dept 1999]). By charging defendant with defamation per se, plaintiff need not plead special damages,4 but must establish in this instance that defendant's statements either charged plaintiff with a serious crime or tended to injure plaintiff in her trade, business or profession (see Liberman v Gelstein, 80 NY2d 429 [1992]). When drafting a complaint alleging defamation, a plaintiff must set forth "the particular words complained of" (CPLR 3016[a]), and must also specify "the time, place and manner of the false statement" and to whom it was made (Dillion, 261 AD2d at 38 citing Arsenault v Forquer, 197 AD2d 554 [2d Dept 1993]).

Whether the words complained of constitute defamation per se is for the court to decide, and in doing so, the court must determine "whether the words are susceptible of the meaning ascribed to them" (James v Gannett Co., 40 NY2d 415 [1976]).

If the contested statements are reasonably susceptible of a defamatory connotation, then it becomes the jury's function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader. In analyzing the words in order to ascertain whether a question of fact exists for resolution upon trial, the court will not pick out and isolate particular phrases but will consider the publication as a whole. The publication will be tested by its effect upon the average reader. The language will be given a fair reading and the court will not strain to place a particular interpretation on the published words. The statement complained of will be read against the background of its issuance with respect to the circumstances of its publication.

(id. [internal citations omitted]).

Plaintiff accuses defendant of making the following written defamatory statements: (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"; and (5) "IGNORE Larry K; this is another single white female creating more screen names; that is jpayne; if you know who that is" (Deft Mot, Exh B [Pltf supplemental complaint], ¶¶11, 14).

Affording plaintiff's pleading a liberal construction and every possible favorable inference, none of defendant's written statements are reasonably susceptible to a defamatory connotation. Defendant's statements do not charge plaintiff with a crime, let alone a serious crime (see Liberman, 80 NY2d at 436; Corsini v Morgan, 123 AD3d 525 [1st Dept 2014]), and none of defendant's statements can reasonably be construed to injure her career as a children's book author or filmmaker (see Liberman, 80 NY2d at 436).

Plaintiff's charge that defendant's statements injured her business and profession "is 'limited to defamation of a kind incompatible with the proper conduct of the business, trade, profession or office itself. The statement must be made with reference to a matter of significance and importance for that purpose, rather than a more general reflection upon the plaintiff's character or qualities' " (Liberman, 80 NY2d at 436 quoting Prosser and Keeton, Torts [Prosser] § 112, at 791 [5th ed]). Affording plaintiff every possible favorable inference, defendant's comments could not reasonably be said to injure plaintiff's career as a children's book author or filmmaker.

Notably, the first four statements do not mention plaintiff by name or alias. The fifth statement, which contains a reference to "jpayne," was allegedly made by defendant directly to Ms. Bradshaw sometime during the spring of 2021 (see Deft Mot, Exh B [Pltf supplemental complaint], ¶14). Again, that statement does not meet the requirements of defamation per se, nor is plaintiff's allegation specific with respect to the time defendant's statement was allegedly made (see Arsenault, 197 AD2d at 556).

Broadly reading plaintiff's supplemental complaint, she requests the court consider defendant's statements in conjunction with the comments made by Ms. Bradshaw's during the Twitch broadcast. However, in New York, statements cannot be defamatory per se if reference to extrinsic fact is necessary to give them a defamatory connotation (see Franklin, 135 AD3d at 92).

Moreover, even if this court were to consider Ms. Bradshaw's oral comments during the Twitch broadcast, this court is still bound by the small claims court of the State of California's judgment, which determined Ms. Bradshaw is not liable to plaintiff for defamation. Contrary to plaintiff's argument, a small claims judgment may have res judicata effect (see Platon v Linden-Marshall Contracting Inc., 176 AD3d 409 [1st Dept 2019]).

" 'Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties,' or those in privity with them, on any 'claims arising out of the same transaction or series of transactions, even if based upon different theories or if seeking a different remedy' " (E. Hampton Cap. LLC v Fergusson, 183 AD3d 409 [1st Dept 2020] quoting Landau v LaRossa, Mitchell & Ross, 11 NY3d 8 [2008]). "Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (O'Brien v City of Syracuse, 54 NY2d 353 [1981]). "A claim will be barred by the prior adjudication of a different claim arising out of the same 'factual grouping' even if the claims 'involve material different elements of proof"" (Fifty CPW Tenants Corp v Epstein, 16 AD3d 292 [1st Dept 2005]).

Plaintiff's California small claims summons shows that plaintiff pursued a claim there arising out of the same event—the subject Twitch broadcast. The trial transcript of the California small claims action establishes that the instant case is substantially identical and involves the same subject matter. Plaintiff concedes as much in her Notice of Related Case that she filled out in California Superior Court (see Deft Mot, Exh I). In that form, plaintiff lists the instant action and states that it "arises from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact" (id.). Moreover, in the instant action, plaintiff references Ms. Bradshaw and her livestream broadcast throughout the supplemental complaint (see id., Exh B, ¶¶7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 22).

By virtue of the pleadings and the apparent innocuous connotation of defendant's statements on their face, plaintiff urges this court to impute Ms. Bradshaw's alleged defamatory statements upon defendant herein. Even if this court were to impute those statements by reference onto defendant here, another court determined that Ms. Bradshaw's comments did not make her liable to plaintiff for defamation under California law  5 . This court is bound by the same ruling.

Plaintiff argues that res judicata does not apply here because defendant was not a party in the California action and is not in privity with Ms. Bradshaw. Under the res judicata doctrine, "the concept of privity requires a flexible analysis of the facts and circumstances of the actual relationship between the party and nonparty in the prior litigation" (Syncora Guarantee Inc. v J.P. Morgan Sec. LLC, 110 AD3d 87 [1st Dept 2013] [citations omitted]). Such an analysis requires that the court consider "the circumstances of the actual relationship, the mutuality of interests, and the manner in which the nonparty's interests were represented in the earlier litigation," and whether that established a "functional representation such that the nonparty may be thought to have had a vicarious day in court" during the prior litigation (Rojas v Romanoff, 186 AD3d 103 [1st Dept 2020]).

Here, plaintiff, in essence, brings the same cause of action against defendant that was dismissed as against Ms. Bradshaw. The facts of both causes of action concern the same Twitch broadcast and a review of the small claims court's trial transcript establishes mutuality of interests between Ms. Bradshaw and defendant. Moreover, plaintiff's supplemental complaint extensively alleges that Ms. Bradshaw and defendant acted in concert in a scheme to defame her. Indeed, plaintiff's pleadings contain a parenthetical next to several of defendant's statements referencing Ms. Bradshaw's broadcast (see Deft Mot, Exh B [Pltf supplemental complaint], ¶11). Plaintiff's allegations require this court to a determination of privity for res judicata purposes (see Syncora Guarantee Inc., 110 AD3d at 93). As such, defendant's motion to dismiss must be granted.

Plaintiff also fails to establish a cause of action for traditional defamation because she does not plead special damages (see Aronson v Wiersma, 65 NY2d 592 [1985]; Franklin v Daily Holdings, Inc., 135 AD3d 87 [1st Dept 2015]).

For all these reasons, plaintiff's complaint is dismissed pursuant to CPLR 3211. Consequently, plaintiff's motion for summary judgment is denied as moot, and it is not discussed herein.

Plaintiff also moves for sanctions against defendant pursuant to 22 NYCRR 130—1.1, alleging that defendant's conduct and motion practice were undertaken for the purpose of intentionally delaying the instant proceedings. Section 130—1.1(a) of the Rules of the Chief Administrator permits a court, in its discretion, to impose sanctions resulting from "frivolous conduct" (22 NYCRR 130—1.1[a]). The record before this court fails to establish defendant or his counsel acted frivolously, and thus, plaintiff's motion for sanctions is denied.

Accordingly, it is ORDERED that defendant's motion to dismiss (Mot. Seq. 003) is granted and plaintiff's complaint is dismissed; it is further

ORDERED, that plaintiff's motion for summary judgment (Mot. Seq. 001) is denied as moot; and it is further

ORDERED, that plaintiff's motion for sanctions (Mot. Seq. 004) is denied.

This constitutes the decision and order of this court.

March 8, 2023

New York, NY

ILANA J. MARCUSJudge of the Civil Court

FOOTNOTES

1. "Twitch is a real-time video streaming service where community members gather to watch, play, and chat about shared interests — predominately video games, sports, and creative arts" (Pltf Notice of Mot, dated July 17, 2022, p.4, fnt.1).

2. The court sequenced plaintiff's order to show cause, filed on September 26, 2022, as motion sequence 002; however, another judge of this court declined to sign that order on September 28, 2022; motion sequence 002 is not before this court.

3. Defendant's reply to his motion to dismiss is dated November 10, 2022 — four days before the Superior Court of the State of California issued its decision.

4. "Special damages consist of the loss of something having economic or pecuniary value, which must flow directly from the injury to reputation caused by the defamation and not from the effects of the defamation" (Franklin v Daily Holdings, Inc., 135 AD3d 87 [1st Dept 2015], quoting Agnant v Shakur, 30 F Supp 2d 420 [SDNY 1998]). Special damages must be "fully and accurately stated[;] round figures, with no attempt at itemization" cannot constitute special damages (Drug Research Corp. v Curtis Publ. Co., 7 NY2d 435 [1960]).

5. In California, defamation by slander is defined as: "a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; 4. Imputes to him impotence or a want of chastity; or 5. Which, by natural consequence, causes actual damage" (Cal Civ Code § 46). "A slander that falls within the first four subdivisions of Civil Code section 46 is slander per se and require no proof of actual damages" (Regalia v The Nethercutt Collection, 172 Cal App 4th 361 [Ct of App 2009]).

Ilana J. Marcus, J.