Currently pending is Defendant Webster Park Avenue Housing Development Fund Corporation's motion to dismiss this action (pursuant to CPLR Rules 3211[a][5] and 3211[a][7]) and to impose resulting costs and reasonable counsel fees (see, 22 NYCRR §§130-1.1 and 130-1.2). Plaintiff Williams-Bey (hereinafter "Plaintiff"), claiming special status as a "Moorish American," cross moves for an order directing Defendant to provide certain corporate resolutions and documents identifying its attorney in this litigation and whether other persons were "authorized" to act on Defendant's behalf pursuant to Not-for-Profit Corporation Law §102(a)(18). Plaintiff also seeks sanctions against Defendant.

Background

This matter centers on Plaintiff's claim to a rent controlled/stabilized apartment at 2037 Webster Avenue, Bronx County, wherein his mother previously resided. Plaintiff filed a 62-page complaint seeking a declaration of his rights, together with judgment of $75,000 for emotional distress arising from an "eviction," damages in liquidation of $100 daily beginning September 22, 2008, and other sanctions.

Plaintiff demands possession of the four bedroom apartment his mother occupied before the building was renovated. Mrs. Williams lived there beginning in 1983 before she

recently relocated to another Bronx location. Plaintiff's claims to the apartment were judicially denied by the New York City Civil Court (Housing Part) (hereinafter "Housing Court") (see, [*2]Matter of T. Williams-Bey v Webster Park Avenue HDFC, Index No. 808098-2008 [Civil Court Bronx 2008]) and administratively denied by the Office of Rent Administration, State Division of Housing and Community Renewal (see, Matter of Administrative Appeal of Brother T. Williams-Bey, Docket Nos. XK 620007RT and XA 620014AD [HDCR 2009]).

Before considering the pending motion, the Court resolved the status of certain Plaintiffs, i.e., Plaintiffs Henry Williams, Rashad Waring, Diamond Robinson, and Christopher McMillian. Concerning Henry Williams, Waring, and McMillian, the Court found these parties ratified Plaintiff Williams-Bey's action in joining them as parties to this action. The Court found no submission was made on behalf of Diamond Robinson and she was dismissed from the litigation.

While the Court determined that Henry Williams, Waring, and McMillian ratified the complaint, the Court finds they filed no papers concerning Defendant's motion to dismiss. The Court finds troubling the averment by Plaintiff Williams-Bey, not a licensed attorney, claiming to otherwise represent them (see generally, Judiciary Law §§478 to 484). Sweeping the averred representation aside, the Court will consider only arguments presented on behalf of Williams-Bey and Defendant Webster Park Avenue Housing Development Fund Corporation ( landlord') in deciding this motion.

Defendant's Position

Primarily, Defendant argues that res judicata requires that the instant action be dismissed. The underlining issue,that is, the right to possession of the apartment, was already litigated in Housing Court adversely to Plaintiff (see generally, Noto v. Bedford Apts. Co., 21 AD3d 762 [1st Dept. 2005]). In this regard, the Housing Court in Matter of T. Williams-Bey v Webster Park Avenue HDFC, supra.) and theOffice of Rent Administration's decision in Matter of Administrative Appeal of Brother T. Williams-Bey, supra.) both found Plaintiff had no rights to the premises. Further, no other party is entitled to possession under any legal theory (see, CPLR Rule 3211[a][7]).

According to Defendant, Plaintiff lost possession rights after Mrs. Williams signed a permanent relocation agreement with Defendant. The Housing Court specifically found Plaintiff had no rights in the housing development she left behind. Further, according to the landlord, Williams-Bey is estopped because he broke into a locked apartment; took residence without a lease; amassed a cable bill in excess of $2,800; and rented rooms to the four named individual plaintiffs without Defendant's consent. Plaintiff was never listed as a tenant of record and he was properly removed as a squatter. In addition, the Housing Court determined that the Police (not Defendant) evicted Plaintiff thereby negating the intentional infliction of mental distress cause of action. In addition, Defendant argues that the record shows Plaintiff's cross motion is frivolous in all respects.

Plaintiff's Position

Plaintiff says the Court lacks statutory jurisdiction to dismiss the complaint because a substantial right of Plaintiff is involved and Defendant's motion is otherwise untimely. Concerning the landlord's demand for costs and sanctions, Plaintiff says such a motion is premature because no written decision was issued concerning the underlying sanctionable conduct. Further, Plaintiff says the regulations that Defendant relies upon to support sanctions (22 NYCRR §§130-1.1 and 130-1.2) do not apply to costs or counsel fees. Addressing his cross motion, Plaintiff insists no one who submitted an affidavit in opposition is "authorized," and dismissal is required because no corporate resolution authorizing retention of the landlord's counsel was produced.

Reply [*3]

In reply, Defendant argues that its motion to dismiss is timely. The landlord recites the fact that Williams-Bey served the summons without a complaint, requiring that Defendant demand a complaint. While Defendant received a copy of the complaint, service did not comply with the mailing rules contained in CPLR Rule 308(2) meaning that service was incomplete. Even if Defendant's motion is untimely for some reason, Defendant argues that public policy requires that the Court decide this matter upon the merits (see generally, Chowdhury v. Phillips, 306 AD2d 51 [1st Dept. 2003]).

Turning to Plaintiff's discovery seeking corporate resolutions listing "authorized" persons, Defendant says such demands are frivolous and points out that Not for Profit Corp. Law §102(a)(18) provides no support for Plaintiff. Clearly, the record shows Defendant's appearance through an attorney in compliance with CPLR §321(a). Therefore, Plaintiff's claim that Defendant is not represented by an "authorized" attorney is baseless.

Legal Discussion

In deciding a motion to dismiss for failure to state a claim under CPLR Rule 3211, the allegations of the complaint, and all reasonable inferences that maybe drawn from those allegations, must be accepted as true and the complaint liberally construed in Plaintiff's favor (see, Anguita v. Koch, 179 AD2d 454 [2nd Dept. 1986]). Further, a dismissal motion must be denied where the pleading alleges facts which, taken together, manifest any cause actionable at law (see, Meachum v. Outdoor World Corp., 235 AD2d 462 [2nd Dept. 1997]).

Because this is a pre-answer motion, the Court is not prepared to assess relative merits of Plaintiff's allegations against Defendant's contrary assertions (see, Salles v. Chase Manhattan Bank, 300 AD2d 226 [1st Dept. 2002]). The criterion for deciding such a motion is whether the complaint states a legal cause of action (see, Held v. Kaufman, 91 NY2d 425 [1998]). The Court's role is simply to determine whether the facts, as alleged, fit into any valid legal theory (see, Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409 [2001]).

In analyzing Defendant's motion, the Court will first look at Plaintiff's claim for special status

as a "Moorish-American," and will then turn to the causes of action regarding intentional infliction of emotional distress and Plaintiff's claim of succession to his mother's former apartment.

Moorish-American Status

Plaintiff inartfully asserts special status for himself in the caption as a "Moorish American,"^[FN1] but refers only briefly to "aboriginal" and "divine" rights in his complaint while rejecting "Anglo" law (see, Complaint ¶A2-a). Plaintiff says he is a "Moorish-American National" based upon §1101(a)(22)(B) of Title 8, United States Code, and claiming citizenship under §1401(b) of Title 8, United States Code.^[FN2] The Court interprets Plaintiff's assertions questioning the Court's jurisdiction over him as founded in part upon Plaintiff being a member of the "Moorish American Nation" (see [*4]generally, People v. King J El, 15 Misc 3d 1137(A) [Criminal Ct. Kings 2007]) (see also, Matter of Johnson-El, 650 F.2d 288 [Ct. Claims 1980]). Consistent with this position, Plaintiff purports to limit his involvement here to a "limited appearance, special appearance, or restricted appearance."^[FN3]

The challenge to jurisdiction of American courts over members of the "Moorish American Nation^[FN4]" has been tried in both federal and state courts, always to no avail (see generally, United States v. James, 328 F3d 953 (7th Cir. 2003); El v. City of New York, 2002 US Dist. Lexis 12431 (SD NY 2002); People v. IRS, 1993 US Dist. Lexis 14315 (SD NY 1993). Under the facts of this case, the Court finds Plaintiff's jurisdictional argument unpersuasive (see generally, Bennett-Bey v. Shulman, 2010 US Dist. Lexis 4249 [D DC 2010]; Bey v. Commonwealth of Pennsylvania, 2009 US App. Lexis 20427 [3rd Cir 2009]);United States v. Spaulding, 323 Fed. Appx. 236 [4th Cir. 2009] and Curry-Bey v. United States, 2001 USTC ¶50,618 [SD Fla. 2001]).

While the Court cannot say there are no circumstances under which "Moorish-American" status could not find recognition,^[FN5] Plaintiff fails to make a sufficient showing to categorize himself as cognizable here; even were the Court to treat Plaintiff as a member of such a cognizable group, that status would confer no special benefits to Plaintiff under these facts (see, Ali v. State Police of Pennsylvania, 378 F.Supp. 888 [ED Pa 1974]).^[FN6] The Court located no cases that raise the group to the standard based on race, as conceptually set forth generally in Batson v. Kentucky, 476 US 79 (1986)^[FN7] (see generally, Matter of Johnson-El , supra.) (see also, People v. Rambersed, 170 Misc 2d 923 [Sup. Ct. Bronx 1996] [standard to determine ethnic cognizability]). Nor does Plaintiff advance, let alone establish, a theory of discrimination that might otherwise lend itself in furtherance of his prayer. In light of the above, the Court sua sponte converts Plaintiff's purported limited appearance into a general one for purposes of the within decision.

Emotional Distress

The tort of intentional infliction of emotional distress has four elements: 1) extreme and outrageous conduct; (2) an intent to cause, or a disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and injury; [*5]and (4) severe emotional distress (see generally, Howell v. New York Post Co., 81 NY2d 115 [1994]). Plaintiff fails to meet the required elements because the complaint alleges no "extreme or outrageous conduct" on Defendant's part.

Plaintiff's only allegation concerning "extreme, outrageous and dangerous" conduct is Defendant's "911" call to police when Plaintiff was discovered in the apartment. The pleadings say the resulting police presence kept Plaintiff from making a "citizen's arrest" of Defendant's employee. "Had plaintiff elected to exercise the prerogative of a reasonably prudent man to use physical force, violence and harm would have been inevitable, albeit justifiable" (Complaint ¶03-c). Based upon the foregoing, the Court concludes Plaintiff's allegations neither reach the Howell requirement of "extreme or outrageous conduct" nor detail any conduct that could possibly be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (see, Id.). Plaintiff alleges nothing that justified a cause of action for intentional infliction of emotional distress (see generally, Kwarren v. American Airlines, 303 AD2d 722 [2nd Dept. 2003]).^[FN8]

Succession Rights

The Court agrees with Defendant that Plaintiff's claim for succession rights must be dismissed under the doctrine of "res judicata" (see generally, People v. Internal Revenue Service, supra.). Under the doctrine, a final judgment on the merits rendered by a court of competent jurisdiction bars a subsequent suit between the same parties involving the same cause of action (see generally, Winters v. Lavine, 574 F.2d 46 [2nd Cir. 1978]). Since Plaintiff brought this cause of action at least twice before (once judicially and once administratively), Plaintiff's instant complaint must be dismissed. Housing Court disposed of all Plaintiff's claims under the rent control/stabilization laws.

Housing Court determined, among other things,^[FN9] that Plaintiff was not entitled to the subject apartment. Whatever succession rights Plaintiff may have possessed were surrendered by his mother who never listed Plaintiff as a family member on the family composition list. The Housing Court's decision was issued after the parties were afforded a full and fair opportunity to litigate the matter. Likewise, the Office of Rent Administration found that it was administratively bound by the Housing Court's decision. There is no evidence Plaintiff filed an appeal of said decision(s) (see generally, Ryan v. New York Telephone Co., 62 NY2d 494 [1984]).

Likewise, Plaintiff alleges nothing supporting any succession benefits for the Mohammed Shabazz Charitable Trust and the Court denies any benefits to this plaintiff regardless of Plaintiff's standing to bring litigation on its behalf.

Motions for Sanctions

Defendant seeks sanctions against Plaintiff and asks the Court to impose resulting costs and reasonable counsel fees as a punishment for his conduct (see, 22 NYCRR §§130-1.1 and 130-1.2). In this regard, Defendant points to Plaintiff's alleged criminal record and extensive [*6]litigation history as justifying sanctions.^[FN10]

Sections 130-1.1(a) and 130-1.2 provide that the court, in its discretion, may award to any party or attorney in any proceeding (except where otherwise prohibited) costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorneys' fees resulting from frivolous conduct. Defendant failed to produce documentation of the actual costs incurred in making the instant motion and in defending the instant action as related to any frivolous conduct. Without such proof, the Court will not address the substance of Defendant's claim for sanctions. Based upon the current status of this record, the branch of Defendant's motion seeking cost sanctions and attorneys' fees, pursuant to 22 NYCRR Part 130, et seq., is denied, with leave to renew. On the other hand, for the reasons discussed above, Plaintiff's cross motion is denied as without merit. The Court rejects Plaintiff's argument that Defendant's motion was untimely as unsupported by the record and finds no basis for Plaintiff's demand for authorizations or sanctions.

Upon the foregoing, it is

ORDERED that Plaintiff Brother T. Williams-Bey's demand for special status as a Moorish American is DENIED; and it is

ORDERED that the branch of the Defendant's motion seeking to dismiss the complaint upon the grounds of failure to state a cause of action, pursuant to CPLR Rule 3211(a)(7), is GRANTED; and it is

ORDERED that the branch of Defendant's motion, seeking to dismiss the complaint, upon the grounds that the cause of action may not be maintained because of res judicata, pursuant to CPLR Rule 3211(a) (5), is GRANTED; and it is

ORDERED that the branch of Defendant's motion, seeking sanctions against Plaintiff Williams-Bey, pursuant to Part 130 of the Rules of the Chief Administrator of the Courts, is DENIED, with leave to renew; and it is

ORDERED that the branch of Plaintiff Brother T. Williams-Bey's cross motion seeking an order denying Defendant's motion to dismiss the complaint under CPLR Rule 3211(a)(5) and CPLR 3211(a)(7) and imposing sanctions is DENIED; and it is

ORDERED that the branch of Plaintiff Brother T. Williams-Bey's cross motion seeking an order requiring Defendant to produce a corporate resolution or other document identifying Defendant's "authorized person" for purposes of Not for Profit Corporation Law §102(a)(18), is DENIED; and it is

ORDERED that the branch of Plaintiff Brother T. Williams-Bey's cross motion seeking an order requiring Defendant to withdraw Counsel's notice of appearance, is DENIED; and it is further

ORDERED that the branch of Plaintiff Brother T. Williams-Bey's cross motion seeking fees, costs, and motion expenses, pursuant to 22 NYCRR §130-1.1(c)(4), is DENIED.

The foregoing constitutes the decision and order of this Court.

SETTLE ORDER.

Dated: Bronx, New York [*7]

February 22, 2010

________________________DOMINIC R. MASSARO, J.S.C.