This case is an example of the perversion of the proper use of a small claims action - the filing of a claim for a non-actionable cause of action; the lack of any proof of an actionable claim; and the filing of suit despite the litigation of the same claim in another small claims action in another Court. It cries out for the Chief Administrator of the Courts to amend 22 NYCRR 130 to permit sanctions in small (and commercial) claims matters.

Plaintiff filed this small claims action for harassment and slander. Despite these claims, plaintiff also sought damages for items previously on a boat shared by the parties. At the initial conference, the Court inquired as to nature of the allegedly slanderous statements and plaintiff said they were all true.

This matter was tried before the Court on 30 March 2011. Breaking down plaintiff's claims and giving plaintiff the benefit of being Pro Se in a small claims action, including allowance of blatant hearsay and accepting plaintiff's statements about what others said and did as true, plaintiff claims:

1) the defendants published plaintiff's address on the Internet, thus subjecting him to potential retaliation from a gang, a member of which committed a murder that [*2]plaintiff witnessed. Plaintiff claims this was harassment;

2) the defendants published certain defamatory statements on the Internet;

3) the defendants misappropriated property from plaintiff's boat.

As upsetting as plaintiff may find it that his address was made available on the Internet and that the gang might be able to locate him, that does not give rise to a cause of action for harassment. New York does not recognize a cause of action to recover damages for harassment. Ralin v. City of New York, 44 AD3d 838, 844 NYS2d 83 [2nd Dept, 2007]; Santoro v. Town of Smithtown, 40 AD3d 736, 738, 835 NYS2d 658 [2nd Dept, 2007]; Goldstein v. Tabb, 177 AD2d 470, 575 NYS2d 902 [2nd Dept, 1991]; Baum v. Ragozzino, 23 Misc 3d 1104(A), Slip Copy, 2009 WL 884663 (Table) [Sup Ct Richmond County, 2009]. Even if such a cause of action did exist, plaintiff failed to prove any damages flowing from the publication of his address. Plaintiff claimed he would have to move three years in the future when the murderer was scheduled to be released from prison. However, given the amount of information otherwise available about any person, there was no causal relationship shown between the publication of plaintiff's address and how plaintiff would be located some time in the future. This assumes that the gang was both fluent in the use of the Internet and unable to use other methods to locate the plaintiff. In any event, plaintiff did not claim he moved yet.

Plaintiff's claim for slander (actually technically defamation or libel) is based upon three statements:

1) plaintiff was "the biggest dirtbag" the author had ever met in his life;

2) that plaintiff had a large number of rare coins and the author did a search and found there had been a scam about coins being sold to elderly/retired folks for excessive prices; &

3) that plaintiff lost his job for using the "N" word to his dispatcher;

A libel is a writing or broadcast that tends to expose the plaintiff to public hatred, contempt, ridicule or disgrace. Esposito-Hilder v. SFX Broadcasting, Inc, 171 Misc 2d 286, 654 NYS2d 259 [Albany County Sup Ct 1996]. To recover damages for libel, plaintiff has the burden of proving five elements. First, plaintiff must prove that the statement was defamatory, meaning that the statement had a [*3]tendency to expose the plaintiff to public hatred, contempt, ridicule or disgrace. Second, plaintiff must prove that the statement referred to the plaintiff, meaning that the statement would be reasonably understood to be about the plaintiff. Third, plaintiff must prove that defendant published or broadcast the statement, meaning that the defendant communicated the statement to someone other than the plaintiff. Fourth, plaintiff must prove that the statement was false, meaning substantially untrue. Fifth,

plaintiff must prove that the statement proximately caused actual harm to the plaintiff, meaning that the plaintiff suffered damages to plaintiff's reputation or standing in the community.

It is the court's responsibility in the first instance to determine whether a publication is susceptible to the defamatory meaning ascribed to it. Golub v. Enquirer/Star Group, Inc., 89 NY2d 1074, 659 NYS2d 836 [1997] & Rejent v. Liberation Publications, Inc., 197 AD2d 240, 611 NYS2d 866 [1st Dept 1994]. A court should neither strain to place a particular construction on the language complained of, nor should the court strain to interpret the words in their mildest and most inoffensive sense, to hold them non-libelous. Rejent v. Liberation Publications, Inc., supra.

A dirtbag is an informal term meaning a dirty, grimy, sleazy, or disreputable person. The allegedly defamatory statement was that plaintiff was the biggest dirtbag the author ever met in his life. This is a statement of opinion. This could mean that the author had knowledge of other "dirtbags" and plaintiff was, in the author's opinion, the physically largest or most powerful of them, or a just a tad worse than the others. Statements of opinion, not fact, are not actionable as defamation. Gilliam v. Richard M. Greenspan, P.C., 17 AD3d 634, 793 NYS2d 526 [2nd Dept 2005].

The second statement concerning the rare coins does not impugn the plaintiff. Rather, it merely reports that some rare coins had been sold to retired/elderly people at excessive prices. It does not state that the plaintiff was involved at all in any such scam. Therefore, the second statement does not hold plaintiff up to public hatred, contempt, ridicule or disgrace and is not actionable.

With respect to the third statement, that plaintiff used the "N" word, the politically-correct euphemism for a word considered venomous and offensive to [*4]most people. See, Goetz v. Kunstler, 164 Misc 2d 557, 625 NYS2d 447 [New York County Sup Ct 1995], that statement could be viewed as holding plaintiff up to public hatred, contempt, ridicule or disgrace. However, there is a question about publication of this statement. While plaintiff introduced into evidence a print out of a portion of a blog, there was no proof that any person other than plaintiff ever read the blog. Plaintiff did not identify who the blogger was, nor did defendants admit that one of them was the author. Plaintiff offered no witness who testified that he or she had read the statement. Instead, plaintiff relied on the blog containing three replies. Plaintiff assumes, without proof that these three repliers read the statement, and asks the Court to make the same assumption. The court is loathe to do so since there is no evidence that these repliers are real people. Furthermore, one of the repliers had the same name as one of plaintiff's witnesses who was in Court and testified. Plaintiff however failed or neglected to ask that witness whether he read the allegedly defamatory statement. In the absence of such testimony, the Court must find that he did not read it or if he did, he did not find it offensive.

Even if there had been publication, plaintiff failed to prove any damages, whether flowing from the statement or otherwise. At one point, plaintiff claimed his damages arose from a third person's statements, not defendants' statements.

The Court now turns to the un-pled claims concerning the boat. Plaintiff claims that defendants appropriated numerous items from his boat. Before addressing the paucity of evidence plaintiff introduced, the Court notes that the issues surrounding the ownership of the boat and its contents was litigated in a small claims action in Yonkers City Court under Index No. SC3438-09. After a trial, Judge Daly rendered a three page written decision awarding judgment to the defendants herein in the amount of $5,025.98 resolving the issues of ownership of the boat and defendants' contributions in favor of the defendants. Having been fully litigated, the issues cannot be re-litigated in any forum. However, that did not stop plaintiff.

Nevertheless, plaintiff has completely failed to prove that he owned the boat or the items on it, what items he claimed were appropriated from the boat, or the value of the items. Nor has plaintiff proved that defendants took the items.

Having litigated the issues in one Court, plaintiff felt free to try a second [*5]bite at the apple in another Court.^[FN1] As if this was not enough, he asserted a non-existent cause of action and abysmally failed to prove his claim for defamation. The Court could consider the filing of this action as malicious and done solely to harm defendants for no legitimate reason. All this amounts to an abuse of the defendants and the Court system. If this was not a small claims action, the Court would have the ability to sanction plaintiff for his conduct. 22 NYCRR 130-1.1(a).^[FN2] However, this Court is left with no measure by which to deter or punish such frivolous conduct and plaintiff may choose to continue his quixotic pursuit of defendants in yet another Court without fear of sanctions. The Court would hope that the Chief Administrator of the Courts might amend 22 NYCRR 130.1-1(a) to permit sanctions in small claims actions.

Providing the parties with substantial justice according to the rules and principles of substantive law (UCCA 1804, 1807; see Cosme v Bauer, 27 Misc 3d 130(A), 2010 NY Slip Op 50638(U) [App Term, 9th Jud Dist April 8, 2010]; Ross v Friedman, 269 AD2d 584 [2nd Dept 2000]; & Williams v Roper, 269 AD2d 125 [1st Dept 2000]) and under a fair interpretation of the evidence (see Claridge Gardens v. Menotti, 160 AD2d 544 [1st Dept 1990] with this Court having had the opportunity to observe and evaluate the testimony and demeanor of the witnesses and to evaluate the credibility of the witnesses, (Nobile v. Rudolfo Valetin Inc., 21 Misc 3d 128[A], 2008 NY Slip Op 51962[U] [App Term, 9th and 10th Jud Dists 2008] (see also, Vizzari v. State of New York, 184 AD2d 564 [2nd Dept 1992]; Kincade v. Kincade, 178 AD2d 510, 511 [2nd Dept 1991]; & Rotem v. Hochberg, [*6]28 Misc 3d 127(A), Slip Copy, 2010 WL 2681875 (Table) [App Term, 9th and 10th Jud Dists , 2010]), the Court finds that the plaintiff has failed to prove any valid claim.

Accordingly, it is,

ORDERED and ADJUDGED that the defendants have judgment against plaintiff dismissing the action together with the costs of this action, and disbursements, and it is further

ORDERED and ADJUDGED that plaintiff's claims are dismissed.

March 31, 2011_________________________

JOSEPH L. LATWIN

Rye City Court Judge

ENTERED

__________________

Mary Jo Garrity

Appeals —

An appeal shall be taken by serving on the adverse party a notice of appeal and filing it in the Rye City Court Clerk's office. A notice shall designate the party taking the appeal, the judgment or order or specific part of the judgment or order appealed from and the court to which the appeal is taken. CPLR § 5515. —

Pursuant to UCCA § 1701 "Appeals in civil causes shall be taken to" the appellate term of the supreme court, 9th Judicial District. —

An appeal as of right from a judgment entered in a small claim or a commercial claim must be taken within thirty days of the following, whichever first occurs:

1. service by the court of a copy of the judgment appealed from upon the appellant. [*7]

2. service by a party of a copy of the judgment appealed from upon the appellant.

3. service by the appellant of a copy of the judgment appealed from upon a party.

Where service as provided in paragraphs one through three of this subdivision is by mail, five days shall be added to the thirty day period prescribed in this section. UCCA § 1703(b).