In this civil action for defamation, discrimination, and various forms of tortious conduct, Defendant New York State Trooper Taylor Salaway ("Trooper Salaway"), by and through the Attorney General of the State of New York, moves prior to filing an answer for an order dismissing the verified complaint for, among other reasons, lack of capacity to sue. Plaintiff Xu Shirley He ("Plaintiff"), purporting to act as "private attorney general" on behalf of her former employer, WIS International ("WIS"), opposes the motion and cross moves for additional relief. Based on the parties' submissions and exhibits attached thereto, and for the reasons that follow, the Court grants that part of Trooper Salaway's motion seeking to dismiss the verified complaint for lack of capacity to sue, without addressing the remaining parts of their motion; denies Plaintiff's cross motion; and dismisses the action without prejudice.

On September 6, 2024, Plaintiff, a resident of Clifton Park, New York, performed certain inventory-counting services for a CVS pharmacy ("CVS") in Queensbury, New York, on behalf of her now former employer, WIS, a company seemingly headquartered in Plano, Texas. On that day, Trooper Salaway and another unidentified trooper ("John Smith") responded to a 911 call from a Warren County emergency dispatcher concerning an alleged criminal trespass at the CVS. Per Trooper Salaway's investigative report, Plaintiff had been suspended because of a then-pending internal investigation at WIS concerning Plaintiff. Trooper Salaway facilitated the return of WIS company property back to Plaintiff's manager and escorted Plaintiff off the premises with a warning not to return. Trooper Salaway prepared the aforementioned two-page state investigative report memorializing the incident.

Claiming to be a "private attorney general," Plaintiff commenced this action, purportedly on behalf of WIS, by filing a Summons with Notice in Supreme Court, Rensselaer County, alleging that Trooper Salaway's investigative report is defamatory. Plaintiff also alleges other claims, including discrimination, intentional infliction of emotional distress, and tortious conduct. Trooper Salaway thereafter filed and served a Notice of Appearance and Demand for Complaint, after which Plaintiff filed and served the Verified Complaint. Trooper Salaway now moves to dismiss the complaint, whereas Plaintiff opposes the motion and cross-moves for additional relief. Plaintiff no longer works for WIS and commenced a separate lawsuit in Saratoga County against the company, purporting to act as a "private attorney general" in that case as well.

The parties dispute venue. Plaintiff maintains that Rensselaer County is the appropriate venue for this action, her misapplication of the venue provisions contained in Article 5 of the CPLR notwithstanding. Trooper Salaway argues in the alternative for the matter be transferred to Saratoga County but nevertheless fails to follow the prescribed demand provisions contained in Article 5. As such, the Court turns to the issue of whether Plaintiff has capacity to sue on behalf of WIS.

In their opposition papers, Plaintiff purports to bring this civil action against Trooper Salaway on behalf of WIS, alleging a plethora of claims. Some of the claims are difficult to discern, whereas others are wholly inappropriate to plead in a civil context. Plaintiff essentially alleges that Trooper Salaway unlawfully removed them from the CVS and that the resulting state investigative report memorializing the incident was defamatory. Plaintiff further asserts that, in responding to the incident, Trooper Salaway collaborated with the WIS manager to engage in various acts of workplace discrimination, which, in turn, resulted in the intentional infliction of emotional distress.

Trooper Salaway, on the other hand, seeks to dismiss the matter for, among other reasons, lack of capacity to sue, claiming that Plaintiff is no longer employed by WIS and thus lacks standing and capacity, and that, in any event, Plaintiff is not an attorney and cannot act as a "private attorney general" on behalf of their former employer.

Not to be confused with standing, the capacity to sue concerns the power of a litigant to appear and bring a grievance before a court (see Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148, 154-55 [1994]). Though imprecise and eluding definition, the question of whether a litigant has the capacity to sustain a cause of action can turn purely upon the status of the litigant (see id. at 155). The notion of capacity often involves governmental entities [*2]created by legislative decree (see e.g. id. at 152 [a community board established by the New York City Charter]; see also Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 NY3d 377, 382, 384, 402 [2017] [a public benefit corporation established by the State Legislature]; Excess Line Ass'n of New York (ELANY) v Waldorf & Assoc., 30 NY3d 119, 121, 123 [2017] [a legislatively created advisory association under the supervision of the Department of Financial Services]). Business entities, such as corporations, are also "creatures of statute" subject to the precepts of capacity, in that they require statutory authority to sue and be sued (see Schaffer, 84 NY2d at 155). Capacity may be examined with a view towards the relief sought by the litigant (see generally Excess Line Ass'n, 30 NY3d at 123), but the main inquiry is whether the legislature invested that party with authority to seek relief in court (see Matter of World Trade Center, 30 NY3d at 384). The capacity for someone to sue is a threshold consideration (see Matter of Town of Riverhead v New York State Bd. of Real Prop. Services, 5 NY3d 36, 41 [2005]).

Here, Plaintiff fails to cite specific legal authority granting them the ability under the law to act as a "private attorney general" on behalf of WIS, especially under these circumstances (see e.g. Matter of Johnson v Blum, 58 NY2d 454, 458 [1983] [discussing that 42 USC §§ 1983 and 1988 essentially allow for "'private attorneys general'" who can collect attorneys' fees so that indigent plaintiffs may protect themselves against civil rights violations]). Moreover, there is nothing in the record to suggest that Plaintiff, who no longer works at WIS, is an attorney duly licensed to practice law in New York and thus able to represent WIS's interests, if any, in this action (see CPLR 321 [a]). Even when construing the pleadings liberally and drawing every possible inference in their favor, (see generally Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 141 [2017], citing Leon v Martinez, 84 NY2d 83, 87-88 [1994]), Plaintiff lacks the capacity to sue Trooper Salaway on behalf of WIS.

Based on the foregoing, the Court grants that part of Trooper Salaway's motion seeking dismissal for lack of capacity, denies Plaintiff's cross motion, and dismisses the verified complaint without prejudice (see CPLR 3211 [a] [3]).

This shall constitute the Decision and Order of the Court.

1. Notice of Motion with Exhibits and accompanying Memorandum of Law in Support

2. Affirmation in Opposition with Cross Motion

3. Reply Memorandum of Law and Opposition to Cross Motion

4. Affirmation in Cross Reply