Motion for leave to serve and file a late claim alleging defamation and breach of contract was granted. Absent discovery, privilege issues could not be definitively determined.
|Claimant short name:||PETERKIN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Law Office of Mark S. Mishler, P.C.
By: Mark S. Mishler, Esq.
|Defendant's attorney:||Honorable Barbara D. Underwood, Attorney General
By: Christina Calabrese, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 26, 2018|
|See also (multicaptioned case)|
Movant, Richard Peterkin, seeks leave to file a late claim alleging defamation and breach of contract pursuant to Court of Claims Act § 10 (6).
Movant, a 2006 graduate of the State University of New York, University at Albany (U-Albany), works part-time as a disc jockey (DJ) and does business under the name "DJ Syxxfiggaz" (movant's Exhibit B, Proposed Claim, ¶ 5). Movant alleges that he has worked as a professional DJ for approximately 11 years, during which time he was regularly employed as a DJ at U-Albany. On March 4 -5, 2017, the movant, along with other DJs, was hired to DJ a party at an off-campus venue in Halfmoon, New York (id. at ¶ 9). Movant alleges this was not an event sponsored by U-Albany nor was he the promoter or organizer of the event (id. at ¶ 9). At some point in the early morning hours of March 5, 2017, the party was disbanded by the Saratoga County Sheriff's Department. Movant alleges he shutdown his equipment as directed by law enforcement officers, packed up, and left the premises (id. at ¶ 13). However, movant was allegedly arrested on March 7, 2017 for Inciting to Riot in violation of Penal Law § 240.08, a Class A misdemeanor. Penal Law § 240.08 states "A person is guilty of inciting to riot when he urges ten or more persons to engage in tumultuous and violent conduct of a kind likely to create public alarm." Largely repeating the terms of the statute, the accusatory instrument states the following:
"That the said defendant, Richard A. Peterkin, on the 5th day of March, 2017, at or about 1:00 A.M., at the location of the Spare Time, 1668 Route 9, in the Town of Halfmoon, County of Saratoga, State of New York, did urge ten or more persons to engage in tumultuous and violent conduct of a kind likely to create public alarm. To wit, the said defendant did urge large crowds of people (more than 10) to engage in tumultuous and violent conduct that encouraged fighting, risk of property destruction and also urged persons not to comply with lawful police orders. The aforesaid conduct did create public alarm" (movant's Exhibit A ).
Movant alleges that while the criminal proceeding was pending, Aran C. Mull, Deputy Chief of Police for the New York State University Police, University at Albany, sent two defamatory emails that resulted in the immediate loss of 2 DJ contracts at U-Albany, scheduled for April 6, 2017 and April 9, 2017, as well as approximately 12 DJ jobs at U-Albany from April 2017 through September 2017, resulting in a direct loss of at least $3,700.00 (movant's Exhibit B, Proposed Claim, ¶¶ 28 and 43). The first email, directed to certain employees of U-Albany, states the following under the subject line "Concern regarding Richard Peterkin doing business as 'DJ Syxx Figgaz' on campus":
"The above named person is known to us as a person who has done, and may currently be scheduled to do, business on the University in his capacity as a DJ for events attended by our students.
On March 4th Mr. Peterkin was arrested at an off campus event, marketed heavily to UAlbany students. During this event a number of fights occurred and the venue became overwhelmed, creating a significant safety risk. Police were called to disperse the crowd. At that point Mr. Peterkin actively encouraged the attendees to ignore police direction and to actively resist police attempts to clear the area.
His actions were illegal, detrimental to good order, and substantially increased the likelihood of harm to our students and others at the event. Given that many of the persons who attended the March 4th incident may attend on-campus events where Mr. Peterkin may be working as a DJ and Mr. Peterkin's demonstrated actions against the welfare of members of our community, the University Police Department does not support allowing him the opportunity to take part in campus events that place him in the position to similarly endanger our community.
The University has allowed our department to review and approve performers who are being considered for employment at University events for more than a decade. We do not take that responsibility lightly and have very rarely exercised the option to disallow a performer. In this instance we have an individual who put our community directly at risk, did so in the presence of police officers working to address a safety concern, and has did so just a very short time ago. Given those factors we are compelled to exercise that option in this case.
If there are any questions or issue please do not hesitate to reach out" (movant's Exhibit A  [emphasis added]).
Movant alleges in the Proposed Claim that the statements highlighted above were false and defamatory (see Exhibit B, Proposed Claim, ¶ ¶ 19 and 20).
The second email, dated April 5, 2017, was written in response to a student's inquiry and states the following under the subject line "Banning of DJ Syxx Figgas":
"Thank you for reaching out. Before taking this action I did review police and news accounts of the incident. According to the information available there are accounts - by police as well - noting that he did try to have the crowd comply with the initial direction when the doors were closed and the decision to allow no new patrons to enter the event was made. At issue are his actions after the decision was made to end the event and clear the building. His actions when deputies and police were looking to break up the fighting and clear the building were unlawful and put members of the community at risk.
UPD has very, very rarely taken the position that a performer is not welcome on the campus. The Chief and I are very strong proponents of the First Amendment and take very seriously any decision that may even appear to abridge the rights therein. The department has taken this position ONLY in those cases where the actions of a performer have, by their direct actions, put their audiences at risk of harm. I will note that this is the first instance where the audience has included actual members of our community and been as close to our campus.
I have spent nearly 30 years working on college campuses. I know very well that people make mistakes and that a single mistake does not define an entire person. Mistakes offer one of the most valuable opportunities to learn and grow. In at least one case where we had a performer we denied access to the campus because of activities that endangered their audience we were requested to review that decision after two years has passed. In that case we found that the performer had not engaged in that sort of activity during that period and we welcomed him to the campus (to a very successful concert).
Given that some of what I have herd [sic] regarding Mr. Peterkin's involvement with the community over the years, and his status as an alum, I am very hopeful that we will be able to make a similar decision in this case as well. However, that will require some time and distance from this incident to offer a well-founded re-evaluation" (movant's Exhibit A  [emphasis added]).
Movant alleges in the Proposed Claim that the April 5th email reiterated defamatory
statements and falsely stated as fact that he had engaged in "unlawful" actions, that he placed members of the community "at risk", and that he was "in a category of individuals who by their 'direct actions, put their audiences at risk of harm' " (movant's Exhibit B, Proposed Claim, ¶ 32).
With respect to the proposed breach of contract claim, movant alleges that "[a]s a direct result of Deputy Chief Mull's defamatory March 30th e-mail", he was "immediately" terminated from two jobs at U-Albany he was scheduled to DJ on April 6, 2017 and April 9, 2017 (id. at ¶ 28). Movant's counsel indicates in a reply affirmation that the contracts were breached on April 4, 2017 when movant was informed that he would not be allowed to perform on campus at these shows (reply affirmation, ¶ 8). Movant alleges that in consideration for his services at the events he was promised $200 and $250, respectively (Proposed Claim, ¶ 29).
Court of Claims Act § 10 (6) permits this Court, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
The first issue for determination upon a late claim motion is whether the application is timely. Section 10 (6) requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." A defamation action against a citizen of the State is governed by a one-year statute of limitations (CPLR § 215 ) and a claim for breach of contract against a citizen of the State is governed by a six-year statute of limitations (CPLR 213) ). Consequently the instant motion filed on March 13, 2018 is timely with respect to both of movant's proposed causes of action.
Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [3d Dept 1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Martinez v State of New York, 62 AD3d 1225 [3d Dept 2009]; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
The excuse advanced by movant for failing to timely file and serve a claim is that
his attention was focused on the criminal proceeding until the criminal charge was dismissed on October 11, 2017 (Peterkin affidavit, ¶¶ 10, 11). No explanation is offered for the nearly five month delay that ensued in filing the instant motion after the criminal charge was dismissed. Movant was not confined to jail pending the disposition of the criminal charge and the fact that he focused exclusively on defending himself rather than preserving his rights through the timely service of a notice of intention to file a claim or by the filing and service of a timely claim (see Court of Claims Act § 10 [3-b]; 10 ) is not adequately explained. As a result, the Court finds that the movant has failed to establish a reasonable excuse for failing to timely file and serve a claim (Borawski v State of New York, 128 AD3d 628 [2d Dept 2015]; Olsen v State of New York, 45 AD3d 824 [2d Dept 2007]; Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]).
Addressing the intertwined issues of notice, opportunity to investigate and prejudice, movant contends that the State had notice and a sufficient opportunity to investigate the claim by virtue of a letter written by his former attorney, dated April 5, 2017, which notified U-Albany officials of the allegedly false accusations contained in Deputy Chief Mull's March 30th e-mail and requested that the decision to terminate his services be rescinded (see movant's Exhibit A ). The Court has reviewed the letter and agrees it sufficiently apprised the State of the movant's contention that Deputy Chief Mull's statements regarding his conduct were false and should not have been the basis for terminating his contracts. While the State argues in opposition to the motion that it has been prejudiced in its ability to investigate the matter by the passage of more than one year, it does so in a most conclusory manner. Counsel for the State indicates only that no video footage would "likely" be available; students in attendance "may" have graduated and moved out of the area; social media coverage "may" no longer be available; and electronic communications would "likely" be lost (Calabrese affirmation, ¶ 7). Moreover, the State fails to explain why it could not have investigated the accuracy of Deputy Chief Mull's statements following receipt of the letter from movant's attorney shortly after the incident occurred. Inasmuch as the State had both notice and an opportunity to investigate and has failed to demonstrate prejudice arising from the delay, these factors weigh in movant's favor.
With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective, and the record as a whole provides reasonable cause to believe that a valid cause of action exists (Matter of Martinez v State of New York, 62 AD3d 1225, 1227 [3d Dept 2009]; Sands v State of New York, 49 AD3d 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Movant has met this low threshold. " 'The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se' " (Stone v Bloomberg L.P., 163 AD3d 1028 [2d Dept 2018], quoting Greenberg v Spitzer, 155 AD3d 27, 41 [2d Dept 2017]; Tattoos By Design, Inc. v Kowalski, 136 AD3d 1406, 1407 [4th Dept 2016], amended on reargument, 138 AD3d 1515 [4th Dept 2016]; Salvatore v Kumar, 45 AD3d 560, 563 [2d Dept 2007], lv denied 10 NY3d 703 ). The allegations in the proposed verified claim sufficiently allege a defamation cause of action which appears to be neither patently groundless nor legally defective. The allegedly defamatory statements are susceptible to a defamatory meaning (see Clemente v Impasttato, 274 AD2d 771, 773 [3d Dept ]) and, to the extent they are untrue, Deputy Chief Mull may be at fault for publishing them. While respondent argues that Deputy Chief Mull's allegedly defamatory statements were protected by either an absolute or qualified privilege, it cannot be determined in advance of discovery that movant will be unable to raise a question of fact on this issue (see Stukuls v State of New York, 42 NY2d 272 ; Tattoos By Design, Inc. v Kowalski, 136 AD3d 1406 [4th Dept 2016], amended on reargument, 138 AD3d 1515 [4th Dept 2016]). An absolute privilege will shield the State from liability where the allegedly defamatory statements were made by a public official entrusted with executive policy-making responsibilities "of considerable dimension" and the statements were made during the performance of an essential part of his or her duties (Stukuls, 42 NY2d at 278; Clark v McGee, 49 NY2d 613, 620 ). A qualified privilege, on the other hand, arises "when a person makes a good[ ]faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest" (Stevenson v Cramer, 151 AD3d 1932, 1933 [4th Dept 2017] [inner quotation marks and citation omitted]; see also Rosenberg v Metlife, Inc., 8 NY3d 359, 365 ; Tattoos By Design, Inc., supra). Once it is established that allegedly defamatory statements are protected by a qualified privilege, the burden shifts to the movant to demonstrate whether the statements were motivated solely by malice (Rosenberg, 8 NY3d at 365). Here, in support of the application of either an absolute or qualified privilege, the State contends that Deputy Chief Mull's duties included, among other things, "developing policy and procedure to review, approve or deny guests and performers who were considered for employment" and that the emails were sent in discharge of these duties (respondent's Exhibit A, Mull's affidavit, ¶ 5). However, it is unknown at this stage of the litigation whether the recipients of Deputy Chief Mull's emails had corresponding responsibilities with respect to movant's employment. Nor is it known when Deputy Chief Mull's consultation with the Sheriff's department allegedly occurred or the substance of the alleged conversation. Absent discovery, it cannot be definitively determined whether or not a qualified or absolute privilege applies to shield the state from liability.
Notwithstanding the State's contrary contention, the last element of a defamation cause of action- special damages - is sufficiently alleged in the proposed claim (Proposed Claim, ¶¶ 28, 29, 43; Sharratt v Hickey, 20 AD3d 734, 735 [3d Dept 2005]; cf. Nolan v State of New York, 158 AD3d 186 [1st Dept 2018] [must prove special damages in a defamation action unless the defamatory words fit within an exception in which damages are presumed, i.e., defamation per se]).
While the State correctly contends that the proposed claim fails to allege the date the breach of contract claims accrued, movant's counsel makes clear in reply that the contracts were breached on April 4, 2017 when movant was informed he was no longer permitted to perform on campus (Mishler's reply affirmation, ¶ 8).(1) Accordingly, the merit of the proposed claim was sufficiently established for the purpose of the instant application.
As for the final factor to be considered, although the Court has not been apprised of what specific alternative remedies may be available, it does appear that movant may have alternative remedies available through the assertion of a false arrest/imprisonment and malicious prosecution action in the Supreme Court.
Insofar as the majority of factors, including the potential merit of the claim, weigh in movant's favor, the application for leave to serve and file a late claim is granted and movant is directed to file and serve his claim in accordance with Court of Claims Act § 11 and § 11-a within forty-five days of the date this Decision and Order is filed.
September 26, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. The date of accrual is required to be alleged in a claim (see Court of Claims Act § 11 [b]).