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CABLEVISION SYSTEMS CORPORATION and CSC Holdings, LLC, Plaintiffs, v. COMMUNICATIONS WORKERS OF AMERICA DISTRICT 1, Christopher M. Shelton, in his Capacity as Vice President of Communications Workers of AmericaDistrict 1, Communications Workers of AmericaLocal 1109, Rolando Scott, in his Capacity as President of Communications Workers of AmericaLocal 1109, Timothy Dubnau, Erin Mahoney, and Zelig Stern, Defendants.

No. 601428–13.

Decided: September 17, 2013

Kobre & Kim LLP, New York City, Attorney for Plaintiff. Lewis, Clifton & Nikolaidis, P.C., New York City, Attorney of Defendant.

The following papers having been read on this motion:

Defendants' motion for an order dismissing the complaint pursuant to CPLR § 3211(a)(2), and (7) for lack of subject matter jurisdiction, and for failure to state a cause of action is granted.

This lawsuit stems from an ongoing labor dispute between the plaintiff, Cablevision Systems and the Communications Workers of America District 1. The complaint alleges a first cause of action for harassment in the second degree under Penal Law 240.26, the second cause of action for trespass, third cause of action for stalking in the fourth degree under Penal Law 120.45, fourth cause of action for disorderly conduct under Penal Law 240.20, and a fifth cause of action for tortious interference with Cablevision's contractual business relations. Plaintiff also seeks an injunction against the defendants “Imposing any other reasonable restrictions on the future activities and conduct of the CWA with respect to attendance at Cablevision meetings or events featuring appearances by Cabevision resentatives.” (Notice of Motion, Exhibit A, Verified Complaint, p. 16).

The pertinent facts alleged in support of the causes of actions alleged in the complaint are as follows:

“In the last two weeks, the CWA has racheted up its tactics by unlawfully interfering with two important Cablevision-related events: (1) on May 23, 2013, several CWA representatives and supporters-among then Defendants Dubnau, Mahoney and Sternintentionally disrupted Cablevision's annual shareholder meeting at its offices in Bethpage and refused to leave when asked, requiring the intervention of the police; and (2) on May 30, 2013, Defendants Dubnau, Mahoney and Stern methodically disrupted a presentation by Cablevision's Vice Chairman and Chief Financial Officer Gregg Seibert at the Nomura Global Media & Telecom Summit, an investors' conference, taking place at the Four Seasons hotel in New York..” (Notice of Motion, Exhibit A, Verified Complaint, p. 2, para.3).

There were additional factual allegations in the complaint as to the annual shareholder meeting of May 23, 2013, which state in pertinent part, that the “Defendants Dubnau and Mahoney and the other CWA representatives interrupted the proceedings with the sole purpose of harassing the company and disrupting the transaction of company business.” (Notice of Motion, Exhibit A, Verified Complaint, p. 6, para. 21). The statements made by defendants were described in conclusory terms as “provocative and unfounded allegations” which repeatedly “badgered” Mr. Dolan. Notice of Motion, Exhibit A, Verified Complaint, p. 6, para. 22). “Defendant Mahoney joined in the disruptive behavior with further hectoring comments.” When told to leave, Mr. Dubnau stated Well you'll have to call the police because I'm not leaving. Arrest me.” (Notice of Motion, Exhibit A, Verified Complaint, para. 25. pp 6–7.) Mr. Dubnau stated in a raised voice “we will never go away! Do you understand that? Never!” and We are never going away Mr. Dolan—not ever!” (Notice of Motion, Exhibit A, Verified Complaint, para. 27, p. 7.)

In regards to the event held at the Four Seasons on May 30, 2013, petitioner alleges in the complaint that this was a private investors conference by invitation only where the participants were issued badges upon registration and required to present those badges seeking admittance. The defendants were not issued badges but still managed to gain admittance. The complaint alleges that Mr. Stern interrupted the presentation by standing and making “provocative statements.” (Notice of Motion, Exhibit A, Verified Complaint, p. 8, para 31–34). Mr. Stern continued to “harass” those present and ignored the moderator's request to leave by stating “Its not time for me to leave ․ I'm not going to leave. Call the police. I invite you to call the police. (Notice of Motion, Exhibit A, Verified Complaint, p. 9 at para. 35). Mr. Dubnau allegedly stated that “this will never end. Do you understand that? Never.” “..we will never end. Call the police. Are you a cop? Get a cop. Get a cop. Get a cop. Get my brother and sister from the NYPD, who are in the union, to tell me to leave.” (Notice of Motion, Exhibit A, Verified Complaint, p. 9 at para. 35, 39). Ms. Mahoney allegedly stated “Everywhere you go, we're going to be there ․ This is so embarrassing isn't it, its so f* *king embarrassing that this is going to happen everywhere you go.” (Notice of Motion, Exhibit A, Verified Complaint, p. 9, para. 40)

In deciding a motion to dismiss directed as to the sufficiency of the pleadings (CPLR § 3211[a][7] ), a court must accept their allegations as true, according to them the benefit of every favorable inference to determine whether they come within the ambit of any cognizable legal theory (511 W 232nd Owners Corp. v. Jennifer, 98 N.Y.2d 144 [2002]; Smith v. Meridian Technologies, 52 AD3d 685 [2nd Dept.2008]; Parsippany Const. Co., Inc. v. Clark Patterson Associates, P.C., 41 AD3d 805, 806 [2nd Dept.2007] ). When evidentiary material is considered, “the court must determine whether the proponent of the pleading has a cause of action, not whether the proponent has stated one” (Peter F. Gaito Architecture, LLC v. Simone Development Corp., 46 AD3d 530 [2nd Dept.2007]; Guggenheimer v. Ginzburg, 43 N.Y.2d 268 [1977] ). Bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on such a motion (Riback v. Margulis, 43 AD3d 1023 [2nd Dept.2007]; Palazzolo v. Herrick, Feinstein, LLP, 298 A.D.2d 372 [2nd Dept.2002] ).

The claims alleged against the defendants in the second cause of action for common law trespass, and the fifth cause of action for tortious interference with a business are insufficient as a matter of law because plaintiff failed to plead that each individual union member authorized or ratified the alleged unlawful action complained of. (Martin v. Curran, 303 N.Y. 276 (1951); Duane Reade, Inc. v. Local 338 Retail, Wholesale, dept. Store Union, 17 AD3d 277 [2005]; Zanghi v. Laborers' Intl. Union of N. Am., AFL–CIO, 8 AD3d 1033 [2004]. In addition, “The individual defendants cannot be held liable for acts committed in their capacity as union representatives, even if those acts were not authorized by the union membership.” (Duane Reade, Inc, supra, at 278). Contrary to plaintiff's assertions, the pleading requirement espoused in Martin v. Curran, (supra) is applicable to not only claims for damages, but also claims for equitable relief such as an injunction. (Mounteer v. Bayly, 86 A.D.2d 942, 943 [3rd Dept.1983]. The cases cited by plaintiff to the contrary are lower court cases of coordinate jurisdiction. This Court is obligated to apply the appellate division decision of Mounteer v. Bayly, supra absent a contrary decision of the Court of Appeals or a split among the Appellate Divisions (see People v. Turner, 5 NY3d 476, 482 [2005]; Tzolis v. Wolff, 39 AD3d 138, 142 [1st Dept 2007]; Mountainview Coach Lines v. Storms, 102 A.D.2d 663, 664–665 [2d Dept 1984].

Plaintiff does raise a novel argument that the plaintiff corporation has a private right of action against the defendant CWA union, and defendant representatives under Penal Law § 240.26, for Harassment in the Second Degree, Penal Law § 120.45 which is Stalking in the fourth degree, and Penal Law § 240.20, which is Disorderly Conduct. Defendants contend that the plaintiff cannot bring statutory claims of penal law violations because plaintiff is not an actual person. Plaintiff responds with the penal law definition of a “person” which states that a “Person' means a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality.” Penal Law (§ 10.00[7] ).

Whether or not plaintiff has a private right to recover damages under a particular penal law statute depends on proving the existence of the following three factors: (1) plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose, and (3) whether creation of such a right would be consistent with the legislative scheme. (Sheehy v. Big Flats Community Day, 73 N.Y.2d 629 [1989] ). The court finds that plaintiff corporation is not a “person” for purposes of these penal law statutes alleged in the complaint, and is not one of the class for whose particular benefit these penal law statutes were enacted. The Penal Law § 10.00[7] definition of “person” as a corporation is qualified as “where appropriate.” A plain reading of penal law section 240.26, the Harassment in the Second Degree, indicates that it was meant to protect a human being. The statute provides that a person is guilty of harassment when “He or she strikes, shoves, kicks, or otherwise subjects such other person to physical contact, or attempts or threatens to do the same ․ follows another person around in public ․ or seriously annoy such other person which serve no legitimate purpose.” (Penal Law 240.26(1),(2),(3)). Clearly the “person” who is the victim referenced in the statute is an actual human being since a corporation cannot be a victim of such conduct. Likewise, section 120.45 of the penal law states, in pertinent part, that a person is guilty of stalking in the fourth degree when for no legitimate purpose, engages in a course of conduct directed at a specific person, which is likely to cause reasonable fear of material harm to the physical health, safety or property of such person․ Or causes material harm to the mental health or emotional health of such person. Again, the potential victim is a person that can experience fear of physical, mental or emotional harm which a corporation is incapable of experience. Therefore, it is not appropriate to define a “person” as a corporation within the context of those statutes.

Finally, a person is guilty of disorderly conduct under section 240.20 of the penal law when, with intent to cause public annoyance, or alarm, “In a public place, he uses abusive or obscene language or makes obscene gestures”, or “Without lawful authority, he disturbs any lawful assembly or meeting of persons.” In this statutory scheme, the public is the class for who's particular benefit the statute was enacted, and not a private entity. “The disorderly conduct statute was designed to proscribe only that type of conduct which has a real tendency to provoke public disorder.” (McKinney's Cons.Laws of NY, Penal Law § 240.20, Practice Commentary, William C. Donnino, p. 27). The alleged conduct described by statute must cause public inconvenience, annoyance, or alarm.

In the instant case, the alleged conduct complained by plaintiff did not occur in a public place. According to the complaint, these two meetings were closed to the public and were private meetings for investors. Furthermore, the complaint is replete with conclusory statements as to what the defendants had shouted to Mr. Dolan or Gregg Seibert at their respective meetings. Descriptive terms such as “Provocative” “harass” “badger” “hectoring” are not factual statements as to what was actually said by the defendants that would cause public inconvenience, annoyance, or alarm. Such conclusory statements render the pleadings facially deficient.(Riback v. Margulis, Supre; People v. Martinez, 29 Misc.3d 263 [Bronx County, 2010] ).

Accordingly, the plaintiff's complaint is dismissed in its entirety.

Settle judgment on notice.

This constitutes the order and judgment of this Court.

Arthur M. Diamond, J.

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