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Michael A. Davitt, Appellant v. James F. Kralik

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


August 16, 2011

MICHAEL A. DAVITT, APPELLANT,
v.
JAMES F. KRALIK, RESPONDENT.

Appeal from an order of the Justice Court of the Town of Clarkstown, Rockland County (Howard Gerber, J.), dated October 27, 2009.

Davitt v Kralik

Decided on August 16, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ

The order granted defendant's motion to dismiss the action and to prohibit plaintiff from filing further small claims actions against the County of Rockland, its officers, employees and agents, without prior court approval.

ORDERED that the order is affirmed, without costs.

Plaintiff commenced this small claims action against James F. Kralik, the Sheriff of Rockland County, seeking $3,000 for "1) Harassment/retaliation; 2) coercion; 3) violation of constitutional rights/human rights law." Defendant moved to dismiss the action and to prohibit plaintiff from filing further small claims actions against the County of Rockland, its officers, employees and agents, without prior court approval. Plaintiff submitted written opposition to the motion and, after oral argument, the Justice Court, by order dated October 27, 2009, granted defendant's motion.

Upon a review of the record, we find that plaintiff has failed to demonstrate that he has a viable cause of action. Consequently, we see no impropriety in the Justice Court's dismissal of the action. UJCA 1810 authorizes a small claims court, should it be of the opinion that a claimant is bringing a claim "for purposes of oppression and harassment and not under color of right," to issue "an order denying the claimant the use of the small claims part to prosecute the claim." Under the totality of the circumstances presented, including the dismissal of this instant small claims action and the dismissal of a prior small claims action brought by plaintiff against the County Executive of Rockland County, as well as the various statements made by plaintiff, it is our determination that the Justice Court properly granted the branch of defendant's motion seeking to prohibit plaintiff from filing further small claims actions against the County of Rockland, its officers, employees and agents, without first seeking court approval. Accordingly, the order is affirmed.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.

Decision Date: August 16, 2011

20110816

© 1992-2011 VersusLaw Inc.



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