United States District Court, E.D. New York
ROBERT R. RUTTY, Plaintiff,
MERLVIN R. KRIMKO, ESQ., POWER HOME SALES 172 INC., SLF NEW YORK HOLDINGS LLC, THE MARGOLIN & WEINREB LAW GROUP, LLP, ALAN H. WEINREB, ESQ., and GUSTAVIA HOME, LLC Defendants.
MEMORANDUM DECISION & ORDER
M. Cogan U.S.D.J.
Melvin Krimko moves to dismiss the claims brought against him
by plaintiff Robert Rutty. This action is the third of three
cases (involving many of the same parties) related to the
foreclosure by Gustavia Home, LLC, on plaintiff's
property located in Queens. The Court described the
procedural history of this dispute in its January 12, 2018
order, and will repeat here only those parts necessary to
address defendant Krimko's arguments.
role in this case is rather small. In June 2016, Gustavia
Home, LLC, filed a foreclosure proceeding against plaintiff.
In February 2017, this Court entered judgment in that case,
ordering foreclosure and sale of plaintiff's rental
property. After the foreclosure, SLF New York Holdings LLC
purchased the property. SLF then hired Krimko, a
landlord-tenant attorney, to file eviction proceedings
against plaintiff's tenants. In June 2017, Krimko served
the tenants with 30-Day Notices of Termination required by
New York Real Property Law § 232-a. Plaintiff then wrote
to Krimko, informing him that sending eviction letters to
plaintiff's tenants was harassment and informing Krimko
that the judgment in the foreclosure action was on appeal. On
August 30, 2017, Krimko responded to plaintiff's letter,
informing him that SLF now held title to the property and
that Krimko only became involved with the property after it
was conveyed to SLF. On September 12, 2017, SLF began
holdover proceedings against the tenants in New York Civil
Court in Queens County.
then filed this case, alleging claims against the parties
involved in the foreclosure and eviction. Plaintiff alleges
that, by filing the eviction suit and sending the related
letters, Krimko committed: (1) slander of title, (2) unfair
or deceptive acts or practices under New York General
Business Law § 349(a) (McKinney's), (3) intentional
infliction of emotional distress, and (4) conspiracy to join
an existing conspiracy, under 18 U.S.C. § 371.
now moves to dismiss these claims, arguing that they are
barred by the Noerr-Pennington doctrine and
that plaintiff has failed to state a claim as to all of them.
Reading plaintiff's opposition generously, he argues that
he has stated a claim by showing that Krimko deliberately
ignored facts and evidence that SLF did not have proper title
to plaintiff's property.
Court concludes that the Noerr-Pennington
doctrine does not bar plaintiff's claims against Krimko.
But because plaintiff has failed to plead sufficient facts to
establish the elements of each of the claims he asserts
against Krimko, those claims are dismissed.
Noerr-Pennington doctrine protects the
right of private actors to petition the government by
shielding certain lobbying activities from liability
(originally federal antitrust liability, and later, other
types of liability). See Primetime 24 Joint Venture v.
Nat'l Broad., Co., 219 F.3d 92, 99 (2d Cir. 2000),
Doron Precision Sys., Inc. v. FAAC, Inc., 423
F.Supp.2d 173, 189 (S.D.N.Y. 2006). The Supreme Court later
extended the doctrine to bona fide (non-sham)
petitioning actions before state and federal courts and
administrative agencies. See Cal. Motor Transp. Co. v.
Trucking Unlimited, 404 U.S. 508, 510-11 (1972). Courts
have since extended the doctrine to other concerted efforts
incident to petitioning, such as pre-litigation threat
letters and settlement offers. Primetime 24, 219
F.3d at 100 (collecting cases).
Supreme Court first applied the doctrine to bar liability for
petitioning activity under the Sherman Act, and later under
the National Labor Relations Act. See BE & K Const.
Co. v. N.L.R.B., 536 U.S. 516 (2002). The Second Circuit
has applied it to suits alleging that petitioning activities
violated antitrust and copyright statutes. See Primetime
24, 219 F.3d at 97. District courts in this circuit have
applied Noerr-Pennington in trademark
cases, Barbarian Rugby Wear, Inc. v. PRL USA Holdings,
Inc., No. 06 CIV. 2652, 2009 WL 884515, at *6 n.4
(S.D.N.Y. Mar. 31, 2009) (collecting cases), and to claims
for tortious interference with prospective business relations
where the allegedly tortious interference was lobbying a
governmental entity, see EDF Renewable Dev., Inc. v.
Tritec Real Estate Co., Inc., 147 F.Supp.3d 63, 68
(E.D.N.Y. 2015); see also Bath Petroleum Storage, Inc. v.
Mkt. Hub Partners, L.P., 229 F.3d 1135 (2d Cir. 2000)
(summary order) (applying the doctrine to bar a claim under
New York General Business Law § 349).
argues that the Noerr-Pennington doctrine
bars plaintiff's claims against him because the actions
which plaintiff alleges he took - commencing eviction
proceedings, sending eviction notices, and responding to
plaintiff's letter - were all incident to the foreclosure
argument ignores a key aspect of Noerr-Pennington: the
doctrine blocks liability for non-sham petitioning activity
which implicates the Petition Clause of the First Amendment,
not all claims based on lawsuits or pre-litigation activity.
As described above, courts have extended the doctrine to
cover different types of petitioning activity, from lobbying
the legislature to asking a county to deny a competitor's
permit to petitioning a federal agency. Courts have applied
the doctrine to block liability under the Sherman Act, the
Clayton Act, the National Labor Relations Act, RICO, and
other statutes and common-law theories. But in all of these
cases, courts applied the doctrine to bar liability for
defendant's petitioning activity.
does not apply here because the underlying action has nothing
to do with petitioning the government: Krimko sent the demand
letters and filed the eviction suit to enforce a private
contractual right against plaintiff. Enforcing a deed by
evicting allegedly unauthorized tenants does not implicate a
right protected by the Petition Clause. Cf ...