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Rutty v. Krimko

United States District Court, E.D. New York

March 30, 2018

ROBERT R. RUTTY, Plaintiff,


          Brian M. Cogan U.S.D.J.

         Defendant 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.


         Krimko's 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.

         Plaintiff 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.

         Krimko 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.

         The 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.


         I. Noerr-Pennington Doctrine

         The 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).

         The 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).

         Krimko 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 litigation.

         Krimko's 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.

         Noerr-Pennington 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 ...

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