Notice of Motion, Affirmation, with Exhibits 1,2
This claim seeks damages against the State based upon causes of action for
defamation and malicious prosecution, arising out of incidents first occurring
in September, 1998. On September 7, 1998, a severe storm struck the central New
York area and caused extensive damage to homes and businesses throughout the
area. Utility services were disrupted by this storm, leaving thousands of
residents without service for several days. Many homes suffered damage to their
roofs, caused by the high winds generated by the storm, as well as by fallen
trees and tree limbs. The owners of these homes had to immediately hire
contractors to make repairs to their roofs in order to prevent further
destruction and to protect the interiors of their homes. Claimant was one of
the contractors in the area who entered into contracts to perform repair work in
the aftermath of this storm.
Subsequently, the New York State Attorney General's office undertook a consumer
fraud investigation in response to complaints of price-gouging by these
contractors, including claimant in this investigation. During the course of
this investigation, claimant was identified by representatives of the Attorney
General's office during press conferences and television interviews as a
contractor who was being investigated for price-gouging.
On December 30, 1998, claimant commenced the within action, alleging that
representatives from the Attorney General's office had harassed and maliciously
prosecuted him, and had publicized both in the press and on television that
claimant had overcharged customers. Claimant further alleged that this conduct
maligned claimant's reputation and restricted his ability to do roofing repair
work in the central New York area.
As a result of the investigation into alleged price-gouging, on or about
October 21, 1998, the Attorney General commenced a special proceeding against
claimant in Supreme Court, Onondaga County
fact finding hearing in this special proceeding was held on or about October 26
and 27, 1999, by the Hon. Thomas J. Murphy, Justice of the Supreme Court.
Claimant was represented at this hearing. The decision following this fact
finding hearing was rendered on or about April 3, 2000, and an Order and
Judgment was entered in the office of the Clerk of County of Onondaga on July
13, 2000. In the Order and Judgment, a permanent injunction was issued against
claimant, he was ordered to pay restitution to certain customers, and he was
directed to pay certain civil penalties and costs.
Based upon the findings made in this special proceeding, defendant now seeks to
dismiss the within claim.
It is clear to this Court that the findings made in the special proceeding
commenced against claimant should be given res judicata effect by this
Court. Claimant had a full and fair opportunity to present evidence during the
special proceeding, and the decision made therein was one made on the merits.
Having accepted the findings made in the special proceeding, it is equally clear
that claimant cannot, as a matter of law, sustain his burden of proof in the
It should be noted that claimant has not submitted any papers in opposition to
Accordingly, it is
ORDERED, that Motion No. M-62051 is hereby GRANTED; and it is further
ORDERED, that Claim No. 99567 is hereby DISMISSED.