Full question:
I plan to file claim against my co-op board in small claims court, to seek reimbursement for fees I paid them that were basically extortion and abuse of power. Is that legitimate? Also can emotional distress and harrassment and/or defamation be heard in the same claim, as long my claim is below $5,000, the limit in Small Claims Court? Should I wait and file separately for the harrassment etc?
- Category: Real Property
- Subcategory: Homeowner's Association
- Date:
- State: New York
Answer:
Whether or not your claim is legitimate will be a matter of determination for the court based upon all the facts and circumstances involved, such as whether the money was obtained by false pretenses or false promises. Whether the board acted outside their powers will be determined by the bylaws and governing documents of the association.
Whether to file in small claims for emotional distress will depend on the jurisdiction of the local court, as they vary local area. In some courts, the small claims division cannot small claims courts may not be allowed to hear lawsuits alleging libel or slander, nor award non-economic damages. Typically, all claims should be brought in a single lawsuit to avoid waiving the right to later sue on the claim by the legal theories estoppel or res judicata, and to conserve judicial resources and expenses.
Please see the statutes below relevant to extortion to determine applicability:
§ 155.05 Larceny; defined.
1. A person steals property and commits larceny when, with intent to
deprive another of property or to appropriate the same to himself or to
a third person, he wrongfully takes, obtains or withholds such property
from an owner thereof.
2. Larceny includes a wrongful taking, obtaining or withholding of
another's property, with the intent prescribed in subdivision one of
this section, committed in any of the following ways:
(a) By conduct heretofore defined or known as common law larceny by
trespassory taking, common law larceny by trick, embezzlement, or
obtaining property by false pretenses;
(b) By acquiring lost property.
A person acquires lost property when he exercises control over
property of another which he knows to have been lost or mislaid, or to
have been delivered under a mistake as to the identity of the recipient
or the nature or amount of the property, without taking reasonable
measures to return such property to the owner;
(c) By committing the crime of issuing a bad check, as defined in
section 190.05;
(d) By false promise.
A person obtains property by false promise when, pursuant to a scheme
to defraud, he obtains property of another by means of a representation,
express or implied, that he or a third person will in the future engage
in particular conduct, and when he does not intend to engage in such
conduct or, as the case may be, does not believe that the third person
intends to engage in such conduct.
In any prosecution for larceny based upon a false promise, the
defendant's intention or belief that the promise would not be performed
may not be established by or inferred from the fact alone that such
promise was not performed. Such a finding may be based only upon
evidence establishing that the facts and circumstances of the case are
wholly consistent with guilty intent or belief and wholly inconsistent
with innocent intent or belief, and excluding to a moral certainty every
hypothesis except that of the defendant's intention or belief that the
promise would not be performed;
(e) By extortion.
A person obtains property by extortion when he compels or induces
another person to deliver such property to himself or to a third person
by means of instilling in him a fear that, if the property is not so
delivered, the actor or another will:
(i) Cause physical injury to some person in the future; or
(ii) Cause damage to property; or
(iii) Engage in other conduct constituting a crime; or
(iv) Accuse some person of a crime or cause criminal charges to be
instituted against him; or
(v) Expose a secret or publicize an asserted fact, whether true or
false, tending to subject some person to hatred, contempt or ridicule;
or
(vi) Cause a strike, boycott or other collective labor group action
injurious to some person's business; except that such a threat shall not
be deemed extortion when the property is demanded or received for the
benefit of the group in whose interest the actor purports to act; or
(vii) Testify or provide information or withhold testimony or
information with respect to another's legal claim or defense; or
(viii) Use or abuse his position as a public servant by performing
some act within or related to his official duties, or by failing or
refusing to perform an official duty, in such manner as to affect some
person adversely; or
(ix) Perform any other act which would not in itself materially
benefit the actor but which is calculated to harm another person
materially with respect to his health, safety, business, calling,
career, financial condition, reputation or personal relationships.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
