Opinion
Index No. 906368-20
09-29-2021
William BARBER and Amanda O'Hearn, Plaintiffs, v. Brian D. PREMO, Premo Law Firm, PLLC, Kerry Turnell, Zach Dorrough and Dorrough Construction. Inc., Defendants.
Finn Law Offices, Attorneys for Plaintiffs, William Barber and Amanda O'Hearn, By: Ryan M. Finn, Esq., P.O. Box 66509, Albany, New York 12206 Frank M. Putorti, Jr. P.C., Attorneys for Defendants, Zach Dorrough and Dorrough Construction, Inc., By: Frank M. Putorti, Esq., 1338 Union Street, Schenectady, New York 12308 Sarah M. Engster, Esq., Attorney for Defendant, Kerry Turnell, By: Sarah M. Engster, Esq., 21 Colvin Avenue Albany, New York 12206 Luibrand Law Firm, PLLC, Attorneys for Defendants, Brian D. Premo and Premo Law Firm, PLLC, By: Kevin A. Luibrand, Esq., 950 New Loudon Road, Suite 270, Latham, New York 12110
Finn Law Offices, Attorneys for Plaintiffs, William Barber and Amanda O'Hearn, By: Ryan M. Finn, Esq., P.O. Box 66509, Albany, New York 12206
Frank M. Putorti, Jr. P.C., Attorneys for Defendants, Zach Dorrough and Dorrough Construction, Inc., By: Frank M. Putorti, Esq., 1338 Union Street, Schenectady, New York 12308
Sarah M. Engster, Esq., Attorney for Defendant, Kerry Turnell, By: Sarah M. Engster, Esq., 21 Colvin Avenue Albany, New York 12206
Luibrand Law Firm, PLLC, Attorneys for Defendants, Brian D. Premo and Premo Law Firm, PLLC, By: Kevin A. Luibrand, Esq., 950 New Loudon Road, Suite 270, Latham, New York 12110
David A. Weinstein, J.
Plaintiffs William Barber and Amanda O'Hearn commenced this action on October 5, 2020 by summons with notice, followed by a complaint filed in November 2020. The allegations in the complaint are centered on the claim that defendants Brian D. Premo and the Premo Law Firm, PLLC (the "Premo defendants"), Zach Dorrough and Dorrough Construction. Inc. (the "Dorrough defendants") and Kerry Turnell spread allegedly false allegations that on April 5, 2018 Barber and O'Hearn committed a sexual assault against non-party LF (Complaint ¶ 15). On this basis, plaintiffs assert causes of action for defamation, libel, injurious falsehood, conspiracy, "false light," intentional infliction of emotional distress, unfair competition/tortious interference (against the Dorrough defendants), and "frivolous litigation conduct" (against the Premo defendants). Plaintiffs seek compensation for damage to their reputation and business interests, along with emotional distress, pain and suffering, and attorneys’ fees.
Various causes of action listed in the summons with notice were omitted from the complaint, including abuse of process, malicious prosecution, fraud and prima facie tort.
At the time of the alleged assault, O'Hearn was an owner of the Jean Paul Salon & Spa (the "Salon"), where LF worked. According to plaintiffs, the false allegations "were initially the topic of workplace gossip and rumor at [the Salon]; then were raised in attorney letters; repeated in an Equal Employment Opportunity Commission ("EEOC") filing; plastered all over Facebook by the alleged victim; contained in a federal lawsuit; and, covered widely and very publicly by the media in front page news and widespread news stories which continue to damage and haunt plaintiffs to this day" (id. ¶ 5).
In regard to the referenced federal litigation, plaintiffs present the following narrative: LF retained legal counsel, the Premo defendants, to prosecute a civil action based on the alleged sexual assault (id. ¶ 23). The firm's investigation into the allegations caused them to interview defendant Kerry Turnell, who provided information which plaintiffs claim to have been fabricated (id. ¶¶ 28-29). According to plaintiffs, Attorney Premo improperly characterized an alleged altercation between themselves and LF as a "rape" and, in correspondence from plaintiffs’ legal counsel, they demanded that Premo and his firm cease spreading such "misinformation" during investigative interviews (id. ¶¶ 32-33). Plaintiffs contend that, despite their requests, "LF continued to engage in a campaign of disparaging remarks and misinformation aimed at damaging the good name of plaintiffs" (id. ). Such actions included the EEOC charge against the Salon filed by LF through Premo, and averring that plaintiffs sexually assaulted LF (id. ¶¶ 34-35).
The complaint further alleges that Premo and his firm also interviewed defendant Zach Dorrough, and plaintiffs contend that he gave false information concerning sexual assaults to gain a business advantage over Barber, with whom the Dorrough defendants compete for construction projects and real estate transactions (id. ¶¶ 39-41). Among other allegations, plaintiffs claim that they were injured by Dorrough's November 2018 dissemination of a false Facebook narrative that had been written by LF concerning her claimed assault by plaintiffs (id. ¶¶ 49-50).
LF's allegations of sexual assault, and Premo's investigation, eventually resulted in LF filing a complaint in federal court through attorney Premo on June 3, 2019 (the "Federal Complaint"), stating that she was drugged and raped by plaintiffs (id. ¶¶ 53-54). According to plaintiffs, the complaint was premised on false allegations, and resulted in a June 5, 2019 story in the Albany Times Union detailing such claims, which they allege was distributed by the Dorrough defendants (Complaint ¶¶ 55, 63). Plaintiffs also contend that Turnell falsely accused them of "running sex rings and having people raped" in a July 2019 e-mail and Dorrough, too, spread such false rumors (id. ¶¶ 62-63).
Following the filing of the complaint, cross motions were brought by plaintiffs for a default judgment and by defendants for dismissal of the complaint. In a "so ordered" stipulation between the parties dated March 31, 2021, plaintiffs withdrew their default motion against Turnell and the Dorrough defendants, and their answers were deemed to be timely filed. In addition, defendants withdrew so much of their motions to dismiss as were based on lack of personal jurisdiction, and withdrew any such affirmative defense set forth in their respective answers. The stipulation further stated that the complaint was "deemed to have been timely filed" as to Turnell and the Dorrough defendants, and those defendants withdrew any claim for dismissal of the complaint "as being untimely filed."
This portion of the stipulation clearly refers to the withdrawal of defendants’ motion to dismiss the complaint as untimely served and filed under CPLR 3012-b. Although the language is broad, it cannot be read to waive defendants’ statute of limitations defense. This action was not commenced in this case for limitations purposes by the filing of the complaint, but by service of the summons with notice (see CPLR 304 ). Moreover, Turnell and Dorrough continued to assert statute of limitations defenses in their supplemental affirmations, and plaintiffs made no mention of the stipulation in their response (see Supplemental Affirmation of Susan M. Engster, Esq. in Support of Motion to Dismiss ¶ 27.a; Supplemental Affirmation of Frank M. Putorti, Jr., Esq. ¶¶ 20-25). Further, while the affirmative defense of lack of personal jurisdiction was specifically withdrawn in the stipulation, there was no such withdrawal of the limitations defense (see Stipulation, "So Ordered" March 31, 2021). Indeed, in opposition papers filed by plaintiffs after the stipulation, they acknowledged that they were not seeking to assert claims based on statements made in June 2018, and that such would be "time barred" (Affirmation and Memorandum of Law in Opposition to Motion to Dismiss, dated April 20, 2021 ["Finn Opp Memo"] ¶¶ 8-9). There is thus no indication that the stipulation was intended to impact the defendants’ limitations defense.
The parties’ motions to dismiss on other grounds remain pending before this Court, and are now addressed in this Decision & Order.
PENDING MOTIONS
The motions now before me are as follows: (1) motions by all defendants to dismiss the intentional tort causes of action in the complaint as barred by the one-year statute of limitations set forth in CPLR 215 (Attorney Affirmation and Memorandum of Law of Sarah M. Engster, Esq., dated January 19, 2021 ["Engster Aff"] ¶¶ 28-32; Attorney Affirmation & Memorandum of Law of Frank M. Putorti, Esq., dated January 7, 2021 ["Putorti Aff"] ¶ 37; Affirmation and Memorandum of Law of Kevin A. Luibrand, Esq., dated March 25, 2021 ["Luibrand Aff"] ¶¶ 28-39); and (2) motions by defendants to dismiss the allegations against them on the grounds that they fail to state a cause of action, are contradicted by documentary evidence, and amount to a frivolous and bad faith law suit, warranting sanctions on plaintiffs and their attorney (Putorti Aff ¶¶ 28-41, 48-72, Ex A; Luibrand Aff ¶¶ 40-120; Engster Supp Aff ¶ 27). In particular, defendants assert that the libel and defamation claims are not pled with the level particularity required of such causes of action, and are otherwise without legal basis.
Sanctions and attorneys’ fees were not sought in Turnell's initial motion papers, which only made application for dismissal on improper service grounds. In a supplemental submission filed with leave of the Court, however, she also sought dismissal of the allegations against her for failure to state a claim, as well as sanctions for frivolous conduct (see Supplemental Affirmation in Support of Motion to Dismiss of Sarah M. Engster, Esq., dated May 4, 2021 ["Engster Supp Aff"] ¶ 27). Plaintiffs were given the opportunity to respond to the defendants’ supplemental affirmations, and thus these arguments are properly before me.
In support of their timeliness argument, defendants argue that all of the specific actions by defendants underpinning the alleged intentional torts took place at latest in June 2019, and thus well over a year before this suit was commenced (see Engster Aff ¶ 31; Luibrand Aff ¶¶ 36-37; Putorti Aff ¶ 37).
Plaintiffs oppose these motions by affirmation of counsel. In regard to Turnell, plaintiffs contend that her tortious and intentional conduct included statements she made in a July 22, 2019 e-mail — which is not provided to the Court — that counsel received through discovery in the federal action (Affirmation in Further Support of Default Judgment Against Defendant Turnell and in Opposition to Untimely Motion to Dismiss of Ryan M. Finn, Esq., dated February 1, 2021 ["Finn Opp Aff"] ¶ 26; Complaint ¶ 62). According to counsel, Turnell stated in that e-mail that defendants were "[r]unning sex rings and having people raped" (id. ). Plaintiffs also point to a complaint they allege was made by Turnell on September 27, 2019 to a Hilton hotel ethics hotline during which Turnell allegedly asserted that:
"owner of Abar Construction William Barber who does construction at the hotels and owners of hotel and development Amanda O'Hearn Dolan have assaulted many ppl. Many victims of this family. All ignore payments to vendors and employees with sexual assault" (Complaint ¶ 64; Finn Opp Aff ¶ 26).
Plaintiffs contend that Turnell's 2019 statements, and her alleged stealing of certain unidentified confidential medical documents about O'Hearn from O'Hearn’s brother and giving them to Premo — which they say Turnell admitted to in a July 6, 2019 e-mail that also has not been provided to the Court — support plaintiffs’ causes of action for defamation and conspiracy, and are not barred by the one-year statute of limitation (Finn Opp Aff ¶ 26; Complaint ¶ 60). That is because the limitations period was tolled from March 20, 2020 through November 3, 2020, due to the Governor's Executive Orders issued during the Covid-19 pandemic (Finn Opp Aff ¶ 27).
In response to the Premo defendants’ motion to dismiss, plaintiffs withdrew their second cause of action for "false light" and their fifth cause of action for frivolous litigation conduct under State or Federal rules (Affirmation and Memorandum of Law in Opposition to Motion to Dismiss, dated April 20, 2021 ["Finn Opp Memo"] ¶¶ 33, 41). In addition, plaintiffs acknowledge generally that any cause of action concerning intentional tortious conduct that allegedly occurred in 2018 is now time-barred (id. ¶¶ 8-9).
Plaintiffs maintain, however, that their first cause of action states a valid claim for defamation. They assert that the Premo defendants filed their federal lawsuit knowing that LF's claims of rape, drugging and sexual assault were false based on defendants’ alleged knowledge that the police did not discover any evidence that a crime occurred, and that the Premo defendants brought the federal suit anyway to maliciously extract a settlement from plaintiffs (id. ¶ 1-17, 20, 22). In regard to defendants’ argument that damages for this cause of action must be pled with particularity, plaintiffs assert that, because they were accused of a sexual crime, this is a case of per se defamation in which damages are presumed (id. ¶ 30).
Plaintiffs also contend that they properly pled their third cause of action for intentional infliction of emotional distress and conspiracy. According to plaintiffs, in bringing the federal lawsuit, the Premo defendants falsely accused plaintiffs of a serious crime for which imprisonment could occur, and such serious charges are sufficient to maintain a claim of intentional infliction of emotional distress (id. ¶¶ 34-36). As for conspiracy, although not an independent tort, plaintiffs argue that their allegations are sufficient to demonstrate a connection between the actions of the defendants and their alleged tortious conduct (Finn Opp Memo ¶ 37).
They deny that sanctions are appropriate, since this action was brought in good faith and its purpose was not to harass or maliciously injure defendants (id. ¶¶ 44-45).
Plaintiffs have not made any arguments against the Dorrough defendants in their post-stipulation submissions, and their earlier arguments relied almost entirely on the contention — now withdrawn — that these defendants were in default and their defenses were therefore waived (see generally Affirmation in Further Support of Default Judgment and in Opposition to Untimely Motion to Dismiss, dated Jan 19, 2021). The only substantive arguments plaintiffs make against the Dorrough defendants’ motion in that earlier submission are: the tortious interference and unfair competition causes of action are subject to a three-year limitations period and thus are timely; the limitations period was tolled by the Governor's Executive Orders; and there is no legal authority for what plaintiffs describe as the Dorrough defendants’ positions, that "a party may freely distribute a knowingly false news report without any recourse" (id. ¶¶ 23-24 & n 1).
The Premo defendants have provided a reply affirmation from counsel (Affirmation and Memorandum of Kevin A. Luibrand, Esq., dated March 25, 2021 ["Premo Reply"]), in which they argue that Premo and his firm are afforded absolute immunity from defamatory liability for statements made during the course of the federal litigation, as the statements alleged to be defamatory were pertinent and relevant to that litigation, given that the legal claims brought by LF against O'Hearn and Barber were for sexual harassment, discrimination, hostile work environment and retaliation (Premo Reply ¶¶ 22-29).
With leave of the Court, Turnell and the Dorrough defendants submitted supplemental affirmations of counsel in support of their motions to dismiss (see generally Engster Aff; Supplemental Affirmation of Frank M. Putorti, Jr., Esq., dated June 21, 2021 ["Putorti Supp Aff"]). In both, defendants assert that O'Hearn has herself republished the alleged defamatory statements on social media, thus nullifying any defamation claim that plaintiffs may have had against defendants for distributing those statements (Engster Supp Aff ¶¶ 3-14; Putorti Supp Aff ¶¶ 3-17). Further, they allege that plaintiffs have failed to plead the time, place, manner and recipient of the statements at issue (Putorti Supp Aff ¶ 18). In particular, Turnell notes that plaintiffs do not identify the recipient of either the email she allegedly sent on July 6, 2018 admitting disclosure of O'Hearn’s confidential documents to Premo and on July 22, 2019 accusing plaintiffs of running "sex rings," and thus they have failed to satisfy the special pleadings requirements in asserting a defamation cause of action under CPLR 3016(a) (Engster Supp Aff ¶ 15; Putorti Supp Aff ¶ 18). In addition, Turnell maintains that to the extent plaintiffs contend that she admitted to providing alleged confidential medical records to the Premo defendants, such activity does not support a claim for defamation, and nowhere in the Federal Complaint or EEOC filings is there any indication that the Premo defendants relied on any medical records concerning O'Hearn’s mental status or the 2019 statements that Turnell allegedly placed in e-mails (Engster Supp Aff ¶¶ 16, 20; Putorti Supp Aff ¶ 32). Indeed, the Federal Complaint was filed on June 3, 2019 before the e-mails at issue (Engster Supp Aff ¶ 21; Putorti Supp Aff ¶¶ 33-34). Through counsel, Turnell also denies making any statements to a Hilton hotel ethics hotline concerning plaintiffs, and asserts that any statements that someone may have made to the ethics hotline would have been anonymous and could not be attributed to her (Engster Supp Aff ¶¶ 22-24).
Turnell refers to an e-mail made on July 9, 2018, but the paragraph in the complaint to which she cites identifies July 6 as the date of the e-mail (see Engster Supp Aff ¶ 15, citing Complaint ¶ 60).
In a reply to these supplemental submissions, plaintiffs contend that the argument that they waived their defamation claims by republishing the allegedly defamatory statements applies only to O'Hearn, as there is no evidence of any republication by Barber (Affirmation in Further Opposition to Defendants’ Motion to Dismiss of Ryan M. Finn, Esq., dated June 21, 2021 ["Further Opp Aff"] ¶¶ 5-6). Further, plaintiffs assert that defendants’ initial publication of the alleged defamatory statements bars any such defense (id. ¶¶ 7-10). Plaintiffs’ counsel also maintains that they are in possession of evidence to link Turnell's IP address to the defamatory statements submitted to the Hilton ethics hotline, and that since their allegations in this regard must in any event be taken as true for purposes of the present motion, there is no basis for dismissal (id. ¶ 13).
DISCUSSION
Dorrough Defendants
Plaintiffs have largely left the Dorrough defendants’ cross-motion to dismiss unaddressed in their opposition papers, except as noted above (see supra p 6). Moreover, it is clear on the face of the complaint that no proper theory of liability is set forth against these defendants.
Any defamation claims that accrued prior to March 2019 are clearly time-barred. Such causes of action are subject to a one-year statute of limitations (see CPLR 215[3] ; Rutzinger v Lewis , 302 AD2d 653, 654-655 [3d Dept 2003] ), and no executive order staying the limitations period was issued between that accrual and March 2020 (see Exec Order 202.8 [March 20, 2020]). As noted, plaintiffs essentially acknowledge as much (see Finn Opp Memo ¶ 9 [acknowledging claim based on statements in June 2018 would be time-barred]).
But even if Dorrough's alleged defamatory statements dating from 2018 were not time barred, they must still be dismissed for failure to state a cause of action for defamation. As a rule, "a cause of action predicated on alleged defamatory statements is subject to dismissal if the statements are insufficiently pleaded, constitute nonactionable opinion, or are subject to a qualified privilege defense" ( Gottlieb v Wyne , 159 AD3d 799, 800 [2d Dept 2018] ). The alleged statements made by Dorrough to Barber's lender Rick Giffin in September 2018 (Complaint ¶¶ 41-43) constitute, at most, nonactionable opinion — and do not assert any factual statements regarding plaintiffs at all (see e.g. Complaint ¶ 42 [assertion by Dorrough that LF is "very convincing" but he has "no clue" whether her allegations are true]). Moreover, plaintiffs only provided selected quotations rather than the entire "documentary evidence" referenced, thus failing to satisfy the pleading requirements under CPLR 3016[a] (see Fusco v Fusco , 36 AD3d 589, 591 [2d Dept 2007] [absence of letter containing alleged defamatory statement warranted dismissal of defamation cause of action for failure to comply with CPLR 3016(a) ]; Mass Construction Inc. v George M. Bunk, P.E., P.C. , 68 AD3d 1725, 1725 [4th Dept 2009] [under CPLR 3016(a), "failing to include the entire statement or publication requires dismissal of the [defamation] cause of action"]).
According to plaintiff's complaint, on September 28, 2018 Dorrough wrote to Barber's lender Rick Griffin the following: [1] "the alleged sexual assault suit is coming up soon. This things a mess. You should talk to that young girl's lawyer it's gonna be a big lawsuit and a lot of bad press. Brian Premo he's a bull dog lawyer and he's going for the jugular on the sexual assault case" (¶ 41); and [2] "Yea this girl [LF] says [B]ill and Amanda drugged and raped her in April this happened when I was still friends with him I don't know if its true but she's very convincing ... I'm not saying [B]ill did it I have no clue" (Complaint ¶ 42). The source of these selected statements appears to be a text string, but that is not entirely clear from the allegations of the complaint.
The additional statements attributed to Dorrough were made during an October 25, 2018 police interview concerning LF's sexual assault allegations, to the effect that (1) Barber admitted to him that he slept with LF after getting her "all fucked up"; (2) Barber had slipped "Molly" in his drink when they were in Las Vegas; and (3) Ms. O'Hearn gave him a Xanax "and [he] woke up to a blow job," with plaintiffs’ watching (Complaint ¶¶ 44-47) .
The statements in the complaint alleged to have been made by Dorrough to the police are as follows: [1] Barber admitted that he "got this chick all fucked up and fucked her in [his] truck ... he definitely said he slept with her ... Amanda gave [Dorrough] a Xanax and [he] woke up to a blow job. . [and claims he is] a rape victim" (¶ 45); and [2] "Once someone says you're a rapist, in the court of public opinion, you're guilty. Don't know how you defend yourself against that" (¶ 46).
Although these statements were ostensibly taken from the police file obtained by plaintiffs (see Complaint ¶ 45), and the pleading provides pieces of quotations to some document, the full statement is not given and it is again impossible to divine the nature of the allegations so as to satisfy CPLR 3016(a) (see Fusco , 36 AD3d at 591 ; Mass Construction Inc. , 68 AD3d at 1725 ). Moreover, since these statements were made during a police interview concerning LF's sexual assault allegations (Complaint ¶¶ 44-47), they cannot be the subject of a defamation suit as they are protected under the qualified privilege doctrine, which "shields individuals who ... act in the discharge of some public or private duty, legal or moral, or in the conduct of [his or her] own affairs, in a matter where [his or her] interest is concerned" ( Sagaille v Carrega , 194 AD3d 92, 95-96 [1st Dept 2021] [internal quotation omitted] [sexual assault victim's complaint to police protected from defamation suit by qualified privilege doctrine in the absence of factual allegations to demonstrate victim made statements solely out of malice]; see also Present v Avon Products, Inc. , 253 AD2d 183, 187-188 [1st Dept 1999], lv dismissed 93 NY2d 1032 [1999] [qualified privilege "extends to reports to the police or the District Attorney's Office about another's suspected crimes"]). While plaintiffs assert that Dorrough made his statements to the police with an intent to financially injure Barber to his benefit, that assertion is "lacking in factual basis, speculative and [ ] insufficient to overcome the qualified privilege" ( Sagaille v Carrega , 194 AD3d 92, 96 [1st Dept 2021] [allegations that defendant lied to benefit her career by creating a false sex crimes story was lacking in factual basis and too speculative to overcome qualified privilege]). Indeed, although they claim that the Dorrough defendants sought to "use the rape investigation as leverage" in certain unspecified litigation they had with plaintiffs (Complaint ¶ 46), it is unclear how this was done since — as plaintiffs admit — the statements were not disclosed to them at the time, and plaintiffs learned of them when they obtained the police file within six months of bringing suit (see id. ¶ 46).
The final alleged defamatory act that occurred in 2018, Dorrough's electronic forwarding of a "link" to LF's Facebook post in which she accuses plaintiffs of sexual assault (Complaint ¶¶ 48-50, Ex D), is also not actionable. Although LF provides the initial posting in this instance, (Complaint, Ex D), and for pleading purposes has sufficiently alleged that LF's claim of being sexually assaulted to be defamatory, the allegation that Dorrough sent a hyperlink to such Facebook post does not constitute a claim of republication of the Facebook post, and therefore is not independently actionable (see Biro v Conde Nast , 171 AD3d 463, 464 [1st Dept 2019] [electronic sharing of a defamatory article via a hyperlink to the article, where there is no allegation that the email containing the hyperlink contained any defamatory statements about plaintiff, was not actionable as a republication of the initial defamatory content]). While the complaint alleges that Dorrough made various comments about the post, none of them relate to its truth, or are otherwise defamatory.
Specifically the complaint alleges that Dorrough emailed the link to Rick Griffin (see supra n 5) with the statement: "Christmas came early. All over social media." When Griffin asked, "Does he think you got her to say that?" Dorrough responded: "Who cares what he thinks. I don't know if he knows this is coming out in real time. I just got 59 texts about it." (Complaint ¶ 49). None of these statements make any factual assertions, much less proclaim the truth of anything in the Facebook post.
In short, all of the allegations concerning the 2018 statements are both time-barred and without merit.
Unlike plaintiffs’ 2018 allegations, their allegations concerning Dorrough's 2019 actions do not fall outside the statute of limitations period given the tolling of the limitations period between March 20 and November 3, 2020 (see Brash v Richards , 195 AD3d 582, 583-585 [2d Dept 2021] ). But none of these allegations support a facially valid claim of defamation either.
In their complaint plaintiffs allege that Zach Dorrough disseminated a June 6, 2019 Albany Times Union news article that detailed the Federal Complaint filed on June 3, 2019, concerning the alleged sexual assault (Complaint ¶ 63, Ex F [copy of June 6, 2019 news article]). It appears that plaintiffs believe the news article is defamatory and the sharing of such article to be equally actionable. However, under section 74 of the Civil Rights Law, "a civil action cannot be maintained against any person, firm, or corporation, for the publication of a fair and true report of any judicial proceeding ..." (see Alf v Buffalo News, Inc. , 21 NY3d 988, 989 [2013] [noting that news agencies are entitled to the defense of absolute privilege under Civil Rights Law § 74 ]). Under the same principle, a newspaper's account of federal filings "must be accorded some degree of liberality" and thus "[w]hen determining whether an article constituted a ‘fair and true’ report, the language used therein should not be dissected and analyzed with a lexicographer's precision" (id. ).
Here, plaintiffs do not contend that the news article concerning LF's filing of a complaint in federal court contains any inaccuracy regarding the judicial filing; rather, they allege that the article repeated and "publicized" the claims which were, in fact, contained in the federal complaint. Thus, as a matter of law, the article cannot support a civil action for defamation (see Alf v Buffalo News, Inc. 21 NY3d at 990 [where news agency provides substantially accurate reporting of public court filings, such reporting is entitled to immunity under Civil Rights Law § 74 ]; see also Bouchard v Daily Gazette Co. , 136 AD3d 1233, 1234 [3d Dept 2016] [news article was fair and true representation of Department of Justice press release, and thus protected under § 74 ]). It naturally follows that any dissemination of that article is also not actionable.
The only other post-2018 allegation against the Dorrough defendants is that Dorrough himself made "other statements regarding the alleged sexual assault in a manner that led others to believe that plaintiffs were guilty of the charge" (Complaint ¶ 63). Such an allegation, however, fails to satisfy the special pleading requirements applicable to defamation claims set forth in CPLR 3016(a), as plaintiffs "did not set forth the actual words complained of, and they also failed to specify the particular persons to whom [Dorrough] allegedly published the alleged defamatory statements" ( Golia v Viera , 162 AD3d 865, 869 [2d Dept 2018] ). As such, the allegation fails to establish a defamation cause of action.
Plaintiffs’ causes of action for intentional infliction of emotional distress and unfair competition are each based on a claimed pattern of defamatory conduct (Complaint ¶¶ 92-104). For the same reasons that the statements cited in the claim are not defamatory, they also do not constitute the sort of "extreme and outrageous conduct" needed to sustain a claim for intentional infliction of emotional distress" (see generally Howell v New York Post Co., Inc. , 81 NY2d 115, 121-122 [1993] ["extreme and outrageous conduct ... where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community" is a necessary element of the tort of intentional infliction of emotional distress]). And since the only "wrongful" conduct pointed to by the Dorrough defendants concerns their allegedly false statements, the claim for unfair competition must fail as well (see McKinnon Doxsee Agency, Inc. v Gallina , 187 AD3d 733, 737 [2d Dept 2020] ; see also Complaint ¶ 101 [alleging as basis of unfair competition claim that: "defendant Dorrough took an interest in LF's false allegations, disseminated the false allegations, and used the false claims as leverage to better his financial and litigation position in unrelated litigation and business dealings with plaintiff Barber"]).
To the extent some of the claims against the Dorrough defendants were dismissed above as both untimely and failing to meet the specific pleading requirements specifically applicable to clams of libel, they still cannot sustain a claim of unfair competition. Such a claim requires a showing that defendants "wrongfully diverted [plaintiffs’] business to itself" (McKinnnon Doxsee Agency, Inc. , 187 AD3d at 737 ). While plaintiffs allege that the Dorrough defendants sought to use the statements at issue for "leverage" in litigation, they never explain how this was accomplished, or in what way they facilitated the "wrongful diver[sion] of his business.
As for plaintiffs’ claim of conspiracy, such a cause of action "is not recognized as an independent tort in this State" ( Errant Gene Therapeutics, LLC v Sloan-Kettering Institute for Cancer , 174 AD3d 473, 474 [1st Dept 2019] ). Rather, "allegations of conspiracy serve to enable a plaintiff to connect defendant with the acts of his co-conspirators where without it he could not be implicated" ( id. at 475 ). Since there is no actionable tort claim on the part of the alleged conspiring defendants in this case, any claim for conspiracy fails as a matter of law (see Williams v Williams , 149 AD3d 1145, 1146 [2d Dept 2017], lv denied 30 NY3d 913 [2018] [court properly dismissed conspiracy claim where all other tort causes of action were dismissed]).
Defendant Turnell
Given the disqualifying effect of the one-year statute of limitations under CPLR 215(3) on events arising in 2018 , the only timely allegation against Turnell involves two statements alleged to have been made in 2019 (Complaint ¶¶ 60-62, 64). The first was an assertion she purportedly made in a July 22, 2019 e-mail that someone was "[r]unning sex rings and having people raped" (id. ¶ 62). Whether these "words are defamatory presents a legal question to be resolved by the court in the first instance" ( Aronson v Wiersma , 65 NY2d 592, 593 [1985] ). Moreover, such "words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained and artificial construction" ( id. at 594 ; see also Alf v Buffalo News, Inc. , 21 NY3d at 990 ["When examining a claim of libel, [the court] do[es] not view statements in isolation"; instead, the publication "must be considered in its entirety when evaluating the defamatory effect of the words"]; Silsdorf v Levine , 59 NY2d 8, 13 [1983] ["entire publication, as well as the circumstances of its issuance, must be considered in terms of its effect upon the ordinary reader"]).
The alleged defamatory statements made by Turnell in 2018 (Complaint ¶¶ 28-30), if they were not time barred, would fail to state a cause of action for defamation. Although plaintiffs describe slanderous statements that Turnell allegedly made when interviewed by Attorney Premo's private investigator, these statements are neither quoted in full nor otherwise provided to the Court to be examined in context. Thus, the pleading requirements of CPLR 3016(a) are not met (see Fusco , 36 AD3d at 591 ; Mass Construction Inc., 68 AD3d at 1725 ). Moreover, as a witness making statements to an attorney's investigator during the course of litigation, such statements are protected from a defamation claim by the litigation privilege (see infra pp. 14-17).
The allegations in the complaint regarding this statement are in pertinent part: "On July 22, 2019 defendant Turnell falsely states that defendants were ‘Running sex rings and having people raped.’ This written false accusation was contained in an email ..." (Complaint ¶ 62).
Plaintiffs have not submitted the July 22, 2019 e-mail to permit review of the entire publication, and I cannot view the selected statement in isolation to determine if the e-mail is in fact defamatory. As a result, I am unable to assess whether the isolated statement cited in the complaint has any defamatory effect, the particularity requirements of CPLR 3016(a) have not been met, and any defamation or libel cause of action premised on the July 22 e-mail must be dismissed (see Fusco , 36 AD3d at 591 [2d Dept 2007] ; Mass Construction Inc., 68 AD3d at 1725 ). Additionally, by not including the e-mail, plaintiffs have "fail[ed] to state the particular person or persons to whom the alleged defamatory statements were made, [which also] warrants dismissal" ( Fusco , 36 AD3d at 590 ; see also Dobies v Brefka , 273 AD2d 776, 777 [3d Dept 2000], lv dismissed 95 NY2d 931 [2000] [dismissing defamatory cause of action for failure to comply with CPLR 3016(a) by identifying person who received defamatory publication]).
The defamation cause of action premised on a complaint Turnell is alleged to have submitted through the Hilton website's ethics hotline on September 27, 2019 is similarly deficient. Plaintiffs’ failure to provide the entire complaint for judicial review, again, prevents me from reviewing the single cited statement in the context of the publication as a whole to determine if it has any defamatory effect (see Aronson , 65 NY2d at 594 ; Alf v Buffalo News, Inc. , 21 NY3d at 990 ). Thus, any defamatory cause of action premised on such complaint must also be dismissed for failing to plead with particularity as required under CPLR 3016(a) (see Fusco , 36 AD3d at 591 ).
Plaintiffs describe Turnell's Hilton "complaint" as "claiming that plaintiffs O'Hearn and Barber were involved in the LF sexual assault, as well as other sexual crimes" (Complaint ¶ 64). But the isolated statement quoted from the complaint says only that plaintiffs "assaulted many people", and the sole reference to sexual crimes is this mysterious statement, whose meaning is entirely opaque: "all ignore payments to vendors and employees with sexual assault" (id. ). To the extent it is necessary for me to reference extrinsic facts concerning LF and other sexual crimes not included in the Hilton complaint to assess the quoted language's defamatory effect, then this statement cannot establish defamation per se (see Arronson , 65 NY2d at 594-595 ["statements cannot be slanderous per se if reference to extrinsic facts is necessary to give them defamatory import"]).
In addition, the conclusory allegation cited to the Hilton Complaint and attributed to Turnell that Barber and O'Hearn "assaulted many ppl" (Complaint ¶ 64), is not defamatory, even putting aside the lack of context. To be actionable, terms such as "assaulted" that are susceptible to a wide range of meanings "must be viewed in their context to determine whether a reasonable person would view them as conveying any facts about the plaintiff, because only statements alleging facts can properly be the subject of a defamation action" ( Springer v Almontaser , 75 AD3d 539, 540-541 [2d Dept 2010] [defendants’ use of terms "stalked" and "harassed" were not actionable, since those terms did not have a "precise, readily understood meaning"]). The act of "distinguishing between actionable fact and non-actionable opinion is a question of law for the court" ( id. at 541 ). Factors for consideration include "whether the specific language in issue has a precise meaning which is readily understood ... and whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal ... readers or listeners what is being read or heard is likely to be opinion, not fact" (id. [internal quotation and citation omitted]).
Here, the allegation attributed to Turnell does not reveal any facts as to who, when or how many "ppl" may have been "assaulted". Indeed, there is no precise, readily understood meaning of what Turnell may have meant by the use of the term, and it appears on its face to be a hyperbolic phrase, and thus not defamatory (see id. ).
As with the Dorrough defendants, plaintiffs’ cause of action against Turnell for intentional infliction of emotional distress cannot be sustained for the same reasons she has failed to state a defamation claim, and in the absence of any viable tort cause of action, the conspiracy claim against Turnell must fall as well. Thus all claims must be dismissed against this defendant.
Premo Defendants
Once the time-barred claims against the Premo defendants are excised, I am left with those causes of action that arise out of the filing of the Federal Complaint on June 3, 2019 and the allegations contained therein, as the only timely defamation causes of action against the Premo defendants (Complaint ¶¶ 53-58). Thus, plaintiffs’ defamation claim against attorney Premo and his law firm is based entirely on a theory that these defendants engaged in defamation and other torts when they represented LF in preparing for and bringing her EEOC charge and law suit asserting claims arising out of alleged sexual assault and discrimination by her then employer, O'Hearn, and O'Hearn’s client, Barber (Finn Opp Memo ¶¶ 1-17, 20).
All of the claims against the Premo defendants relate to the litigation, but the 2018 allegations concern steps taken prior to the law suit, such as investigation, the sending of a demand letter and the filing of an EEOC charge (see Complaint ¶¶ 32-35). Besides being time-barred, the only statements attributed to the Premo defendants from this period relate to the EEOC charge, and thus are covered by the litigation privilege as well (see Silver v Mohasco Corp. , 94 AD2d 820 [2d Dept 1983], affd 62 NY2d 741 [1984] [proceeding before State Division of Human Rights were "quasi judicial," and thus covered by quasi-privilege for litigation]).
However, "statements made by counsel and parties in the course of judicial proceedings are privileged as long as such statements are material and pertinent to the questions involved, and, as such, they cannot be the basis of a defamation cause of action," unless they are "so needlessly defamatory as to warrant the inference of express malice and a motivation solely to defame" ( Miazga v Assaf , 136 AD3d 1131, 1132 [3d Dept 2016], lv dismissed 27 NY3d 1078 [2016] [internal quotation marks and citations omitted]; see also Matirano v Frost , 25 NY2d 505, 508 [1969] [same]). Statements are not "material or pertinent" when they bear no relevance at all to the underlying litigation (see e.g. Dachowitz v Kranis , 61 AD2d 783, 783-784 [2d Dept 1978] [1978] [attorney affidavit submitted in a legal fee dispute alleging plaintiff had been convicted in federal and state Courts was a gratuitous and spurious statement with no possible pertinence to attorney fee dispute litigation; privilege did not apply]; Gugliotta v Wilson , 168 AD3d 817, 818 [2d Dept 2019] [during village historic preservation board hearing concerning the addition of an exterior staircase on defendant's property, defendant made allegation implying that plaintiff was sexually attracted to defendant's 16-year-old daughter, which was found not pertinent to the hearing]).
In reviewing alleged defamatory statements to determine if they are pertinent to the judicial proceeding, courts should construe them liberally (see Baratta v Hubbard , 136 AD2d 467, 468 [1st Dept 1988] [counsel's allegations of misconduct, although intemperate, was pertinent to the federal litigation and thus privileged]). The privilege is so broad that it "embraces anything that may possibly be pertinent or which has enough appearance of connection with the case so that a reasonable [person] might think it relevant" (see id. ). Any doubt that might arise concerning any such statement " ‘should be resolved in favor of its relevance or pertinency, and for the purposes of relevancy the court will assume the alleged slanderous charges to be true, however false they may have been in fact’ " (id. , quoting Seltzer v Fields , 20 AD2d 60, 62-63 [1st Dept 1963], affd 14 NY2d 624 [1964] ). For the judicial privilege to attach, "[i]t is enough if the offending statement may possibly bear on the issues in litigation" and "strict legal materiality or relevancy is not required to confer the privilege" ( id. at 468 [internal quotation omitted]). Even where the statement was "made with malice or bad faith [it] is protected by the absolute privilege as long as the statement may, in some way, be considered pertinent to the litigation" ( Rabiea v Stein , 69 AD3d 700, 700 [2d Dept 2010] ). This absolute privilege extends to "statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court, so long as the statements may be considered in some way ‘pertinent’ to the issue in the proceeding" ( El Jamal v Weil , 116 AD3d 732, 234 [2d Dept 2014] ).
Nothing in the complaint indicates that the allegations of sexual assault were not pertinent to the litigation. To the contrary, they were said to be at its very basis (see Complaint ¶ 53 & Ex E [complaint "alleges LF was drugged, served copious amount of alcohol, and, then forced to engage in sexual activity without consent"]).
Some decisions also carve out an exception to the litigation privilege for "sham" litigation whose sole purpose was to defame (see Flomenhaft v Finkelstein , 127 AD3d 634, 637-638 [1st Dept 2015] ). This will be the case, for example, where the plaintiff took no steps to prosecute the suit after its filing (compare Halperin v Salvan, 117 AD2d 544, 544 [1st Dept 1986] [applying exception to putative class action where no discovery took place or motion and no class certification motion was filed] with Manhattan Sports Restaurants of America, Inc. v Lieu , 146 AD3d 727, 727 [1st Dept 2017] [sham exception does not apply where plaintiff "diligently prosecuted" its claims]).
Plaintiff makes no allegation that the LF's federal suit was brought for the sole purpose of defaming the defendants. Rather, it asserts that the Premo defendants "pressed" the case in the hope of extracting a settlement, although knowing the claim was false (Complaint ¶¶ 61, 107). In essence, it alleges nothing more than that the statements made in the litigation filings were false and defamatory — but that is the precise kind of claim that is barred by the litigation privilege.
Even if I could somehow reach this claim, plaintiffs's entire basis for asserting that LF's attorneys may be held liable for advancing the allegations of their client in a law suit, was that they should have known the allegations were false since the police did not find sufficient evidence with which to charge O'Hearn and Barber with a crime (id. ¶¶ 18-25), and the only conclusion the Premo defendants could have properly drawn from this outcome was that LF was lying about O'Hearn and Barber having sexual contact with her without her consent in the back of Barber's vehicle on April 5, 2018. But the mere fact that law enforcement officials concluded that they lacked sufficient evidence to bring and prove criminal charges beyond a reasonable doubt does not demonstrate that plaintiffs’ attorney knew or should have known that no crime took place. That is particularly so here, given that counsel had before them not only the police investigation, but also the agency findings of cause set forth in LF's EEOC charge (Complaint ¶ 34):
"[T]he Commission has determined that there is reasonable cause to believe that [the Salon] discriminated against [LF] on the basis of sex by subjecting [LF] to a hostile work environment including intimidation, threats and harassment. [The Salon] also retaliated against [LF] who engaged in a protected activity resulting in [the Salon] creating a chilling effect which discourages others from coming forward in support of discrimination claims and fearful to exercise their right under the law as a harmed party and/or victim" (Premo Aff, Ex A).
In sum, the pleadings do not set forth allegations indicating that LF's federal action for sexual harassment and retaliation was a sham, or that the allegedly defamatory statements were irrelevant to the litigation. Thus, the Premo defendants are entitled to an absolute privilege against a defamation claim (see Manhattan Sports Restaurants of America , LLC , 146 AD3d at 727 ).
The first sentence in the Federal Complaint states that "[t]his action arises from plaintiff's drug and/or alcohol induced incapacitation and then sexual abuse and rape by [O'Hearn and Barber]" (Complaint, Ex E).
Plaintiffs’ cause of action for intentional infliction of emotional distress also cannot be premised on the mere fact that they were on the receiving end of a lawsuit (see Hyman v Schwartz , 137 AD3d 1343, 1344 [3d Dept 2016] [statements "made within the context of a pending lawsuit [ ] do not provide a basis to support an action against [defendant] for intentional infliction of emotional distress"]; see also Lewittes v Blume , 18 AD3d 261, 261 [1st Dept 2005] [allegations of sexual abuse insufficient to support cause of action for intentional infliction of emotional distress as such allegations were not considered sufficiently extreme our outrageous]). And as set forth above, none of the other causes of action survive the dismissal of the defamation claim.
In light of the foregoing, plaintiffs’ causes of action against the Premo defendants fail to state a claim.
The complaint must therefore be dismissed in all respects.
Motion for Sanctions Against Plaintiffs and Attorney Ryan M. Finn
All of the defendants seek costs, attorneys’ fees and any other sanction the Court deems appropriate against plaintiffs and their counsel on the ground that the complaint filed by Attorney Ryan Finn on behalf of his clients is patently frivolous under CPLR § 8303-a and 22 NYCRR § 130-1.1.
As previously noted, although such relief was not sought in Turnell's initial motion, it is set forth in her supplemental submission, and is properly before me (see supra n 3).
In support of the sanctions motion, Premo has submitted an affidavit in which he explains the circumstances that led up to the federal complaint, and alleges that Barber and O'Hearn retaliated for that suit by commencing this action (Premo Aff ¶ 5).
In a letter dated January 15, 2021, Premo advised Finn, that the complaint in this action is frivolous and provided Finn and his clients an opportunity to discontinue the action to avoid a motion for dismissal and sanctions, including attorneys’ fees and costs (id. , Ex A). Attached to and in support of Premo's letter are the first two pages of a December 21, 2018 letter from plaintiffs’ then counsel, Jones Hacker Murphy LLP responding to an EEOC inquiry, in which counsel represents that O'Hearn and Barber admit that on April 5, 2018, following a lunch date, they "all got into the backseat of [Barber's] car and engaged in some limited physical contact with each other" (id. ).
Counsel for the Dorrough defendants provided Attorney Finn and plaintiffs with a similar warning letter, dated October 13, 2020, advising that if the action was not voluntarily withdrawn, the Dorrough defendants would seek attorneys’ fees, costs and sanctions (Putorti Aff, Ex A).
Also attached to Premo's letter is an EEOC Determination letter dated September 30, 2019, in which the EEOC acknowledged that O'Hearn and Barber denied LF's allegations of sexual assault and contended that such sexual activity was consensual (id. ). The EEOC further found, however, that the cease and desist letters plaintiffs’ counsel sent to LF in the runup to the law suit were "alarming," in that these documents "contained language that was astonishing in that it called out [LF's] allegations of sexual assault" (id. ). The EEOC Determination went on to state:
"[I]t was alarming to discover that both the Cease and Desist letters and the Summons [filed in New York State Supreme Court] contained language that was astonishing in that it called out Charging Party's allegations of sexual assault. Specifically, [the Salon] states that [LF] maliciously and intentionally circulated a false narrative about a sexual assault to ruin the reputation of [the Salon]. [LF] claimed to be sexually assaulted in an attempt to slander [the Salon's] business entities. The Cease and Desist letters state in part: ‘intentional and unjustifiable conspiracy to injure my client's business relationships must stop ... CEASE AND DESIST all defamatory statements in regard to my clients immediately. Failure to do so will result in litigation against [LF].’ The Summons stated in part that [LF] ‘maliciously and intentionally attempted to ruin the reputation and credibility of plaintiffs by circulating a false narrative about a sexual assault that never happened.’ The EEO law prohibits punishing employees from asserting their rights to be free from employment discrimination including sexual harassment. Asserting these EEO rights is called ‘protected activity’ and includes threatening to make, or actually making reports to authorities regarding the protected activity. The Commission finds that this statement sufficiently sends a chilling effect to others and it may discourage others from participating in the EEO process by either filing a complaint or sharing their stories with others who may be victims and/or witness to discrimination.
Based on the above, [the Salon's] asserted defense does not withstand scrutiny and the Commission has determined that there is reasonable cause to believe that [the Salon] discriminated against [LF] on the basis of sex by subjecting [LF] to a hostile work environment including intimidation, threats and harassment. [The Salon] also retaliated against [LF] who engaged in a protected activity resulting in [the Salon] creating a chilling effect which discourages others from coming forward in support of discrimination claims and fearful to exercise their right under the law as a harmed party and/or victim" (Premo Aff, Ex A).
The lawsuit referenced by the EEOC is not this one, but a separate action filed in New York State Supreme Court by several plaintiffs, including O'Hearn and Barber personally, captioned Jaycenorm Co., Inc., d/b/a Jean Paul Spa and Salon, Amanda O'Hearn Dolan, William Barber, Capital Signing and Construction , LLC v France , Albany County Supreme Court, Index No. 907398-18. I issued a decision and order on March 2, 2021 ("March 2 D & O") dismissing the action, which can be found on the NYSCEF docket as document number 35.
A lawsuit "commenced and continued without any reasonable basis in law or fact, and without any good-faith argument for an extension, modification or reversal of existing law, is frivolous" ( Grasso v Matthew , 164 AD2d 476, 480 [3d Dept 1991], lv denied 78 NY2d 855, [1991] ). Under CPLR 8303-a, an action in which the court finds, at any time during the proceedings, to be frivolous, requires the court to award the successful party costs and reasonable attorneys’ fees not exceeding ten thousand dollars, which can be assessed either against the party who brought the action, or such party's attorney, or both (see CPLR 8303-a [a]-[b] ). To grant such an award, a court must find that: (1) "the action ... was commenced, used or continued in bad faith, solely to delay or prolong the resolution fo the litigation or to harass or maliciously injure another", or (2) "the action ... was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal or existing law" (id. at [c][i][ii]). However, "[i]f the action ... was promptly discontinued when the party or the attorney learned or should have learned that the action ... lacked such a reasonable basis, the court may find that the party or the attorney did not act in bad faith" (id. ).
This provision applies to actions "to recover damages for personal injury, injury to property or wrongful death, or an action brought by the individual who committed a crime against the victim of the crime" (CPLR 8303-a ). It has been construed to cover defamation actions (see Nyitray v New York Ath. Club , 274 AD2d 326 [1st Dept 2000] ; Mitchell v Herald Co. , 137 AD2d 213 [4th Dept 1988], appeal dismissed 72 NY2d 952 [1988] ).
In addition to costs and attorneys’ fees, when an action is found to be frivolous, under Part 130 of the Rules of the Chief Administrator, sanctions may also be awarded (see 22 NYCRR § 130-1.1 [a]). This regulation defines "frivolous conduct" as conduct that "is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" ( 22 NYCRR § 130-1.1 [c][1]). Factors for a court to consider when determining whether conduct is frivolous include "(1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party" (id. at [c][3]).
Here, by any measure of the term "frivolous conduct", plaintiffs and their counsel have engaged in it with the commencing of this second defamation suit concerning LF's federal litigation — the first having been dismissed by my March 2 D & O (see supra n 16). Both the Premo defendants and the Dorrough defendants wrote to Attorney Finn and advised him of the frivolous nature of this action due to the absolute privilege afforded statements made during litigation and plaintiffs failure to assert any other cognizable claim. The EEOC also advised plaintiffs that bringing a federal discrimination suit is protected activity under Title VII.
Rather than withdraw the complaint, plaintiffs and Attorney Finn brought this suit, which included claims of libel and other torts that were based entirely on that very protected activity, i.e., the EEOC charge and federal suit. These claims have no merit due to the absolute privilege that is afforded to statements made during the course of litigation, regardless of their defamatory nature. Remarkably, they brought such claim against the attorneys for providing representation to a Title VII plaintiff, on the ground that they should have known the falsity of their client's allegations, and therefore refrained from providing her with representation in the case. In addition, many of the claims asserted against all the defendants are time-barred on their face, and plaintiffs have never cited any basis on which those claims causes of action could be found timely.
Nevertheless, plaintiffs forced the defendants to incur the expense of moving for dismissal of each of these causes of action. Yet when plaintiffs had to respond to such motions, they and their counsel conceded that much of the complaint was unsupportable — plaintiffs withdrew their False Light and sanctions claims and largely declined to defend the causes of action as asserted against the Dorrough defendants (see supra p 7). And plaintiffs essentially acknowledged the untimeliness of their claims from 2018 (Finn Opp Aff ¶ 20).
In bringing and prosecuting these causes of action, plaintiffs and their counsel ignored the governing case law (see Matirano , 25 NY2d at 508 ; Wienter v Weintraub , 22 NY2d at 331 ; Miazga v Assaf , 136 AD3d at 1132 ; Hyman v Schwartz , 137 AD3d at 1344 ). Moreover, as made clear in the EEOC determination, the bringing of a frivolous law suit which directly attacked the exercise of plaintiff's rights under Title VII had the potential to chill the exercise of such rights (Premo Aff, Ex A).
In sum, plaintiffs and their counsel have not filed a case in which they have asserted colorable but ultimately unpersuasive arguments, but one in which the lack of merit was clear from the law and brought to their attention, and they persisted in maintaining the action even though the large majority of their claims were clearly barred by the statute of limitations and the privilege for statements made in the course of litigation (see Grasso , 164 AD2d at 480 [sanctions imposed for libel action based on absolutely privileged statements made in course of judicial proceedings]). Therefore, I find that plaintiffs engaged in frivolous conduct (see Cattani v Marfuggi , 26 Misc 3d 1053 [Sup Ct NY County 2009], affd 74 AD3d 553 [1st Dept 2010] [plaintiff and counsel marshaled meritless claims even after being advised of the litigation immunity privilege, and therefore were sanctioned and directed to pay attorneys’ fees and costs]; compare Costanza v Seinfeld , 279 AD2d 255, 256 [1st Dept 2001] [reversing sanctions award where plaintiff had not acted in a "wrongful" manner in bringing his claims, even though they were ultimately subject to dismissal]). As a result, "sanction is mandatory, especially in the wake of frivolous defamation litigation" ( Nyitray , 274 AD2d at 327 [citations omitted]).
I may impose sanction on counsel, defendants or both. Given that the grounds on which the matter is primarily being dismissed — statute of limitations and the privileged nature of certain communications — are of a technical legal nature, I find it appropriate that counsel should bear the cost (see Forstman v Arluck , 149 Misc 2d 929, 939 [Sup Ct, Suffolk County 1991] [assessing costs to counsel where basis for finding of frivolousness were "of a somewhat technical nature," and neither defendant was "a legal expert charged with the knowledge of the elements of a prima facie medical malpractice action"]).
Thus, in accordance with CPLR 8303-a, I direct that the Premo defendants, the Dorrough defendants, and Ms. Turnell shall each recover an award of costs and attorneys’ fees from plaintiffs’ counsel, in an amount not to exceed $3,500 for each of these three defendant groupings (i.e. the maximum aggregate award for costs and fees that I will consider is $10,500). Such award shall be payable by counsel.
For purposes of the award of costs and attorneys’ fees, I am considering Attorney Premo and his law firm as one defendant, and the same consideration is being given to defendants Zach Dorrough and Dorrough Construction. Inc.
The statute caps costs and attorneys’ fees so that an award "to the successful party" will be "not exceeding ten thousand dollars" (CPLR 8303-a[a] ). This limit has been read to apply to each party receiving payment, not to the aggregate amount (see Pliatich v Town of New Baltimore , 188 AD3d 1386, 1387-1389 [3d Dept 2020] [each successful party found entitled to separate award for costs and attorneys’ fees of up to $10,000])
The award shall be subject to my review of defendants’ proof of costs and reasonable attorneys’ fees to be submitted by their respective counsel on or before October 19, 2021. Plaintiffs’ counsel may submit papers in opposition to the amount of fees and costs sought by November 3, 2021. Given that I have determined that costs and attorneys’ fees are warranted due to the frivolous nature of the complaint, I see no need to exercise my discretion under 22 NYCRR part 130 to award additional sanctions.
On the basis of the foregoing, it is hereby
ORDERED that defendants’ motions to dismiss are granted and the complaint is dismissed in its entirety; and it is further
ORDERED that defendants are entitled to an award of costs and attorneys’ fees in accordance with CPLR 8303-a against Attorney Finn, and their respective counsel shall submit proof of such, and Attorney Finn may submit any response thereto, in accordance with the schedule and limitations set forth above.
The original of this Decision & Order is being electronically filed with the County Clerk, with copies e-mailed to counsel. Counsel are not relieved from the applicable provisions of the CPLR respecting to service and filing of notice of entry.
Papers Considered:
1. NYSCEF, Case No. 906368-20, Document Nos. 1-69.