Opinion
2017–05363, 2017–07742 Index No. 608260/16
03-04-2020
YUK PING IFANTIDES, Appellant, v. Robert WISNIEWSKI, etc., et al., Respondents.
The Kaplan Law Office, New York, N.Y. (Charles Caranicas and Susan R. Kaplan of counsel), for appellant. Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Mark K. Anesh, Jordan A. Ehrlich, and Jamie Wozman of counsel), for respondent Robert Wisniewski. Romuald P. Magda, Brooklyn, NY, for respondent Janusz Krala.
The Kaplan Law Office, New York, N.Y. (Charles Caranicas and Susan R. Kaplan of counsel), for appellant.
Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Mark K. Anesh, Jordan A. Ehrlich, and Jamie Wozman of counsel), for respondent Robert Wisniewski.
Romuald P. Magda, Brooklyn, NY, for respondent Janusz Krala.
MARK C. DILLON, J.P., RUTH C. BALKIN, HECTOR D. LASALLE, BETSY BARROS, JJ.
DECISION & ORDER ORDERED that the orders are affirmed, with one bill of costs.
In May 2015, Janusz Krala commenced an action in the United States District Court for the Eastern District of New York (hereinafter the underlying federal action) against his former employer, Seven Hills Mgmt., Inc., and its owner, Christos Ifantides. Robert Wisniewski represented Krala in the underlying federal action. In October 2016, Christos Ifantides's wife, Yuk Ping Ifantides (hereinafter the plaintiff), commenced this action against Wisniewski and Krala (hereinafter together the defendants), asserting causes of action sounding in defamation per se and intentional infliction of emotional distress. The plaintiff alleged that, in the underlying federal action, the defendants defamed her and intentionally inflicted emotional distress upon her by referring to her as a "concubine" and a "mistress" during a deposition on May 24, 2016, which was never completed, and by repeating those words in a letter to the federal court dated May 26, 2016.
The defendants separately moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of them, contending that the plaintiff failed to state a cause of action to recover damages for either defamation or intentional infliction of emotional distress. The Supreme Court granted both motions, and the plaintiff appeals.
"In assessing the adequacy of a complaint under CPLR 3211(a)(7), the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff ‘the benefit of every possible favorable inference’ " ( J.P. Morgan Sec. Inc. v. Vigilant Ins. Co. , 21 N.Y.3d 324, 334, 970 N.Y.S.2d 733, 992 N.E.2d 1076, quoting AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co. , 5 N.Y.3d 582, 591, 808 N.Y.S.2d 573, 842 N.E.2d 471 ; see Gugliotta v. Wilson , 168 A.D.3d 817, 818–819, 92 N.Y.S.3d 309 ). "A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)" ( Sokol v. Leader , 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153 ; see CPLR 3211[c] ). "If the court considers evidentiary material, the criterion then becomes ‘whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one’ " ( Sokol v. Leader , 74 A.D.3d at 1181–1182, 904 N.Y.S.2d 153, quoting Guggenheimer v. Ginzburg , 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; see Gugliotta v. Wilson , 168 A.D.3d at 818–819, 92 N.Y.S.3d 309 ).
Under the circumstances of this case, the challenged statements were absolutely privileged as a matter of law and cannot be the basis for a defamation cause of action (see Weinstock v. Sanders , 144 A.D.3d 1019, 1021, 42 N.Y.S.3d 205 ; Rufeh v. Schwartz , 50 A.D.3d 1002, 858 N.Y.S.2d 194 ). Moreover, the challenged statements were not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency" ( Howell v. New York Post Co. , 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699 [internal quotation marks omitted]; see Segall v. Sanders , 129 A.D.3d 819, 821, 11 N.Y.S.3d 235 ; see also Leibowitz v. Bank Leumi Trust Co. of N.Y. , 152 A.D.2d 169, 548 N.Y.S.2d 513 ). Thus, the statements could not be a basis for an intentional infliction of emotional distress cause of action. Accordingly, we agree with the Supreme Court's determination to grant the defendants' separate motions pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of them for failure to state a cause of action.
DILLON, J.P., BALKIN, LASALLE and BARROS, JJ., concur.