Opinion
800171/2021
06-22-2021
Edward JACKSON, Plaintiff, v. Grace GANNON-JACKSON, Kathleen Gannon-Luparello, and Robert Luparello, Defendants.
For plaintiff: Jon F. Minear, Esq., 101 Slade Avenue, West Seneca, New York 14224 For defendants: Steven Hamlin, Esq., 1400 Liberty Building, Buffalo, New York 14202
For plaintiff: Jon F. Minear, Esq., 101 Slade Avenue, West Seneca, New York 14224
For defendants: Steven Hamlin, Esq., 1400 Liberty Building, Buffalo, New York 14202
Amy C. Martoche, J.
Plaintiff commenced this action seeking damages for defamation and intentional infliction of emotional distress based on allegations that defendants falsely accused him of violating an order of protection issued in the underlying divorce action. In lieu of answering, defendants move for an order dismissing the complaint pursuant to CPLR 302 (a) (2) and (a) (3), CPLR 215 (3), and four subdivisions of CPLR 3211. Defendants also seek sanctions, costs, and attorneys’ fees pursuant to 22 NYCRR 130-1.1.
For the reasons that follow, the part of the motion seeking dismissal of the complaint is granted. The part of the motion seeking attorneys’ fees, costs, and sanctions, however, is denied.
I.
A.
Inasmuch as this application seeks an order dismissing the complaint pursuant to, inter alia, CPLR 3211 (a) (7), the court is bound to " ‘accept[ ] the facts as alleged in the ... complaint as true’ " ( J.F. Capital Advisors, LLC v Lightstone Group, LLC , 25 NY3d 759, 762 [2015], quoting Leon v Martinez , 84 NY2d 83, 87 [1994] ). Plaintiff alleges that he and his wife, defendant Grace Gannon-Jackson, "are involved in a pending divorce action." In October 2019, Supreme Court, Erie County (Keane, J.), entered an order in that action that, in plaintiff's words, "prohibited all types of communication and/or contact between ... [p]laintiff and [the minor child of the parties], including ‘email, phone, text, or any other electronic means in addition to no contact at any public place where [that child] may be present." The relevant part of that order is appended to the complaint and, consistent with plaintiff's representation, it directs
"that on a temporary basis until there is further order of this court here shall be no contact between [plaintiff] and the [subject] child ... pending resolution of the custodial issue ... pending before [that] court and unless said contact is approved and agreed to by [the attorney for that child in that action]. [C]ontact[, that order further provides,] includes, any contact by email, phone, text or any other electronic means in addition to no contact at any public place where [the child] may be present."
Plaintiff characterizes that paper as a "No Contact Order" that he contends "is not an ‘order of protection as thoroughly defined in the DRL § 240.’ " Plaintiff also alleges that the subject order does not prevent him "from, for example, going to a public event, which will be attended by [the child], so long as he does not attempt to communicate or make contact with [the child] by any of the means set forth in [that paper]." Similarly, plaintiff maintains, that order does not prevent him "from spectating [the subject child's] sporting events, namely, a crew/working event, so long as he does not communicate/contact [the child]."
B.
Although she had reason to believe that the "No Contact Order" was not an " ‘order of protection’ as thoroughly defined in the DRL § 240," defendant Gannon-Jackson, in plaintiff's words, "falsely and maliciously stated to [defendant Kathleen Gannon-Luparello] that [plaintiff] is ‘violating the order of protection by attending [the child's] rowing events.’ " Implicit in that statement, plaintiff adds, is the allegation that he "committed a crime by ‘violating the order of protection by attending [those] rowing events.’ " That false statement, plaintiff continues, constitutes defamation per se and entitles him to an award of, among other things, compensatory damages, emotional distress damages, and punitive damages. Those allegations comprise the first cause of action in the complaint.
Three other causes of action for defamation emerge from the complaint. According to plaintiff, defendant Kathleen Gannon-Luparello—a resident of Connecticut at all times relevant to this matter—stated to "[d]efendant[ ] Robert Luparello[ ] that the [p]laintiff is ‘violating an order of protection.’ " Through that "false ... statement," plaintiff maintains, defendant Gannon-Luparello alleged that plaintiff had "committed a crime." Plaintiff further alleges that such statement constitutes defamation per se and entitles him to an award of, among other things, compensatory damages, emotional distress damages, and punitive damages. Those allegations comprise the second cause of action in the complaint.
A similar claim is levied against defendant Robert Luparello, whom plaintiff also characterizes as a resident of Connecticut at all times relevant to this matter and whom plaintiff claims falsely told a John Doe that plaintiff "is ‘violating an order of protection.’ " Through that "false ... statement," defendant Luparello "alleged that ... [p]laintiff committed a crime by ‘violating the order of protection.’ " Plaintiff further alleges that such statement—no matter its form—constitutes defamation per se and entitles him to an award of, among other things, compensatory damages, emotional distress damages, and punitive damages. Those allegations comprise the third cause of action in the complaint.
The complaint's fourth cause of action contains another claim for defamation against defendant Gannon-Jackson. In support of this cause, plaintiff alleges that Gannon-Jackson falsely and maliciously stated to a longtime "close friend[ ]" that plaintiff was " ‘violating the order of protection by attending [the child's] rowing events.’ " That friend—whom the court knows to be an attorney (see generally Affronti v Crosson, 95 NY2d 713, 720 [2001], cert denied 534 US 826 [2001] ; Matter of Siwek v Mahoney , 39 NY2d 159, 163 n 2 [1976] ) and against whom plaintiff does not advance a claim in this action—attended an athletic event involving the child that was held on March 8, 2020. There, the subject friend told plaintiff that he was "committing a crime by ‘violating the order of protection.’ " Those allegations support what plaintiff characterizes as a fourth cause of action for defamation per se in which plaintiff targets only Gannon-Jackson.
Finally, in what is styled as a second fourth cause of action, plaintiff complains that the aforementioned "false and malicious statements, alleging the commission of a crime, communicated to a third party without the consent of ... [p]laintiff, represent[ ] extreme and outrageous conduct, which intentionally or recklessly caused [him] severe emotional distress." As a result of that conduct, plaintiff adds, he suffered trauma that he believes to constitute "a cause of action for intentional infliction of emotional distress" entitling him to compensatory and punitive damages.
II.
Defendants now collectively move to dismiss the complaint based upon CPLR 302 (a) (2) and (a) (3), CPLR 215 (3), and four subdivisions of CPLR 3211. Support for the application is provided by, among other things, an affirmation in which plaintiff's attorney in this action tenders exhibits including the complaint and a good faith letter in which defendants asked plaintiff to withdraw that instrument. That request was based on defendants’ positions that plaintiff has no cause of action for defamation given the truth of the subject statement statements and the absence of allegation of a "serious crime," and that a claim for intentional infliction of emotional distress (IIED) necessarily would fail inasmuch the "claimed statements ... fall far short of the high bar of outrageous conduct required to sustain a claim for [IIED]."
CPLR 302 has been characterized as "New York's long-arm statute" (Williams v Beemiller, Inc. , 33 NY3d 523, 545 [2019] [Fahey, J., dissenting]). Subdivision (a) (2) of that statute provides that "a court may exercise personal jurisdiction over any non-domiciliary ... who ... commits a tortious act within the state except as to a cause of action for defamation of characterizing arising from the act " (CPLR 302 [a] [2] [emphasis added]). Subdivision (a) (3) thereof similarly permits the exercise of personal jurisdiction over a non-domiciliary who "commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act " (CPLR 302 [a] [3] [emphasis added]).
CPLR 215 (3) prescribes a one-year period of limitations for actions to recover damages for, inter alia, "libel, slander, [and] false words causing special damages."
Defendants specifically seek relief pursuant to these subdivisions of CPLR 3211 :
CPLR 3211 (a) (1) (defense founded upon documentary evidence);
(a) (5) (statute of limitations);
(a) (7) (failure to state a cause of action); and
(a) (8) (want of personal jurisdiction).
Defendants also support the instant motion with an affidavit of the attorney for defendant Gannon-Jackson in the underlying divorce action. That attorney avers that, in August 2019, he moved in that matter for " ‘a stay away order of protection’ to protect [the child] from [the plaintiff in this action]." That application, the attorney further avers, was catalyzed by plaintiff's "erratic behavior," which included "showing up uninvited at public places where [the child] was present and acting in an irrational manner that was upsetting to [defendant Gannon-Jackson] and [the child]."
The motion in the underlying action was granted, and it yielded an order that was entered in October 2019 and that the subject attorney believes followed conversations between the court and counsels in which the attorney "request[ed] that [plaintiff] not be allowed at public events where [the child] would be present." According to that counsel, that request was supported by the Attorney for the Child, agreed to by the attorney for plaintiff in that action, and granted by the court.
Plaintiff opposes the instant motion through an affirmation in which his attorney, among other things, characterizes the affidavit submitted by the attorney for defendant Gannon-Jackson in the underlying action as "odd" before stating that such counsel "brings his matrimonial style of practice before this Court and submits a self-serving, conclusory, and accusatory styled Affidavit riddled with false and unsubstantiated claims."
That statement may be a regrettable fit of pique. It may also importune regrettable irony.
As noted at the outset of this writing, and as will be noted in section III.A infra , the part of the motion seeking dismissal of the causes of action sounding in defamation is granted. That award of accelerated judgment is based in part upon the conclusion that the complaint does not state, and that plaintiff does not have, a cause of action for defamation (see infra at pp 13-21).
That is, the dismissal of the complaint results, at least in part, from the conclusion that statements complained of are not actionable. The issue whether statements made in opposition to the motion may themselves be actionable is not before this court, but it may—in what would be a twist of situational irony—come before a different tribunal in a different case on a different day (cf. Stega v New York Downtown Hosp. , 31 NY3d 661, 670 [2018] ; see generally Liberman v Gelstein , 80 NY2d 429, 435 [1992] ; November v Time Inc. , 13 NY2d 175, 178 [1963] ; Schindler v Mejias , 100 AD3d 1315, 1316 [3d Dept 2012] ).
Otherwise, through the affirmation of counsel, plaintiff posits that the paper issued in the underlying action—which is captioned as a "No Contact Order"—is not an order of protection in the statutory form modeled in Family Court Act § 430 and Domestic Relations Law § 252. Plaintiff's attorney adds that "there was never an agreement or understanding ... that [plaintiff] would be prevented from attending or being in any place where [the child] would be present," and that "[a]ll of the defamatory statements were made, upon information and belief, between January 10, 2020 and July 30, 2020." Those statements, counsel further contends, charge that plaintiff "violated a ‘Stay Away Order of Protection’, which is a serious crime, namely Criminal Contempt, a Class D Felony, violation of CPL § 215.52, Criminal Contempt, a Class E Felony, a violation of CPL § 215.51, or a Class A Misdemeanor, a violation of CPL § 215.50" (cf. 22 NYCRR 202.8 [c] ["Affidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of the relevant law"]).
The complaint, it should be noted, was filed on January 6, 2021.
What speaks loudest, perhaps, is what is not addressed in plaintiff's papers: whether the CPLR permits the exercise of long-arm jurisdiction over defendants Gannon-Luparello and Luparello. Similarly untouched is authority of the Court of Appeals considering the viability of an inter-spousal claim for intentional infliction of emotional distress (see Xiao Yang Chen v Fischer , 6 NY3d 94, 100 n 2 [2005] ; Weicker v Weicker , 22 NY2d 8, 11 [1968], rearg denied 22 NY2d 827 [1968] ).
III.
"Having marshaled the relevant facts, [the court's] review turns to the pertinent principles of law. In addition to accepting the facts as alleged as true (see Leon , 84 NY2d at 87 ), [it] ‘must give the pleading a liberal construction ... and afford ... plaintiff the benefit of every possible favorable inference’ ( Landon v Kroll Lab. Specialists, Inc., 22 NY3d 1, 5 [2013], rearg denied 22 NY3d 1084 [2014] [internal quotation marks omitted])" ( JF Capital Advisors, LLC , 25 NY3d at 764 ). That is, " ‘[w]here the allegations are ambiguous, [the court must] resolve the ambiguities in plaintiff's favor’ ( Snyder v Bronfman , 13 NY3d 504, 506 [2009] ) and, dissimilar to a motion for summary judgment, where [a court] review[s] the record to determine whether a cause of action or a defense has been established as a matter of law, here [it] ‘ "limit[s] [its] inquiry to the legal sufficiency of plaintiff's claim[s]" ’ " ( JF Capital Advisors, LLC , 25 NY3d at 764, quoting, inter alia, Davis v Boeheim , 24 NY3d 262, 268 [2014], itself quoting Silsdorf v Levine , 59 NY2d 8, 12 [1983] ).
Applying those principles to the causes of action for defamation per se and to the cause of action for intentional infliction of emotional distress, the court concludes that each such cause—and the complaint in its entirety—should be dismissed.
A.
The court first turns to the causes of action for defamation. The "[m]aking [of] a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation" ( Thomas H. v Paul B. , 18 NY3d 580, 584 [2012] ). That tort "can take one of two forms—slander or libel" ( Ava v NYP Holdings, Inc. , 64 AD3d 407, 411 [1st Dept 2009], lv denied 14 NY3d 702 [2010] ). "Generally speaking, slander is defamatory matter addressed to the ear while libel is defamatory matter addressed to the eye" (id. ).
Personal Jurisdiction
Addressed at the outset of this analysis is whether plaintiff has acquired personal jurisdiction over defendants Kathleen Gannon-Luparello and Robert Luparello.
"As the part[y] seeking to assert personal jurisdiction, plaintiff[ ] bear[s] the burden of proof on that issue" ( Williams v Beemiller, Inc. , 100 AD3d 143, 151 [4th Dept 2012], amended on rearg 103 AD3d 1191 [4th Dept 2013] ). "[T]o defeat a motion to dismiss based upon lack of personal jurisdiction," however, " ‘ "plaintiff need only demonstrate that facts ‘may exist’ to exercise personal jurisdiction over the defendant[s]" ’ " ( Tucker v Sanders , 75 AD3d 1096, 1096 [4th Dept 2010], quoting Ying Jun Chen v Lei She , 19 AD3d 407, 408 [2d Dept 2005], itself quoting Peterson v Spartan Indus. , 33 NY2d 463, 467 [1974] ; see Barone v Bausch & Lomb, Inc. , 191 AD3d 1365, 1366 [4th Dept 2021] ["in opposition to a motion to dismiss pursuant to CPLR 3211 (a) (8), the plaintiff need only make a prima facie showing that the defendant(s) (are) subject to personal jurisdiction"]).
"The complaint does not allege ... the jurisdictional basis upon which ... plaintiff relies in order to support personal jurisdiction over [defendants Gannon-Luparello and Luparello]" ( Opticare Acquisition Corp. v Castillo , 25 AD3d 238, 242 [2d Dept 2005] ). Inasmuch as defendants Gannon-Luparello and Luparello are not domiciliaries of this state, "[j]urisdiction [therefore] must be found based on one or more of the provisions of CPLR 302" (id. ). That section "outlines acts that can form the basis for obtaining personal jurisdiction over non-domiciliaries" ( SPCA of Upstate NY, Inc. v American Working Collie Assn. , 18 NY3d 400, 403 [2012] ); in general, "[l]ong-arm jurisdiction can be premised on the commission of a tortious act—perpetrated either within the state or outside the state, causing injury within the state" (id. ; see CPLR 302 [a] [2], [3] ).
The same part of the CPLR also "provides an express statutory exception for ‘cause[s] of action for defamation of character arising from the act’ " ( SPCA of Upstate NY, Inc. , 18 NY3d at 403, quoting CPLR 302 [a] [2], [3] ). "[D]efamation claims therefore cannot form the basis for ‘tortious act’ jurisdiction, [and] such claims may proceed against non-domiciliaries who transact business within the state and thereby satisfy the requirements of CPLR 302 (a) (1)" ( SPCA of Upstate NY, Inc. , 18 NY3d at 403-404 ; see Montgomery v Minarcin , 263 AD2d 665, 667 [3d Dept 1999] ), or who own, use, or possess real property within the state (see CPLR 302 [a] [4] ).
"Defamation claims are accorded separate treatment [in CPLR 302 ] to reflect the state's policy of preventing disproportionate restrictions on freedom of expression—though, [w]here purposeful transactions of business have taken place in New York," or where the defendant owns uses, or possesses real property situated within New York, "it may not be said that subjecting the defendant to this State's jurisdiction is an unnecessary inhibition on freedom of speech or the press" (SPCA of Upstate NY, Inc. , 18 NY3d at 404 [internal quotation marks omitted]).
CPLR 302 (a) (1) provides, in pertinent part, that "a court may exercise personal jurisdiction over any non-domiciliary ... who in person or through an agent ... transacts any business within the state or contracts anywhere to supply goods or services within the state."
The relevant part of CPLR 302 (a) (4) provides that "a court may exercise personal jurisdiction over any non-domiciliary ... who in person or through an agent ... owns, uses or possesses any real property situated within the state."
Here, however, there is neither allegation nor indicia that the causes of action for defamation against defendant Gannon-Luparello and Luparello arise out of a transaction of business in New York (cf. Montgomery , 263 AD2d at 296 ; see generally SPCA of Upstate NY, Inc. , 18 NY3d at 403-406 ). Similarly, there is neither allegation nor indicia that the personal jurisdiction over those defendants lies based on the ownership or possession of real property in New York by those defendants. Consequently, the part of the motion seeking dismissal of the causes of action for defamation against defendants Gannon-Luparello and Luparello based on want of personal jurisdiction (see CPLR 3211 [a] [8] ) should be granted.
Statute of Limitations
Also addressed at the outset of the analysis of the defamation issue is the additional preliminary question whether parts of the causes of action for defamation are precluded by the applicable statute of limitations. "A cause of action alleging defamation is governed by a one-year statute of limitations, and accrues when the allegedly defamatory statements are originally uttered" ( Arvanitakis v Lester , 145 AD3d 650, 651 [2d Dept 2016] ; see CPLR 215 [3] ; Firth v State , 98 NY2d 365, 368 [2002] ; Morrison v National Broadcasting Co. , 19 NY2d 453, 459 [1967] ). Put simply, to the extent they accrued more than one year prior to the commencement of this action, the defamation claims against all defendants are time-barred. Consequently, the part of the motion seeking dismissal of the causes of action that accrued outside of the statute of limitations should be granted (see CPLR 3211 [a] [5] ).
"Serious Crime"
To the extent the causes of action for defamation against defendants Gannon-Luparello and Luparello should not be dismissed for lack of personal jurisdiction, and to the extent all of the causes of action for defamation are not time-barred, the court's focus shifts to the substance of those claims. In that vein, the court's attention initially rests upon the question whether the causes of action for defamation should be dismissed on the ground that the statements of which plaintiff complains do not allege that he committed a "serious crime."
At issue are allegations of slander (see Ava v NYP Holdings, Inc. , 64 AD3d 407, 411 [1st Dept 2009] ), which, as a rule, are "not actionable unless the plaintiff suffered such special damages" ( Liberman , 80 NY2d at 434 ). "Special damages contemplate the loss of something having economic or pecuniary value" ( id. at 434-435 [internal quotation marks omitted]) and where, as here, "[p]laintiff has not alleged special damages, ... his slander claims are not sustainable unless they fall within one of the exceptions to the rule" ( id. at 435 ). "The four established exceptions (collectively ‘slander per se’) consist of statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman" (id. ). "When statements fall within one of [those] categories, the law presumes that damages will result, and they need not be alleged or proven" (id. ).
There is no reasonable dispute that plaintiff has not alleged special damages, or that the exceptions to the rule noted in romanettes (ii) through (iv) in the prior paragraph do not apply here. Consequently, the court's attention turns to the question whether the causes of action sounding in defamation are based on a charge the plaintiff committed a "serious crime."
The Court of Appeals has long held that, before words charging a person with a crime became actionable per se, they must they must impute the commission of "an indictable offence, upon conviction of which punishment may be inflicted" (Matter of Anonymous , 60 NY 262, 264 [1875] [emphasis added]; see Privitera v Town of Phelps , 79 AD2d 1, 3-4 [4th Dept 1981], lv dismissed 53 NY2d 796 [1981] ). More recently, that Court has clarified that, to be actionable, words charging plaintiff with misconduct must impute the commission of a "serious crime" ( Liberman , 80 NY2d at 435 [emphasis added]). Commentators have suggested that the "serious crime" threshold should be relaxed, positing that the preferred norm should be that "whether the offense is punishable by indictment or information, it is slander per se if it involves moral turpitude or is punishable by imprisonment in a federal or state institution" (NY 2A PJI3d 3:24, at 351, citing Restatement, Second, Torts § 571 ). Still, however, the law remains that a cause of action for slander per se pursuant to the "serious crime" exception is actionable only if the offense is indictable ( Privitera , 79 AD2d at 3 ).
Here, although the complaint is silent as to the issue, plaintiff specifies in the affirmation of counsel submitted in opposition to the motion that the statements in question alleged a "serious crime" in the form of "Criminal Contempt, a Class D Felony, violation of CPL § 215.52, Criminal Contempt, a Class E Felony, a violation of CPL § 215.51, or a Class a Misdemeanor, a violation of CPL § 215.50" (see Leon , 84 NY2d at 87-88 [permitting, in the context of a motion pursuant to CPLR 3211, a court to consider affidavits submitted by the plaintiff to cure any defects in the pleading]). For the moment the court will put aside the facts that the Criminal Procedure Law establishes procedure and does not articulate criminal offenses, that plaintiff failed to properly identify the crimes purportedly at issue, and that plaintiff did not specify which subdivisions of Penal Law §§ 215.52, 215.51, and 215.50 he claims to have been accused of violating. Instead, focus will rest upon whether the subject statements are capable of having alleged each of the violations of the Penal Law that plaintiff appears to have placed at issue.
The first of those crimes, aggravated criminal contempt, is codified in Penal Law § 215.52. Pursuant to that section, a person is guilty of aggravated criminal contempt when he or she intentionally or recklessly causes physical injury to another person in violation of an order of protection ( § 215.52 [1] ). A person also is guilty of aggravated criminal contempt when he or she commits the crime of criminal contempt in the first degree in violation of certain subdivisions of Penal Law § 215.51 and has previously been convicted of either aggravated criminal contempt ( § 215.52 [2] ) or of criminal contempt in the first degree pursuant to certain subdivisions of § 215.51 within the preceding five years ( § 215.52 [3] ). The complaint does not allege any of those circumstances.
The second such crime, criminal contempt in the first degree, is codified in Penal Law § 215.51. Under that section, a person is guilty of a criminal contempt in the first degree when he or she, in violation of an order of protection and in relevant part, intentionally places the subject of the protective order in fear of physical injury or harm ( § 215.51 [b] [i]-[vi] ). A person also is guilty of criminal contempt in the first degree when he or she commits the crime of criminal contempt in the second degree and has previously been convicted of aggravated criminal contempt or criminal contempt in the first or second degree for violating an order protection within the preceding five years (see § 215.51 [c] ), or, in violation of such order protection, when he or she intentionally or recklessly damages a specified amount of property of the beneficiary of such order (see § 215.51 [d] ). The complaint does not allege any of those circumstances.
The third such crime, criminal contempt in the second degree, is codified in Penal Law § 215.50. Pursuant to that section, a person is guilty of criminal contempt in the second degree when he or she, among other things and subject to an exception immaterial to this case, intentionally disobeys or resists the lawful process or other mandate of a court, subject to an exception not material here ( Penal Law § 215.50 [3] ). "[V]iewing the allegations of the complaint through the lens required by Leon" ( Maddicks v Big City Props., LLC , 34 NY3d 116, 124 [2019] ; see Leon , 84 NY2d at 87 ), the words defendants are alleged to have spoken could constitute criminal contempt in the second degree pursuant to that subdivision.
The problem for plaintiff remains the criminal contempt in the second degree is a Class A misdemeanor. That, of course, raises the question whether criminal contempt in the second degree is a "serious crime" for the purposes of these causes of action sounding in defamation (see Liberman , 80 NY2d at 435 ). On the one hand, it is not the place of this court, or any tribunal, to minimize the intentional violation of the Penal Law.
On the other hand, however, under the circumstances of this case, this court cannot conclude that what appears to be the allegation of violation of Penal Law § 215.50 (3) is a "serious crime." To that end, the court notes that the crime of criminal contempt, which is at the lowest of the three levels of severity that the legislature has created for such misconduct, is not materially different from stalking in the fourth degree. That latter crime, although only a class B misdemeanor, similarly criminalizes intentional misconduct directed at a particular person (see § 120.45). The class A misdemeanor stalking crime (§ 120.50) turns on aggravating factors consisting of a prior criminal conviction or of course of conduct (see § 120.50 [1]-[3]), meaning that, although it is a class A misdemeanor, the baseline contempt charge in question here arguably is the analog of the baseline stalking charge articulated in Penal Law § 120.45. Inasmuch as "stalking in the fourth degree does not constitute a ‘serious crime’ for purposes of slander per se" ( Zetes v Stephens , 108 AD3d 1014, 1019 [4th Dept 2013], citing Liberman , 80 NY2d at 436 ), it follows that criminal contempt in the second degree also is not a "serious crime" in this paradigm and that it cannot support an allegation of slander per se. To that end, the part of the motion seeking dismissal of the causes of action for defamation should be granted on the ground that the statements of which plaintiff complains do not allege that he committed a "serious crime" (see CPLR 3211 [a] [7] ).
As an aside, it bears noting that Zetes (108 AD3d 1014 ) implies that stalking in the fourth degree is not a " ‘serious crime’ for the purposes of slander per se" (id. at 1019 ) given the nature of that offense. This court, of course, has concluded that given the similar nature of criminal contempt in the second degree, that offense similarly cannot constitute a "serious crime" for the purpose of supporting an allegation of slander per se. In these circumstances, however, there is an additional ground upon which to conclude that criminal contempt in the second degree is not a "serious crime" for the purposes of slander per se.
The law, as noted, provides that a cause of action for slander per se pursuant to the "serious crime" exception is actionable only if the offense is indictable (Privatera , 79 AD2d at 3 [emphasis added]). Criminal contempt in the second degree is a class A misdemeanor.
"Under the CPL, a court must use one of two instruments to take jurisdiction over a defendant accused of a misdemeanor: a misdemeanor complaint or a misdemeanor information. A misdemeanor complaint authorizes jurisdiction over an accused, and can commence a criminal action and allow the state to jail the defendant for up to five days, but it cannot serve as a basis for prosecution, unless the defendant waives prosecution by information (see CPL 100.10[4] ; 120.20 [1] [a]; 170.65[1], [3]; 170.70; People v Kalin, 12 NY3d 225, 228 [2009] )" (People v Dumay , 23 NY3d 518, 522 [2014] ; see CPL 190.60, 190.65, and 170.25 ).
Based on that authority, the court questions whether defendants could be charged by indictment with criminal contempt in the second degree based on the allegations of the complaint. That is, under these circumstances, the crime of criminal contempt in the second degree would not be an indictable offense, meaning that it cannot support the allegations of slander per se (see generally Anonymous , 60 NY at 264 ; Privitera , 79 AD2d at 3-4 ). To that end, the causes of action for slander should be dismissed not only because criminal contempt in the second degree is not a "serious crime" by nature, but because criminal contempt in the second degree is not an indictable crime under the circumstances of this case.
Truth
Even assuming, arguendo, that criminal contempt in the second degree is a "serious crime" for the purposes of defamation per se, that parts of the causes of action for defamation that are not jurisdictionally-flawed and the parts of the causes of action for defamation that are not time-barred still should be dismissed for the additional reason that they are truthful.
The issue whether the subject statements are true is the closest question on this motion practice. As noted, the order in the underlying action that now is in question was rendered by Justice Keane in October 2019. That paper provides, in pertinent part,
"that[,] on a temporary basis until there is further order of this court here shall be no contact between [plaintiff] and the [subject] child ... pending resolution of the custodial issue ... pending before [that] court and unless said contact is approved and agreed to by [the Attorney for that Child in that action]."
"[C]ontact," that order further states, "includes any contact by email, phone, text or any other electronic means in addition to no contact at any public place where [the child] may be present."
Plaintiff's point that the order does not precisely interdict his presence at a public place at which the subject child also appears is a fair one. Still, the undisputed etiology of the order—noted in the affidavit submitted in support of the motion by the attorney for defendant Gannon-Jackson in the underlying action—manifests an obvious intent to keep plaintiff away from public places in which the subject child is present. Much as dictionary definitions are useful guideposts in determining statutory language (see generally People v Ocasio , 28 NY3d 178, 181-182 [2016] ), so too may they be helpful in analyzing terminology of an order. In that vein, "contact" is not limited to the act or physical state of touching, and—as the order reflects—it may also mean immediate proximity or association (see www.dictionary.com/browse/contact [accessed May 28, 2021]). "[I]mmediate proximity or association" is a somewhat relative phrase, but it easily could be interpreted—and, in this context, should be understood—to prohibit plaintiff's presence in the vicinity of the child during the child's extracurricular activities, even without the backdrop sketch afforded by the affidavit submitted in support of the motion by the attorney for defendant Gannon-Jackson in the underlying action.
Truth, of course, is "a complete defense to a defamation claim" ( Olney v Town of Barrington , 180 AD3d 1364, 1364 [4th Dept 2020] ; see Ryan v New York Tel. Co. , 62 NY2d 494, 503 [1984] ). Although this arguably could be characterized as a close question, for the foregoing reasons the part of the motion seeking dismissal of the causes of action sounding in defamation should be granted on the ground that the statements in question are truthful (see CPLR 3211 [a] [1] ).
B.
The court next turns to the part of the motion seeking dismissal of the cause of action seeking to recover damages for IIED.
Statute of Limitations
Similar to the analysis of the defamation issue, the outset of the court's review of the viability of the cause of action for IIED also requires consideration of the applicable statute of limitations. "Pursuant to CPLR 215 (3), an action to recover damages arising from an intentional tort"—such as IIED—"must be commenced within one year" ( Passucci v Home Depot, Inc. , 67 AD3d 1470, 1471 [4th Dept 2009] ). Consequently, similar to the causes of action for defamation, the part of the claim for IIED that accrued more than one year prior to the commencement of this action should be dismissed as time-barred (see CPLR 3211 [a] [5] ).
Implicit in the commencement of the analysis of the cause of action for IIED with the statute of limitations question is the conclusion that there is no merit to defendants’ contention that the part of this cause as against defendants Gannon-Luparello and Luparello should be dismissed for lack of personal jurisdiction. On this point, defendants essentially contend that this court should exercise its power to look behind plaintiff's characterization of the subject cause of action (which plaintiff has styled as one for IIED) to discern the nature of that claim (cf. People v Allende , 34 NY3d 996, 997 [2019] ; see generally Findlay v Duthuit , 86 AD2d 789, 790 [1st Dept 1982], appeal withdrawn 58 NY2d 780 [1982] ). That review, defendants posit, would yield the conclusion that, because the IIED claims arise out of allegedly defamatory conduct, such claims cannot form a basis for jurisdiction against defendant Gannon-Luparello and Luparello (see supra section III.A of this opinion).
The court disagrees. A fair reading of the complaint reveals distinction and meaningful difference between the causes of action for defamation and for IIED. At bottom, plaintiff alleges in the cause of action for defamation that he was slandered by and through the statements in question. The cause of action for IIED, in turn, contains plaintiff's claim that the slander here is so outrageous and so extreme as to support independent recovery by way of an independent cause of action not subject to the strictures of CPLR 302 (a) (2) and (a) (3).
The "Outrageousness" Element
A cause of action for IIED has four elements: " ‘(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, sever emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress’ " ( Chanko v American Broadcasting Cos., Inc. , 27 NY3d 46, 56 [2016], quoting Howell v New York Post Co. , 81 NY2d 115, 121 [1993] ). " ‘ "Liability has been found only 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" ’ " ( Chanko , 27 NY3d at 56, quoting Howell , 81 NY2d at 121, itself quoting Murphy v American Home Prods. Corp. , 58 NY2d 293, 303 [1983] ). That requirement—the outrageousness element—"is designed to filter out petty complaints and assure that the emotional distress is genuine" ( Chanko , 27 NY3d at 57 ).
"The determination whether the requisite outrageousness has been established is, in the first instance, an issue of law for the courts" ( Cavallaro v Pozzi , 28 AD3d 1075, 1078 [4th Dept 2006] ). Even accepting plaintiff's allegations as true and granting him every possible inference, the alleged conduct of defendant cannot support a cause of action for intentional infliction of emotional distress (see Chanko , 27 NY3d at 56 ). The claims here, namely, that defendants falsely represented that plaintiff violated an order of protection, are far less objectionable than other conduct that did not exceed the bounds of decency required by a decent society (see e.g. Kaye v Trump , 58 AD3d 579, 579 [1st Dept 2009], lv denied 13 NY3d 704 [2009] [concluding that, among other things, the commencement of two baseless lawsuits and the filing of a criminal complaint against the plaintiff, "while not to be condoned," is not sufficiently outrageous so as to support a cause of action for IIED]; Lewittes v Blume , 18 AD3d 261, 261 [1st Dept 2005] [ruling that allegations of the inappropriate touching of a child by the plaintiff were not sufficiently extreme or outrageous to support a cause of action for IIED]; Deising v Town of Esopus , 204 AD2d 940, 941-942 [3d Dept 1994] [commencement of civil and criminal actions seeking enforcement of zoning laws does not support a cause of action for IIED]). Consequently, to the extent there is no jurisdictional impediment to the assertion of this cause against defendants Gannon-Luparello, and to the extent the cause as against all defendants is not time-barred, it should be dismissed because the allegations do not rise to the level required to establish outrageous and extreme conduct sufficient to state a cause of action for IIED (see CPLR 3211 [a] [7] ).
The court rejects defendants’ contention that the parts of the cause of action for IIED that are not time-barred should be dismissed for the additional reason that plaintiff has not alleged "severe emotional distress" (cf. Chanko , 27 NY3d at 56 ). Plaintiff specifically supports the claim for IIED with such an allegation, and the court is bound to accept that allegation as true (see Leon , 84 NY2d at 87 ).
The Marital Bar
Finally, even assuming, arguendo, that the cause of action for IIED is supported by allegations of the requisite level of outrageousness, the part of that cause as against defendant Gannon-Jackson that is not time-barred still should be dismissed for the additional reason that it is not recognized in this state. "[S]trong policy considerations militate against judicially applying [law permitting recovery for the intentional infliction of emotional distress] to the factual context of a disputable arising out of matrimonial differences" ( Weicker , 22 NY2d at 11 ). Those considerations have yielded the rule that this state "does not recognize a cause of action to recover damages for [IIED] between spouses" ( Xiao Yang Chen , 6 NY3d at 100 n 2 [internal quotation marks omitted]). In view of that precedent, the part of the cause of action for IIED as against defendant Gannon-Jackson, who is plaintiff's wife, should be dismissed (see CPLR 3211 [a] [7] ).
C.
Turning now to defendants’ request for sanctions, costs, and attorneys’ fees, 22 NYCRR 130-1.1 vests this court with the discretion to "award to any part or attorney in any civil action ... costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct" ( 22 NYCRR 130-1.1 [a]). Conduct is frivolous if, among other things, "[i]t 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]), or if "it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" ( 22 NYCRR 130-1.1 [c] [2]).
Here, a reasonable eye could see frivolity in plaintiff's assertion of causes of action for defamation against defendants Gannon-Luparello and Luparello. Plaintiff acknowledges in the prefatory paragraphs of the complaint that those defendants were and are natural persons residing in Connecticut. In the absence of any allegations that those defendants resided in New York State at any time relevant to this matter, it is difficult to conceive of how plaintiff could have reasonably held any hope of success with respect to those claims. Plaintiff did not address the jurisdictional problem with respect to those claims in the "affirmation and memorandum of law" submitted in opposition to the motion (cf. 22 NYCRR 202.8 [c]), and the oral argument of this application similarly offered no reasonable explanation as to how he might overcome that jurisdictional issue.
Indeed, in the prefatory paragraphs of the complaint, plaintiff further alleges that defendants Gannon-Luparello and Luparello are, respectively, the sister and the brother-in-law of defendant Gannon-Jackson. Defendant Gannon-Jackson, of course, has commenced a separate action seeking a divorce from plaintiff. Under these circumstances, one easily could conclude that plaintiff's assertion of causes of action against defendants Gannon-Luparello and Luparello for defamation is intended only to harass relatives of plaintiff's estranged wife, and that such abuse of the judicial process supports an award of costs and the imposition of sanctions (see Divito v Fiandach , 160 AD3d 1404, 1405 [4th Dept 2018] ; see also 22 NYCRR 130-1.1 [c] [2]).
A reasonable eye could see the same result with respect to the part of the cause of action for intentional infliction of emotional distress advanced against defendant Gannon-Jackson. The Court of Appeals has long taken the position that "strong policy considerations militate against ... applying [the right of recovery for IIED] to the factual context of a dispute arising out of matrimonial differences" ( Weicker , 22 NY2d at 11 ). More recently, that Court agreed that "New York does not recognize a cause of action to recover damages for intentional infliction of emotional distress between spouses" based on allegations of marital discord that includes the leg of a false allegation of misconduct (Xio Yang Chen , 6 NY3d at 100 n 2 [internal quotation marks omitted], revg Xio Yang Chen v Fischer , 12 AD3d 45 [2d Dept 2004]; see id. at 45). Here, as noted, plaintiff has made no effort to—and cannot—dispute that the part of the cause of action for IIED asserted against defendant Gannon-Jackson "is completely without merit in law" ( 22 NYCRR 130-1.1 [c] [1]), and he has not supported that claim with "a reasonable argument for an extension, modification, or reversal of existing law" (id.). Consequently, under these circumstances, one easily could conclude that plaintiff's assertion of causes of action against defendant Gannon-Jackson for intentional infliction of emotional distress is intended only to harass her, and that such abuse of the judicial process supports an award of costs and the imposition of sanctions (see Divito, 160 AD3d at 1405 ; see also 22 NYCRR 130-1.1 [c] [2]).
Ultimately, however, the court declines to exercise its discretion to award sanctions, costs, and attorneys’ fees with respect to this matter. "Among the factors to be considered [in determining whether to award costs and attorney's fees resulting from frivolous conduct are] whether plaintiff continued his conduct when it became apparent that it was frivolous, or when such was brought to his attention" ( Divito , 160 AD3d at 1405 ). To be sure, defendants addressed with plaintiff the baseless nature of the complaint by correspondence tendered in advance of motion practice. That letter, however, did not alert plaintiff to the frailties emphasized in this section of this writing, which this court sees as the nearest to sanctionable in this matter. Had those infirmities been highlighted prior to motion practice, the court may have answered this discretionary question differently.
In so concluding, the court acknowledges the possibility that the further litigation of this motion—such as, for example, revisiting the dismissal of the complaint on appeal—may yield a different exercise of discretion (see generally Sadek v Wesley , 27 NY3d 982, 983 [2016] ; Matter of Von Bulow , 63 NY2d 221, 224 [1984] ).
IV.
Accordingly, the part of the motion seeking dismissal of the complaint is granted. The part of the motion seeking attorneys’ fees, costs, and sanctions, however, is denied. Defendants shall submit an order in accordance with this opinion.