Opinion
Index No. 154118/2021 MOTION SEQ. Nos. 002 003
04-10-2024
ALBERTO DIAZ LOPEZ Plaintiff, v. MARY EVANCHO, Defendant.
Unpublished Opinion
PRESENT: HON. RICHARD G. LATIN Justice.
DECISION + ORDER ON MOTION
RICHARD G. LATIN, JUDGE.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 25, 26, 27, 36, 42 were read on this motion to/for STRIKE PLEADINGS.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 28, 29, 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41,43, 44, 45, 46 were read on this motion to/for DISMISS.
Upon the foregoing documents, it is ordered that plaintiffs motion to strike the pleadings for failure to timely comply with discovery obligations and defendant's motion to dismiss and/or for summary judgment are determined as follows:
Plaintiff, Alberto Diaz Lopez, a superintendent in the building in which defendant Mary Evancho lives in a rent stabilized apartment brings this action sounding in slander, intentional infliction of emotional distress, and tortious interference with employment relations. Plaintiff specifically alleges that defendant stated to plaintiffs employer and owner of the subject property, Robert Malta, that "[plaintiff] [s]houldn't be working as a cleaning person, he's a stupid spic that smokes all the time, and makes more of a mess then he cleans up" and that "[plaintiff] is so incompetent, he can't even clean a hallway."
With defendant's motion, she moves to dismiss pursuant to CPLR 3211(a)(7) and/or for summary judgment to dismiss the complaint.
On a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading is afforded a liberal construction and the court must accept as true the facts alleged in the complaint, accord the pleading the benefit of every reasonable inference, and only determine whether the facts, as alleged, fit within any cognizable legal theory (see Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414 [2001]).
"[T]he proponent of a summary judgment motion must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063 [1993], quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). "[F]ailure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Ayotte, 81 N.Y.2d at 1063 [internal quotation marks and citation omitted]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of act which require a trial of the action" (Alvarez, 68 N.Y.2d at 324; see also Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman, 49 N.Y.2d at 562). "Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable" (Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 315 [2004]; see also American Home Assur. Co. v. Amerford Inti. Corp., 200 A.D.2d 472, 473 [1st Dept 1994]). "On a summary judgment motion, facts must be viewed in the light most favorable to the non-moving party" (Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012] [internal quotation marks and citation omitted]).
In support of her motion, defendant submits, inter alia, the affidavit of Mary T. Evancho, her rent stabilized lease, and copies of 23 pay check's plaintiff received following her alleged complaints about him. The crux of defendant's argument is that the statements made are not facts but are mere insults that cannot be actionable (see Weiner v. Doubleday & Co., 74 N.Y.2d 586 [1989]; Aronson v. Wiersma, 65 N.Y.2d 592 [1985]; Parks v. Steinbrenner, 131 A.D.2d 60 [1st Dept 1987]; Hanlin v. Sternlicht, 6 A.D.3d 334 [1st Dept 2004]) and that plaintiff is required to demonstrate special damages, which he cannot because he was not actually "relieved of his duties." As to the latter, defendant avers that plaintiff continues to act as the superintendent and received 23 more checks from Malta. Moreover, defendant's counsel alleges that this is a frivolous action brought in concert with four other actions by plaintiff s counsel at the behest of building owner, Robert Malta, to coerce the elderly defendant into a settlement in which she vacates her rent stabilized apartment in which she has lived for 40 years.
In opposition to the motion, plaintiff submits, inter alia, his affidavit and that of Robert Malta. Generally, statements made that tend to injure a plaintiff in his profession do not require special damages since the purported statements would constitute defamation per se (see Nolan v. State, 158 A.D.3d 186 [1st Dept 2018]; Carney v. Memorial Hosp, and Nursing Home of Greene County, 74 N.Y.2d 770 [1985]). However, where it is clear that the statements made were not relied upon as statements of fact, defamation cannot follow (see Anonymous, 60 NY 262 [1875]; Steinhilber v. Alphonse, 68 N.Y.2d 283 [1986]).
Here, Robert Malta stated that prior to August 2020, in his view, the plaintiff was a competent superintendent. However, he averred that in July of 2020, defendant "incessantly complained about Plaintiffs competency" and that "Defendant's complaints were quickly escalated to a level that I could no longer tolerate." Thus, it is evident that even if Malta did take an adverse employment action against plaintiff, which is an unresolved question, it was not because he credited defendant's statements as facts about plaintiffs competency, but that he simply could not tolerate hearing any more of the defendant's incessant opinions. Accordingly, the cause of action for slander must be dismissed.
As to the remaining causes of action sounding in intentional infliction of emotional distress and tortious interference with employment relations, they must also be dismissed. Plaintiff pleads that that defendant "intentionally and deliberately inflicted emotional distress on plaintiff by defaming him." Here, defendant's alleged opinion of plaintiff s competence cannot be said to be so extreme and outrageous that the conduct "so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society" (Zuber v. Bordier, 135 A.D.2d 709 [2d Dept 1987]). Likewise, in order to demonstrate tortious interference with employment relations, the plaintiff must demonstrate an independent tort, which he cannot inasmuch as his slander cause of action is dismissed (see generally Carvel Corp. v. Noonan, 3 N.Y.3d 182 [2004]).
Moreover, to the extent plaintiff argues that dismissal is premature before the defendant's deposition is held, he fails to articulate what information is being sought that is exclusive to defendant (CPLR 3212[f]; see Laporta v. PPC Commercial, LLC, 204 A.D.3d 538 [1st Dept 2022]).
Furthermore, to the extent that the matter is being dismissed, seq. #2 concerning discovery is denied as moot.
Accordingly, defendant's motion to dismiss and/or for summary judgment is granted; and it is further
ORDERED that the Clerk of the Court shall enter judgment accordingly; and it is further
ORDERED that plaintiff s discovery motion is denied; and it is further
ORDERED that defendant shall serve a copy of this order with notice of entry on plaintiff within 14 days of its upload onto NYSCEF.
This constitutes the decision and order of the Court.