Opinion
Index 69138/2018
10-01-2020
SOPHIA A. LOWE, Plaintiff; v. CHPJSTINE ROBBINS, Defendant.
Unpublished Opinion
DECISION AND ORDER
RUDERMAN, J.
The following papers were considered on defendant's motion for an order pursuant to CPLR 3013, 3016 (a), 3211(a) (7) and 3212 (b) granting judgment in favor of defendant and dismissing the causes of action of the complaint (sequence 4), and plaintiff s cross-motion pursuant to CPLR 3212 (b) granting her summary judgment (sequence 5):
Papers
Numbered
Notice of Motion, Affirmation, Exhibits A - R, and Memorandum of Law
Notice of Cross-Motion, Affidavit, Affirmation, Exhibits A - K
Reply Affirmation, Exhibit A
Reply Affirmation on Cross-Motion
This action arises out of statements made at a December 17, 2017 meeting of the homeowness association for the real property development known as "The Wood Lot," in Somers, New York, in which both parties reside. Plaintiff Sophia A. Lowe alleges that in the presence of members of the homeowness association, defendant Christine Robbins said, concerning plaintiff,
"oh, you should see the nasty emails I didn't share with everyone that she sent, and there are a lot of them. The emails she sent to me personally were so vicious you wouldn't want to see them."
Plaintiffs complaint contains one cause of action sounding in defamation and another for intentional infliction of emotional distress.
In the present motion defendant challenges the sufficiency of the complain,, and also contends that plaintiff lacks evidence supporting her claims; she submits in support the deposition transcripts of the third parties who were purportedly present to hear the claimed statement, but whose testimony fails to support that claim. Defendant submits papers denying that she made any defamatory statements as alleged in the complain,, and argues that in any event, the alleged statement is hyperbolic and not susceptible to a defamatory meaning. Moreover, she contends that based on the allegations, it was made during a group discussion at the homeowness association meeting and therefore protected by a qualified privilege. Finally, she maintains that plaintiff does not allege, and cannot establish, special damages as required, since she only makes a subjective claim of harm to her personal reputation.
Plaintiff responds that since discovery remains incomplete - in that she has not obtained -the deposition of defendants husband, despite her service of a subpoena on him - plaintiff may not be awarded summary judgment at this time. She contends that a cognizable cause of action for defamation is pleaded, and that the issue of whether the alleged statement is susceptible of a defamatory meaning presents a question of fact.
Plaintiff also suggests, based on an answer defendant gave at her deposition, that defendant admitted making the defamatory statements at issue. Defendant was asked during her deposition to specify what she disagreed of what plaintiff testified at her deposition, and in setting forth the testimony with which she disagreed, defendant failed to specifically referred to plaintiff s statement as to the defamatory wards uttered.
In addition, plaintiff disputes defendants right to claim a qualified privilege, bath because she withdrew her qualified privilege defense in her July 11, 2019 supplemental response to plaintiffs discovery demands, and because the qualified privilege defense is last when the motivation far making such statements was malice, spite or ill will (citing Foster v Churchll., 87 N.Y.2d 744 [1996]). To demonstrate that defendant acted with such malice, plaintiff asserts that defendant has not specifically challenged plaintiff s assertions that defendant vilifies anyone who challenges her. Plaintiff argues that, at least, a question of fact is presented on the issue of malice that precludes defendant from relying an the claimed privilege to obtain relief an the present motion.
To the extent defendant relies an a common interest defense, plaintiff also argues that since defendant was not a member of the homeowners association at the time, she was not entitled to be in attendance at the meeting.
With regard to her claim far intentional infliction of emotional distress, plaintiff maintains that the malevolent purpose of defendants utterance, undertaken for the sale purpose of destroying plaintiffs reputation in the community at large and vilifying plaintiff, because plaintiff was questioning the status qua, was outrageous in character and to an extreme degree as to satisfy the elements of the tart (citing Murphy v American Home Prods. Corp., 58 N.Y.2d 293 [1983]).
Discussion
The particularity requirement of CPLR 3013 and the pleading requirements far defamation claims (see CPLR 3016 [a]) are satisfied by the complaint's recitation, in quotation marks, of the complained-of statement and the identification of its time and place.
With regard to defendants application to dismiss for failure to state a cause of action pursuant to under CPLR 3211 (a) (7), the court must "accept the facts as alleged in the complain. as true [and] accord plaintiffs the benefit of every possible favorable inference" (see Leon v Martinez, 84 N.Y.2d 83, 88 [1994]). Among those factual allegations accepted for this purpose is the assertion that defendant made the alleged statement.
Defamation is generally defined as "the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons and to deprive him of their friendly intercourse in society" (Foster v Churchil, 87 N.Y.2d 744, 751 [1966] [internal citation and quotation marks omitted]). Only statements of fact can be the subject of a defamation claim (see Galanos v Cifone, 84 A.D.3d 865 [2d Dept 2011]). "Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation" (Mann v Abel, 10 N.Y.3d 271, 276 [2008], cert denied 555 U.S. 1170 [2009]). Non-actionable opinion includes insults and "rhetorical hyperbole" (see Greenbett Coop. Publishing Assn. v Bresler, 398 U.S. 6, 14 [1970]; Immuno AG v Moor-Jankowski, 77 N.Y.2d 235 [1991]). If statements are not capable of being proven true or false, they are likely to be non-actionable opinion rather than actionable statements of fact (see Brian v Richardson, 87 N.Y.2d 46, 51 [1995]).
The asserted statement by defendant, accusing plaintiff of creating and sending "nasty" and "vicious" emails, amounts to a characterization of the tone of those emails, and as such the statement cannot be proven true or false; whether a writing qualifies as "nasty" or "vicious" is a matter of opinion.
Even if the language of the alleged statement was considered to be a question of fact sufficiently susceptible of defamatory meaning to leave the question to the fact-finder, dismissal would be required pursuant to CPLR 3211(a) (7) because when an action concerns an allegation of spoken slander rather than written libel, the plaintiff must do more than allege that the statement exposed one to "public contempt, ridicule, aversion or disgrace" (see Matherson v Marchello, 100 A.D.2d 233, 236 [2d Dept 1984]). Rather, a plaintiff alleging slander must allege and prove that she sustained "special damages," which contemplates "the loss of something having economic or pecuniary value" (see Liberman v Gelstein, 80 N.Y.2d 429, 434-435 [1992]). This special damages requirement for slander claims is only avoided where the asserted defamatory statement (1) alleges that the plaintiff committed a crime, (2) tends to injure the plaintiff in his or her trade, business or profession, (3) alleges that plaintiff has contracted a loathsome disease, or (4) imputes unchastity to a woman (Liberman v Gelstein, supra).
The complaint merely alleges that "[p]laintiff has been injured in her good name and reputation, and has suffered great pain and mental anguish and has been held up to ridicule and contempt by her neighbors and the public." Even construing the complaint liberally, this allegation fails to satisfy the special damages pleading requirement for a slander claim. Therefore, for the two foregoing reasons the branch of defendants motion seeking dismissal pursuant to CPLR 3211 (a) (7) must be granted: the statement is one of non-provable opinion, and the pleading fails to allege special damages.
Moreover, even if that infirmity in the complaint did not require dismissal, defendant would be entitled to summary judgment pursuant to CPLR 3212, based on the lack of any evidentiary showing demonstrating the existence of special damages in opposition on the summary judgment application.
In addition to the foregoing grounds for granting summary judgment in defendant's favor, an additional basis for summary judgment is provided by defendants unrebutted prima facie -showing that there is no third party who heard the alleged statement by defendant. "A cause of action for slander requires publication of the defamatory matter, which occurs when it is heard by some third party" (Snyder v Sony Music Entertainmen,, Inc:, 252 A.D.2d 294, 298 [1st Dept .1999] . [emphasis added]; see Rabushka v Marks, 256 A.D.2d 562, 563 [2d Dept 1998]). Defendant has submitted deposition testimony from an array of other persons present at the meeting, and at each deposition the witness denied hearing the allegedly slanderous statement; this constitutes a prima facie showing of no publication (Snyder, supra.). In response, plaintiff failed to come forward with proof of any third party who heard defendant make the alleged statement.
On a motion for summary judgment, a party opposing the motion must lay bare her proof (see Morgan v New York Telephone, 220 A.D.2d 728 [2d Dept 1995]). In order to defeat a motion for summary judgment on the grounds that discovery is still outstanding, the opponent must demonstrate that the incomplete discovery might lead to relevant evidence or facts essential to assist in proving or defending the action (see Torres v Beth Israel Med. Or., 134 A.D.3d 1097, 1097 [2d Dept 2015]).
Plaintiff asserts that summary judgment is improper at this time because discovery is not complete, in that she was unable to depose defendant's husband, Lome Robbins. However, the subpoena for Lome Robbins' deposition was dated December 9, 2019, scheduling a deposition on January 14, 2020. Upon learning that Robbins was in Florida and would not attend, plaintiff had him personally served with the subpoena on February 14, 2020. Yet, nothing in plaintiffs submission,, which are dated August 5, 2020, demonstrate what steps, if any, were taken between February and August to enforce her asserted right to take that deposition. Notably, the Compliance Conference Order dated October 31, 2019 directed that non-party depositions would be completed by December 18, 2019, and the subsequent Compliance Conference Order dated December 11, 2019, directed that depositions would be completed by January 14, 2020. Those orders also provide that "Any disclosure demands not raised at the Compliance Conference are deemed waived." Plaintiffs failure to demonstrate that she sought a court directive for that particular non-party deposition at any point up to August 5, 2020 precludes her from relying on the lack of that particular deposition as grounds for rejecting a summary judgment application at this time. The Court notes that during those intervening months, plaintiff demonstrated that she was capable of making an application regarding the sought deposition of Lome Robbins, given the parties' litigation regarding plaintiffs testimonial subpoena served on defendant's attorney, which was resolved by the June 12, 2020 order of the court (Hon. Joan B. Lefkowitz, J.) quashing that subpoena.
Were dismissal and summary judgment not warranted, the issue of whether defendant was entitled to rely on the common interest qualified privilege would be left for trial (see Ferrara v Bank, 153 A.D.3d 671, 673 [2d Dept 2017]), since a qualified privilege "may be overcome by a showing of common law malice, such as spite or ill will, or by a showing of actual malice, such as knowledge of the falsehood of a statement or reckless disregard for the truth" (Gottlieb v Wynne, 159 A.D.3d 799, 800 [2d Dept 2018]).
The complaint's cause of action for intentional infliction of emotional distress must also be dismissed. "The tort has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress" (Howell v New York Post Co., 81 N.Y.2d 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 v American Broadcasting Cos. Inc., 27 N.Y.3d 46, 56 [2016]). The allegations in the pleading do not rise to that level, nor does evidentiary support submitted in opposition to defendants application for summary judgment.
Plaintiffs cross-motion would be denied in any event, since her moving papers fail to establish entitlement to judgment as a matter of law.
Accordingly, it is hereby
ORDERED that the branches of defendant's motion seeking an order pursuant to CPLR 3211 (a) (7) and CPLR 3212 dismissing the complaint are granted, and the Clerk ss directed to enter judgment dismissing the complaint; and it is further
ORDERED that plaintiff s cross-motion is denied.
This constitutes the Decision and Order of the Court.