Opinion
63644/2015
03-25-2016
Peter Stolatis, Plaintiff, v. Miguel Hernandez, Defendant, Plateau Associates, LLC Defendant on Counterclaim.
APPEARANCES: GAINES, NOVICK, PONZINI, COSSU & VENDITTI, LLP Attorneys for Plaintiff By John M. Murtagh, Esq. 11 Martine Avenue, 8th Floor White Plains, New York 10606 OXMAN LAW GROUP, PLLC Attorneys for Defendant By Stuart E. Kahan, Esq. 120 Bloomingdale Road, Suite 100 White Plains, New York 10605
APPEARANCES: GAINES, NOVICK, PONZINI, COSSU & VENDITTI, LLP Attorneys for Plaintiff By John M. Murtagh, Esq. 11 Martine Avenue, 8th Floor White Plains, New York 10606 OXMAN LAW GROUP, PLLC Attorneys for Defendant By Stuart E. Kahan, Esq. 120 Bloomingdale Road, Suite 100 White Plains, New York 10605 Terry J. Ruderman, J.
The following papers were considered in connection with the parties' motions for summary judgment:
Papers/Numbered
Motion Sequence No. 1 Notice of Motion, Affirmation, Plaintiff's Affidavit, Exhibits A — J 1 Memorandum of Law in Support 2 Motion Sequence # 2 Notice of Cross-Motion, Affirmation, Exhibits A — G 3 Memorandum of Law in Support of Cross Motion 4 Plaintiff's Reply Memorandum of Law 5
The plaintiff Peter Stolatis commenced this action on August 20, 2015 by filing a summons and verified complaint seeking damages against defendant Miguel Hernandez for defamation. The defendant interposed a verified answer with a counterclaim against the plaintiff and Plateau Associations, LLC ("Plateau"), alleging inter alia, that plaintiff's complaint should be dismissed as a strategic lawsuit against public participation ("SLAAP"), as defined in New York Civil Rights Law §§ 70-a and 76-a.
Plaintiff is a member of Plateau Associates, LLC, a development and real estate limited liability company. In 2001, Plateau acquired abandoned property comprised of multiple structures known as the Brandreth Pill Factory Complex, located at 36 North Water Street in Ossining, New York. Plateau purchased the property with the intent to develop a residential condominium on the site. Shortly after the 2001 acquisition, plaintiff approached the defendant, who was then an Ossining Village Trustee, to discuss the possibility of purchasing his land, which was adjacent to the Property. With defendant's permission, Plateau conducted an inspection, survey and title search of defendant's property and thereafter presented defendant with a proposed contract to purchase the land. At defendant's request, Plateau met with defendant's friend and advisor, Bill Burton, a former Supervisor of the Town of Ossining, and former Chairman of the Ossining Democratic Committee, to discuss the proposal. After the meeting between Plateau and Burton, Hernandez sought to modify the proposed acquisition terms, which Stolatis was unwilling to accept, and the transaction was ultimately abandoned.
In 2005, Plateau submitted its first plans for development of the Water Street property to the Village of Ossining Planning Department. In 2008, the Village declared the Pill Factory building, located within the complex, structurally unsafe. Plateau subsequently applied for, and received, a demolition permit. The demolition permit contained three conditions, including one that stated: "[b]y receipt of this permit, the permit holder recognizes that demolition of the building . . . must comply with all applicable laws, rules and regulations of the Village . . ." (Pl.'s Ex. C.) Five years later, in 2013, the Ossining Historic Preservation Commission ("HPC") was formed and Hernandez was appointed a member. After its formation, the HPC voted to recommend to the Ossining Village Board of Trustees that the Pill Factory be landmarked. The building was subsequently landmarked on April 6, 2013. By April 2015, Plateau's development proposal for the entire complex had received significant resistance from the community, and it was ultimately removed from the Village Planning Board's agenda. Thereafter, Plateau decided to exercise its rights under the demolition permit. When Plateau began demolishing the structure on April 14, 2015, the Village issued a stop work order due to plaintiff's alleged disregard of the demolition permit conditions. According to the defendant, plaintiff never sought a Certificate of Appropriateness from the HPC, pursuant to section 270 — 25 [F] of the Village Code, which is required in order to demolish a landmarked building.
Later that same day, Hernandez posted photographs of Stolatis in front of the partially demolished Pill Factory on a Facebook page entitled "About Ossining — A Town Square." The photographs were accompanied by the following captions: (1) "Peter Stolatis at the site of his crime," (2) "Additional Photos of the Crime Scene," and (3) "Next is a smirking Peter Stolatis the alleged criminal mastermind." (Complaint, ¶¶ 22 — 23.) In the comments section accompanying the photograph of Stolatis, the defendant also posted the following: "This foto [sic] disproves the myth that vampires only come out at night," and "he removed part of the metal roof and punched holes in it and failed to repair it so the elements would get in and slowly but surely destroy the building. This is known as demolition by intentional neglect." (Complaint, ¶¶ 24 — 26.) In response to defendant's statements, Facebook users posted negative comments such as "I hope he goes to jail," and "Shame on him for destroying our history what gives him the right," and ". . . if there is a hell, I hope he goes there." ( Id.)
The plaintiff subsequently brought this defamation action against the defendant, in which he alleges that the defendant posted defamatory and libelous statements on Facebook about the plaintiff personally and professionally, which defendant knew to be false at the time of the posting, with the intent to damage plaintiff's personal and professional business reputation in the community. Plaintiff now moves pursuant to CPLR 3211(a)(7) to dismiss defendant's Civil Rights Law §§ 70-a and 76-a counterclaim on the ground that he is not a public applicant or permitee, and, even if he is, defendant's statements do not directly challenge, nor substantially relate to, any pending permit or application before the Village of Ossining. The plaintiff also contends that the defamation action has a substantial basis in fact and law, and as such, plaintiff is entitled to summary judgment on the issue of liability pursuant to CPLR 3212.
Defendant opposes and cross-moves for an order granting summary judgment on his counterclaim, pursuant to CPLR 3212(h), alleging that Stolatis is properly considered a public applicant or permittee because he has an interest, connection or affiliation with Plateau, which is an entity materially related to the 2008 demolition permit at issue. The defendant also seeks an order granting summary judgment dismissing plaintiff's verified complaint, pursuant to CPLR 3212(a), on the ground that Stolatis has failed to demonstrate that the Facebook comments constitute defamation per se.
Analysis
The SLAAP Suit
Civil Rights Law § 76-a was enacted to protect citizens from strategic lawsuits against public petition or participation, termed "SLAAP" suits. A SLAAP suit is defined as an action for damages brought by a public applicant or permittee, that is materially related to a defendant's efforts "to report on, comment on, rule on, challenge or oppose" an application or permission. (See Civil Rights Law § 76-a [1] [a]; Southampton Day Camp Realty, LLC v. Gormon, 118 AD3d 976, 977—78 [2d Dept. 2014]; Singh v. Sukhram, 56 AD3d 187, 194 [2d Dept. 2008].) A public applicant or permittee is "any person who has applied for or obtained a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body, or any person with an interest, connection or affiliation with such person that is materially related to such application or permission." (Civil Rights Law § 76-a [1] [b].)
CPLR 3212(h) provides that a motion for summary judgment to dismiss a SLAPP suit must be granted "unless the party responding to the motion demonstrates that the action, claim, cross claim or counterclaim has a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law." (CPLR 3212(h); see Southampton Day Camp Realty, 118 AD3d at 977—78 [citing Sukhram, 56 AD3d at 194 (internal quotation marks omitted)]; see also Hariri v. Amper, 51 AD3d 146, 150—151 [1st Dept. 2008].)
As an initial matter, the Court finds that the defendant cannot assert a Civil Rights Law § 76-a counterclaim against Plateau, who is not an original party to plaintiff's defamation action and thus, has made no claim against Hernandez that could properly be considered a SLAAP suit. As such, defendant's motion for summary judgment on his counterclaim against Plateau is denied, and plaintiff's motion to dismiss the defendant's counterclaim against Plateau is granted
In support of his motion for summary judgment on the counterclaim, pursuant to CPLR 3212(h), and for summary judgment dismissing the verified complaint, pursuant to CPLR 3212(a), defendant argues that Stolatis is a public applicant or permittee. Although defendant acknowledges that Stolatis did not personally apply for the demolition permit, the defendant contends that Stolatis is a public applicant by virtue of his close connection and affiliation with Plateau. It is undisputed that Stolatis is a member of the limited liability company, and that Plateau applied for, and obtained a permit from the Village of Ossining to demolish the Pill Factory. Thus, Stolatis is properly considered a public applicant under the statute.
Nevertheless, defendant has failed to demonstrate that plaintiff's suit is "materially related to any efforts of the defendant to report on, comment on, rule on, challenge, or oppose such application or permission." (Civil Rights Law § 76-a [1] [a].) As the record shows, the defendant was not in the process of petitioning the Village Board regarding Plateau's demolition permit, which had been granted eight years prior to defendant's Facebook posts. In Harfenes v. Sea Gate Ass'n, Inc., 167 Misc 2d 647 [Sup. Ct., NY County 1995]), a homeowner's association applied to the New York Department of Environmental Conservation ("DEC") to place protective material along the community's shoreline. The application was denied, and the association hired its own waste haulers to place concrete bars along the shore, an action which led the DEC to impose a monetary fine. Disgruntled residents of the association subsequently brought suit against the association seeking to uncover the names of the waste haulers. At the same time, the association brought an action against the residents for their interference with the disbursement of an unrelated federal small business loan, which the association had applied for in order to repair damage from a winter storm. The residents counterclaimed for dismissal on the ground that the association's lawsuit was a SLAAP suit designed to prevent the residents from learning the identity of the waste haulers. The Court found that plaintiffs did not have a cause of action under Civil Rights Law § 76-a because there was no application pending before a government body that the residents could have been seeking to report on or challenge through their lawsuit. The only application to which the alleged SLAAP suit could have applied was the homeowner's 1990 application to the DEC. However, the residents' lawsuit, which sought to identify the waste haulers, was commenced three years after defendants' application to the DEC had been denied, and thus it could not have been part of the residents' effort to report on, comment on, rule on, challenge or oppose the defendants' 1990 application. Furthermore, there was no evidence that the residents even participated in the association's 1990 application process in any manner whatsoever.
Applying these principles to the case at bar, it is clear that the defendant's Facebook comments in 2015, while certainly an attempt to report and comment on plaintiff's demolition of the Pill Factory, were not part of an effort to defeat Plateau's application to the Village for the demolition permit, which had already been issued eight years earlier in 2008. (See Harfenes, 167 Misc 2d at 653 ["Plaintiffs must directly challenge a license or permit application in order to establish a cause of action under Civil Rights Law § 76-a."] [emphasis added].) Nor could defendant's comments be seen as relating to any pending application, as clearly, Plateau had failed to apply for any Certificate of Appropriateness. As such, plaintiff's action against the defendant for defamation cannot be said to have affected Hernandez' right of public petition and participation before a government body so as to constitute a SLAAP suit within the meaning of Civil Rights Law § 76-a. ( See Guerrero v. Carva, 10 AD3d 105, 118 [1st Dept. 2004] ["in the absence of evidence that defendants were petitioning an agency regarding an application or permission of plaintiffs," the plaintiffs' lawsuit "did not affect defendant[s'] rights of public petition and participation before public agencies and, accordingly, did not offend Civil Rights Law §§ 70-a and 76-a"].) Accordingly, defendant's motion for summary judgment on his counterclaim against Stolatis is denied, and plaintiff's motion to dismiss the counterclaim is granted.
The Defamation Claim
In order to establish a viable cause of action for defamation, a plaintiff must allege that a false statement, of and concerning the plaintiff, was published without privilege or authorization, to a third party, with fault as judged by, at a minimum, a negligence standard, and that the false statement caused special harm or constituted defamation per se. (Epifani v. Johnson, 65 AD3d 224 [2d Dept. 2009] [quoting Salvatore v. Kumar, 45 AD3d 560, 563 [2d Dept. 2007] [internal quotation marks omitted]; see Liberman v. Gelstein, 80 NY2d 429, 435 [1992]; Geraci v. Probst, 15 NY3d 336, 344 [2010].) In cases involving defamation per se, where, for example, a false statement charges plaintiff with the commission of a serious crime, or tends to injure the plaintiff in his or her trade, business or profession, "the law presumes that damages will result, and special damages need not be alleged or proven." (Gatz v. Otis Ford, 274 AD2d 449, 450 [2d Dept. 2000].) In addition, a plaintiff who is a public figure or the subject of public concern is also required to prove actual malice in order to recover damages in a defamation suit. (Huggins v. Moore, 94 NY2d 296, 301 [1999].)
"Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance." (Golub v. Enquirer/Star Group, Inc., 89 NY2d 1074, 1076 [1997].) Generally, a written statement is considered defamatory "if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community." (Probst, 15 NY3d at 344 [2010] [citing Golub, 89 NY2d at 1076].) As the Court of Appeals stated in Aronson v. Wiersma, "[t]he 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 or artificial construction." (Aronson v. Wiersma, 65 NY2d 592, 594 [1985].)
"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 NY3d 271, 276 [2008].) In deciding whether a statement constitutes an expression of opinion, which is a question of law for the court, the following factors should be considered: "(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) 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 that what is being read or heard is likely to be opinion, not fact." (Id. at 276; quoting Brian v. Richardson, 87 NY2d 46, 51 [1995].) "The dispositive inquiry is whether the reasonable [reader] would have believed that the challenged statements were conveying facts about the . . . plaintiff." ( Melius v. Glacken, 94 AD3d 959, 959-60 [2d Dept. 2012] [quoting Richardson, 87 NY2d at 51].)
The challenged language described the plaintiff as a "vampire," and "a smirking . . . alleged criminal mastermind." In the context in which the statements were posted, on a popular social media website, during an impassioned reaction to the loss of a landmarked building in the community, it would have been clear to the reasonable reader that the Facebook remarks were merely rhetorical hyperbole, and not statements of fact that the plaintiff was an actual vampire or criminal. (See Konig v. WordPress.com, 112 AD3d 936, 937 [2d Dept. 2013] [generalized reference to "downright criminal actions" on an internet blog during sharply contested election was not considered a factual accusation of criminal conduct]; see also Galazo v. Salzman, 42 AD3d 310, [1st Dept. 2007] [statements that the plaintiff was "no good," and had "engaged in criminal conduct" and "committed crimes," made in the context of a heated dispute among residents of a beach community, constituted nonactionable opinion).] Accordingly, the plaintiff has failed to establish his entitlement to summary judgment on the defamation claim, and defendant's motion for summary judgment dismissing the complaint is granted.
The parties' remaining contentions either are without merit or need not be reached in light of the Court's determination.
Based on the foregoing, it is hereby
ORDERED that plaintiff's motion for an order, pursuant to CPLR § 3211(a)(7), dismissing defendant's Civil Rights Law §§ 70-a and 76-a counterclaim is granted; and it is further
ORDERED that plaintiff's motion for summary judgment on the issue of liability, pursuant to CPLR § 3212, is denied; and it is further
ORDERED that defendant's motion for summary judgment on his Civil Rights Law §§ 70-a and 76-a counterclaim, pursuant to CPLR § 3212(h), is denied; and it is further
ORDERED that defendant's motion for summary judgment dismissing plaintiff's complaint, pursuant to CPLR § 3212(a), is granted.
This constitutes the Decision and Order of the Court. Dated: March 25, 2016 White Plains, New York _______________/s/_________________ HON. TERRY JANE RUDERMAN, J.S.C.