Opinion
507354/18
01-04-2019
BOARD OF MANAGERS OF BRIGHTWATER TOWERS CONDOMINIUM, Plaintiff, v. Nina SHLIVKO, Defendant.
Attorney for Plaintiff, Daniel Szalkiewicz & Associates, P.C., 7 Dey Street, Suite 900B, New York, New York 10007, (212) 706-1007 Attorney for Defendant, Lewis & Lin, LLC, David D. Lin, Esq., Justin Mercer, Esq., 45 Main Street, Suite 608, Brooklyn, NY 11201, (718) 243-9323
Attorney for Plaintiff, Daniel Szalkiewicz & Associates, P.C., 7 Dey Street, Suite 900B, New York, New York 10007, (212) 706-1007
Attorney for Defendant, Lewis & Lin, LLC, David D. Lin, Esq., Justin Mercer, Esq., 45 Main Street, Suite 608, Brooklyn, NY 11201, (718) 243-9323
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on defendant Nina Shlivko's (hereinafter defendant or Shlivko) notice of motion filed on June 13, 2018, under motion sequence two, for an order: (1) dismissing plaintiff Board of Managers of Brightwater Towers Condominium's (hereinafter plaintiff or the Board) first cause of action for defamation pursuant to CPLR 3016 (a) and 3211 (a) (7) for failure to state a cause of action for defamation with requisite particularity; (2) dismissing the plaintiff's second cause of action for declaratory judgment pursuant to CPLR 3211 (a) (7) as duplicative and lacking merit. The motion is opposed by the Board only as to the first branch of defendant's motion.
MOTION PAPERS
Defendant's motion papers consist of a notice of motion, an affirmation of counsel, a memorandum of law and three annexed exhibits labeled A to C. Exhibit A is plaintiff's verified complaint. Exhibit B is plaintiff's amended verified complaint. Exhibit C is a copy of plaintiff's petition for pre-action disclosure.
The motion is opposed by plaintiff. Their opposition papers consist of an affirmation of counsel, a memorandum of law and eight annexed exhibits labeled 1 to 8. Exhibit 1 is described as an email dated December 21, 2017 from defendant to BWTUnitOwners. Exhibit 2 is purported to be a copy of an email dated December 22, 2017 from defendant with no recipient listed. Exhibit 3 is purported to be a copy of an email dated December 25, 2017 from defendant with no recipient listed. Exhibit 4 is purported to be a copy of an email dated December 28, 2017 from defendant with no recipient listed. Exhibit 5 is a copy of an email dated December 30, 2017 from defendant to Igor Dayen. Exhibit 6 is a copy of Trump Vil. Section 4, Inc. v Bezvoleva , 2015 NY Slip Op. 32507 [Sup. Ct., Kings County 2015] decision. Exhibit 7 is a printout from the New York State Unified Court System website from the WebCriminal page entitled case summary detail. Exhibit 8 is copy of an amended decision and order by Hon. Kenneth L. Thompson, Jr., Board of Managers of Brightwater Towers Condominium v Google, LLC. , under Index Number 22458/2018.
BACKGROUND
On April 11, 2018, the Board commenced an action against the defendant to recover damages for defamation by electronically filing a summons and complaint with the Kings County Clerk's Office. On May 24, 2018, plaintiff filed an amended complaint.
The Board's amended complaint contains sixty-four allegations of fact to support two causes of action. The first cause of action is for libel and the second cause of action is for a declaratory judgment. The amended complaint alleges the following salient facts. On six separate occasions the defendant made defamatory statements about the Board or its members. The Board is elected by unit owners to manage the affairs of Brightwater Towers Condominium (hereinafter Brightwater), a condominium complex located at 501 Surf Avenue, Brooklyn, New York and 601 Surf Avenue, Brooklyn, New York. The defendant is a unit owner and resident of Brightwater. The amended complaints set forth alleged defamatory statements as follows:
All alleged defamatory statements were reproduced verbatim from plaintiff's amended complaint and included the date heading and paragraph number. With the exception that the alleged quoted remarks were bolded for the instant decision and order.
The December 21, 2017 Statement
19. On December 21, 2017 at 10:14:19 PM EST, defendant sent an e-mail to "BWTUnitOwners@googlegroups.com, an address which operates as a listserv, directing e-mails to over 400 people. The e-mail called for the Board fo Managers to be replaced by a management company, and asserted that "[w]e need major change here at BWT, trust, transparency, respect from the board and management[,]" further declaring that "[i]t's very difficult to choose trustworthy board, and even harder to remove corrupt board."
20. In the same e-mail, the Defendant added that, once the management company takes over, "I guarantee there will be no corruption nor abuse of power any longer."
The December 22, 2017 Statement
21. The following day, on December 22, 2017 at 1:55:35 AM EST, Defendant's allegations became more specific when she wrote in an email sent to the same individuals that:
People at BWT community sacrificed so much since this board took over, having no super and sufficient cleaning staff and therefore dirty buildings, [losing] playground, accrued all kinds of unlawful fees and penalties, required to purchase new a/c units and grills, non-refundable move-in/out charges, not having community room for group gatherings
The December 25, 2017 Statement
23. Defendant took to her e-mail once again on Christmas Day of 2017, when at 11:18:18 AM EST she sent and email to the group accusing the Board of breaching its fiduciary duty and of committing theft. The defendant wrote:
This is exactly the point, we chose accountant, bank manager, lawyer, etc for the board, why they ignore our by-laws, business law and simple principles of accounting.
Accountability is number 1 principle in any business, unfortunately BWT is lacking it consistently.
The December 28, 2017 Statement
24. On December 28, 2017 defendant sent her most incendiary email yet, this time writing to the group "MANY MANY [residents] SUFFERING EMOTIONAL AND MONETARY DISTRESS because of this board's illegal actions." Her disingenuous [counseling] continues:
It needs to stop, they are not kings and queens here, they do many things that go against our by-laws and business law and pay condo lawyer with our money to cover for their bad deeds. They waste our money and later raise our common charges.
They do not account for anything, they deny us use of our community room, they do not let us get together and discuss current issues, they only allow us to listen to their BS.
They install many many cameras to watch us and listen to our conversations all thru out both buildings. They've created a horrible living environment and it well known in the neighborhood of Brighten beach, Coney Island, Sheepshead bay and beyond. Unfortunately it will lead to many people selling theirs apartments and Pavel buying it for a pennies-on-a- dollar with our money it will EVENTUALLY LEAD BWT TO A BANKRUPTCY.
The December 30, 2017 Statement
25. On December 30, 2017, defendant wrote that the "board will fight tooth-and-[nail] for secrecy and full control, [doubt] very much that you or anybody will come near any detailed back up to their fake financials."
The April Tirade
27. On April 22, 2018, at approximately 3:40 p.m., a member of the Board, Joseph Meynekhdrun, encountered defendant Shlivko in the Brightwater Towers lobby as he was approaching the elevator.
28. Defendant Shlivko screamed at the Board member, "Why are you staring at me? You belong in jail! I will put you in prison! How could you do that?" Security camera footage from the incident shows defendant Shlivko's husband attempting to calm her to no avail.
29. Defendant Shlivko shouted so loudly that the security guard sitting some distance away was able to witness the incident. Another building resident who was also waiting for an elevator at the time observed defendant Shlivko's rant as well.
On June 13, 2018, defendant filed the instant motion to dismiss plaintiff's amended complaint in lieu of an answer pursuant to CPLR 3016 (a) and 3211 (a) (7).
LAW AND APPLICATION
In the instant motion, defendant seeks dismissal of the Board's cause of action for defamation and declaratory judgment. Defendant contends that the first cause of action for defamation should be dismissed pursuant to CPLR 3016 (a) and 3211(a)(7) for failure to state a cause of action with the requisite particularity. Shlivko also seeks to dismiss the declaratory judgment cause of action pursuant to CPLR 3211 (a) (7) contending that it is duplicative and without merit. In as much as plaintiff does not oppose the branch of Shlivko's motion to dismiss the second cause of action, the declaratory cause of action is dismissed.
On a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7), the complaint must be afforded "a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory" (see Stone v Bloomberg L.P. , 163 AD3d 1028, 1030 [2nd Dept 2018] citing Leon v Martinez , 84 NY2d 83 [1994] ). Unlike a summary judgment motion, a motion to dismiss requires the court to merely examine the adequacy of the pleadings (see Davis v Boeheim , 24 NY3d 262, 268 [2014] ). The pertinent question is "whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and it cannot be said that a significant dispute exists regarding it, dismissal should not eventuate" ( Stone , 163 AD3d at 1030 citing Guggenheimer v Ginzburg , 43 NY2d 268, 275 ). A court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint (see Rovello v Orofino Realty Co. , 40 NY2d 633, 635 [1977] ).
Dismissal pursuant to CPLR 3016
CPLR 3016 sets forth those actions which require particularity in pleadings. A cause of action for defamation must allege that the defendant published a false statement, without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se (see Arvanitakis v Lester , 145 AD3d 650, 651-52 [2nd Dept 2016] ). To constitute defamation per se, the alleged statements must (1) charge plaintiff with a serious crime; (2) tend to injure another in his or her trade, business or profession; (3) state that plaintiff has a loathsome disease; or (4) impute unchastity to a woman ( Liberman v Gelstein , 80 NY2d 429, 435 [1992] ).
CPLR 3016 (a) pertains to causes of action for defamation, requiring that the particular words complained of must be set forth in the complaint (see Lemieux v Fox , 135 AD3d 713, 714 [2nd Dept 2016] ). Furthermore, the complaint must also allege the time, place, and manner of the false statement and specify to whom it was made (see Arvanitakis , 145 AD3d at 651 citing Dillon v City of New York , 261 AD2d 34, 38 [1st Dept 1999] ). "Compliance with CPLR 3016(a) is strictly enforced" ( Lemieux , 135 AD3d at 714 quoting Horbul v Mercury Ins. Group, 64 AD3d 682 [2nd Dept 2009] ). Thus, a cause of action sounding in defamation that fails to comply with these special pleading requirements must be dismissed (see CSI Group LLP v Harper , 153 AD3d 1314 [ 2nd Dept 2017] ).
In the instant motion, the defendant contends that the Board has failed to satisfy the particularity requirements of CPLR 3016 (a) with regard to identifying to whom the alleged statements were made and the manner in which they were made. The amended complaint contains six alleged defamatory statements as previously outlined. The December 21st, 22nd, 25th, 28th, 30th were email communications. The amended complaint alleges that the December 21st statement was sent by Shlivko using her email address, ninashlivko@gmail.com, to BTWUnitOwners@googlegroups.com, an email list serve address which includes over 400 people. On the December 22nd, 25th, and 28th statements, plaintiff alleges that Shlivko sent emails either to "the same individuals" or "to the group". Under a CPLR 3211 (a) (7) motion analysis, including CPLR 3016, the court must take the allegations as true and resolve all inferences which reasonably flow therefrom in favor of the pleader (see Cron v Hargro Fabrics , 91 NY2d 362[1998] ). Applying this analysis, statements that were made to "the same individuals" or "the group" refers to the BTWUnitOwners@googlegroups.com. The remaining statements on December 30th and April 28th are sufficiently plead with particularity as the amended complaint specifies the time, place, manner and to whom the statements were made.
Dismissal pursuant to CPLR 3211 (a) (7)
Shlivko contends that the statements pled in the amended complaint fail to state a cause of action for defamation. A CPLR 3211 (a) (7) motion to dismiss requires that the court accept as true each allegation made by plaintiff and limit its inquiry to the legal sufficiency of plaintiff's claim (see Davis , 24 NY3d at 268 ). "[I]f upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action (Id. ).
"Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action" ( Rosner v Amazon.com , 132 AD3d 835, 836-37 [2nd Dept 2015] quoting Gross v New York Times Co. , 82 NY2d 146, 152—153 [1993] ). Consequently, a statement that is deemed a "pure opinion" is not actionable because "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" ( Elias v Massimillo , 166 AD3d 726 [2nd Dept 2018] quoting Davis , 24 NY3d at 269 ).
A "pure opinion" is categorized in one of two ways. It can be considered a statement of opinion that is accompanied by a recitation of the facts upon which it is based or in the alternative "it may be an opinion not accompanied by such a factual recitation so long as it does not imply that it is based on undisclosed facts" ( Greenberg v Spitzer , 155 AD3d 27, 42 [2nd Dept 2017] ). Conversely, a "mixed opinion" is actionable, such an opinion is based upon facts that justify the opinion but are unknown to those reading or hearing it (see Id.).
In order to evaluate whether a statement is an opinion or a fact, the court must consider the following factors: (1) whether the specific language has a precise meaning that is readily understood, (2) whether the statements are capable of being proven true or false, and (3) whether the context in which the statement appears signals to readers or listeners that the statement is likely to be opinion, not fact" (see Id., citing Silverman v Daily News, L.P. , 129 AD3d 1054, 1055 [2nd Dept 2015] ). The court must examine the context of the entire alleged communication and the circumstances in which they were written or spoken (see Greenberg , 155 AD3d at 42 ). The court's analysis is based on "what the average person hearing or reading the communication would take it to mean" (see Davis , 24 NY3d at 269 quoting Steinhilber v Alphonse , 68 NY2d 283, 290 [1986] ).
In the amended complaint, the Board alleges that Shlivko made statements on six occasions that were defamatory in nature accusing the plaintiff of unethical and financial improprieties. The December 21st statement includes key phrases, such as, "we need a major change" or "I guarantee", a signal to the reader that it is an opinion rather than fact. Similarly, the April 22nd statement in which Shlivko is alleged to have stated, "you belong in jail," is also pure opinion. The statement begins with the phrase "why are you staring at me", which cues the listener that a quarrel or disagreement may follow in which the listener would anticipate rhetoric or hyperbole (see Stolatis v Hernandez 161 AD3d 1207 [2nd Dept 2018] ).
The December 22nd and December 25th statements may include some factual information. The December 22nd statement includes information that only a Brightwater resident may be privy to such as "having no super" and "losing a playground". However, whether or not people at Brightwater have sacrificed so much or have "sufficient cleaning staff" is a matter of opinion. Analyzing the statement as a whole, tested against the understanding of the average reader the statement is "not actionable and cannot be made so by a strained or artificial construction" ( Gottlieb v Wynne , 159 AD3d 799, 800 [2nd Dept 2018] ). Similarly, the December 25th statement, includes some factual information that may be common to a residence of Brightwater such as "we chose accountant, bank manager, lawyer, etc. for the board." Nevertheless under the opinion analysis the meaning of this statement is not readily understood. The phrase "accountability is the number 1 principle in any business" is an opinion.
Viewing the language of the statements on December 28th and 30th it is evident that no precise meaning can be attributed to these statements. The references therein cannot be proven true or false. Furthermore, the average reader would view these statements to be a rant or a mere expression of dissatisfaction that is based in pure opinion (see Aronson v Wiersma 65 NY2d 592 [1985] ).
After evaluating all the alleged defamatory statements in context, they do not suggest to the reader or listener that Shlivko has authority or that the statements were based on facts (see Davis , 24 NY3d at 269 ). Thus, the statements are non actionable opinion. Therefore, the defendant's motion to dismiss the cause of action for defamation is granted.
CONCLUSION
Defendant Nina Shlivko's motion for an order pursuant to CPLR 3016 (a) to dismiss plaintiff Board of Managers of Brightwater Towers Condominium first cause of action for defamation for failure to state a cause of action with requisite particularity is denied.
Defendant Nina Shlivko's motion for an order pursuant to CPLR 3211 (a) (7) to dismiss plaintiff Board of Managers of Brightwater Towers Condominium first cause of action for defamation for failure to state a cause of action is granted.
Defendant Nina Shlivko's motion for an order pursuant to CPLR 3211 (a) (7) to dismiss plaintiff Board of Managers of Brightwater Towers Condominium's second cause of action for declaratory judgment as duplicative and lacking merit is granted as unopposed.