Opinion
705130/2017
09-18-2017
Julie Carter, Plaintiff, v. Israel Waks a/k/a ISRAEL WALKS; GEFFEN WAKS a/k/a MICHA WAKS; AESHA WAKS; DORA PEKAR; and JOHN DOES 1-3 and JANE DOES 1-3 and A PARCEL OF LAND WITH THE BUILDINGS AND IMPROVEMENTS THEREON SITUATE IN THE COUNTY OF QUEENS BEING KNOWN AS BLOCK 16311, LOT 40 a/k/a 228 BEACH 147TH STREET, NEPONSIT, NY 11694, Defendants.
Attorney for Plaintiff Julie Carter: Victor M. Serby 255 Hewlett Neck Road Woodmere, New York 11598 (516) 374-2455 Attorney for Defendants: Robert Bondar, Esq. 28 Dooley Street, 3rd Floor Brooklyn, New York 11235 (347) 462-3262
Attorney for Plaintiff Julie Carter: Victor M. Serby 255 Hewlett Neck Road Woodmere, New York 11598 (516) 374-2455 Attorney for Defendants: Robert Bondar, Esq. 28 Dooley Street, 3rd Floor Brooklyn, New York 11235 (347) 462-3262 Denis J. Butler, J.
The following papers were read on this motion by defendant Dora Pekar to dismiss plaintiff's Complaint pursuant to CPLR §3211(a)(8) and CPLR §3211(a)(7).
Papers/Numbered
Notice of Motion, Affirmation, Affidavit, Exhibits E8-15 Affirmation In Opposition E18 Affirmation In Reply E20
Upon the foregoing papers it is ordered that the motion is determined as follows:
One of the Defendants in the above-captioned matter, Dora Pekar, moves to dismiss Plaintiff's complaint as asserted against her, on two separate grounds: lack of personal jurisdiction based on improper service (CPLR 3211[a][8]), and failure to state a cause of action for defamation (CPLR 3211[a][7].) Plaintiff opposes the motion.
The branch of Defendant's motion seeking dismissal of Plaintiff's complaint pursuant to CPLR 3211(a)(8) is DENIED as moot, as Plaintiff has submitted proof that Defendant has been properly and timely served since making the instant motion.
The branch of Defendant's motion seeking dismissal of Plaintiff's complaint as against Defendant Dora Pekar pursuant to CPLR 3211(a)(7) is GRANTED, as Plaintiff's defamation claim fails to plead either slander per se or special damages.
"The elements of a cause of action for defamation are a false statement, published 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." (Arvanitakis v Lester, 145 AD3d 650, 651 [2d Dept 2016] (internal quotation marks omitted).) "The complaint must set forth the particular words allegedly constituting defamation (see CPLR 3016[a]), and it must also allege the time, place, and manner of the false statement and specify to whom it was made." (Id.)
On a motion to dismiss pursuant to CPLR 3211(a)(7), the Court must afford the complaint a liberal construction, accept all facts as alleged in the pleading to be true, and accord the plaintiffs the benefit of every possible favorable inference. (Kamchi v Weissman, 125 AD3d 142, 159 [2d Dept 2014].)
Here, Plaintiff's complaint alleges that in January 2013, the parties in this action were engaged in a dispute regarding, among other things, ownership and occupancy of a residential home. Plaintiff alleges that after she refused to sign a deed relinquishing her rights to the subject property, Defendant Pekar called the police and falsely told them that the property in question was "not [Plaintiff's] house," that "[Plaintiff] is trespassing," and that "she hit [Pekar] and injured [her] arm." Plaintiff's complaint alleges that such statements constitute slander per se. She further alleges that the "first two statements interfered with [her] deeded undivided possessory right in the entire premises and damaged [her] thereby." She seeks "damages of $1,000,000 or in an amount to be determined by a jury" from Defendant Pekar.
A claim alleging slander is not sustainable if special damages are not pleaded, unless it falls within one of four exceptions that establish slander per se. (Cammarata v Cammarata, 61 AD3d 912, 913 [2d Dept 2009].) One of the four exceptions is that the statement alleged the commission of a serious crime. (Id.) "Not every imputation of unlawful behavior, however, is slanderous per se." (Liberman v Gelstein, 80 NY2d 429, 435 [1992].) "[T]he law distinguishes between serious and relatively minor offenses, and only statements regarding the former are actionable without proof of damage." (Id.) Such serious crimes include murder, burglary, larceny, arson, rape, and kidnapping. (Id.)
Here, the statements attributed to Defendant Pekar allege that Plaintiff was "trespassing" and that she "hit [Pekar] and injured [her] arm." These statements do not allege the commission of a serious crime, and therefore do not constitute slander per se. (See, e.g., Martin v Hayes, 105 AD3d 1291, 1292 [3d Dept 2013]).
Since the alleged statements here do not constitute slander per se, Plaintiff was required to plead special damages (Cammarata v Cammarata, 61 AD3d 912, 913 [2d Dept 2009].) Special damages must be fully and accurately identified "with sufficient particularity to identify actual losses" (Matherson v Marchello, 100 AD2d 233, 235—36 [2d Dept 1984] (quoting Lincoln First Bank of Rochester v Siegel, 60 AD2d 270, 280 [4th Dept 1977]). "Round figures" or a general allegation of a dollar amount as special damages do not suffice. (Drug Research Corp. v Curtis Pub. Co., 7 NY2d 435, 440 [1960].)
To establish her claim of special damages here, Plaintiff merely alleges that Pekar's statements that the property was not Plaintiff's house and that Plaintiff was trespassing "interfered with [Plaintiff's] deeded undivided possessory right in the entire premises and damaged [Plaintiff] thereby." She seeks a round figure of $1,000,000. (Cf. Drug Research Corp., 7 NY2d at 441.) Plaintiff's "nonspecific conclusory allegations do not meet the stringent requirements imposed for pleading special damages." (Matherson, 100 AD2d at 235]).
Because Plaintiff fails to plead slander per se or special damages, Defendant Pekar's motion for dismissal of Plaintiff's defamation claim is GRANTED.
This constitutes the Decision and Order of the Court. Dated: September 18, 2017 Denis J. Butler, J.S.C.