Opinion
No. 6896/2010.
2010-08-13
Timothy ROSEN, Plaintiff, v. James P. ROBINSON, Defendant.
Gregory O. Koerner, Esq., New York, for Plaintiff. Borrelli & Associates, P.L.L.C., by Michael J. Borrelli and Alexander T. Coleman, Esqs., Carle Place, for Defendant.
Gregory O. Koerner, Esq., New York, for Plaintiff. Borrelli & Associates, P.L.L.C., by Michael J. Borrelli and Alexander T. Coleman, Esqs., Carle Place, for Defendant.
CHARLES J. MARKEY, J.
In this defamation action brought by a professor at Queens College of the City University of New York against a college student, the defendant moves to dismiss.
The complaint consists of one cause of action, but lists several allegedly actionable statements all regarding whether or not the plaintiff, a respected professor, was having sex with a 17–year old student. The complaint does not state whether defendant allegedly identified the student with whom the plaintiff had sex or whether the student was in the plaintiff's class or simply attended Queens College.
As Alexander T. Coleman, Esq., of defendant's law firm, Borrelli & Associates, P.L.L.C., thoroughly points out in his affirmation in support of the defendant's motion, nearly all the statements alleged to be defamatory fail, in some vital respect, to state a cause of action. Some of the statements were text messages sent from a cell phone owned by a third party—and not the defendant—to the plaintiff. Such statements cannot be attributed with certainty as made by the defendant. Other statements were made directly by the defendant to the plaintiff and thus lacked the requisite publication to a third-party.
The Court agrees with the analysis of Mr. Coleman in his affirmation, except for the statement contained in paragraph 3 of the complaint. In that paragraph, made “[u]pon information and belief” the defendant said of and concerning the plaintiff to one Basil Gavalas that the plaintiff was “having sex with a seventeen year old Queens College Student” and that such undefined sexual act occurred on the college campus. Although the language “of and concerning” the plaintiff was missing from the paragraph and the paragraph is stated not with certainty, but only “[u]pon information and belief,” that is enough for the statement set forth in paragraph 3 of the complaint to survive the motion to dismiss. The Court further notes that paragraph 3 does not state whether the plaintiff was present when the quoted defamatory words were stated. The plaintiff, elsewhere in the complaint, denies ever having sex with a “seventeen year old student.”
Despite today's tolerant attitudes on same sex preferences, statements ascribing homosexuality, in the State of New York, are still considered defamatory. Compare Klepetko v. Reisman, 41 AD3d 551, 552 [2nd Dept.2007]; Matherson v. Marchello, 100 A.D.2d 233, 241 [2nd Dept.1984] [“Rightly or wrongly, many individuals still view homosexuality as immoral.”], citing James v. Gannett Co., Inc., 40 N.Y.2d 415, 419 [1976]with Hayes v. Smith, 832 P.2d 1022 [Colo. Ct.App.1991] [accusations of homosexuality are no longer slanderous per se]. See generally, Annot., “Imputation of Homosexuality as Defamation,” 7 ALR 6th 135 [2005].
Certainly, false statements of a teacher having sex with a student can be ruinous to a member of a college faculty member's career or his ability later to secure tenure. See, Porter v. Beaulieu, 282 A.D.2d 980 [3rd Dept.2001]; see, e.g., Manion v. Sarcione, 192 F. Supp 2d 353 [E.D.Pa.2001]; Fox v. Parker, 98 SW3d 713 [Tex App 2003]. There is no indication whether this alleged student, who is not named in the complaint and is contended to have had some form of sex with the plaintiff, ever filed a sexual harassment claim with college officials against the plaintiff. See, Glasser v. Academy School Dist. 20, 2005 WL 2592477, slip op. at 4 [D. Colo.2005]; Slater v. Marshall, 895 F.Supp. 93 [E .D. Pa.1995].
Thus, the complaint, as limited to the statement contained in paragraph 3, survives the instant motion to dismiss. Paragraph 3 of the complaint has a quotation of the statement alleged to have been made by the defendant that the plaintiff allegedly had sex with a student. Since that statement in paragraph 3 does not state that the student was a male, an allegation made in other paragraphs of the complaint, the better course is to allow the plaintiff to amend the complaint to make such an allegation, to the extent that plaintiff would like to maintain a slander action predicated on the false imputation of homosexual activity with a student. Thus, the plaintiff, if so advised, is permitted to serve and file an amended complaint by October 1, 2010.
The Court notes, regarding the motion practice, the attempt by defense counsel to have the Court not consider the opposition papers by plaintiff's counsel. Specifically, defense counsel served a “Notice of Rejection,” contending that the plaintiff's counsel failed to serve opposition papers in a timely manner. The Court will not consider the Notice of rejection. Defense counsel in his letter to the Court did not cite any need for more time in which to frame a reply. If more time were needed, the Court would have provided it. Although plaintiff's attorney appeared on the return date of the motion, August 12, defense counsel failed to do so. Although no appearance is required before the Court on this type of motion, under the undersigned's Individual Rules of Practice, available at www.nycourts.gov, the failure of defense counsel to appear shows that defendant did not need any additional time in which to compose a reply.
Concerning the “Notice of Rejection,” the Court instructs the attorneys in this action, especially since the motion to dismiss is denied and discovery needs to commence, that civil litigation should be conducted civilly, that is, with the reciprocal, mutual extension of courtesies among counsel for more time. The Court will henceforth take a dim view of counsel who do not give each other needed adjournments that are not abusive.
The motion to dismiss, as the complaint is limited herein, is denied.
The foregoing constitutes the decision, order, and opinion of the Court.