Opinion
34013/2019E
05-18-2021
Thomas J. SMITH and Edmond J. Pryor, Plaintiffs, v. Theodore MONTEE II, John Doyle and Steven Swieciki, Defendants.
Plaintiff's Counsel: Edmond J. Pryor, Esq., 292 City Island Avenue, Bronx, NY 10464, (718) 829-0222, pryor@pryorlaw.com Defendant's Counsel: William Hurst, Esq. (Counsel for Defendants Doyle and Swieciki), Young Sommer LLC, Palisades Drive, Albany, NY 12205, (518) 339-0690, Billhurst67@gmail.com
Plaintiff's Counsel: Edmond J. Pryor, Esq., 292 City Island Avenue, Bronx, NY 10464, (718) 829-0222, pryor@pryorlaw.com
Defendant's Counsel: William Hurst, Esq. (Counsel for Defendants Doyle and Swieciki), Young Sommer LLC, Palisades Drive, Albany, NY 12205, (518) 339-0690, Billhurst67@gmail.com
Theresa M. Ciccotto, J.
RECITATION, AS REQUIRED BY CPLR§ 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.
PAPERS/NUMBERED
NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1-2
ANSWERING AFFIDAVITS 3-4
REPLY AFFIDAVITS 5
OTHER
UPON THE FOREGOING CITED PAPERS, THE COURT FINDS AS FOLLOWS:
Defendants Doyle and Swieciki move for an Order pursuant to CPLR § 3211(a)(1) and (a)(7), dismissing Plaintiffs’ Complaint for defamation in its entirety. Plaintiffs oppose.
Background :
According to the instant Complaint, Plaintiff Smith (hereinafter, "Smith"), is a board member and officer of the City Island Civic Association as well as a present member of Bronx Community Board 10. Plaintiff Pryor, (hereinafter, "Pryor"), is an attorney in private practice, who is in the process of representing the City Island Civic Association. City Island Rising, Inc., is a not for profit political activist group, operating and existing under and by virtue of the laws of the State of New York as of March 2019. Defendant Doyle (hereinafter, "Doyle"), is affiliated with City Island Rising, Inc.
Plaintiffs’ Complaint also alleges that Defendant Montee (hereinafter, "Montee"), is a known activist avidly participating in issues related to City Island politics and government. Defendants Doyle, Montee and Swieciki are founding members and officers of City Island Rising, Inc. Doyle is also a former officer and corresponding secretary of the City Island Civic Association, Inc.
It is alleged that Doyle has a history of attacking members of City Island Civic Association, Inc., and members of the City Island community, including disabled individuals and senior citizens via social media, i.e. Facebook. Doyle and Defendant Swieciki (hereinafter, "Swieciki"), are well known activists in the City Island political community and are co-administrators of the "City Island Uncensored" Facebook page. City Island Uncensored is the alter-ego of City Island Rising, Inc., and allegedly a vehicle for defendants to spew hateful and defamatory speech.
"Upon information and belief," it is alleged that Swieciki uses several anonymous accounts on Facebook and/or Twitter to attack members of the Civic and City Island community. Swieciki is also accused of cloning the accounts of City Island citizens, including Plaintiff Smith, to post false and derogatory statements to fool unwitting members of the social media platforms into believing that people such as Smith were making said derogatory posts about others.
Pryor, aside from being an attorney, is also a senior advisor to NYC Council Member Mark Gjonaj, an elected official whose district includes City Island. In May 2019, Montee, a gay man, filed "baseless" charges against Civic and William Stanton, its President, with the New York City Commission on Human Rights, alleging, inter alia , that Stanton and Civic were homophobic and discriminated against Montee because of his sexuality. Civic and Stanton hired Pryor to defend them from the charges pending with the New York City Commission of Human Rights. Consequently, the Commission later recommended that the charges be withdrawn or dismissed as of December 2019. It is further alleged that Pryor has also defended other residents regarding complaints and proceedings advanced by Montee which generally relate to the quality of life on City Island.
Plaintiffs accuse Montee of frequently utilizing his sexual orientation as a mechanism to assert baseless complaints against anyone who questions and/or opposes his opinions, views or agenda. They allege that Montee has been suspended from social media platforms because of his hate speech, has been investigated by NYPD's 45th Precinct for threatening a high ranking officer, and has also been investigated by the U.S. government for making threats against the President and his family.
Positions of the parties :
Defendants argue that Plaintiffs are unable to satisfy certain threshold requirements which constitute a defamation claim. They argue that none of the subject tweets or social media posts alleged in the Complaint are directly attributed to Doyle and Swieciki, and are solely premised on "nothing more than conclusory claims of conspiracy to defame — a tort that New York courts refuse to recognize" (Motion, p. 9, ¶2). They also argue that because Plaintiffs’ claims sound principally in defamation, the subject tweets should be examined in their full context. In doing this, it would be obvious that Plaintiffs have nothing concrete to rely on to prove defamation.
Moreover, Defendants argue that the complaint warrants dismissal as a matter of law as to Doyle and Swieciki because the tweets by "@TEMONTEE" are neither attributed nor attributable to them. They point out that even if the statements at issue are defamatory, Plaintiffs fail to prove that said statements were recommunicated with their authority or that they exercised any control over same.
Defendants further argue that the tweets complained of are "rhetorical expressions of ‘pure’ opinion entitled to absolute constitutional protection" ( id. , p. 15, ¶"A"). They also argue that the determination of the opinion privilege is a question of law, and the twitter based criticism of public officials are clearly subjective opinion.
Plaintiffs respond that "as the Complaint clearly alleges, all three of the defendants have been acting in concert with one another in a clear path toward damaging those in and around the City Island community who are not aligned with defendants’ way of thinking" (Aff. In Opp., p. 2, ¶5). They argue that even if any of the allegations against Defendants are deemed ambiguous, they must still be resolved in Plaintiffs’ favor. They also argue that when a statement of opinion implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, it is considered a "mixed opinion," which is still actionable.
Some of the tweets and Facebook comments emanating from Defendant Montee are as follows:
On August 17, 2019, "@ BronxCB (Community Board)10 Can you please fill us in (D1) on the status of the catering halls [sic] liquor license on City Island? We know CB member Tom Smith lied to the community about having knowledge of the liquor license but not informing residents on CI" (Complaint, ¶ 54).
On August 21, 2019, a tweet referring to Smith, "Mark, c'mon now. You should know better than to prop up these bigots, who are being sued by the @NYCCHR.@Bronx CB10 member, Tom Smith, homophobe and xenophobic @real Bill Stanton @Unreal BillStan1and the other civic board members" (Complaint, ¶ 64).
On July 4, 2019, a tweet referring to Pryor, "@MarkGjonajNY I couldn't agree more with you on this. Now can you please tell me & other residents of D13 why your staff attorney, Mr. Teddy Pryor who is on NYC payroll owns a house like this?" (Complaint, ¶ 95).
On July 19, 2019, a tweet referring to Pryor, "Hey Mark, is that your staff attorney, Teddy Pryor's property? Oh, whoops, not [sic] it's the house below, the one the city boarded up for the ambulance chaser. I find it funny that everything you complain about, you & your staff are guilty of." (Complaint, ¶ 122). The Court notes that Montee posted photographs of a house that is boarded up and looks dilapidated. Pryor does not own this house.
On November 19, 2019, the following was posted on the "City Island Uncensored" Facebook page: "The Civikkk [sic] and the outdated Chamber of Commerce honoring homophobe, race-baiting [sic] Tom Smith, is like the time the @NYPD45 pct had to break up a fight between Skip [eyes emoji] and Bob [wheelchair emoji] at the monthly board meeting because it's ran [sic] and attended by idiots. Tom, your term on @CB10 is coming to an end because you're as polarizing as Billy [bull emoji, feces emoji] and have become a puppet for love child Gjonaj. So there I was. [person emoji]; [nails being painted emoji; martini emoji]" (Complaint, ¶ 85).
As a result of the foregoing and additional tweets and postings, Plaintiffs argue that they have been maligned, have been forced to explain the nature of said tweets and postings, have inter alia , been deprived of friendly intercourse in society, have suffered embarrassment, emotional distress, anguish, depression, anxiety and sleep deprivation.
Conclusions of law :
"When assessing the adequacy of a complaint in light of a CPLR 3211(a)(7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff ... ‘the benefit of every possible favorable inference’ " ( AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co. , 5 NY3d 582, 591 [2005], quoting Leon v. Martinez , 84 NY2d 83, 87 [1994] ). A court must "determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v. Martinez , 84 NY2d at 87-88 ; see Sokoloff v. Harriman Estates Dev. Corp. , 96 NY2d 409, 414 [2001] ; Apex Rehabilitation & Care Center v. Butler , 173 AD3d 658, 660 [2d Dept. 2019] ).
A motion pursuant to CPLR§ 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence "may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v. Mutual Life Ins. Co. of NY , 98 NY2d 314, 326 [2002] ; see Rodolico v. Rubin & Licatesi, P.C. , 114 AD3d 923 [2d Dept. 2014] ). "A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the ‘documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim’ " ( Fontanetta v. John Doe 1 , 73 AD3d 78, 83 [2d Dept. 2010], quoting Fortis Fin. Servs. v. Fimat Futures USA , 290 AD2d 383, 383 [1st Dept. 2002] ; see Cives Corp. v. George A. Fuller Co., Inc. , 97 AD3d 713, 714 [2d Dept. 2012] ).
The evidence submitted in support of such motion must be "documentary" or the motion must be denied ( Fontanetta v. John Doe 1 , 73 AD3d at 84 ). In order for evidence submitted pursuant to a CPLR 3211(a)(1) motion to qualify as "documentary evidence," it must be "unambiguous, authentic, and undeniable" ( Granada Condominium III Assn. v. Palomino , 78 AD3d 996, 996-997 [2d Dept. 2010] ). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" ( Fontanetta v. John Doe 1 , 73 AD3d at 84-85 ). However, "[n]either affidavits, deposition testimony, nor letters are considered ‘documentary evidence’ within the intendment of CPLR 3211(a)(1)" ( Granada Condominium Assn. v. Palomino , 78 AD3d at 997 ; see Fontanetta v. John Doe 1 , 73 AD3d at 86 ).
Initially, the Court finds that Plaintiff's Third Cause of Action alleging civil rights violations necessitates dismissal. Civil Rights Laws § 50 and § 51 refer to "[a]ny person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided" ( NY CIV RTS § 51 ). This law has absolutely nothing to do with the allegations put forth in the complaint. There is no allegation that plaintiffs’ images were used for advertising or trade purposes.
The elements of a cause of action sounding in defamation are: (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace; (2) published without privilege or authorization to a third party; (3) amounting to fault as judged, at a minimum, a negligence standard; (4) either causing special harm or constituting defamation per se (see Kasavana v. Vela , 172 AD3d 1042, 1044 [2d Dept. 2019] ; Stone v. Bloomberg L.P. , 163 AD3d 1028, 1029 [2d Dept. 2018] ; Greenberg v. Spitzer , 155 AD3d 27, 41 [2d Dept. 2017] ; Levy v. Nissani, 179 AD3d 656, 657 [2d Dept. 2020] ).
In the case at bar, the Court notes that the real issue is whether the postings and tweets are attributable to the moving Defendants. The alleged defamatory statements were "published" via a Twitter account entitled "@TEMOntee," which Plaintiffs acknowledge to be Defendant Montee's Twitter account. There is no allegation by Plaintiffs that Defendants Doyle or Swieciki possess or maintain any control over said Twitter account. Rather, Plaintiffs’ First, Second, Fifth, Seventh, Ninth, Eleventh, Thirteenth, Fifteenth, Seventeenth, Nineteenth, Twenty-First, Twenty-Third, Twenty-Fifth, Twenty-Seventh, Twenty-Ninth, Thirty-First, Thirty-Third, and Thirty-Fifth Causes of Action plead that "Defendant Montee, acting with and at the behest of defendants Doyle and Swieciki, published the foregoing false statements with negligence, recklessness and gross negligence because of its defamatory content" (Complaint, ¶¶58, 68, 100, 113, 126, 139, 152, 165, 178, 191, 204, 217, 230, 243, 256, 269, 282, 295).
The Court finds Plaintiffs’ mere allegations that Defendant Montee acted "with and at the behest of defendants Doyle and Swieciki" to be conclusory. The Complaint fails to substantiate the allegations that Doyle and Swieciki somehow acted in conjunction with Montee in publishing the tweets at issue. Indeed, the facts as pled "fail to allege publication of any defamatory statement" as to Doyle and Swieciki since the tweets emanated solely from Defendant Montee's twitter account ( McGill v. Parker , 179 AD2d 98, 105 [1st Dept. 1992] ). Consequently, the Court finds the facts as alleged do not fit "within any cognizable legal theory" ( Leon v. Martinez , 84 NY2d at 87-88 ), as "New York does not recognize civil conspiracy as an independent tort" ( Rivera v. Greenberg , 243 AD2d 697, 698 [2d Dept. 1997] ; see McGill v. Parker , 179 AD2d 98, 105 [1st Dept. 1992] ; Kraus v. Brandstetter , 202 AD2d 396 [2d Dept. 1994] ; Dobies v. Brefka , 263 AD2d 721 [3d Dept. 1999] ).
Similarly, the causes of action alleging "defamation per se" must also be dismissed, as these statements are not attributable or attributed to Defendants Doyle and Swieciki. It is well settled that on a motion to dismiss pursuant to CPLR § 3211(a)(7), the allegations contained in the complaint should be accepted as true, however, "where, as here, the allegations consist of bare legal conclusions as well as factual claims which are either inherently incredible or flatly contradicted by documentary evidence, they are not entitled to such consideration" ( Summit Solomon & Feldesman v. Lacher , 212 AD2d 487, 487 [1st Dept. 1995] ; see Simkin v. Blank , 19 NY3d 46, 52 [2012] ); Asgahar v. Tringali Realty, Inc. , 18 AD3d. 408, 409 [2d Dept. 2005] ).
With respect to Plaintiffs’ Fourth Cause of Action, the Court further finds that Plaintiffs failed to allege that the moving Defendants published the alleged defamatory statement which was posted by Defendant Montee on the City Island Uncensored Facebook page. The Court finds unavailing, the allegation that as administrators of said Facebook page, Defendants Doyle and Swieciki were complicit in publishing the statement posted by Montee. As stated above, New York does not recognize "conspiracy to defame" as a cognizable tort ( Dobies v. Brefka , 263 AD2d 721 722 [3d Dept. 1999] ).
Therefore, in accordance with the foregoing, it is hereby:
ORDERED, that Defendants Doyle's and Swieciki's motion to dismiss Plaintiffs’ Complaint pursuant to CPLR 3211(a)(7) is granted in its entirety.
This constitutes the decision and order of the Court.