Opinion
601556/05.
Decided January 17, 2006.
Plaintiff moves for an order pursuant to CPLR 3211(a)(7) and 3016(a) dismissing defendants' Seventh Affirmative Defense and First Counterclaim for defamation, and defendant cross-moves for an order pursuant to CPLR 3211(a)(7) and 3016(a) dismissing plaintiff's Count V for "Commercial Disparagement and Defamation." Plaintiff's motion is denied and defendant's cross-motion is granted.
I. Plaintiff's Motion to Dismiss Defendant's Defamation Defense Counterclaim
Contrary to plaintiff's assertion, defendant's defense and counterclaim for defamation is pleaded with sufficient particularity to satisfy the requirements of CPLR 3016(a). CPLR 3016(a) requires that in asserting a claim for defamation, "the particular words complained of be set forth in the complaint," and the pleading must allege "the time, place and manner of the false statement and specify to whom it was made." Dillon v. City of New York, 261 AD2d 34, 38 (1st Dept 1999).
With respect to defendant's Seventh Affirmative Defense and First Counterclaim for defamation, the First Amended Answer alleges as follows:
71. Two months after defendant left plaintiff's employment, Morelli [Benedict P. Morelli] held a firm meeting in early April, 2005, in the offices of the Morelli Firm [Benedict P. Morelli Associates, P.C.] which, upon information and belief, was attended by Susan Alfieri, Dina Cruz, Celia Clark, Beatrice Oscar, Cheri Defreitas, Wendy Bobadilla, Mary Matos, Rita Arias, Brent Slater, Leon Johnson, Diane English, Troy James, and Jessica Nigrelli (the "April Meeting").
72. Morelli opened the April meeting, by stating that "now we know how the money [which months earlier been reported missing from the wallets and purses of other employees in plaintiff's offices] disappeared."
73. Morelli then referred to defendant by name, indicating that she was the thief.
74. Morelli further stated that Cabot was "stealing Sybil's money" [Sybil Shainwald] or "duping her out of her money."
75. Morelli also stated that defendant "stole files out of the office."
76. At the April Meeting, Morelli also stated that defendant "didn't have a pot to piss in," that she was "unemployable," and that Morelli "paid [defendant] a lot of money to do nothing."
Based on these allegations, defendant sufficiently alleges the particular words complained of, as well as the specific time, place, manner and person who made the statements, and identifies the persons who were present at the meeting when the statements were made. See Dillon v. City of New York, supra.
Plaintiff also argues that the statements are non-actionable opinion and are protected by a qualified privilege, and that defendant has failed to alleged special damages which are necessary to maintain a defamation claim. These arguments are without merit.
As to non-actionable opinion, the Court of Appeals has adopted the following four-part test to distinguish between fact and opinion:
(1) an assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous; 2) a determination of whether the statement is capable of being objectively characterized as true or false; 3) an examination of the full context of the communication in which the statement appears; and 4) a consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which might "signal to readers or listeners that what is being read or heard is likely to be an opinion, not fact.
Steinhilber v. Alphonse, 68 NY2d 292, 286 (1986) ( quoting Ollman v. Evans, 750 F2d 970, 983 [D.C. Cir 1984], cert denied 471 US 1127).
Applying these factors to Morelli's alleged statements, leads to the conclusion that defendant asserts fact as opposed to opinion, which is actionable at law. Specifically, defendant alleges that Morelli accused her of taking money which disappeared from the firm's offices, stealing files from the firm, stealing money from Sybil Shainwald and "duping" Sybil out of her money. Each of these accusations has a precise meaning which is readily understood and capable of being objectively characterized as either true or false. Moreover, the context in which these statements were allegedly made, at a meeting of the firm's employees where a the misconduct and criminal conduct of a former employee was discussed, suggests that Morelli was presenting these statements as a matter of fact in an attempt to discourage or warn his employees from contacting defendant and giving her client information. See Giffuni v. Feingold, 299 AD2d 265 (1st Dept 2002).
While plaintiff also argues that the statements are protected by a qualified privilege, it is premature on a motion to dismiss to determine this the issue of qualified privilege. See Garcia v. Puccio, 17 AD3d 199 (1st Dept 2005); Demas v. Levitsky, 291 AD2d 653 (3rd Dept), lv app dism 98 NY2d 728 (2002). Moreover, the qualified privilege is defeated if actual malice can be shown. See Herlihy v. Metropolitan Museum of Art, 214 AD2d 250 (1st Dept 1995). In the Amended Answer, defendant specifically alleges that "[t]he statements described in paragraph 72 through 76 were made by the Morelli parties with actual malice and out of personal spite against defendant and her new employee."
Finally, although defendant has not alleged special damages, where as here, the statements constitute defamation per se, "the law presumes that damages will result, and they need not be alleged or proven." Liberman v. Gelstein, 80 NY2d 429, 435 (1992). Defamation per se consists of statements: 1) charging a person with a serious crime; 2) tending to injure another in her trade, business or profession; 3) that a person has loathsome disease; or 4) imputing unchastity to a woman. Id. Here, the statements accusing defendant of stealing money from law firm employees and Sybil Shainwald, and stealing client files and "duping Sybil," are sufficient to impute criminality. Moreover, the statements as alleged in the Amended Answer also of a type "tending to injure another in his or her trade, business or profession," as they attack defendant's professional abilities and suggest improper performance and unprofessional conduct.
Thus, based upon the foregoing, plaintiff's motion to dismiss Seventh Affirmative Defense and First Counterclaim for defamation, is denied.
II. Defendant's Cross-Motion to Dismiss Plaintiff's Defamation Claim
Defendant's cross-motion to dismiss Count V in the complaint for Commercial Disparagement and Defamation, is granted, as that claim is not pleaded with sufficient particularity to satisfy the requirements of CPLR 3016(a). Count V alleges as follows:
Cabot has published numerous oral and written defamatory statements about the Morelli Firm including, but not limited to, statements that the Morelli Firm (I) "was not handling the Clients' cases," (ii) "was not vigorously prosecuting the Clients' cases," (iii) "was delaying turning over cases that should be transferred to Shainwald," (iv) "is stripping the files he has turned over by removing copies of the complaints," and (v) is "missing statutes of limitations in cases." Cabot also defamed the Morelli Firm by falsely stating that "Shainwald was really the attorney responsible for handing the Clients' cases." Cabot made these and other similar statements in order to convince Morelli Firm clients to transfer their cases from the Morelli Firm to [Sybil] Shainwald. Upon information and belief, these statements were made to, among others, some or all of the following former Morelli Firm clients: [lists names of 39 individual clients]. . . . Cabot made these statements at various times during the period from February 2005, when she became employed by Shainwald, until the present. None of Cabot's statements are or were true. Also while speaking with Morelli Firm clients, Cabot tried to convince them to file complaints against the Morelli Firm with the attorney grievance committee; any such complaints would be unjustified and Cabot knows this to be true. The statements made by Cabot were false and defamatory, and caused harm to the Morelli Firm and its reputation. . . . Cabot purposely published these defamatory statements to, among others, many of the Morelli Firm's Clients (defined for the purposes of this claim as current and former clients), including specifically to Prospective Clients and the 39 Clients.
Even though plaintiff pleads the particular words complained of, it has not alleged with particularity the time, place and manner of the allegedly false statements, or the person or persons to whom any specific statement was made. Rather, plaintiff simply lists the names of 39 individuals, and alleges that the statements were made "at various times during the period from February 2005 . . . until the present." Absent allegations that a specific statement was made to a particular person, and detailed factual information as to when and where specific statements were made, plaintiff's conclusory allegations are insufficient to satisfy the pleading requirements of CPLR 3016(a). See Dillon v. City of New York, supra. Accordingly, Count V must be dismissed.
Accordingly, it is hereby
ORDERED that plaintiff's motion is denied; and it is further
ORDERED that defendant's cross-motion is granted, and Count V in the complaint is dismissed; and it is further
ORDERED that the parties are directed to appear for a preliminary conference on February 2, 2006 at 9:30 a.m., Part 11, Room 351, 60 Centre Street.