Opinion
Index No. 154940/2023 Motion Seq. No. 001
10-25-2024
RAYMOND BUCKLER, Plaintiff, v. TEMPLE COURT, TOM COLICCHIO, DARREN DUNN Defendants.
Unpublished Opinion
MOTION DATE 07/29/2024
DECISION+ ORDER ON MOTION
HON. DAVID B. COHEN Justice
The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 17, 18 were read on this motion to/for DISMISS.
This is an action for defamation related to the termination of plaintiffs employment. Pursuant to CPLR 3211(a)(7), defendants move to dismiss pre-answer. Plaintiff opposes.
FACTUAL BACKGROUND
Plaintiff alleges he was employed at defendant Temple Court restaurant starting on December 25, 2021 as a "Maitre D", although defendants contend that the actual name of the employing entity was Craft Beekman, LLC. He alleges that he was "illegally terminated" on March 22, 2023, for having been "accused of being a racist." (NYSCEF 1).
Defendant Dunn, the restaurant's general manager, allegedly made the accusation in the presence of his assistant, Jorge Molina. Plaintiff alleges that he denied the allegation, and Dunn told him that "HR has interviewed employees and patrons, and that is what you are being accused of." Defendant Colicchio allegedly owns and controls the restaurant, and allegedly controls all the decisions, including having directed Dunn to make the accusation, (id.).
Plaintiff contends that defendants engaged in defamation as they falsely accused him of being racist, and that "[u]pon information and belief, Defendant Dunn and Defendant Temple Court told plaintiffs subsequent prospective employers that his employment ended because he was a racist." He thus claims that defendants' false statements have harmed his personal and professional reputation, and he asserts one cause of action for defamation (id.).
LEGAL ANALYSIS
On a motion to dismiss pursuant to CPLR 3211(a)(7), the court determines whether the pleading states a cause of action and "[t]he motion must be denied if from the pleadings' four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (577 W. 232nd Owners Corp, v Jennifer Realty Co., 98 N.Y.2d 144, 151-152 [2002] [internal quotation marks and citations omitted]). "Whether a [party] can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC 7, Inc. v Goldman, Sachs &Co., 5 N.Y.3d 11,19 [2005]).
Defendants contend that calling someone a "racist" is a statement of opinion, not of fact, that making the statement in the presence of a co-employee fails to meet the publication requirement of a defamation claim, and that the alleged statements to prospective subsequent employers fail to meet the specificity requirement for such claims based, among other things, on CPLR 3016(a).
While a statement of pure opinion is generally not defamatory (Bacon v Nygard, 189 A.D.3d 530 [1st Dept 2020]), and while distinguishing between fact and opinion is a question of law to be decided by the Court, the determination may be dependent on the statement's context, and it can be premature to do so on a pre-answer motion to dismiss (see Davis v Boeheim, 24 N.Y.3d 262 [2014] [even if statement may be pure opinion, "the motion to dismiss must be denied if the communication at issue, taking the words in their ordinary meaning and context, is also susceptible to a defamatory connotation"], quoting Sweeney v Prisoners' Legal Servs. of N.Y., 146 A.D.2d 1, 4 [3d Dept 1989]).
Here, defendants have not demonstrated that the accusation of being a racist, taken in its ordinary meaning and context, is not susceptible to a defamatory connotation (see e.g. Herlihy v Metropolitan Museum of Art, 214 A.D.2d 250 [1st Dept 1995] [plaintiff stated claim for slander based on allegations that she was accused of being anti-semitic and biased]; Sheridan v Carter, 48 A.D.3d 444 [2d Dept 2008] [statements which depicted plaintiffs as racists was defamatory]).
Defendants' second argument is that plaintiff failed to sufficiently state the publication requirement of a defamation claim. Plaintiff asserts that he met this requirement by alleging that Dunn published the statement to his co-worker present at their meeting. (NYSCEF 16)
Publication of the allegedly defamatory statement to a third party is a basic requirement of a claim for defamation. However, there is a privilege protecting communications between coemployees on matters of common interest.
Here, the statement was allegedly made by Dunn during a human resources conversation with plaintiff about his termination, and ostensibly the coworker was there to witness or participate in the meeting, and thus had a common interest with Dunn. Defendants thus demonstrate that plaintiff has not sufficiently pleaded the publication element of his claim (see e.g. Pogil v KPMG LLP, 228 A.D.3d 469 [1st Dept 2024] [finding that statements involved communications between individuals who shared common interest in plaintiffs work performance and were thus privileged]; Richards v Security Resources, 187 A.D.3d 452 [1st Dept 2020] [statement between defendants' employees regarding plaintiffs conduct at work was privileged]; Atkins v Flat Rate Movers, Ltd., 134 A.D.3d 437 [1st Dept 2015] [statements made by defendant's employees shielded by common interest privilege as they were made in context of plaintiffs work, regarding his alleged job-related misconduct]).
To the extent that plaintiff alleges, "[u]pon information and belief," that defendants published the statement to plaintiffs prospective employees, he does not set forth the alleged specific words used (see Hammond v Equinox Holdings LLC, 219 A.D.3d 406 [1st Dept 2023] [claim that statements were published to police and press was properly dismissed as particular words of alleged statements not set forth in complaint]).
Finally, plaintiff fails to state a claim for defamation per se as he does not demonstrate that the allegation that he is racist is incompatible with the proper conduct of plaintiffs profession and it did not make a reference to plaintiffs ability to work in the restaurant industry (see Zysk v Fidelity Tit. Ins. Co. of N.Y., 14 A.D.3d 609 [2d Dept 2005] [statements did not "imply behavior that was incompatible with the proper conduct of the plaintiffs profession and made no reference to a matter of significance and importance to the plaintiffs ability to practice (his profession)"]).
For all of these reasons, defendants establish that plaintiff fails to state a defamation claim.
CONCLUSION
Accordingly, it is hereby
ORDERED that defendants' motion to dismiss is granted, and the complaint is dismissed, and the clerk is directed to enter judgment accordingly.