Opinion
Index No. 70001/2019E Motion Seq. No. 001
10-07-2021
JOHN FINNIGAN, v. LINDA LIONETTI AND THE DUGOUT SPORTING GOODS, INC.,
Justice Supreme Court The following papers numbered 1 to 3 were read on this motion (Seq. No. 1) to STRIKE (see CPLR §2219 [a]):
Notice of Motion - Order to Show Cause - Exhibits and Affidavits
No(s). 14-19
Annexed Answering Affidavit and Exhibits
No(s). 21-26
Replying Affidavit and Exhibits
No(s). 27
Upon the foregoing papers, it is ordered that the motion is decided in accordance with the attached decision.
1. CHECK ONE. [ ] CASE DISPOSED IN ITS ENTIRETY ACTIVE [ ] CASE STILL
2. MOTION IS[ ] GRANTED [ ] DENIED [ ] GRANTED IN PART [ ] OTHER
3. CHECK IF APPROPRIATE [ ] SETTLE ORDER [ ] SUBMIT ORDER [ ] FIDUCIARY APPOINTMENT [ ] REFEREE APPOINTMENT
DECISION & ORDER
GEORGE J. SILVER JUSTICE
With the instant motion plaintiff John Finnigan ("plaintiff') moves for an order to strike and dismiss defendants' Linda Lionetti ("Lionetti") and The Dugout Sporting Goods, Inc., ("The Dugout") (collectively "defendants") fourth and eighth affirmative defenses pursuant to CPLR 3211 (b); and strike and dismiss defendants' counterclaims pursuant to CPLR 3211 (b) and (c).Defendants oppose the motion.
Plaintiff erroneously moves by Notice of Motion pursuant to CPLR 3211 (b) to dismiss defendants' counterclaims. A counterclaim is a "cause of action" asserted by a defendant against a plaintiff (CPLR 3019 [a]). A party seeking to dismiss a cause of action moves pursuant to CPLR 3211 (a). As such, plaintiff, here, should have moved pursuant to CPLR 3211 (a) to dismiss defendants' counterclaims. To preserve judicial resources, and for judicial efficiency, the court will treat plaintiff's request for relief under CPLR 3211 (b) as if properly sought under CPLR 3211 (a) (7) rather than deny this portion of plaintiff's motion with leave to renew. Curiously, plaintiff proffers this argument in their papers on the issue of whether their motion is timely but fails to utilize it in practice. Moreover, the court declines to treat this motion as a summary judgment motion pursuant to CPLR 3211 (c).
BACKGROUND AND ARGUMENTS
Plaintiff commenced this action under New York State's Child Victims Act (L. 2019 c.11) ("CVA") which, among other things, 1) extends the statute of limitations on criminal cases involving certain sex offenses against children under 18 (see CPL 30.10 [f]); 2) extends the time which civil actions based upon such criminal conduct may be brought until the child victim reaches 55 years old (see CPLR 208 [b]); and 3) opens a one-year window reviving civil actions for which the statute of limitations has already run (even in cases that were litigated and dismissed on limitations grounds), commencing six months after the effective date of the measure, i.e. August 14, 2019 (see CPLR 214-g). Specifically, plaintiff alleges in the verified complaint that, in approximately 1977, Lionetti, a female, sexually abused plaintiff, a minor male, on numerous occasions. At that time, plaintiff was 16-years-old and Lionetti was approximately 29-years-old. Plaintiff worked under the supervision and control of Lionetti at The Dugout. Because of this alleged sexual abuse by Lionetti, plaintiff sued The Dugout for the same alleged wrongful conduct grounded in negligence; negligent hiring, retention, and supervision; and negligent infliction of emotional distress. Plaintiff claims to have incurred significant economic damages, physical pain and suffering, and mental and emotional injuries because of defendants' conduct.
In support of the instant motion, plaintiff argues that defendants' fourth affirmative defense, which asserts that the instant action is time-barred by the statute of limitations, should be dismissed because the CVA enacted a one-year window reviving previously time-barred claims. Plaintiff references CPLR 214-g and contends that the requirements set forth therein have been satisfied and revive the claims at issue. Similarly, plaintiff argues that defendants' eighth affirmative defense, which asserts that the complaint fails to state a claim for criminal violations or penalties, should be dismissed because the complaint specifically alleges several instances of sexual abuse.
In addition, plaintiff seeks to dismiss defendants' counterclaims. Plaintiff argues that the first counterclaim, which alleges defendants have suffered from false and defamatory statements made by plaintiff to unknown individuals, should be dismissed. To be sure, plaintiff argues that the same should be dismissed because: 1) defendants could not know what statements were made or who those statements were made to; 2) litigation immunity protects the statements made in the course of this action; and 3) defendants fail to allege the defamatory statements with specificity and particularity. Plaintiff argues that the second counterclaim, which alleges plaintiff initiated this case as a malicious false and frivolous action, should be dismissed because plaintiff commenced the action in good faith, and with a reasonable basis under the law. Plaintiff argues that the third counterclaim, which alleges that plaintiff has harassed, intimidated, and contacted defendants from time to time over the years, should be dismissed because it fails to state a cause of action and lacks a legal basis and specific factual allegations.
In opposition, defendants argue that plaintiff's motion should be denied because: 1) it is procedurally untimely and premature; 2) the affirmative defenses must stand; and 3) the counterclaims must proceed at this juncture. Defendants argue, at the outset, that the motion is untimely because plaintiff failed to respond to the counterclaim within 20 days. In addition, defendants argue the motion is premature because no discovery has been exchanged. Defendants maintain that the fourth affirmative defense must stand because plaintiff was over the age of 55 at the time of filing the summons and complaint, and the one-year revival window does not apply to those over 55 based on CPLR 208 (b). Defendants assert that the eighth affirmative defense must stand because a female sexually abusing a male was not a violation of Article 130 of the Penal Law in 1977, and therefore, does not fall within the purview of the CVA.
Defendants argue that the first counterclaim must proceed because the elements of a defamation claim are satisfied, litigation immunity does not protect plaintiff's statements, and defamation need not be pled with precise wording. For the second counterclaim, defendants contend that the action is frivolous because plaintiff was over the age of 55 at the time of filing the instant action and is thus barred by the statute of limitations. In addition, defendants state that dismissal is warranted because at the time of the alleged conduct, 1977, a female could not be prosecuted for sexual abuse perpetrated against a male. Defendants contend that the third counterclaim must proceed because the counterclaim need not be pled with specificity. Even if specificity were required, defendants argue that they have provided sufficient details with respect to the harassment and intimidation alleged.
In reply, plaintiff refutes all of defendants' arguments. Plaintiff first responds to defendants' timeliness argument and contends that the court stayed all proceedings, including discovery, pursuant to its Case Management Orders. Plaintiff subsequently reiterates and expands upon why the court should strike defendants' affirmative defenses and dismiss defendants' counterclaims. As such, plaintiff underscores his argument that he is entitled to judgment in his favor.
DISCUSSION
Timeliness
As a preliminary matter, the court will address the timeliness of this motion. Defendants contend, pursuant to CPLR 3011, that plaintiff was required to serve a response to their counterclaims within 20 days of service of the answer and that plaintiff's failure to do so is treated as a default and constitutes an admission. Defendants correctly highlight that a failure to respond to a counterclaim constitutes an admission. Nevertheless, defendants are incorrect about the timeliness of plaintiff's response.
CPLR 3011 does not establish the timeframe for responding to a counterclaim as defendants assert. CPLR 3011 labels the types of pleadings permitted in New York (CPLR 3011). CPLR 3012 (a) establishes the timeframe for service of an answer or reply (CPLR 3012 [a] ["Service of an answer or reply shall be made within twenty days after service of the pleading to which it responds."]). CPLR 3012 permits a plaintiff 20 days to reply to an answer (id.). When an answer contains counterclaims, said counterclaims are treated as a complaint and cause of action under CPLR 3019 (CPLR 3019 [a], [d]; 3017 [a]; see also Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3011:8 ["The general rule is that every pleading under the CPLR that contains a cause of action must, labels notwithstanding, be responded to with an answer or, in the case of a counterclaim, with a reply."]). Therefore, a plaintiff steps into the shoes of an answering defendant and may respond to such counterclaims whether it be by denial or motion to dismiss (Westchester Exp., v. State Ins. Fund, 542 N.Y.S.2d 604, 504 [1st Dept 1989] [finding that the lower court properly treated a counterclaim as a complaint]; Edelman v. Edelman, 386 N.Y.S.2d 331 [Special Term, Nassau County 1976] ["A counterclaim is in essence a complaint by a defendant against the plaintiff and alleges a present viable cause of action upon which the defendant seeks judgment. It is not a responsive pleading merely because it is contained in a responsive paper; to wit, the answer. It is not a defense. It need have no relationship to the basic cause of action of the plaintiff and indeed the counterclaim may assert any claim which the defendant has against the plaintiff regardless of origin or character. The pleader of a counterclaim is a plaintiff in his own right (Fettretch v McKay, 47 NY 426)."]; Kane v. Kane, 163 A.D.2d 568, 571 [2d Dept 1990]; Gildea v. State, 507 N.Y.S.2d 127 [Ct Cl 1986]).
A plaintiff may file a motion to dismiss a cause of action in lieu of an answer as a reply to a defendant's counterclaims (CPLR 3211 [f] ["Service of a notice of motion under this subdivision a or b before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order."]; CPLR 3211 [a] ["A party may move for judgment dismissing one or more cause of action asserted against him...."]; Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3019:17 ["The same pleading rules that apply to the cause of action in the complaint apply as well to the counterclaim or cross-claim contained in the answer. It is the answer which contains both such claims."]). Failure to reply to the counterclaims asserted in the answer results in the same consequences as not answering a complaint: a default (see Simons v. Doyle, 262 A.D.2d 236, 694 [1st Dept 1999]; P &L Group, Inc. v. Garfinkel, 150 A.D.2d 663, 541 [2d Dept 1989]). Here, defendants argue on one hand that a counterclaim is not a cause of action and should not be treated as such for the purposes of plaintiff's time to respond yet on the other hand argue that the failure to answer a counterclaim should be treated as a default and admission of the counterclaims. Defendants' competing arguments are incongruous.
Defendants' e-filed and simultaneously served their answer on November 21, 2019 (see 22 NYCRR § 202.5-b[d] [1] [i] ["In any action subject to e-filing, all documents required to be filed with the court by an e-filing party shall be filed and served electronically, except as provided in this section."]; Woodward v. Millbrook Ventures LLC, etc., et al., 49 N.Y.S.3d 303 [1st Dept 2017]). Since plaintiff had 20 days to reply, plaintiff had until December 11, 2019 to respond to defendants' pleading. Plaintiff did not make the instant motion to dismiss the counterclaims and strike the affirmative defenses until July 7, 2020.
At a glance, it would appear plaintiff's motion is untimely. However, in the interim the court issued several orders staying all CVA proceedings. The court issued administrative order #371 (Amended) on December 11, 2019, the day plaintiff's reply was due, staying the time to answer, move, or otherwise respond to any complaint that were served for all CVA matters until further order. On February 24, 2020, the court issued Case Management Order ("CMO") No. 1 wherein the time to answer, move, or respond to any complaint was extended for 35 days. This order extended plaintiff's time to respond until March 30, 2020. Shortly before that date, the onset of a pandemic forestalled many court operations-including the timely filing and processing of pleadings.
On March 7, 2020, Governor Andrew Cuomo issued Executive Order Number 202 declaring a State disaster emergency for the entire state of New York and limited court operations to essential matters and tolled any time limits. Thereafter, Chief Judge Janet DiFiore issued an administrative order (AO/3/2020) dated March 17, 2020, which permitted courts within New York State to remain open for all essential matters (e.g., criminal, family court, guardianship etc.) and postponed all non-essential matters for the foreseeable future. Subsequently, several additional executive and administrative orders were issued tolling time limits. Then, the court issued CMO No. 2, dated June 16, 2020, which modified the deadlines set forth in CMO No. 1 and the tolling provisions of Governor Cuomo's executive orders. CMO No. 2 extended the deadline to answer, move, or respond to any complaint served between October 15, 2019 and December 11, 2019 to August 3, 2020. Defendants served their counterclaims on November 21, 2019 and fall squarely within that time frame. Plaintiff filed the instant motion on July 7, 2020, well before the deadline imposed since the court and administrative orders tolled plaintiff's time to respond from the date it was originally due. However, even assuming defendants are correct in that plaintiff failed to timely reply to their counterclaims, a default judgment on the counterclaims is nevertheless unjustified since it appears that plaintiff reasonably believed that the matter was being held in abeyance considering the ongoing administrative stays and enduring pandemic (Board of Mgrs. Of Atrium Condominium v. West 79th St. Corp., 17 A.D.3d 108, 108-109 [1st Dept 2005]). Likewise, defendants were not otherwise prejudiced by the delay as the pandemic upended most cases in some fashion.
Based on the foregoing, the court finds that the instant application is timely.
Defendants' Fourth Affirmative Defense
Turning to the substance of plaintiff's motion, defendants' fourth affirmative defense asserts that plaintiff's claims are barred by the statute of limitation because plaintiff was over 55 years of age at the time plaintiff filed this action. Plaintiff moves to strike this affirmative defense by arguing that CPLR 214-g opened a revival period for all claims without strict adherence to an age prohibition. A plain reading of the statute supports plaintiff's interpretation and is the clearest indicator of the Legislature's intent. Defendants nevertheless argue that the age limit prescribed by CPLR 208 (b) applies to the revival window set forth in CPLR 214-g. Defendants' argument mistakenly conflates the function and purpose of the present limited revival window and the function and purpose of the age cap for new claims not previously precluded.
As noted above, the CVA 1) extended the statute of limitations on criminal cases involving certain sex offenses against minor children; 2) extended the time to bring a civil action until the child victim reaches the age of 55; and 3) opened a one-year window reviving civil actions for which the statute of limitations has already run. Specifically, CPLR 208 (b) extended the time to bring an action until the child victim reaches the age of 55, and CPLR 214-g created a one-year revival window for time-barred claims. Due to the COVID-19 pandemic, Governor Cuomo extended this revival window, which was set to expire in 2020, an additional year to August 14, 2021 (2019-2020 Legislative Session NY Senate Bill S7082). The pertinent part of CPLR 214-g states, "[n]otwithstanding any provision of law which imposes a period of limitation to the contrary . . . every civil claim or cause of action . . . which is barred as of the effective date of this section because the applicable period of limitation has expired . . . is hereby revived." CPLR 214-g neither prescribes an age limitation nor references the age cap stated in CPLR 208 (b) or compliance therewith. If the Legislature intended to restrict the revival window in CPLR 214-g to an age limit, it could have easily done so by referencing CPLR 208 (b) or by stating an age limit in CPLR 214-g. Defendants' interpretation is inapposite to the plain language of the statute. "Where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning" (Anonymous v. Molik, 32 N.Y.3d 30, 37 [2018], citing State of New York v. Patricia II, 6 N.Y.3d 160, 162 [2006]). The statutory text is the clearest indicator of legislative intent (id., citing Matter of New York County Lawyers' Assn. v. Bloomberg, 19 N.Y.3d 712, 721 [2012]).
In fact, the plain language contradicts defendants' argument entirely. The text of CPLR 214-g begins with "[n]otwithstanding any provision of law which imposes a period of limitation to the contrary . . . every civil claim or cause of action . . . is hereby revived." This language dismisses contradictory statutory time limits and allows previously time-barred claims to proceed without exception (see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR 214-g [making no mention of excluding plaintiffs over 55 years of age]). The committee report for the Senate bill further supports this interpretation of the legislative intent behind CPLR 214-g. The Legislature intended to "open the doors of justice to thousands of survivors of child sexual abuse in New York State" because "New York is one of the worst states in the nation for survivors of child sexual abuse," and established "a one-year window in which adult survivors of child sexual abuse would be permitted to file civil actions, even if the statute of limitations already expired" (NY Committee Report, Senate Bill S2440 § 3 [January 26, 2019]).
Were this court to agree with defendants' interpretation, plaintiff-and all other similarly situated plaintiffs over the age of 55-would not be able to seek redress under the CVA. Such an outcome would contravene the statute's purpose. Therefore, the court declines to conclude that the Legislature created a revival window for submission of previously time-barred claims and then excluded those brought by plaintiffs older than 55 years of age.
Given the aforesaid, the portion of plaintiff's motion seeking to strike defendants' fourth affirmative defense is granted.
Defendants' Eighth Affirmative Defense
Plaintiff also seeks to strike defendants' eighth affirmative defense. Defendants' eighth affirmative defense contends that the complaint fails to state a claim for criminal violations or penalties and that the court lacks jurisdiction over this action. Specifically, defendants contend that the alleged sexual abuse at the time it occurred in 1977 was not a violation of Article 130 of the penal law because a female could not sexually abuse or rape a male. Defendants cite People v. Whidden, 51 N.Y.2d 457 (1980), in support wherein the Court of Appeals upheld the constitutionality of gender-based rape laws-just three years after the alleged abuse occurred in this matter. Although Whidden upheld gender-based rape laws, defendants mischaracterize the law as applied to the facts set forth in this complaint.
Prior to Whidden, only a male could be prosecuted for rape under Article 130 §§ 130.25, 130.30, and 130.35 of the Criminal Penal Law of 1965. After Whidden, the Court struck the gender-based exception from Article 130 as unconstitutional "for exempting females from criminal liability for forcible rape" (People v. Liberta, 64 N.Y.2d 152 [1984]). The Liberta Court noted that the sodomy statute applied to any "person" and was gender neutral (id. at 167 n 11). Therefore, prior to The Court of Appeals decision in Liberta, there was no gender-based exemption for the sodomy provisions under Article 130 §§ 130.40, 130.45, 130.50, or in the sections for sexual abuse under Article 130 §§ 130.55, 130.60, 130.65, 1965. At that time, sodomy was defined as "deviate sexual intercourse," and "deviate sexual intercourse" included, among other things, oral sex (Liberta, 64 N.Y.2d at 159 [1984]).
CPLR 208 (b) and 214-g provide that a child victim may bring a civil claim or cause of action against any party for injuries because of conduct which constitutes a sexual offense defined under Article 130 of the penal law or a predecessor statute that prohibited such conduct at the time of the act. Article 130 includes offenses for, among other things, sexual intercourse, oral sexual conduct, and sexual contact. Here, plaintiff alleges sexual harassment, fondling, kissing, other sexual abuse and oral sex in the complaint. These acts are not defined as forcible rape nor does plaintiff allege forcible rape as defined by section 130 of Article 130. As such, Whidden offers no shelter to the defendants because the acts alleged in the complaint were not gender-based at that time.
Even assuming defendants are correct in their assertion that the penal law exempted females from liability for sexual abuses, defendants' argument that defendants are not liable for the sexual contact with plaintiff because it is prohibited ex post facto still fails.
The U.S. Constitution prohibits Congress and States from enacting ex post facto laws (US Const art 1, § 10, cl 1). The Supreme Court defined ex post facto laws as those that criminalize and punish prior innocent behavior (Calder v. Bull, 3 U.S. 386, 390-392. [1798]; Collins v. Youngblood, 497 U.S. 37, 42 [1990]; see also Kellogg v. Travis, 100 N.Y.2d 407, 410 [2003] [finding it was not punitive for the state to collect DNA samples from violent offenders serving terms for crimes committed before the DNA Index was amended to include them]). Calder makes clear that ex post facto prohibition applies unquestionably only to crimes, and nothing else (Calder at 396).
Here, CPLR 214-g does not attempt to punish or criminalize prior acts but affords civil redress to child victims of prior sex abuse by way of reviving previously time-barred claims. These actions are brought by the child victims against their abusers rather than by the imposition of government penalties or designations as crimes. Even though the penal law and the criminal conduct of the alleged abuser establish the CVA's ability to provide reparation to child victims, the CVA is not subject to ex post facto scrutiny because, ultimately, the CVA provides accountability through civil recourse. Moreover, New York's modification to the statute of limitations under the CVA is a procedural act (Kleiman v. Kings Point Capital Management, LLC, 2020 WL 7249441 at *9 [EDNY 2020], citing Segarra, 2020 WL 3127879 at *3 [SDNY 2020]), and does not impact the underlying acts or penalties of the alleged abusers.
The New York State Constitution also provides no solace for defendants. Some states have barred their respective legislatures' ability to enact retroactive civil claims or actions (Jeffery Omar Usman, Constitutional Constraints on Retroactive Civil Legislation: The Hollow Promises of the Federal Constitution and Unrealized Potential of State Constitutions, 14 Nevada LJ 63 [2013]). New York, however, is not one (NY Const art III). New York has upheld claim revival statutes when they are "a reasonable response to correct an injustice" (Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 N.Y.3d 377, 400 [2017] [finding that the State's extension of the statute of limitations for illness-related claims of workers who took part in the 9-11 cleanup did not violate due process]). Here, CPLR 214-g is similarly attempting to correct a significant injustice and allow adults who were sexually abused as minors to file claims previously time-barred. As stated by the Legislature, "the Child Victims Act will finally allow justice for past and future survivors of child sexual abuse, help the public identify hidden child predators through civil litigation discovery, and shift the significant and lasting costs of child sexual abuse to the responsible parties" (NY Committee Report, Senate Bill S2440 § 3 [January 26, 2019]).
Based on the aforesaid, the portion of plaintiff's motion seeking to strike defendants' eighth affirmative defense is granted.
Defendants' Counterclaims
In determining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), a court's role is deciding "whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (African Diaspora Maritime Corp. v Golden Gate Yacht Club, 109 A.D.3d 204 [1st Dept 2013]; Siegmund Strauss, Inc. v East 149th Realty Corp., 104 A.D.3d 401 [1st Dept 2013]). The standard on a motion to dismiss a pleading for failure to state a cause of action is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (see Stendig, Inc. v Thorn Rock Realty Co., 163 A.D.2d 46 [1st Dept 1990]; Leviton Manufacturing Co., Inc. v Blumberg, 242 A.D.2d 205, 660 N.Y.S.2d 726 [1st Dept 1997] [on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true]). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see CPLR 3026; Siegmund Strauss, Inc., 104 A.D.3d 401, supra). In deciding such a motion, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs 'the benefit of every possible favorable inference,'" and "determine only whether the facts as alleged fit into any cognizable legal theory" (Siegmund Strauss, Inc., 104 A.D.3d 401, supra; Nonnon v City of New York, 9 N.Y.3d 825 [2007]; Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]). However, "allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not" presumed to be true or accorded every favorable inference (David v Hack, 97 A.D.3d 437 [1st Dept 2012]; Biondi v Beekman Hill House Apt. Corp., 257 A.D.2d 76, 81 [1st Dept 1999], aff'd 94 N.Y.2d 659 [2000]; Kliebert v McKoan, 228 A.D.2d 232 [1st Dept], lv denied 89 N.Y.2d 802 [1996]), and the criterion becomes "whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]; see also Leon, 84 N.Y.2d at 88, supra; Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285 A.D.2d 143, 150 [1st Dept 2001].
It is the movant who has the burden to demonstrate that, based upon the four corners of the complaint liberally construed in favor of the plaintiff, the pleading states no legally cognizable cause of action (see Leon, 84 N.Y.2d at 87-88, supra; Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]); Salles v. Chase Manhattan Bank, 300 A.D.2d 226, 228 [1st Dept 2002]).
Defendants' First Counterclaim
Plaintiff moves to dismiss defendants' first counterclaim grounded in defamation. Defendants' claim that plaintiff knowingly made false and defamatory statements about defendants to unknown individuals. Plaintiff argues that defendants' counterclaim should be dismissed because it failed to plead what specific statements were made and because litigation immunity applies to the statements made within the complaint.
Defamation is defined as "the making of a false statement which tends to 'expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society'" (e.g. Stepanov v. Dow Jones &Co., Inc., 120 A.D.3d 28, 34 [1st Dept 2014], quoting Foster v. Churchill, 87 N.Y.2d 744, 751 [1996]). The elements of defamation include (1) a false statement (2) published to a third party (3) without privilege or authorization, and (4) that the statement caused harm (id.). Because a false statement underlies a defamation claim, "the statement's truth or substantial truth is an absolute defense" (Stepanov, 120 A.D.3d at 34, citing Konrad v. Brown, 91 A.D.3d 545, 546 [1st Dept 2012]). The complaint must set forth the particular words complained of (CPLR 3016), and must allege the time, place, and manner of the false statement and to specify to whom it was made (Dillon v. City of New York, 26 A.D.2d 34, 39 [1st Dept 1999]).
Defamatory statements are further classified as either slander or libel-the former being of the spoken word, and the latter being of the written word (Ava v. NYP Holdings, Inc., 64 A.D.3d 407, 411-412 [1st Dept 2009]). Particular to slander, the Court has stated that "[s]lander as a rule is not actionable unless the plaintiff suffers special damages" (Liberman v. Gelstein, 80 N.Y.2d 429, 434-435 [1992]). A plaintiff suffers special damages where there is an economic or pecuniary loss, and a claim for slander is unsubstantiated absent such loss (id. at 435). The Liberman Court articulated four exceptions to the general rule of pleading special damages and labeled them as "slander per se": "statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman" (id.). With these four exceptions, the law presumes that damages will result and thus need not be alleged or proven (id.; Galasso v. Saltzman, 42 Ad3d 310, 311 [1st Dept 2007]).
Based on the above, defendants' counterclaim for defamation on its face fails to satisfy the pleading requirements for defamation. Defendants' counterclaim alleges, in a conclusory fashion, that plaintiff made false and defamatory statements regarding defendants to presently unknown individuals (see Bell v. Alden Owners, Inc., 299 A.D.2d 207, 208 [1st Dept 2002] [upholding the lower court's dismissal of plaintiff's defamation claim because the claimed remarks were made by unknown persons to unspecified individuals at dates, times, and places unspecified and because plaintiff failed to allege special damages]). Defendants do not, in any form, specify any defamatory statements plaintiff made (see Offor v. Mercy Med. Ctr., 171 A.D.3d 502, 503 [1st Dept 2019] [dismissing plaintiff's defamation claims because plaintiff failed to set forth the "exact words" complained of and the time, place and manner of the purported defamation]). The requirement that plaintiff state in haec verba the particular defamatory words is strictly enforced (Gardner v. Alexander Rent-A-Car, Inc., 28 A.D.2d 667, 667 [1st Dept 1967]).
Defendants claim to have failed to specify the statements because defendants do not know the identities of the third-parties plaintiff allegedly made the statements to so they could include said statements in the counterclaim. In an attempt to circumvent their lack of specificity, defendants point to and rely on plaintiff's complaint. Specifically, defendants point to paragraph 10 of the complaint wherein plaintiff alleges "plaintiff eventually told defendant that he was going to tell her [ex-]husband about the abuse." Not only is that language insufficient to plead defamation, as in not actionable (see Glazier v. Harris, 99 Ad3d 403, 404 [1st Dept 2012] [finding the alleged defamatory statements by one defendant as not actionable), defendants cannot rely on the language plaintiff has included in the complaint (Lewittes v. Blume, 18 A.D.3d 261, 261 [1st Dept 2005] [holding statements made in the context of a judicial proceeding are protected by absolute privilege and cannot serve as the basis for liability for slander]).
Defendants also fail to plead and show special damages (i.e., pecuniary or economic loss) in their counterclaim. The counterclaim alleges that defendants have suffered "degradation, humiliation, loss of reputation and esteem, pecuniary losses, and psychological and emotional injuries, including but not limited to mental trauma, fear, stress, and anxiety." Although plaintiff alleges pecuniary loss, this conclusory statement is insufficient to satisfy their burden in pleading special damages (see Bowes v. magna Concepts, Inc., 166 A.D.2d 347, 348-349 [1st Dept 1990], citing Matherson v. Marchello, 473 N.Y.S.2d 998, 1000-1001 [2d Dept 1984] [stating special damages must be fully and accurately identified with sufficient particularity to identify actual losses]). Thus, defendants have failed to substantiate a claim for slander.
Given the above, the court has a basis to dismiss defendants' first counterclaim; however, the court is aware of the challenges in obtaining the statements allegedly made to third parties without knowing the identity of those third parties to sufficiently plead a claim for defamation (Kleiman v. Beech-Nut Packing Co., 259 AD 593, 593 [1st Dept 1940] ["The gravamen of a cause of action for slander is the utterance of defamatory matter in the hearing of at least one person. The complaint here charges that the defamatory matter was uttered 'in the presence and hearing of divers persons including agents and representatives of firms with whom plaintiffs had been dealing and with whom they had good credit ....' In view of this allegation, defendant is entitled to know the names of the persons plaintiffs claim heard the defamatory matter"], and the court recognizes that defendants can cure these pleading defects by amendment. Defendants have, to that effect, requested leave to amend the pleadings. Rather than hold the motion in abeyance pursuant to CPLR 3211 (d), the court will deny this portion of plaintiff's motion with leave to renew.
The court notes defendants did not formally request such relief through a cross-motion. However, in the interest of judicial economy, the court will consider defendants' opposition as a cross-motion as the relief requested therein seeks leave to amend the counterclaim rather than require defendants to amend as of right or by motion (CPLR 3025).
The court also notes that defendants are not afforded the same procedural mechanisms as a plaintiff when initiating a suit. Although, for purposes of the pleadings, defendants are considered a plaintiff when initiating a counterclaim, defendants cannot proceed as one under the CPLR. For example, a plaintiff could commence an action with a summons accompanied by a notice under CPLR 305 (b) instead of a complaint to allow the plaintiff to seek disclosure after defendants note their appearance in order to learn the precise words to include in the complaint. A defendant responding to a complaint with a counterclaim is not afforded the same opportunity. Defendants' defective counterclaim, at this point in time, is not based on the absence of facts, but on the difficulty of ascertaining them to plead the defamatory statements with enough specificity to satisfy CPLR 3016. That specificity even need not be an exact recounting of the words, as a claimant can plead the statements as closely as possible, and then move for an order conforming the pleadings to the proof under CPLR 3025 (c) after disclosures (Rossignol v. Silvernail, 185 A.D.2d 497, 498-499 [3d Dept 1992]. With that said, the most reasonable course of action is to permit defendants to proceed with discovery on this claim to ascertain, if any, what defamatory statements were made.
Accordingly, the portion of plaintiff's motion seeking to dismiss defendants first counterclaim is denied with leave to renew following disclosures made during the course of discovery.
Defendants' Second Counterclaim
Plaintiff moves to dismiss defendants' second counterclaim, which alleges plaintiff initiated a false and frivolous action. Imbedded within this claim is a claim for malicious prosecution. The malicious nature of this action depends upon its frivolousness: whether, as defendants contend, the action is barred by the statute of limitations or because a female could not be held accountable to a male for the sexual acts alleged here at the time of the conduct or both. As discussed supra, the court has rejected these arguments. The statute of limitations does not bar this action and defendants can be held accountable for the alleged conduct complained of in the complaint. Therefore, this action is not frivolous in nature (22 NYCRR § 130-1.1).
Accordingly, the portion of plaintiff's motion seeking to dismiss this counterclaim is granted.
Defendants' Third Counterclaim
Plaintiff moves to dismiss defendants third counterclaim based on harassment. Plaintiff argues that New York common-law does not recognize a cause of action for harassment, and the court agrees (Garza v. Nunz Realty, LLC, 187 A.D.3d 467, 467 [1st Dept 2020]). Defendants oppose, arguing this counterclaim also sounds in assault, intimidation, infliction of severe and undue stress, psychological injuries, emotional injuries, trauma, fear, anxiety, and physical manifestation of same. Basically, a kitchen sink attempt to establish a cause of action. Based on the court's review of defendants' counterclaim, this cause of action, in essence, sounds as an intentional tort, namely assault, intentional infliction of emotional distress ("IIED"), or a prima facie tort.
Defendants' counterclaim fails as a cause of action for assault. Defendant fails to allege an intentional attempt or threat to do injury or commit a battery. "To sustain a claim for assault there must be proof of physical conduct placing plaintiff in imminent apprehension of harmful contact" (Holtz v. Wildenstein &Co., Inc., 261 A.D.2d 336, 336 [1st Dept 1999]). While physical injury is not necessary (Hassan v. Marriott Corp., 243 A.D.2d 406, 407 [1st Dept 1997]), defendants' allegations fail to assert any instance of a threat of physical conduct that would have placed them in imminent apprehension. The counterclaim merely asserts in general terms that plaintiff intimidated, had contact, and had engaged with Lionetti online, over the phone, and in person (see Joon Song v. MHM Sponsors Co., 176 A.D.3d 572, 573 [1st Dept 2019] ["plaintiff's claim for civil assault based on screaming, threats, and having a door slammed in his face failed to allege facts that would establish that physical contact was reasonably imminent"]). Therefore, this counterclaim lacks specificity to the extent this claim asserts a cause of action for assault.
For defendants' counterclaim to prevail on a claim for intentional infliction of emotional distress, defendants must demonstrate four elements: 1) extreme and outrageous conduct; 2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; 3) a causal connection between the conduct and injury; and 4) severe emotional distress (Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121 [1993]). The first element, the most common element decided as a matter of law (id.), is dispositive here, as in many other cases (e.g., Bridgers v. Wagner, 915 N.Y.S.2d 265, 266-267 [1st Dept 2011]; Jaffe v. national League of Nursing, 222 A.D.2d 233, 233 [1st Dept 1995]. Plaintiff does not identify any conduct that would satisfy the first element. In fact, defendants only allege generally what plaintiff did with no basis in fact (see Warner v. Druckier, 266 A.D.2d 2, 3 [1st Dept 1999] [finding that plaintiff properly stated a cause of action for IIED because plaintiff alleged "that defendants, through various specified acts, deliberately, systematically and maliciously harassed [plaintiff] over a period of years"]). Conclusory assertions are insufficient to satisfy this strict standard (Klein v. Meetropolitan Child Services, Inc., 954 N.Y.S.2d 559, 562 [1st Dept 2012]). Thus, these allegations fall far short of conduct that can be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (Howell, 81 N.Y.2d at 121).
This counterclaim also fails as a prima facie tort. Prima facie tort provides a remedy for intentional and malicious conduct that causes harm for which no traditional tort provides a remedy, and not as a catch all alternative for every cause of action which cannot stand on its own (Belsky v. Lowenthal, 405 N.Y.S.2d 62, 65 [1st Dept 1978]); Berland v. Chi, 142 ad3d 1121, 1123 [2d Dept 2016]). The elements of prima facie tort are: 1) intentional infliction of harm; 2) resulting in special damages; 3) without any excuse or justification; 4) by an act or acts otherwise lawful (AREP Fifty-Seventh, LLC v. PMGP Associates, L.P., 981 N.Y.S.2d 406, 408 [1st Dept 2014]). In addition, to adequately plead a prima facie tort, the claim must plead the defendant's malicious intent or disinterested malevolence as the sole motive for the challenged conduct (id.). Here, defendants fail to allege whether the plaintiff's actions above were solely motivated by malicious intent or disinterested malevolence (Woytisek v. JP Morgan Chase &Co., 46 A.D.3d 331, 331 [1st Dept 2007]; WFB Telecommunications, Inc. v. NYNEX Corp., 188 A.D.2d 257, 258-259 [1st Dept 1992]). Thus, this cause of action cannot move forward as a prima facie tort.
Moreover, assault, intentional infliction of emotional distress, and prima facie tort require a claimant to plead special damages and must be alleged with sufficient particularity to identify actual losses and related causally to the allegedly tortious acts (Zausner v. Fotochrome, Inc., 18 A.D.2d 649, 649 [1st Dept 1962] [stating causes of action for intentional torts must allege special damages]). Here, defendants' counterclaim is devoid of special damages in any form. As such, for this reason as well, these counterclaims cannot proceed.
Because the allegations in this counterclaim are so vague, the court cannot consider whether these claims are barred by the applicable one-year statute of limitations. "A claim for an intentional tort, including a tort not specifically listed in CPLR 215(3) is subject to a one-year limitation period, and where, as here, a reading of the factual allegations discloses that the essence of the cause of action is an intentional tort, plaintiff cannot avoid a Statute of Limitations bar by labeling the action as one to recover damages for a prima facie tort" (Havell v. Islam, 292 A.D.2d 210, 210 [1st Dept 2002]). Defendants do not request to amend this counterclaim; therefore, the court does not consider granting such relief.
Based on the above, the portion of plaintiff's motion seeking to dismiss this counterclaim is granted.
Accordingly, it is hereby ORDERED that plaintiff's motion is hereby granted in part and denied in part; and it is further
ORDERED that the portion of plaintiff's motion seeking to strike defendants' fourth and eighth affirmative defense is hereby granted; and is further
ORDERED that the portion of plaintiff's motion seeking to dismiss defendants' second and third counterclaim is hereby granted; and it is further
ORDERED that the portion of plaintiff's motion seeking to dismiss defendants' first counterclaim is hereby denied with leave to renew upon disclosures; and it is further
ORDERED that plaintiff is directed to file and serve a copy of this decision and order, with notice of entry, within twenty (20) days of its issuance; and it is further
ORDERED that the parties are to comply with the directives contained within the court's Case Management Orders; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly. This constitutes the decision and order of the court.
Dated: 10/06/2021