Opinion
3348-04.
January 16, 2008.
The following papers read on this motion:
Amended Notice of Motion ................ XX Answering Papers ........................ XX Reply .................................... XX Briefs: Plaintiff's/Petitioner's ......... Defendant's Respondent's .................The defendant moves this court under motion sequence number two dated May 23, 2007 for an order pursuant to CPLR § 3212(a)(7) granting summary judgment. Defendant also moves this court under motion sequence number three for an order pursuant to CPLR § 3211 (a)(1) and CPLR § 3211 (a)(7) dismissing the complainant's complaint in its entirety and/or pursuant to CPLR § 3212 granting summary judgement. The defendant's motion for a summary judgment is granted under motion sequence number two and the motion to dismiss is granted under motion sequence number three.
The defendant Peter Fusco is the brother of the plaintiff Janis Fusco. The parties have been estranged since an event which occurred on Mother's Day in 2003 at a family gathering. There have been numerous Family Court matters involving this family. At least one case under Nassau County Family Court Index Number O-14686/04, involving the plaintiff and one of the defendants was tried and dismissed on the merits by the Hon. Steven M. Jaeger on February 28, 2005.
According to the defendant, on Mother's Day 2003 a sixteen year old nephew of both the plaintiff and the defendant exposed himself and masturbated in front of Peter Fusco's five year old daughter. This event caused a huge schism in the family, with various family members taking sides against each other. At some point after Mother's Day the plaintiff, who was a hall monitor at the five year old's elementary school, confronted the five years old child and, according to the defendant, "cross examined" her about the event. According to the defendant, the five year old became frightened and did not want to see or speak to Janis Fusco.
In the action before the court under the original complaint the plaintiff sought damages for defamatory comments and "tortious interference with employment". On December 20, 2004 defendants filed a motion to dismiss the complaint. On March 18, 2005 this court, (Alpert, J.) issued an order granting defendants motion to dismiss and dismissing the plaintiff's entire complaint. Plaintiff appealed the court's decision and on January 9, 2007, the Second Department affirmed the decision and modified the Supreme Court's order such that the "allegations concerning the alleged filing of a false police report against defendant Peter Fusco" was allowed to survive. Accordingly, at the time the motion for summary judgement under motion sequence two was filed the only remaining defamatory comment against the only remaining defendant was:
"On or about September 5, 2004, Mr. Fusco falsely accused Plaintiff of filing a complaint with the Nassau County Police Department's 4th Precinct, against him for "pulling a gun on her". Upon information and belief, Mr. Fusco repeated this allegation to Plaintiff's aunt, Dorothy Marchetti, and several other members of her family".
A party is entitled to summary judgment when it is apparent that there are no issues in factual dispute which require a trial. (CPLR § 3212(b); Sillman v Twentieth Century Fox, NY2d 395, 165 NYS2d 498 (1957). Courts have held that this remedy should only be granted where there are no triable issues of fact. ( Concord Limousine, Inc. v Orezzoli, 7 Misc.3d 1026, 801 N.Y.S.2d 232). Issue-finding, rather than issue-determination is the key to the summary judgment procedure. Esteve v Abad, 271 A.D. 725, 727.
In order to prevail on a motion for summary judgment, the movant must present a prima facie case demonstrating entitlement to judgment as a matter of law due to an absence of any material issues of fact ( Prince v Di Benedetto, 189 AD2d 757, 759; Zarr v Piccio, 180 AD2d 734, 735). Once the movant has established its prima facie case entitling it to summary judgment as a matter of law, the party opposing a motion for summary judgment must produce evidentiary proof sufficient to require a trial of material questions of fact. ( Zuckerman v City of New York, 49 NY2d 557, 562; Romano v St. Vincent's Medical Center of Richmond, 178 AD2d 467)
Plaintiff's affirmation in opposition, appears to only address the arguments under motion sequence two before the court. The remaining statement (quoted earlier) involves Mr. Fusco allegedly making a statement to Dorothy Marchetti and several other family members. For his part, the defendant has provided the court with an affidavit where he expressly denies making the alleged statements (Defendant's Motion Exhibit "F"). In addition, the defendant has provided an affidavit of a witness, Dorothy Marchetti (Defendant's Motion Exhibit "E"), which denied that the defendant ever made a statement to her about a police report and stated that she was not aware that he made any such statement to any other member of her family.
As the Appellate Division Second Department noted in their decision of January 9, 2007, the affidavit of Dorothy Marchetti which was originally presented as part of a Motion to Dismiss was, "more appropriate for inclusion in a motion for summary judgment under CPLR § 3212". The court is satisfied that the Affidavit of the Defendant, coupled with the affidavit of Dorothy Marchetti, resolve any issue of fact regarding whether such a statement was ever made to Dorothy Marchetti by Peter Fusco. Although the plaintiff has provided her own affidavit stating that her aunt, Dorothy Marchetti specifically expressed to her that the defendant had told her the plaintiff had filed a police report accusing the defendant of "pulling a gun" on the plaintiff; the court finds such an affidavit self serving and it is uncorroborated. In light of the affidavit provided by Dorothy Marchetti that such a statement was never made the court is satisfied that there is no issue left for trial. The plaintiff has failed to name additional individuals either in the original complaint or in the amended complaint that these statements were made to. If the plaintiff were in possession of names, at this juncture after nearly four years of litigation the names would have been revealed to the court. Without any indication as to what other "members of the family" these alleged statements regarding the police report were made to the court finds the complaint and amended complaint do not conform to the particularity requirement of CPLR § 3106. "Failure to state the particular person or persons to whom the allegedly defamatory statements were made also warrants dismissal" ( Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496). Accordingly the motion under motion sequence two is granted and the original complaint is dismissed pursuant to CPLR § 3212.
The Appellate Division Second Department decision which sent the remaining cause of action against the defendant back the Nassau County Supreme Court, was served on Defendant with Notice of Entry on or about April 18, 2007. On May 23, 2007, after realizing the Appellate Division had suggested the defendant's proof was more appropriate for a summary judgment motion, the defendant did, in fact, file a summary judgment motion. In response, days later, the plaintiff filed an Amended Complaint. The Amended Complaint contained the only allegation which survived the January 9, 2007, decision of the Appellate Division, Second Department, as well as, two addition claims. One is for slander per se regarding a protective order, the other is for "intentional infliction of emotional distress".
The allegations are summarized as follows:
First Cause of Action
"Peter has falsely accused Janis of a serious crime, namely filing a false police report, a criminal violation of New York State Penal Law § 175.30. That accusation by Peter was a false and defamatory statement of and concerning Janis, specifically that she had filed a false criminal complaint against him for threatening her by brandishing a gun. Peter made this false accusation to third parties, including but not necessarily limited to, family members".
Second Cause of Action
"Peter has falsely accused Janis of being the subject of a protective order regarding Peter's children. That false accusation disparaged Janis in her trade, business, and/or professional reputation as an educational professional who works with children. That allegation by Peter was a false and defamatory statement of and concerning Janis, specifically and falsely suggesting that Janis personally had engaged in improper behavior relative to Peter's children. Peter made this false accusation to third parties, including, but not necessarily limited to, Janis' supervisor."
Third Cause of Action
"Peter's harassing conduct toward Janis and her family was extreme and outrageous. Peter intentionally or recklessly engaged in that harassment as part of his continual emotional assault on his sister Janis. As a result of this extreme and outrageous, intentional conduct, Janis suffered severe emotional distress."
As for the first cause of action, the allegations are essentially the same as those pled in the original complaint. The court's prior decision under motion sequence number two directed summary judgment in favor of the defendant regarding that charge. Although essentially the same charge, the plaintiff has reworded the charge slightly and has claimed that this statement is slander per se because it involves an allegation regarding the commission of a crime. It is well established that words constitute slander per se if they impute the commission of a serious crime, a loathsome disease, unchaste behavior in a woman, or if they affect the plaintiff in his trade ( see Warlock Enterprises v City Center Associates, 204 AD2d 438). In order for a statement charging a person with a crime to be actionable as slander per se, the statement must accuse the person of the commission of an indictable offense, upon the commission of which punishment may be inflicted ( see Klein v. McGauley, 29 AD2d 418). The plaintiff points to New York State Penal Law § 175.30, Offering a False Instrument for Filing in the Second Degree.
Section 170.30 reads:
"A person is guilty of offering a false instrument for filing in the second degree when, knowing that a written instrument contains a false statement or false information, he offers or presents it to a public office or servant with knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant. Offering a false instrument for filing in the second degree is a class A misdemeanor"
The plaintiff points to specific section of the penal law as she argues the defendant is guilty of slander per se, however the section pointed to in the papers is simply a misdemeanor. It is not a serious crime or an indictable offense. Accordingly the first allegation in the amended complaint, regarding the defendant accusing the plaintiff of filing a false police report, is not slander per se and as such is dismissed pursuant to CPLR § 3211 (a) (1) and (7).
The second allegation pled in the amended complaint involves the defendant stating that the plaintiff was subject to a protective order regarding the defendants children and the plaintiff argues it is slander per se. It is important to note that, by definition, defamation is "a false statement that exposes a person to public contempt, ridicule, aversion or disgrace ( see Foster v Churchill, 87 NY2d 744, 751)." ( Town of Massena v. Healthcare Underwriters Mutual Insurance Company, 98 NY2d 435, 444). The statements as provided in the amended complaint are cryptic at best and offer no insight as to who they were said to or what the specific language was. Plaintiff has failed to allege a particular person or persons to whom the alleged statement regarding the order of protection was made. Such a failure warrants dismissal. ( Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496; Gill v. Pathmark Stores, 237 AD2d 563; Sirianni v Rafaloff, 284 AD2d 447).
As was the case with the original complaint, which was the subject of a motion to dismiss and further Appellate Division Second Department action, the statements currently pled regarding the second allegation are subject to dismissal for failing to abide by the mandate of CPLR § 3016(a), which requires that the defamatory statements be delineated in haec verba. (See Besicorp Ltd. V Kahn, 290 AD2d 147, 150, lv den 98 NY2d 601). An allegation of defamation which fails to comply with CPLR special pleading requirement that the complaint set forth "the particular words complained of mandates dismissal" (Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496). The amended complaint simply states "Peter accused Janis of being the subject of a protective order regarding Peter's children". That statement is not specific enough to support a finding of slander per se. In fact, it is true that there were many orders of protection between members of this family and it is also true that the incessant fighting between these parties started regarding something that had happened to one of the defendants children at a family party. In addition, members of this family at one time had a number of dockets in the Family Court and a number temporary orders of protection were issued as a result of those Family Court matters. Therefore, it is impossible for this court to discern what was meant by the statement that Janis is the subject of a protective order. The statement as offered by the plaintiff could in fact mean that she was the protected party that the order of protection was issued in favor of and, in fact, she was the protected party in a Temporary Order of Protection issued under Family Court Index Number O-14686/04. Given the lengthy Family Court history involving members of this family this court is left unable to conclude that the statement as offered constitutes slander per se. As such, the statement appears to be subject to various interpretations and is not nearly onerous enough to rise to the level necessary to support a claim for slander per se.
Finally, the court is left to deal with the only remaining claim which involves an allegation of "intentional infliction of emotional distress". Initially, it is worth noting that the plaintiff has repeatedly sued the defendants in multiple case before multiple courts in this county. More importantly, the matter in Family Court where the plaintiff filed a family offense petition against one of the defendants under Article 8 of the Family Court Act resulted in finding that no family offense had occurred after a trial before a Family Court judge. In order to recover under a claim of intention infliction of emotional distress the plaintiff must prove 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 ( see Howell et al., v New York Post Company, Inc., 81 NY2d 115). The "bare bones" allegations before the court regarding intentional infliction of emotion distress fall well below the standard necessary to successfully bring such a claim. The complaint gives no details or facts as to what behaviors are being complained of. Rather, the plaintiff uses mere conclusory allegations such as "the conduct was extreme and outrageous" and "Peter intentionally or recklessly engaged in that harassment as part of his continued emotional assault on his sister Janis". These statements, even if true, are insufficient to succeed on an allegation of intentional infliction of emotional distress. In order to state a claim for intentional infliction of emotional distress, conduct must be alleged which is "'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'" ( see Ruggiero v. Contemporary Shells, Inc., 160 AD2d 986, quoting, Murphy v. American Home Prods. Corp., 58 NY2d 293, 303, Restatement [Second] of Torts § 46 [d]). The law does not compensate for "threats, annoyances or petty oppressions or other trivial incidents which must necessarily be expected and are incidental to modern life no matter how upsetting" ( Lincoln First Bank of Rochester v Barstro Assoc. Contr., 49 AD2d 1025, 1025-1026). The plaintiff has not alleged any facts which demonstrate extreme and outrageous conduct on the part of the defendant ( Dinio v. Olivar, 265 AD2d 371). Accordingly, the final action in the amended complaint is dismissed pursuant to CPLR § 3211 (a) (1) and (7). This concludes all proceedings under Index Number 013348/04.
The foregoing constitutes the Decision and Order of this court.