Opinion
No. 2021-08462 Index No. 604027/21
12-20-2023
Robert Jesberger, appellant, v. CVS Health Solutions, LLC, et al., respondents.
Barket Epstein Kearon Aldea & LoTurco, LLP, Garden City, NY (Alexander Klein of counsel), for appellant. Cullen & Dykman, LLP, Garden City, NY (Nicholas M. Cardascia of counsel), for respondents.
Barket Epstein Kearon Aldea & LoTurco, LLP, Garden City, NY (Alexander Klein of counsel), for appellant.
Cullen & Dykman, LLP, Garden City, NY (Nicholas M. Cardascia of counsel), for respondents.
COLLEEN D. DUFFY, J.P. LARA J. GENOVESI DEBORAH A. DOWLING JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), entered November 8, 2021. The order, insofar as appealed from, granted that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging defamation.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging defamation is denied.
In April 2021, the plaintiff commenced this action against CVS Health Solutions, LLC, and its subsidiaries and affiliated corporation, CVS Albany, LLC, doing business as CVS Pharmacy, and Paula Martin (hereinafter collectively the defendants), inter alia, asserting a cause of action to recover damages for defamation and defamation per se. The plaintiff alleged, among other things, that in November 2020, he was a customer at a CVS store in Jericho, where the defendant Martin was employed as a pharmacist. The plaintiff further alleged that, on December 3, 2020, Martin informed his physician, inter alia, that the plaintiff was banned from the pharmacy for stealing newspapers on multiple occasions and that she had reported the plaintiff to the police. The defendants moved to dismiss the complaint pursuant to CPLR 3211 (a)(1) and (7). By order entered November 8, 2021, the Supreme Court, among other things, granted that branch of the defendants' motion which was to dismiss the cause of action alleging defamation. The plaintiff appeals.
"'On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" (Floral Park Ophthalmology, P.C. v. Ruskin Moscou Faltischek, LLP, 216 A.D.3d 1136, 1136, quoting Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d 1504, 1505; see Matter of 22-50 Jackson Ave. Assoc., L.P. v. County of Suffolk, 216 A.D.3d 939). "Thus, on a motion to dismiss pursuant to CPLR 3211(a)(7) we consider only 'whether any reading of the complaint supports the defamation claim'" (Trump Vil. Section 4, Inc. v. Bezvoleva, 161 A.D.3d 916, 917, quoting Davis v. Boeheim, 24 N.Y.3d 262, 272). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus" (Trump Vil. Section 4, Inc. v. Bezvoleva, 161 A.D.3d at 917 [internal quotation marks omitted]).
The elements of a cause of action to recover damages "for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se" (Greenberg v. Spitzer, 155 A.D.3d 27, 41). CPLR 3016(a) requires, "[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint." The complaint "must also allege the time when, place where, and manner in which the false statement was made, and specify to whom it was made" (Epifani v. Johnson, 65 A.D.3d 224, 233; see Offor v. Mercy Med. Ctr., 171 A.D.3d 502, 503).
Here, the complaint alleged that the statement that the plaintiff was banned from the pharmacy in question for stealing was made on December 3, 2020. The complaint also set forth the statement allegedly made and to whom the statement was made (see Epifani v. Johnson, 65 A.D.3d at 234). Contrary to the defendants' contention, "the words need not be set in quotation marks" to state a cause of action to recover damages for defamation (Moreira-Brown v. City of New York, 71 A.D.3d 530, 530). Moreover, the allegation that the plaintiff "was stealing" "constitutes an allegation of a 'serious crime' so as to qualify as slander per se" (Epifani v. Johnson, 65 A.D.3d at 234).
"'A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law'" (Buchanan v. Law Offs. of Sheldon E. Green, P.C., 215 A.D.3d 790, 791, quoting Mawere v. Landu, 130 A.D.3d 986, 987; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326). Here, the affidavits and the video evidence submitted by the defendants are not documentary evidence (see Davis v. Henry, 212 A.D.3d 597, 597).
Additionally, "[w]hile a court is 'permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7),' where the motion is not converted to one for summary judgment, 'the criterion is whether the [plaintiff] has a cause of action, not whether he has stated one, and... unless it can be said that no significant dispute exists regarding it... dismissal should not eventuate'" (Anzora v. 81 Saxon Ave. Corp., 146 A.D.3d 848, 849, quoting Sokol v. Leader, 74 A.D.3d 1180, 1181, and Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [citation omitted]). Here, the defendants' evidentiary submissions in support of their motion did not conclusively establish that the plaintiff has no cause of action to recover damages for defamation and, viewing the record as a whole, raised questions of fact and credibility that cannot be resolved at this stage of the litigation (see Joseph v. Fensterman, 204 A.D.3d 766, 768; Matter of Gerard P. v. Paula P., 186 A.D.3d 934, 938-939).
The defendants' remaining contention is without merit.
DUFFY, J.P., GENOVESI, DOWLING and TAYLOR, JJ., concur.