Opinion
Index EFCA2017-002231
01-11-2019
ROBERT J. KOPEK, JR. Plaintiffs, v. ROBERT J. DENTON, JR. And JULIE GROW DENTON, Defendant.
John G. Leonard, Esq. Attorney for Plaintiff, Robert J. Kopek, Jr. Donald R. Gerace, Esq. Attorney for Defendant, Robert J. Denton
Unpublished Opinion
RJI No.: 32-17-0923
John G. Leonard, Esq. Attorney for Plaintiff, Robert J. Kopek, Jr.
Donald R. Gerace, Esq. Attorney for Defendant, Robert J. Denton
DECISION AND ORDER
HON. BERNADETTE T. CLARK JUDGE
Procedural History
Before the Court is a Motion to Dismiss pursuant to CPLR §3211 (a)(7) filed by Plaintiff seeking an Order dismissing Defendant's counterclaim alleging defamation for failure to state a cause of action.
In disposing of a Motion to Dismiss, unlike a Motion for Summary Judgment where the Court must search the record an assess the sufficiency of the parties' evidence, the Court is merely to examine the adequacy of the pleadings. The Court is not, however, determining whether the counterclaim will later survive a motion for Summary Judgment or whether the Plaintiff will ultimately be able to prove the asserted claim for defamation. Liberman v. Green, 139 A.D. 3D 815 (Second Dep't 2016). The Court is charged with examining the pleadings in the light most favorable to the pleader. Sim v. Farley Equipment, 138 A.D.3d 1228 (Third Dep't 2016). Further, the Court is not permitted, at this juncture, to penalize a Plaintiff for failing to make an evidentiary showing in support of a counterclaim that states a claim on its face. On the contrary, the Court must accept the facts as alleged as true and accord the pleader every possible favorable inference. That is, the Court must afford the pleadings a liberal construction. Cantor v. Levine, 115 AD. 2d 453 (Second Dep't 1985).
Here, Plaintiff alleges that the Court must dismiss the counterclaim because Defendant's allegation that the statement was made in a specific month and a specific year is insufficient as a matter of law. Wenger v. Town of Checktowaga, 159 A.D.3d 1348 (Fourth Dep't 2018). Thus, the Court must carefully examine the counterclaim to determine whether the facts as alleged fit into any cognizable legal theory, not whether a cognizable cause of action has been properly stated. While this may seem like a "hair-splitting" nuanced argument, this Court verily believes that the law demands this analysis at this juncture as a pre-discovery Motion to Dismiss. This is necessary since it will decide whether die pleader can pursue its claim.
Defendant's counterclaim ¶23, alleges that in May of 2017 in the City of Rome, New York, Plaintiff stated to David Scaccia that "Robert J. Denton, Jr. wrote graffiti on the wall in the girls locker room in Kennedy Arena stating Coach Kopek toucher, UGG; that "the police know Bob wrote the graffiti and he is being investigated".
In ¶24, Defendant alleged "in October 2017 the Plaintiff stated to Whitestown Youth Hockey President Nancy Jo Misiaszek and Board Member Matt DiSalvo in the Town of Whitestown that "Bob Denton's USA Hockey credentials were revoked" that "Bob Denton did not pass the USA Hockey background check"; that "Bob wrote the graffiti on the wall about me because of problems regarding the girls team"; that "Bob Denton was involved in an incident involving a child in a locker room in Rome", that "Bob Denton, forcibly touched a child". In ¶25 Defendant alleged that in October, 2017, the Plaintiff stated to Whitestown Youth Hockey Vice President James Holmes in the Town of Whitestown, that "Bob Denton was pervert".
Further, in ¶27, Defendant alleges that Plaintiff knew these statements were false when made; that there was no evidence that Denton wrote graffiti on the wall in the girls locker room at Kennedy Arena; that Denton's USA Hockey credentials had not been revoked; that Denton had not failed a required USA Hockey background check; that Denton had not been involved in an incident with a child in the locker room; that Denton had not forcibly touched a child; that Denton was not a pervert.
In order to state a cause of action for defamation, NY CPLR 3016(a) requires that the particular words complained of must be alleged in addition to the time, place and manner of the false statement and to specify to whom it was made. Arsenault v. Forquer, 197 A.D.2d 554 (Second Dep't, 1993).
Defendant's Counterclaim alleges these quoted false statements were made to four separate individuals, each was specifically identified by name. Moreover, the Counterclaim alleged the specific place where the statements were made on each occasion. However, Defendant has alleged only the month and the year these statements were made to each of the individuals specified. Defendant "claims that he cannot be more specific without further discovery in order to meet the pleading requirement to allege the time."
As the Court must credit all of these allegations in the counterclaim as true, the Court find that Plaintiffs submissions, both statements and affidavits of three of the four named individuals denying Defendant's allegations to be of no moment on this Motion to Dismiss. Plaintiff claims that Defendant's Cross-Motion should be dismissed because the "time" was not sufficiently pled because a one month time frame has been found to be insufficient by multiple courts. See Wenger, supra at 1348. However, since CPLR 3016(a) is silent on what the appropriate time frame should be and the cases are inconsistent on this point, this Court declines to dismiss the counterclaim due to the alleged deficiency on the time frame at this juncture.
Instead, this Court will allow Defendant an opportunity to conduct discovery since it has been demonstrated in the pleadings that facts related to a more specific time frame may exist. Cantor v. Levine, 115 A.D.2d 453 (Second Dep't. 1985). Here, Defendant contends that he did not know the exact dates that these conversations took place between the Plaintiff and the four individuals named in the counterclaim. While Plaintiff argued that Defendant had sufficient time and could have interviewed these individuals, Defendant claimed that formal discovery would likely be more fruitful. This Court agrees.
In addition, the various circumstances alleged by the Defendant during the stated time frame lend support that a cause of action for defamation may exist. Amigo Foods Corp v. Marine Midland Bank, 39 N.Y.2d 391, 395 (Court of Appeals of New York) and Ramsay v. Imogene Bassett Hospital 113 A.D.2d 149, 151 (Third Dep't 1985). Defendant, stated that he had been invited by his daughter's coaches to assist the Whitestown Hockey Program in the first week in October of 2017 and that he helped several players. In return, Defendant claims to have received many compliments from several parents for his efforts. By mid-October of 2017, the coaches advised him that their Board had directed Defendant to stay off of the ice. Defendant stated that the coaches expressed interest in having him continue to help them from the bench until even that practice was later prohibited by the Board. Thus, the notion that Plaintiffs claim that granting discovery here would be is nothing more than a "fishing expedition", is without merit. However, in addition to granting the Defendant an opportunity to conduct discovery, the Court will hold the Plaintiffs Motion for sanctions alleging a frivolous claim in abeyance until after the record is more fully developed with regard to Defendant's good faith basis in bringing the counterclaim.
Accordingly, the Court denies the Motion to Dismiss, without prejudice and will afford the Defendant an opportunity to conduct discovery in order to obtain more specific time frames for each of these allegations in his counterclaim.
NOW, therefore, in accordance with the above decision, it is hereby
ORDERED, that Plaintiffs Motion to Dismiss Defendant's counterclaim is hereby DENIED; and it is further
ORDERED, that Defendant be allowed to conduct discovery regarding the allegations in his counterclaim; arid it is further
ORDERED, that Plaintiffs Motion for sanctions under NYCRR Part 130 be held in abeyance until further order of this Court.
This shall constitute the Decision and Order. The original Decision and Order is returned to the attorney for the Defendant. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this Decision, Order does not constitute entry or filing under CPLR Rule 2200. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.