Opinion
17473 Index No. 160329/20 Case No. 2022-00656
03-09-2023
Dr. Mark Crispin MILLER, Plaintiff–Appellant–Respondent, v. Arjun APPADURAI et al., Defendants–Respondents–Appellants.
Sussman & Goldman, Goshen (Michael H. Sussman of counsel), for appellant-respondent. Davis Wright Tremaine LLP, New York (Jeremy Chase of counsel), for respondents-appellants.
Sussman & Goldman, Goshen (Michael H. Sussman of counsel), for appellant-respondent.
Davis Wright Tremaine LLP, New York (Jeremy Chase of counsel), for respondents-appellants.
Webber, J.P., Kern, Oing, Friedman, Gonza´lez, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about February 4, 2022, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to dismiss the complaint under CPLR 3211(a)(7) and denied defendants’ request for counsel fees, unanimously affirmed, without costs.
This defamation action is premised on a letter (the Letter) emailed by defendants, professors in New York University's (NYU) Department of Media, Culture, and Communication (MCC), to NYU's Dean and Provost, requesting that NYU undertake an expedited review of certain actions of plaintiff, a fellow MCC professor. The Letter was attached to plaintiff's operative amended complaint. Rather than answering the complaint, defendants moved to dismiss under CPLR 3211(a)(1), (a)(7), and (g), and sought counsel fees under Civil Rights Law § 70–a(1)(a).
Supreme Court properly denied dismissal under CPLR 3211(g) and defendants’ request for counsel fees. This action is not a SLAPP lawsuit. The Letter concerns "a purely private matter" ( Civil Rights Law § 76–a[1][a], [d] ) and was "directed only to a limited, private audience" ( Huggins v. Moore, 94 N.Y.2d 296, 303, 704 N.Y.S.2d 904, 726 N.E.2d 456 [1999] ). Although the Letter touched on topics of public interest, those topics were not its focus. Rather, the Letter was an internal complaint about the behavior of a fellow employee. Under these circumstances, its content was not within the sphere of public interest (see generally id. at 302, 704 N.Y.S.2d 904, 726 N.E.2d 456 ; Coleman v. Grand, 523 F. Supp. 3d 244, 251–252, 259–260 [E.D.N.Y.2021] ).
Supreme Court, however, improvidently dismissed the complaint under CPLR 3211(a)(7) on the ground that the complaint failed to plead malice sufficient to rebut the common-interest privilege, because defendants had not yet answered and asserted that privilege as an affirmative defense (see e.g. Fletcher v. Dakota, Inc., 99 A.D.3d 43, 55–56, 948 N.Y.S.2d 263 [1st Dept. 2012] ; Garcia v. Puccio, 17 A.D.3d 199, 201, 793 N.Y.S.2d 382 [1st Dept. 2005] ; Demas v. Levitsky, 291 A.D.2d 653, 661, 738 N.Y.S.2d 402 [3d Dept. 2002], lv dismissed 98 N.Y.2d 728, 749 N.Y.S.2d 477, 779 N.E.2d 188 [2002] ; Wilcox v. Newark Val. Cent. School Dist., 74 A.D.3d 1558, 1562, 904 N.Y.S.2d 523 [3d Dept. 2010] ; see also Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem. Hosp., Inc., 148 A.D.3d 1418, 1420, 49 N.Y.S.3d 792 [3d Dept. 2017] ; cf. Harpaz v. Dunn, 203 A.D.3d 601, 602, 162 N.Y.S.3d 732 [1st Dept. 2022] ; Sagaille v. Carrega, 194 A.D.3d 92, 95–96, 143 N.Y.S.3d 36 [1st Dept. 2021], lv denied 37 N.Y.3d 909, 2021 WL 4164671 [2021] ; L.Y.E. Diamonds, Ltd. v. Gemological Inst. of Am., Inc., 169 A.D.3d 589, 590–591, 95 N.Y.S.3d 53 [1st Dept. 2019] ; O'Neill v. New York Univ., 97 A.D.3d 199, 212–213, 944 N.Y.S.2d 503 [1st Dept. 2012] ; Green v. Combined Life Ins. Co. of N.Y., 69 A.D.3d 531, 531, 892 N.Y.S.2d 760 [1st Dept. 2010] ).
Dismissal of the complaint was, nevertheless warranted under CPLR 3211(a)(7) because the Letter was nonactionable opinion (see generally Davis v. Boeheim, 24 N.Y.3d 262, 268–270, 998 N.Y.S.2d 131, 22 N.E.3d 999 [2014] ). The Letter, read as a whole and in context, would not lead a reasonable reader to believe that it was conveying facts but rather, that its clear purpose was to advocate for an expedited investigation into plaintiff's purported misconduct (see e.g. Brian v. Richardson, 87 N.Y.2d 46, 53, 637 N.Y.S.2d 347, 660 N.E.2d 1126 [1995] ).
We have considered the remaining contentions and find them unavailing.