Summary
dismissing defamation claim based in part on the conclusion that "any implication that plaintiff is anti-Semitic constitutes a non-actionable opinion which is based on disclosed facts."
Summary of this case from Frascatore v. BlakeOpinion
500300/2017
12-15-2017
Brenda MORGAN, Plaintiff, v. NYP HOLDINGS, INC., d/b/a the New York Post, Melkorka Licea, in Her Professional and Personal Capacities, Susan Edelman, in Her Professional and Personal Capacities, Edward Shechtman, in His Personal Capacity and Gail Rothfeld, in Her Personal Capacity, Defendants.
NORMAN KEITH WHITE, Keith White, PLLC, 198A Rogers Avenue, Brooklyn, NY 11225, (718) 403–9261, ALEXIS GABRIEL PADILLA, Law office of Alexis G. Padilla, 575 Decatur Street # 3, Brooklyn, NY 11233, 917–238–2993, ATTORNEY FOR THE PLAINTIFF Davis Wright Tremaine LLP, 1251 Avenue of the Americas 21st Floor, New York, NY 10020, 212–489–8230, ATTORNEY FOR DEFENDANTS MASSOUD & PASHKOFF, L.L.P., 1700 Broadway 41st Floor, NEW YORK, NY 10019, 212–207–6771, Attorneys for defendants NYP Holdings d/b/a The New York Post; Melkorka Licea and Susan Edelman Zachary Carter Corporation Counsel, New York City Corporation Counsel, 100 Church Street, New York, NY 10007–2601, 212–356–0800 Attorneys for defendant Gail Rothfeld, Attorneys for defendant Edward Shechtman
NORMAN KEITH WHITE, Keith White, PLLC, 198A Rogers Avenue, Brooklyn, NY 11225, (718) 403–9261, ALEXIS GABRIEL PADILLA, Law office of Alexis G. Padilla, 575 Decatur Street # 3, Brooklyn, NY 11233, 917–238–2993, ATTORNEY FOR THE PLAINTIFF
Davis Wright Tremaine LLP, 1251 Avenue of the Americas 21st Floor, New York, NY 10020, 212–489–8230, ATTORNEY FOR DEFENDANTS
MASSOUD & PASHKOFF, L.L.P., 1700 Broadway 41st Floor, NEW YORK, NY 10019, 212–207–6771, Attorneys for defendants NYP Holdings d/b/a The New York Post; Melkorka Licea and Susan Edelman
Zachary Carter Corporation Counsel, New York City Corporation Counsel, 100 Church Street, New York, NY 10007–2601, 212–356–0800 Attorneys for defendant Gail Rothfeld, Attorneys for defendant Edward Shechtman
Paul Wooten, J.
The following e-filed papers read herein: Papers Numbered
Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 9, 11, 14–17, 19, 21, 22–26, 55, 57–59
Opposing Affidavits (Affirmations) 28–32, 34–38, 40–44, 67–73
Reply Affidavits (Affirmations) 61–64
Memoranda of Law 10, 27, 20, 33, 60, 39, 56, 66
Transcript of May 15, 2017 Oral Argument (Not E-filed) A
Motion sequence numbers 1–5 are hereby consolidated for disposition.
Upon the foregoing papers, in this action by plaintiff Brenda Morgan (plaintiff) against defendants NYP Holdings, Inc., d/b/a the New York Post, Melkorka Licea (Licea), and Susan Edelman (Edelman) (collectively, the Post defendants), Edward Shechtman (Shechtman), and Gail Rothfeld (Rothfeld), the Post defendants move, under motion sequence number one, for an order, pursuant to CPLR 3211(a)(7), dismissing plaintiff's complaint in its entirety with prejudice. Rothfeld moves, under motion sequence number two, for an order, pursuant to CPLR 3211(a)(7), dismissing plaintiff's complaint and any cross-claims against her, or, in the alternative, pursuant to CPLR §§ 504(3) and 510(3), changing the venue of this action from Kings County to Queens County. The Post defendants move, under motion sequence number three, for an order, pursuant to CPLR 3211(a)(7), dismissing plaintiff's amended complaint in its entirety with prejudice. Shechtman moves, under motion sequence number four, for an order, pursuant to CPLR 3211(a)(7), dismissing plaintiff's amended complaint in its entirety, and awarding him the costs and disbursements of this action. The Post defendants and Shechtman jointly move, under motion sequence number five, for an order, pursuant to 22 NYCRR § 130–1.1, imposing sanctions on plaintiff and her counsel for frivolous litigation conduct.
During the pendency of the Post defendants' motion, under motion sequence number one, plaintiff served an amended complaint dated March 30, 2017 and filed on March 31, 2017.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff is an executive administrator with the New York City Department of Education, and is charged with scheduling varsity volleyball games. NYP Holdings, Inc. is the publisher of the New York Post, a large and influential newspaper in New York. Licea and Edelman are reporters for the New York Post, who wrote a New York Post article (the article), which was published in the Sunday, October 2, 2016 print edition of the New York Post and on the nypost.com website. The article reported on the efforts of Shechtman and Rothfeld, who are both Jewish volleyball coaches that are employed by the New York City Department of Education, to convince plaintiff to reschedule the date of their teams' volleyball games from October 11, 2016, the eve of Yom Kippur, the Jewish day of atonement and the highest holy day in the Jewish religion, to another date.
The headline of the print version of the article read "Spiked on Yom Kippur." The headline underneath it stated "School big snubs coaches over holiday." It contained a picture of plaintiff and a picture of Shechtman, and stated underneath these pictures that plaintiff "won't reschedule games on Yom Kippur for Jewish coaches, including Edward Shechtman." The headline of the online version read "Coaches disturbed by official making Jewish schools compete on eve of Yom Kippur." It also contained a picture of plaintiff with her name written underneath her picture, and a picture of Shechtman with his name written underneath his picture. Both the print and online versions of the article were otherwise identical.
The article stated that "Martin Van Buren HS was to go up against Queens Metropolitan HS and Beach Channel HS was set to play Richmond Hill HS on Oct. 11, 2016," which was the eve of Yom Kippur, the Jewish day of atonement, which was to begin at nightfall on Tuesday, October 11, 2016. The article explained that "[t]he holy day is observed by fasting for about 24 hours, reciting prayers and attending synagogue," and that "Jews usually eat a big dinner the evening before, and then break the fast the following night." The article reported that Shechtman was the girls' varsity coach at Martin Van Buren High School in Queens, and Rothfeld was the girls' varsity coach at Beach Channel High School in Queens.
The article set forth that Rothfeld first emailed plaintiff, the sports coordinator for the public schools' athletic league, on August 28 to request that the October 11, 2016 games be rescheduled to accommodate the Yom Kippur holiday. The article quoted Rothfeld as saying that a switch of the date of the games was needed because the date of "the game can be changed, but the [date of the] holiday cannot [be changed]." The article reported that plaintiff did not respond to this email. The article then quoted Rothfeld as saying "[i]f [plaintiff is] the sports coordinator and we're in the middle of a season, then she has to read and respond to her e-mail." The article reported that after plaintiff did not respond to Rothfeld's request, the four coaches, namely, Rothfeld, Shechtman, and the coaches of their two scheduled opponent teams, "had all agreed to postpone the games until Oct. 20" so that the games would not interfere with Rothfeld and Shechtman's religious observance, but that plaintiff "spiked their plans." The article noted that Yom Kippur is recognized as a holiday by the Department of Education, which gives students the day off from school on the day of Yom Kippur, but not on the eve of Yom Kippur (since students are already home from school before sundown on the eve of Yom Kippur). The article set forth that plaintiff told Rothfeld and Shechtman that "it wasn't kosher to reschedule matches set on the eve of the highest holy day, Yom Kippur."
The article stated that plaintiff "wrote in a terse e-mail," that Shechtman and Rothfeld had two options, i.e., that they could either "[g]et a replacement/substitute coach or forfeit the game." The article reported that Shechtman told the Post that the coaches were "dumbfounded and disturbed" by plaintiff's response to their request. The article then quoted Shechtman as saying that plaintiff "was being like a Nazi," and that Shechtman questioned "would she have scheduled these games on Christmas Eve? I doubt it."
The article reported that, after the Post began making inquiries about this issue, plaintiff cancelled both volleyball games by posting a notice online, and that she left it unclear whether the games would be rescheduled. The article also quoted a player, Allanis Castellanos, who questioned "what is the point of canceling the game and not playing at all?," and complained that "[i]t would be unfair to have to forfeit because our coach practices a certain religion." The article stated that when the Post reached plaintiff on the telephone, she "hung up without comment." The article further stated that the Department of Education declined to comment on plaintiff's conduct. Based on the above facts, the article, referring to plaintiff, began with the quip, "She's the Grinch of Jewish holidays."
On January 6, 2017, plaintiff filed this action against the Post defendants, Shechtman, and Rothfeld (collectively, defendants). Plaintiff's complaint purports to allege a first cause of action for defamation and libel per se, and a second cause of action for intentional infliction of emotional distress. Plaintiff's first cause of action for defamation and libel per se alleges that defendants published or caused to be published defamatory statements about her, which included that she acts like a "Nazi" and that she is "the Grinch of the Jewish holidays." Plaintiff further alleges, in her first cause of action, that this defamation included assertions that she is biased against Jewish holidays in favor of Christian holidays, and that she was reached by phone and hung up when questioned about these statements. Plaintiff's second cause of action for intentional infliction of emotional distress alleges that defendants' alleged defamatory statements in the article constitute extreme and outrageous conduct that exceeds the bounds of decency in a civilized society, and that defendants intended and intentionally or recklessly caused her to suffer severe emotional distress. Plaintiff seeks, among other relief, compensatory and punitive damages.
Rothfeld interposed an answer to plaintiff's complaint, which is dated March 6, 2017 and was filed on March 17, 2017. Along with her answer, Rothfield forwarded to plaintiff a demand to change venue from Kings County to Queens County. To date, plaintiff has not responded to this demand. Shechtman interposed an answer to plaintiff's complaint, which is dated March 6, 2017 and was filed on March 7, 2017. The other defendants have not yet interposed an answer to plaintiff's complaint.
Although Rothfeld and Shechtman have interposed answers, a motion under CPLR 3211(a)(7) may be made post-answer (see CPLR 3211[e] ; Hendrickson v. Philbor Motors, Inc. , 102 AD3d 251, 257 [2d Dept 2012] ).
On March 15, 2017, the Post defendants filed their motion to dismiss plaintiff's complaint. On March 17, 2017, Rothfeld filed her motion to dismiss plaintiff's complaint. On March 31, 2017, plaintiff filed an amended summons and amended complaint dated March 30, 2017, which changed the caption of this action, which initially sued Rothfeld and Shechtman in their professional and personal capacities, to suing them only in their personal capacities. On April 4, 2017, the Post defendants filed their motion to dismiss plaintiff's amended complaint. On April 13, 2017, Shechtman filed his motion to dismiss plaintiff's amended complaint. Oral argument of the motions was held on May 15, 2017.
Since plaintiff amended her original complaint as of right, pursuant to CPLR 3025 (a), after Rothfeld had filed her motion to dismiss and Rothfeld has elected to apply her motion to dismiss to the amended complaint which superseded the original complaint, the Court considers Rothfeld's motion as directed against the amended complaint (see Rodriguez v. Dickard Widder Indus. , 150 AD3d 1169, 1170 [2d Dept 2017] ; Sobel v. Ansanelli , 98 AD3d 1020, 1022 [2d Dept 2012] ).
LEGAL STANDARD
"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" ( Leon v. Martinez , 84 NY2d 83, 87 [1994], citing CPLR 3026 ). The court " ‘accept[s] the facts as alleged in the complaint as true, accord[s the] plaintiff[ ] the benefit of every possible favorable inference, and determine[s] only whether the facts as alleged fit within any cognizable legal theory’ " ( Connaughton v. Chipotle Mexican Grill, Inc. , 29 NY3d 137, 141 [2017], quoting Leon , 84 NY2d at 87–88 ). The standard is not whether the complaint states a cause of action, but whether the plaintiff has a cause of action (see Morales v. Copy Right, Inc. , 28 AD3d 440 [2d Dept 2006] ). " CPLR 3211(a)(7) dismissals merely address the adequacy of the [pleading], and do not reach the substantive merits of a [party's] cause of action" ( Lieberman v. Green , 139 AD3d 815, 816 [2d Dept 2016], quoting Hendrickson v. Philbor Motors, Inc. , 102 AD3d 251, 255 [2d Dept 2012] ). "[H]owever, ‘allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence [or which are inherently incredible] are not entitled to any such consideration’ " ( Simkin v. Blank , 19 NY3d 46, 52 [2012], quoting Maas v. Cornell Univ. , 94 NY2d 87, 91 [1999] ; see also Connaughton , 29 NY3d at 141–142 ; Graven v. Children's Home R.T.F., Inc. , 152 AD3d 1152, 1153 [3d Dept 2017] ).
Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove his or her claims, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss ( Biro v. Roth , 121 AD3d at 735 ; see Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP , 38 AD3d 34, 38 [2d Dept 2006] ). "Such a motion should be granted where, even viewing the allegations as true, the plaintiff cannot establish a cause of action" (id. ).
DISCUSSION
Plaintiff's Statements In Her Affidavit
In opposing defendants' motions, plaintiff contends that the facts in the article are false, and that such falsity supports her claims for defamation and intentional infliction of emotional distress. While plaintiff, in paragraph 14 of her amended verified complaint, alleged that she was "charged with scheduling [v]arsity [v]olleyball games, she has now submitted her sworn affidavit, in which she attests that "[a]t no time during the year 2016 was [she] responsible for any [v]arsity [v]olleyball scheduling changes at the New York City Department of Education" (emphasis added). Plaintiff claims that Yolanda Alford is responsible for schedule change requests. In support of this claim, plaintiff attaches to her opposition papers a copy of the 2016–2017 Public Schools Athletic League (PSAL) Girls' Volleyball Rules and Regulations (the PSAL Rules). Plaintiff contends that the PSAL Rules show that she had no responsibility for schedule changes. She cites to section 4, entitled "Changes in Schedule," which in section 4.4 states that "[t]he procedure for making any changes prior to August 31, 2016 is to email Yolanda Alford, Scheduler at [Yolanda Alford's website] after contacting all parties involved with your date requests prior to August 31, 2016."
Section 4.8 of the PSAL Rules, however, expressly provides that "no changes will be made after the above date [i.e., August 31, 2016]. Emergency requests may be submitted to the borough supervisor or sports coordinator " (emphasis added). The website from which plaintiff obtained the PSAL Rules lists plaintiff as the "Sports Coordinator" for Volleyball (Girls) JV & Varsity." While plaintiff attests, in paragraph 2 of her affidavit, that she is "the coordinator of certain [v]arsity [s]ports at the New York City Department of Education," she omits the fact that one of those "certain [v]arsity [s]ports" is girls' varsity volleyball. Thus, contrary to plaintiff's sworn statement, plaintiff, pursuant to the PSAL Rules, was responsible for emergency scheduling changes for girls' varsity volleyball in 2016. Indeed, after the article was published on October 2, 2016, plaintiff changed her decision about not rescheduling the games and exchanged multiple emails with the athletic directors of Shechtman and Rothfeld's schools on October 7 and 8, 2016, in which she agreed to reschedule the volleyball games to a different day. This demonstrates that plaintiff's sworn statement that she was not "responsible for any [v]arsity [v]olleyball scheduling changes" is false.
Plaintiff further attests, in her sworn affidavit, that she "never sent an email to any of the [d]efendants that stated ‘get a replacement/substitute coach or forfeit the game.’ " However, on September 20, 2016 at 1:04 p.m., Laura Ioveno (Ioveno), the athletic director of Beach Channel/Channel View School, sent an email to plaintiff, copying Rothfeld, which provided as follows:
"Brenda—
Gail Rothfeld requested that the game (317780) being played on 10/11 at Martin Van Buren against Richmond Hill be moved to 10/20 because of Yom Kippur. She spoke to the other coaches and they all agree to the switch. When will the schedule change be posted or what else needs to be done to make this change happen?"
About two hours later at 3:02 p.m., plaintiff responded in an email addressed to Ioveno, and carbon copied by plaintiff to Rothfeld, as follows:
"AD Ioveno,
Unfortunately the period for requesting game changes has expired. It is not necessary to change two games as a result of Coach Rothfeld missing the deadline. The game is not at Beach Channel therefore the second match can be played without interruption. Coach Rothfeld has several options...
1. Contact the other teams and request to play the earlier 4:30 p.m. game.
2. Get a certified replacement/substitute coach.
3. Forfeit the game.
Coaches are responsible for adhering to deadlines as outlined in the rules and regulations. Hope this helps" (emphasis added).
This September 20, 2016 email shows that plaintiff, pursuant to her job duties as sports coordinator for girls volleyball, stated to Rothfeld exactly what was reported in the article, and that her statement, in her sworn affidavit, that she did not state this, is false. In addition, this email establishes that plaintiff did, in fact, write and send a "terse email."
Furthermore, on September 21, 2016, the assistant principal at Shechtman's school, Gus Smaragdas (Smaragdas), sent an email to plaintiff, entitled "Religious Observance," telling plaintiff that he had a girls' volleyball coach, i.e., Shechtman, who would be observing Yom Kippur on the evening of October 11, requesting that the scheduled October 11 game be postponed to October 20, and informing her that all coaches had agreed to this change in date. Plaintiff replied, in an email to Smaragdas, that "the period for requesting game changes had expired," and plaintiff did not grant a postponement to October 20. Instead, plaintiff, in this email, suggested that the October 11 game could be played at 4:00 p.m., and that she would arrange to have the time altered once she got a confirmation that Shechtman contacted the opposing team and arranged for this change in time. Significantly, a change in time to 4:00 p.m. would not have given Shechtman sufficient time to complete the game before the start of Yom Kippur at sundown, which was approximately 6:21 p.m. that day. Thus, this email shows that plaintiff did, in fact, take an active role in the rescheduling of girls' volleyball matches.
Plaintiff claims that she "was on vacation all of July and August of 2016." She states that the article states that Rothfeld first attempted to contact her by email on August 28, 2016, and that she did not respond. The fact that plaintiff was on vacation in July and August 2016 is not inconsistent with the fact that plaintiff did not read or answer Rothfeld's emails. However, as shown by section 4.8 of the PSAL Rules, plaintiff was the person to contact for making changes after August 31, 2016, and, as shown by plaintiff's September 20, 2016 email, plaintiff was, in fact, contacted, and plaintiff responded precisely as stated in the article.
At oral argument, plaintiff's attorney stated that he showed plaintiff the emails sent by her and she responded that she did not send the emails to Rothfeld or Shechtman directly, but only sent the emails to the athletic directors (tr at 11–12, 18). The Post defendants' attorney noted that Rothfeld was carbon copied on the email, and, in any event, plaintiff sent these emails (id. at 13). Rothfeld's attorney pointed out that at no time did plaintiff state, in her emails responding to the requests for a date change, that she was not the person to be contacted in order to reschedule these games (id. at 15).
Plaintiff's First Cause Of Action For Defamation
" ‘The elements of a cause of action for defamation are a "false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se" ’ " ( Gutierrez v. McGrath Mgt. Servs., Inc. , 152 AD3d 498, 502 [2d Dept 2017], quoting Salvatore v. Kumar , 152 AD3d 498, 563 [2d Dept 2007], lv denied 10 NY3d 703 [2008], quoting Dillon v. City of New York , 261 AD2d 34, 38 [1st Dept 1999] ). "The complaint must set forth the particular words allegedly constituting defamation" ( Arvanitakis v. Lester , 145 AD3d 650, 651 [2d Dept 2016] ; see also CPLR 3016 [a] ). "Truth is an absolute defense to a defamation claim" ( Gutierrez , 152 AD3d at 502 ; see also Dillon , 261 AD2d at 39 ; Heins v. Board of Trustees of Inc. Vil. of Greenport , 237 AD2d 570, 571 [2d Dept 1997] ).
"Since falsity is a necessary element of a defamation cause of action and only ‘facts’ are capable of being proven false, ‘it follows that only statements alleging facts can properly be the subject of a defamation action’ " ( Gross v. New York Times Co., 82 NY2d 146, 152–153 [1993], quoting 600 W. 115th St. Corp. v. Von Gutfeld , 80 NY2d 130, 139 [1992], rearg denied 81 NY2d 759 [1992], cert denied 508 US 910 [1993] ). Distinguishing between fact and opinion is a question of law for the courts, to be decided based on "what the average person hearing or reading the communication would take it to mean" ( Steinhilber v. Alphonse , 68 NY2d 283, 290 [1986] ; see also Mann v. Abel , 10 NY3d 271, 276 [2008], cert denied 555 US 1170 [2009] ; Galanova v. Safir , 138 AD3d 686, 687 [2d Dept 2016] ).
"In distinguishing between facts and opinion, the factors the court must consider are (1) whether the specific language has a precise meaning that is readily understood, (2) whether the statement is capable of being proven true or false, and (3) whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact" ( Brummel v. Bd. of Trustees of Vil. of E. Hills , ––– AD3d ––––, 2017 NY Slip Op 07971, *2 [2d Dept 2017]; see also Mann , 10 NY3d at 276 ; Steinhilber , 68 NY2d at 292 ). "The dispositive inquiry ... is whether a reasonable [reader] could have concluded that the [article was] conveying facts about the plaintiff" ( Gross , 82 NY2d at 152 [internal quotation marks omitted]; see also Immuno AG. v. Moor–Jankowski , 77 NY2d 235, 254 [1991], cert denied 500 US 954 [1991] ; Scialdone v. Derosa , 148 AD3d 741, 742 [2d Dept 2017] ; Melius v. Glacken , 94 AD3d 959, 960 [2d Dept 2012] ).
Here, accepting the allegations in plaintiff's amended complaint as true and affording plaintiff the benefit of every favorable inference, plaintiff has failed to state a viable cause of action to recover damages for defamation (see Pall v. Roosevelt Union Free Sch. Dist. , 144 AD3d 1004, 1005 [2d Dept 2016] ). The specific statements in the article which plaintiff has quoted in her amended complaint and alleges to be defamatory are that she is "like a Nazi" and that she is "the Grinch of Jewish holidays." These statements do not have a precise meaning, and are hyperbolic and incapable of being proven true or false (see Holliswood Owners Corp. v. Rivera , 145 AD3d 968, 969 [2d Dept 2016] ). "Loose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not actionable" ( Dillon , 261 AD2d at 38 ; Trustco Bank of NY v. Capital Newspaper Div. of Hearst Corp. , 213 AD2d 940, 942 [3d Dept 1995] ). The context of the alleged defamatory statements in the article "was such that a reasonable reader would have concluded that he or she was reading an opinion, and not a fact, about ... plaintiff" ( Brummel , 2017 NY Slip Op 07971, *2; see also Pall , 144 AD3d at 1005 ; Rosner v. Amazon.com , 132 AD3d 835, 837 [2d Dept 2015], lv denied 26 NY3d 917 [2016] ; Silverman v. Daily News, L.P. , 129 AD3d 1054, 1055 [2d Dept 2015], appeal dismissed 26 NY3d 962 [2015], lv denied 26 NY3d 915 [2015] ; Goldberg v. Levine , 97 AD3d 725, 725–726 [2d Dept 2012] ).
Specifically, the context of the alleged defamatory statements was an article about plaintiff's refusal to reschedule the date of the volleyball games from Yom Kippur eve. When considering this overall context in which these statements were made, no reasonable reader would have believed that the article's characterization of plaintiff as the "Grinch of Jewish holidays," and its reporting that Shechtman had said that plaintiff "was being like a Nazi," were statements of objective fact. Rather, a reasonable reader of the article, taking these statements in the article in context, would recognize them as statements of opinion that flowed naturally from the facts disclosed in the article.
Indeed, it has been specifically held that accusing a person of being a Nazi is an expression of opinion and rhetorical hyperbole, and, thus, is not actionable as a matter of law (see Wanamaker v. VHA, Inc. , 19 AD3d 1011, 1012 [4th Dept 2005], appeal and rearg denied 21 AD3d 1442 [4th Dept 2005] ; Schwartz v. Nordstrom, Inc. , 160 AD2d 240, 241 [1st Dept 1990], appeal dismissed 76 NY2d 845 [1990], appeal denied 76 NY2d 711 [1990] ; Borzellieri v. Daily News, LP , 39 Misc 3d 1215[A], 2013 NY Slip Op 50624[U], *4 [Sup Ct, Queens County 2013]; Holy Spirit Assn. for Unification of World Christianity v. Harper & Roe, Publs. , 101 Misc 2d 30, 33–34 [Sup Ct, NY County 1979] ). Therefore, comparing plaintiff to a Nazi constitutes hyperbole and a non-actionable opinion as a matter of law, particularly since the facts underlying the opinion are fully disclosed to the reader (see Wanamaker , 19 AD3d at 1012 ; Schwartz , 160 AD2d at 241 ).
With respect to the statement in the article that plaintiff is "the Grinch of Jewish holidays," it is noted that the term Grinch is a reference to "How The Grinch Stole Christmas" (Random House, 1957), the classic children's book written by Dr. Seuss, which tells the fictional story of a fanciful creature, the Grinch, who hates Christmas, seeks to ruin the holiday for the people of the town of Who-ville, and ultimately learns to appreciate and even celebrate Christmas. No reasonable reader of the article would have believed that the reference to plaintiff as the "Grinch of the Jewish holidays" was conveying that she was literally the fictional children's book character, the Grinch. Rather, the article's reference to plaintiff as "the Grinch of the Jewish Holidays" was a vigorous epithet and a hyperbolic statement that is incapable of being proven true or false (see Dillon , 261 AD2d at 38 ). It is a statement of opinion which is non-actionable as a matter of law (see Klig v. Harper's Magazine Foundation , 2011 NY Slip Op 31173[U] [Sup Ct, Nassau County] [the title of the column, "You're a Mean One, Mr. Klig," which was a play on the famous phrase from "How The Grinch Stole Christmas," was held to be a fully protected opinion that the plaintiff's conduct was not in the traditional holiday spirit of giving, and the plaintiff had no claim for defamation based on this title] ). Moreover, the facts supporting this opinion were fully disclosed to the reader (see Russell v. Davies , 97 AD3d 649, 651 [2d Dept 2012] ).
Plaintiff claims that the allegedly false statements in the article constitute defamation per se. "A false statement constitutes defamation per se when it charges another with a serious crime or tends to injure another in his or her trade, business or profession" ( Matter of Konig v. CSC Holdings, LLC , 112 AD3d 934, 935 [2d Dept 2013], lv dismissed 23 NY3d 1029 [2014] [internal quotation marks omitted] ). However, even if the statements at issue tend to injure plaintiff in her profession, they may only constitute defamation if they amount to false statements of fact, rather than opinion (see Frechtman v. Gutterman , 115 AD3d 102, 105 [1st Dept 2014] ). Since the statements at issue constitute opinion, they are not defamatory as a matter of law (see id. ).
Plaintiff also claims that the article asserts that she was anti-semitic. However, there is no language in the article which states that plaintiff is "anti-semitic." Here, the article merely accurately reports what had transpired, i.e., plaintiff's refusal to reschedule the varsity volleyball games to accommodate the Jewish coaches' religious observance on the eve of Yom Kippur. As noted above, the truth is a defense to a defamation claim (see Goldberg v. Levine , 97 AD3d 725, 726 [2d Dept 2012] ). Moreover, any implication that plaintiff is anti-semitic constitutes a non-actionable opinion which is based on disclosed facts (see Russell , 97 AD3d at 650–651 ; Sandals Resorts Intl. Ltd. v. Google, Inc. , 86 AD3d 32, 41 [1st Dept 2011] ).
Similarly, while plaintiff argues that the article stated that she favored Christian holidays over Jewish holidays, there is no such statement in the article. Rather, the article merely quoted Shechtman as questioning whether plaintiff would have scheduled these games on Christmas eve and then answering his own question by stating that he doubted it. This constitutes a rhetorical question and a statement of Shechtman's opinion based upon disclosed facts, which is not actionable (see Goldberg , 97 AD3d at 726 ).
Plaintiff also argues that the headline, "Spiked on Yom Kippur," and the headline underneath it, which stated "School big snubs coaches over holiday," are false and a malicious attack on her because there were never any varsity volleyball games scheduled for Yom Kippur, and she never had any communications with any of the defendants regarding changing the volleyball schedule. This argument must be rejected. Contrary to plaintiff's argument, the games were scheduled for October 11 and Yom Kippur began at sundown on that day. Furthermore, as discussed above, there was an email sent by plaintiff to Ioveno (which was carbon copied to Rothfeld), in response to the email sent by Ioveno, on behalf of Rothfeld, and an email sent by plaintiff to Smaragdas, in response to an email sent by Smaragdas, on behalf of Shechtman, which denied Rothfeld and Shechtman their requested volleyball schedule change.
Plaintiff additionally contends that the language in the article that she "hung up without comment" when reached on the phone is false and defamatory. Plaintiff claims that she was never contacted by any of the defendants and did not hang up on them. Plaintiff argues that the statement that she "hung up" when called for comment is defamatory because it was "part and parcel to the other defamatory words of the subject article, meant to add context to the notion that [she] is antisemitic, and used to support the premise that [she] was ‘like a Nazi’ and the ‘Grinch of Jewish holidays.’ "
Even assuming for the purposes of this motion, that the article's report that plaintiff "hung up" when reached on the phone is false, it is incapable of a defamatory meaning. A person who is the subject of a news report is under no obligation to offer a comment to the news media, and his or her decision not to provide a comment in no way paints a negative picture of him or her. Thus, the statement in the article that plaintiff "hung up without comment" does not portray plaintiff in either a positive or negative light.
"[C]ourts will not strain to find a defamatory meaning where none exists" ( Cohn v. National Broadcasting Co. , 50 NY2d 885, 887 [1980], cert denied 449 US 1022 [1980] ). Thus, the statement that plaintiff "hung up" when called for comment is not defamatory as a matter of law. Furthermore, the cumulative effect of this statement and the non-actionable protected opinions in this article cannot be said to be defamatory (id. ).
Consequently, none of the statements in the article that are cited by plaintiff are defamatory. Dismissal of plaintiff's first cause of action for defamation must, therefore, be granted (see CPLR 3211[a][7] ).
Plaintiff's Second Cause Of Action For Intentional Infliction Of Emotional Distress
In opposing dismissal of her second cause of action for intentional infliction of emotional distress, plaintiff claims that she suffered emotional distress due to the alleged defamatory statements in the article. The intentional infliction of emotional distress claim is, thus, duplicative of plaintiff's defamation claim since the underlying allegations fall "within the ambit of" her first cause of action for defamation (see Bacon v. Nygard , 140 AD3d 577, 578 [1st Dept 2016] ; Fleischer v. NYP Holdings, Inc. , 104 AD3d 536, 538–539 [1st Dept 2013], lv denied 21 NY3d 858 [2013] ).
In any event, plaintiff fails to state a cognizable cause of action for intentional infliction of emotional distress. In order to state a claim for intentional infliction of emotional distress, a plaintiff must allege that the defendant engaged in conduct " ‘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" ’ " ( Scialdone v. Derosa , 148 AD3d 741, 743 [2d Dept 2017], quoting Murphy v. American Home Prods. Corp. , 58 NY2d 293, 303 [1983], quoting Restatement [Second] of Torts § 46, Comment d; see also Howell v. New York Post Co. , 81 NY2d 115, 121 [1993] ; Freihofer v. Hearst Corp. , 65 NY2d 135, 143 [1985] ; Taggart v. Costabile , 131 AD3d 243, 250–251 [2d Dept 2015] ; Baumann v. Hanover Community Bank , 100 AD3d 814, 817 [2d Dept 2012] ; McGovern v. Nassau County Dept. of Social Servs. , 60 AD3d 1016, 1018 [2d Dept 2009] ; Rall v. Hellman , 284 AD2d 113, 115 [1st Dept 2001] ). "[I]t is long settled that publication of a single, purportedly false or defamatory article regarding a person does not constitute extreme and outrageous conduct as a matter of law" ( Bement v. N.Y.P. Holdings, Inc. , 307 AD2d 86, 92 [1st Dept 2003], see also Levin v. McPhee , 917 F Supp 230, 242–243 [SD NY 1996], affd 119 F3d 189 [2d Cir 1997] ). Moreover, the statements in the article were not so "extreme and outrageous" so as to support a claim for intentional infliction of emotional distress (see Howell , 81 NY2d at 122 ; Cassini v. Advance Publs., Inc. , 125 AD3d 467, 468 [1st Dept 2015], lv denied 26 NY3d 902 [2015] ; Fleischer , 104 AD3d at 539 ). Thus, dismissal of plaintiff's second cause of action for intentional infliction of emotional distress is mandated (see CPLR 3211[a][7] ).
The Court notes that in light of the Court dismissing plaintiff's complaint in its entirety, it is unnecessary to reach Rothfeld's alternative motion for a change of venue to Queens County.
Sanctions Under 130 NYCRR § 130–1.1
The Post defendants and Shechtman, in their joint motion, seek sanctions against plaintiff and her counsel. Plaintiff submitted opposition papers to this joint motion and this joint motion was also the subject of oral argument. Thus, plaintiff, by her attorney, and her attorney, in his individual capacity, were afforded an opportunity to be heard on the issue of sanctions ( 22 NYCRR § 130–1.1 [d] ).
22 NYCRR § 130–1.1(a) provides that "[t]he court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part." "A court may impose financial sanctions upon a party or attorney who engages in ‘frivolous conduct’ " ( Weissman v. Weissman , 116 AD3d 848, 849 [2d Dept 2014], citing 22 NYCRR 130—1.1 [a] ). "Although the advancement of a meritless position may serve as the basis for a finding of frivolity, the standard for such a showing is high" ( Stone Mountain Holdings, LLC v. Spitzer , 119 AD3d 548, 550 [2d Dept 2014] ). "Conduct is frivolous if ‘it is completely without merit in law’ and ‘cannot be support by a reasonable argument for an extension, modification or reversal of existing law’ " (id., citing 22 NYCRR 130—1.1 [c][1]; Mascia v. Maresco , 39 AD3d 504 [2d Dept 2007] ); it is "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or it asserts material factual statements that are false" ( id. at 505 ). "A party seeking the imposition of a sanction or an award of an attorney's fee pursuant to 22 NYCRR 130—1.1(c) has the burden of demonstrating that the conduct of the opposing party was frivolous within the meaning of the rule, or that the action or proceeding was commenced or continued in bad faith" ( Miller v. Miller , 96 AD3d 943, 944 [2d Dept 2012] ; see Stone Mountain Holdings, LLC , 119 AD3d at 550 ).
Pursuant to 22 NYCRR § 130–1.1(b), "[t]he court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both." 22 NYCRR § 130–1.3 provides that "[p]ayments of sanctions by an attorney shall be deposited with the Lawyers' Fund for Client Protection established pursuant to section 97–t of the State Finance Law," and that "[p]ayments of sanctions by a party who is not an attorney shall be deposited with the clerk of the court for transmittal to the Commissioner of Taxation and Finance."
For purposes of this Part, conduct is deemed frivolous if it "asserts material factual statements that are false" ( 22 NYCRR § 130–1.1 [c][3] ). Here, plaintiff has asserted material factual statements that are false in her sworn affidavit, dated April 17, 2017. Specifically, plaintiff, in her sworn affidavit, asserts that "[a]t no time during the year 2016 was [she] responsible for any [v]arsity [v]olleyball scheduling changes at the New York City Department of Education," and that she "never sent an email to any of the [d]efendants that stated "[g]et a replacement/substitute coach or forfeit the game" (emphasis added). As discussed above, the emails sent by plaintiff to Ioveno, who is the athletic director at Beach Channel/Channel View High School, and Smaragdas, who is the assistant principal at Martin Van Buren High School, show that plaintiff was involved in making these scheduling changes, and that, in emails dated October 6 and 7, 2016, after the article had been published, plaintiff agreed to reschedule the volleyball game to a different day. In addition, the email sent by plaintiff to Ioveno, dated September 20, 2016, which was carbon copied to Rothfeld, stated that Rothfeld's options were either to "contact the other teams and request to play the earlier 4:30 p.m. game" (which would not have given Rothfeld enough time to be ready for Yom Kippur observance), to "[g]et a certified replacement/substitute coach" or "forfeit the game."
Thus, plaintiff presented knowingly false statements to the Court. Furthermore, these false statements were used by plaintiff to support her causes of action. Specifically, plaintiff argued that the article falsely stated that "she wrote in a terse email" that Shechtman and Rothfeld's options were that they could either get a replacement/substitute coach or forfeit the game. While plaintiff, in opposition, claims that she did not send these emails directly to Rothfeld or Shechtman, the article did not state that she directly sent these emails to them, but, rather, stated that Rothfeld and Shechtman were told that they had these two options. Furthermore, Rothfeld was carbon copied on the email sent to Ioveno. Rothfeld and Shechtman were the coaches affected by these emails, and these coaches were told what plaintiff had said in the emails by Ioveno and Smaragdas, who were directly emailed by plaintiff. In addition, while the emails show that plaintiff had responsibility for and took an active involvement in the rescheduling of girls' volleyball matches, plaintiff relied on her false statement that she was not responsible for scheduling girls' volleyball games to support her argument that the article was defamatory because it stated that she would not reschedule the games set for the eve of Yom Kippur.
22 NYCRR § 130–1.1(c) provides that
"[i]n determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party."
Here, plaintiff was aware of the falsity of her statements. Thus, the Post defendants and Shechtman are entitled to an award of costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, pursuant to 22 NYCRR § 130–1.1, against plaintiff (see Retained Realty, Inc. v. 1828 51, LLC , 153 AD3d 1438, 1439–1440 [2d Dept 2017] ; Boye v. Rubin & Bailin, LLP , 152 AD3d 1, 11 [1st Dept 2017] ; Matter of Kover , 134 AD3d 64, 74 [1st Dept 2015] ; Sanders v. Copley , 194 AD2d 85, 87 [1st Dept 1993] ). The Court declines to award an additional monetary sanction.
Rothman has not moved for sanctions pursuant to 22 NYCRR § 130–1.1, and the Court will not award her an award of costs and attorney's fees sua sponte in the absence of any notice to plaintiff (see 22 NYCRR § 130–1.1 [d] ).
While the Post defendants and Shechtman also seek sanctions against plaintiff's attorney, Keith White, Esq. (Mr. White), the Court declines to impose any sanctions against him. Mr. White only submitted a memorandum of law and did not attest to any materially false factual statement. While Mr. White argued plaintiff's position which relied on plaintiff's false statements, it appears that Mr. White may have been misled by plaintiff regarding the truthfulness of her assertions.
Although the Post defendants and Shechtman are entitled to an award of their reasonable attorneys' fees, they have not submitted any evidence to establish the amount of hours which were expended by their attorneys as a result of plaintiff's frivolous conduct, "the reasonableness of that amount, or the ‘customary fee charged for similar services by lawyers in the community with like experience and of comparable reputation’ " ( Retained Realty, Inc. , 153 AD3d at 1440, quoting Kaygreen Realty Co., LLC v. IG Second Generation Partners, L.P. , 78 AD3d 1008, 1010 [2d Dept 2010] ). Thus, the Court must afford the parties an opportunity to submit evidence on the issue of the amount to be awarded to them for attorneys' fees (see Retained Realty, Inc. , 153 AD3d at 1440 ).
CONCLUSION
Based upon the foregoing, it is hereby
ORDERED that the Post defendants' motion for an order, pursuant to CPLR 3211(a)(7), dismissing plaintiff's complaint in its entirety with prejudice (motion sequence 1) is moot, as plaintiff amended her complaint after the filing of said motion and in light of the Post defendants' moving for dismissal of the amended complaint in motion sequence 3; and it is further,
ORDERED that Rothfeld's motion, the Post defendants' motion, and Shechtman's motion for dismissal of plaintiff's amended complaint in its entirety are granted (motion sequences 2, 3, and 4, respectively), and the complaint is hereby dismissed; and it is further,
ORDERED that the Post defendants and Shechtman's joint motion for sanctions, pursuant to 22 NYCRR § 130–1.1 (motion sequence 5), is granted to the extent that the Post defendants and Shechtman are awarded costs against plaintiff in the form of reimbursement for actual expenses reasonably incurred and reasonable attorneys' fees, resulting from frivolous conduct by plaintiff, and such motion is denied insofar as it seeks the imposition of additional financial sanctions against plaintiff and an award of costs or financial sanctions against Mr. White; and it is further,
ORDERED that the Post defendants shall submit an affidavit by their counsel, and Shechtman shall submit an affidavit by his counsel, together with appropriate documentation, as to the basis of the legal fees charged to them, on notice to plaintiff, within 20 days of Entry of this Decision and Order; and it is further,
ORDERED that plaintiff may submit a response to these calculations of attorneys' fees within 20 days thereafter; and it is further,
ORDERED that if the amount to be awarded as reasonable attorneys' fees cannot be agreed upon by plaintiff and the Post defendants, and by plaintiff and Shechtman, a hearing will be ordered; and it is further,
ORDERED that counsel for the Post defendants shall serve a copy of this Order with Notice of Entry upon all parties and the Clerk of the Court who shall enter judgment accordingly.
This constitutes the Decision and Order of the Court.