Opinion
CV095011274S.
11-30-2012
Stephen POLLACK et al. v. Adam EITELBERG et al.
UNPUBLISHED OPINION
ALFRED J. JENNINGS, JR., Judge Trial Referee.
PROCEDURAL/FACTUAL BACKGROUND
The plaintiffs, Debra and Stephen Pollack, commenced this suit on May 4, 2009 in nine counts against the defendants, Adam Eitelberg and Park City Woodworks, LLC. The operative complaint is the Second Amended Complaint of January 26, 2010, which sounds, among other theories, in breach of contract, fraud and embezzlement. The complaint alleges that the parties entered into a contract on or about January 4, 2008, under which the defendants agreed to construct an addition to the plaintiffs' home. The project slowed and eventually stalled in the summer of 2008 when the work crew walked off the property, which ultimately required the plaintiffs to hire further contractors at additional cost to complete the job.
On August 28, 2011, the defendant Adam Eitelberg (" defendant") filed an amended answer and five-count counterclaim, which alleges the following facts: The plaintiffs were acquainted with the defendant's family through common memberships in the Jewish community of greater Stamford, including membership in Temple Beth El and common enrollment of the parties' children in the Bi-Cultural Day School. On May 31, 2009, after the plaintiffs filed the underlying action, the defendant's home in Bridgeport burned down. In June 2009, the defendant was arrested on larceny charges brought by the plaintiffs and relating to the construction dispute.
On October 22, 2009, it is alleged, the plaintiffs wrote an email to JewishStamford@yahoogroups.com titled " Adam Eitelberg has been Indicted for First Degree Grand Larceny, " in which the plaintiffs stated that they had been victimized by the defendant in connection with the construction project and requesting anyone else with similar experiences to come forward. Additionally, the plaintiffs added directions for finding the charges as posted on the Connecticut Judicial Branch website with the statement " If you would like to verify that Mr. Eitelberg is, in fact, indicted ..." Furthermore, soon after publishing the aforementioned e-mail, defendant alleges that the plaintiffs sent emails to " members of Temple Beth El and to parents of Bi-Cultural Day School students" stating that the defendant burned down his house. Finally, in late 2009 or early 2010, the defendant's wife was contacted by Steven Koback (" Koback, ") a reporter from the Norwalk Hour, who stated that " Ms. Pollack told him that Mr. Eitelberg committed arson by burning down his house and embezzled funds from the Pollacks."
Count one of the counterclaim sounds in defamation per se arising from the plaintiffs' email of October 22, 2009 as directed to the members of the Stamford Jewish e-mail group. Count two sounds in defamation per se for the additional e-mails the plaintiffs allegedly sent to individuals in the same community purportedly stating that the defendant burned his house down. Count three sounds in defamation per se for the plaintiffs' alleged statements to Koback that the defendant committed arson and embezzlement. Count four alleges defamation per se with special damages because the defendant's psychiatric recovery was allegedly delayed by feelings of ostracism from his religious community as a result of the defamations in counts one, two and three. Count five alleges intentional infliction of emotional distress based on the statements of the plaintiffs.
The plaintiffs have filed the instant motion for summary judgment with an attached memorandum of law on June 18, 2012, and attached the following exhibits: 1) an application for arrest warrant in the name of the defendant; 2) an affidavit of Debra Pollack; 3) a printout of the Connecticut Judicial Branch webpage detailing the defendant's conviction; 4) a copy of the state police bureau of identification listing the defendant and charges against him; 5) a portion of transcript taken from the deposition of the defendant's wife; 6) a news article from an unknown online source regarding a witness to the defendant's house fire; 7) the city of Bridgeport fire report; and 8) a portion of the transcript of the deposition of Koback.
The defendant filed a memorandum in objection to the motion for summary judgment on July 26, 2012. In support of his objection, the defendant submitted: 1) a copy of the plaintiffs' answer to the counterclaim; 2) a copy of the underlying contract between the parties; 3) a copy of an affidavit made by the defendant in response to a motion for contempt; 4) a copy of a complaint letter written by the plaintiffs and addressed to a U.S. Attorney; 5) a two-page portion of a court transcript from the criminal proceeding against the defendant; 6) six pages of the transcript from the deposition of Koback; and 7) a copy of the stipulation between the parties which disposed of the plaintiffs' application for prejudgment remedy. The plaintiffs filed a reply brief to the objection on July 27, 2012, and submitted in support copies of the unpublished cases that the plaintiffs had cited in the motion for summary judgment.
Oral argument was heard before the court during short calendar on July 30, 2012. On November 27, 2012 this court issued an electronic order granting the plaintiff's motion for summary judgment as to counts one, two, four and five of the counterclaim, but denying the motion for summary judgment as to count three of the counterclaim. This memorandum of decision is the court's articulation of the bases for those rulings.
DISCUSSION
" Practice Book § 17-49 provides that summary judgment shall be rendered if the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Stewart v. Watertown, 303 Conn. 699, 709-10, 38 A.3d 72 (2012).
" A genuine issue has been variously described as a triable, substantial or real issue of fact ... and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). " A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ... but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).
" The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). " Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great County Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), citing Practice Book § 17-46. A party's conclusory statements, " in the affidavit and elsewhere ... do not constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
" Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). " Only one of [a defendant's] defenses needs to be valid in order to overcome [a] motion for summary judgment. [S]ince a single valid defense may defeat recovery, [a movant's] motion for summary judgment should be denied when any defense presents significant fact issues that should be tried." (Internal quotation marks omitted.) Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996).
" [A]ny party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action ..." Practice Book § 17-44.
The plaintiffs argue in their memorandum of law that no genuine issue of material fact exists as to the claims alleged by the defendant, and that they are therefore entitled to summary judgment on all counts. They reason that the statements in counts one and three were true, and thus cannot be subject to claims for defamation; also that the information alleged in count one was publically available and thus cannot be actionable as defamatory; that the defendant has failed to offer proof that the defamatory statements alleged in count two were ever published; that the statement alleged in count three is only supported by hearsay evidence, which alone will not suffice to withstand a motion for summary judgment; that the defendant has not offered any proof upon which the court may award the alleged special damages of count four; and that the actions of the plaintiffs cannot be considered extreme and outrageous, and thus fail a requisite element of a claim for intentional infliction of emotional distress as alleged in count five.
The defendant, in his objection, argues first that the entire motion should be denied or continued because it is untimely under Practice Book § 17-47; that the statements in count one were not true and that the truth of a statement is only a defense where the defamed party is a public figure; that the plaintiffs are in possession of certain evidence that the defendant intends to produce via discovery to support count two; that the allegations of count three are supported by a deposition in addition to hearsay; that the defendant's emotional anguish in count four is still recoverable under general damages and that, under Practice Book § 5-9, the plaintiff is required to provide opposing counsel with a copy of any unpublished case upon which he relies; and finally that the plaintiffs zealous conduct in pushing the state's attorney to prosecute the defendant amounts to extreme and outrageous conduct sufficient to support count five and clearly intended on ruining the defendant's life.
The plaintiff responds first that Practice Book § 17-47 only applies where the defendant has a valid reason for not conducting discovery, which the defendant has not attested to here, where three years have gone by without the defendant conducting a single deposition or serving a single interrogatory; that as to count one, truth is a valid defense in cases of defamation against private individuals as well as public figures; that as to count two, a party's assertion of the existence of an issue is insufficient to survive summary judgment; that as to count three, the deposition of Koback offers no proof that the plaintiffs' statements were defamatory; that as to count four the plaintiffs have provided copies of the unpublished cases they cite pursuant to Practice Book § 5-9 and that the defendant raises no other defense against the motion as to this count; and that as to count five, the defendant does not submit any evidence to show that the plaintiffs' conduct is of a type which could be considered extreme and outrageous.
I.
The court must first consider whether the entire motion for summary judgment should be denied or a continuance should be granted according to the procedure set forth in Practice Book § 17-47. (" Appropriate Documents Unavailable.") Practice Book § 17-47 provides: " Should it appear from the affidavits of a party opposing the motion that such a party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other orders as is just." Our Supreme Court has stated: " [U]nder [§ 17-47], the opposing party must show by affidavit precisely what facts are within the exclusive knowledge of the [party to be deposed] and what steps he has taken to attempt to acquire these facts." (Internal quotation marks omitted.) Great Country Bank v. Pastore, supra, 241 Conn. at 438.
" A party opposing a summary judgment motion pursuant to [Practice Book § 17-47] on the ground that more time is needed to conduct discovery bears the burden of establishing a valid reason why the motion should be denied or its resolution postponed, including some indication as to what steps that party has taken to secure facts necessary to defeat the motion ... The trial court has wide discretion under [Practice Book § 17-47] to determine whether the party seeking additional time to conduct discovery already has had a sufficient opportunity to establish facts in opposition to the summary judgment motion, and we will not disturb its exercise of that discretion absent a clear showing of abuse." Weissman v. Koskoff, Koskoff & Bieder, P.C., 136 Conn.App. 557, 559-60, 46 A.3d 943 (2012), citing Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 489, 697 A.2d 680 (1997).
The defendant argues in his memorandum in opposition that the plaintiffs' motion for summary judgment should be denied or a continuance should be granted because discovery is still in progress. He states that the entire motion is untimely under § 17-47 because his own deposition is scheduled to take place in August 2012, and admits that he has not yet conducted any discovery. In objecting to summary judgment as to the second counterclaim specifically, the defendant states that " [t]he majority of evidence necessary to oppose this branch of the SJ Motion is peculiarly within the knowledge and possession of the Pollacks ..."
The plaintiffs reply to the defendant's objection by arguing that the defendant has not provided the court with a valid reason for his delay. To support this argument the plaintiffs offer an affidavit from the plaintiffs' counsel attesting to the fact that the defendant has not served a request for discovery, noticed a deposition or issued a subpoena during the three-year pendency of this action. Since the defendant has made no attempts at discovery before, they argue, there is no valid reason to delay the motion for summary judgment at present.
The rule of Practice Book § 17-47 as construed in Great Country Bank v. Pastore, supra, requires affidavits of the party opposing summary judgment: 1) describing the information that the opposing party expects to produce through discovery; 2) attesting to the opposing party's previous attempts to discover the information; and 3) giving a valid reason as to why discovery has not yet produced the information. In the present case, the defendant has not filed an affidavit related to his attempt to invoke § 17-47, nor does his argument satisfy any of the three requirements for relief. Therefore, the defendant has not complied with the basic requirements of § 17-47 and the court therefore declines to deny or postpone consideration of the motion for summary judgment on that ground.
II.
The court will next consider whether the plaintiffs have shown beyond any issue of material fact that the validity of either of their proferred defenses to the defamation per se claim alleged in count one, namely substantial truth of the statements in the email or the public availability of the information stated in the email.
" Defamation is comprised of the torts of libel and slander. Defamation is that which tends to injure reputation in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him ... Slander is oral defamation." (Citation omitted; internal quotation marks omitted.) DeVito v. Schwartz, 66 Conn.App. 228, 234, 784 A.2d 376 (2001). Libel is written defamation. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 611, 116 A.2d 440 (1955). " To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 848, 863 A.2d 735 (2005).
" While all libel was once actionable without proof of special damages, a distinction arose between libel per se and libel per quod ... A libel per quod is not libelous on the face of the communication, but becomes libelous in light of extrinsic facts known by the recipient of the communication ... When a plaintiff brings an action in libel per quod, he must plead and prove actual damages in order to recover ...
" Libel per se, on the other hand, is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages ... The distinction between libel per se and libel per quod is important because [a] plaintiff may recover general damages where the defamation in question constitutes libel per se ... When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation. He is required neither to plead nor to prove it ... The individual plaintiff is entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the libel caused him ..." (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 852, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003), citing Battista v. United Illuminating Co., 10 Conn.App. 486, 491-92, 523 A.2d 1356, cert. denied, 204 Conn. 802, 803, 525 A.2d 1352 (1987).
" Two of the general classes of libel which, it is generally recognized, are actionable per se are (1) libels charging crimes and (2) libels which injure a man in his profession and calling ... To fall within the category of libels that are actionable per se because they charge crime, the libel must be one which charges a crime which involves moral turpitude or to which an infamous penalty is attached." (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, supra, 77 Conn.App. at 853.
Slander is also actionable per se: " It is a well established principle that an accusation of theft is slander per se." Devito v. Schwartz, supra, 66 Conn.App. at 234. " Whether words are actionable per se is a question of law for the court." Miles v. Perry, 11 Conn.App. 584, 602, 529 A.2d 199 (1987).
At issue in count one are the statements made in the plaintiffs' e-mail of October 22, 2009 to Jewishstamford@yahoogroups.com. Although count one is titled as an action for defamation per se, the written e-mail is more properly characterized as libel per se. The allegedly libelous portions of this communication are the title, " Adam Eitelberg has been Indicted for First Degree Larceny" and the postscript, " [i]f you would like to verify that Mr. Eitelberg is, in fact, indicted, please go to the court docket website at: www . jud2.ct.gov." The counterclaim admits that the defendant was arrested and prosecuted for larceny, but claims that the term " indicted" is defamatory to the defendant, because the defendant was only charged by the State's Attorney with a crime— not indicted by a grand jury. Although the e-mail states that the defendant committed larceny, which fits the definition of libel per se because it is an accusation of theft, the only portion of the statement the defendant claims as libelous is the word " indicted." The counterclaim alleges that the defendant was never indicted for a crime, which is reserved for crimes punishable by death or life imprisonment pursuant to General Statutes § 54-46 and is determined by a grand jury of eighteen electors pursuant to General Statutes § 54-45.
The plaintiffs argue that no material fact exists as to count one because the defendants are barred from recovering for defamation since the statements are substantially true and the information therein is publically available. It is not necessary for the court to examine the defense of public availability, since the defendant has shown beyond any genuine issue of fact that the defamatory statements alleged in count one were substantially true. As discussed above, only one of defendant's defenses needs to be valid in order to overcome a motion for summary judgment.
See discussion above, at page 6. The reference to a " defendant's defenses" in this case would apply to the plaintiffs in their status as counterclaim defendants. To a large extent plaintiffs' claimed defense of public availability (of Adam Eitelberg's criminal record of prosecution and conviction for larceny) is conflated with the defense of substantial truth. " The most persuasive evidence that a purportedly libelous statement is accurate is the existence of a public record confirming the information reported." (Internal quotation marks omitted.) Mercer v. Cosley, 110 Conn.App. 283, 301, 955 A.2d 550 (2008).
" Truth is an absolute defense to an allegation of libel." Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984). " Although it is true that for a claim of defamation to be actionable, the statement must be false ... and under the common law, truth is an affirmative defense to defamation ... the determination of the truthfulness of a statement is a question of fact for the trier of fact." (Citation omitted; internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., supra, 86 Conn.App. at 851 n. 6. " Where the main charge, or gist, of the libel is true, minor errors that do not change a reader's perception of the statement do not make the statement actionable." (Internal quotation marks omitted.) Woodcock v. Journal Publishing Co., 230 Conn. 525, 554, 646 A.2d 92 (1994), cert. denied, 513 U.S. 11, 49, 115 S.Ct. 1098, 130 L .Ed.2d 1066 (1995).
" In a civil action for libel, where the protected interest is personal reputation, the rule in Connecticut is that the truth of an allegedly libelous statement of fact provides an absolute defense ... Contrary to the common law rule that required the defendant to establish the literal truth of the precise statement made, the modern rule is that only substantial truth need be shown to constitute the justification ... It is not necessary for the defendant to prove the truth of every word of the libel. If he succeeds in proving that the main charge, or gist, of the libel is true, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable ... The issue is whether the libel, as published, would have a different effect on the reader that the pleaded truth would have produced." (Internal quotation marks omitted.) Mercer v. Cosley, supra, 110 Conn.App. at 304, citing Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 112-13, 438 A.2d 1317 (1982).
Connecticut precedent provides limited guidelines for adjudicating the specific issue here presented Therefore, an examination of other authority is appropriate and yields the following helpful examples: " Falsehoods that do not harm the plaintiff's reputation more than a full recital of the true facts about him would do are thus not actionable ... In Lemons v. Chronicle Publishing Co., the Illinois Appellate Court held that an article about the plaintiff was substantially true even though it (1) said plaintiff had stabbed a person when plaintiff had slashed them, and (2) failed to report plaintiff's acquittal on one charge where plaintiff was convicted of three others. Similarly, the same court held it was not ‘ false’ to refer to the abduction of a child from Italy by her American mother as a kidnaping, even though the mother's actions did not constitute the crime of kidnaping. Other courts have held that describing a violation of the securities laws imprecisely as ‘ fraud, ’ saying that a juvenile was arrested for a crime when in fact he was arrested for ‘ delinquency, ’ that a policeman was suspended when he was placed on administrative leave, that a person was fined when he in fact was subject to a civil penalty, or that ‘ [a] federal judge had ordered [the plaintiff corporation] to settle’ a lawsuit for a substantial amount when the judge in fact strongly recommended a settlement, or incorrectly stating the name of the plaintiff's labor union, the penal facility to which the plaintiff was sent, or the date of the plaintiff's release from custody, for example, did not render the statements ‘ false.’ " 1 R. Sack, Sack of Defamation: Libel, Slander, and Related Problems (4th Ed.2011) § 3.7, p. 20-21.
The plaintiffs argue that the main gist of the statements made in the e-mail was the charges of larceny against the defendant. The plaintiff submits as evidence the arrest warrant application and a copy of the conviction case detail from the judicial website stating that the defendant pled guilty to third degree larceny and was sentenced to five years in prison, execution suspended, and given a term of probation. Since the gist of the argument was true, the plaintiffs argue, and the difference between a charge and an indictment would cause no change to a reader's perception of the statement, the defendant is barred from recovering under a theory of defamation. The defendant argues that truth as an absolute defense is a corollary to the rule protecting privileged speech by the press, and that the truth of a statement is only a defense where the defamed party is a public figure, citing Miles v. Perry, supra, 11 Conn.App. at 589, for the court's holding that if the defamed party " is a private individual, [he] need only prove, by a preponderance of the evidence, negligence in the failure to investigate the facts properly prior to conclusion." The defendant also argues that the difference between a charge and an indictment would change how the reader viewed the statement because readers are more familiar with indictments from watching the television program " Law and Order." The plaintiffs reply that the defendant's status as a private individual is irrelevant to whether the truth of the statement acts as an absolute bar to a claim of defamation, and that the defendant has argued that reader's opinions were changed because of the use of the term " indictment" without submitting any proof that such opinions exist.
In the present case, the plaintiffs have shown that the defendant was charged with larceny. In considering whether calling such charges an indictment renders the statement false, or whether it could still be said to be substantially true, the court must view the facts in the light most favorable to the defendant as the non-moving party, who has not directed the court to any of the evidence he submitted which would show that the statement as published would have a different effect on the reader than the truth would have. Without clear evidence that readers' opinions were changed by the mistake, the court must consider the defendant's arguments individually to determine whether a question of material fact as to the substantial truth may exist.
First, the court rejects the defendant's argument that the plaintiffs are not entitled to an absolute defense of truth because the defendant is a private individual. The quotation upon which the defendant relies is taken out of context, and the limited use of the rule is revealed by examining the whole: " Thus, if the plaintiff is a public figure, she would need to prove actual malice ... but if she is a private individual, she need only prove, by a preponderance of the evidence, negligence in the failure to investigate the facts properly prior to publication ... The plaintiff need[s] to prove malice in order to rebut the defendants' defense of privilege." (Citations omitted; internal quotation marks omitted.) Miles v. Perry, supra, 11 Conn.App. at 588-89. The difference between private and public citizens is a necessary distinction where the libelous party claims a privilege, which is not at issue in the present case. A defense of truth and a defense of privilege, if proven, result in similar bars to defamation claims, but there are multiple elements and exceptions to a privilege claim that do not apply if the statement can be shown to be true. See, e.g., Mercer v. Cosley, supra, 110 Conn.App. at 304-05. See, also, Goodrich v. Waterbury Republican-American, supra, which upheld the dismissal of libel claims on the basis of truth, which " creates an absolute bar to [the plaintiff's] claim of libel as to these statements." 188 Conn. at 114. The plaintiff in that case was not a public figure. He was a private real estate builder and developer. Id. at 109. The public/private status of the plaintiff has no bearing on the defense of truth as an absolute bar to a claim of defamation.
Next, the court must consider whether the reader would be affected differently by the word " indictment" than by the word " charge" because the average reader is more familiar with legal terms due to the cultural saturation of legal dramas such as " Law and Order." Such an argument is unsupported and unpersuasive. When discussing " substantial truth, " Connecticut courts have permitted errors in terminology that do not add to the sting of the charge. In Mercer v. Cosely, supra, for instance, the allegedly libelous broadcast said that the plaintiff prisoner had requested Viagra for the treatment of erectile dysfunction when in fact he had requested testosterone gel, and the court held, in affirming summary judgment for the defendant on the ground of substantial truth that the effect on the listener would not have been different if it had been stated that the plaintiff wanted testosterone gel. 110 Conn.App. at 304. The difference between being charged with a crime and being indicted for a crime is admittedly one of degree as to the severity of the expected punishment, but such a mistake is also analogous with other statements judged to be " substantially true." See 1 R. Sack, supra. Whether the defendant was charged or indicted, the message renders the same essential information to the reader, namely that the State of Connecticut brought charges against Mr. Eitelberg for larceny and he is facing criminal punishment if convicted. The defendant does not offer any evidence that " Law and Order" has any effect on such a message. Therefore, the statements made in the present case are " substantially true" and the defendant has not met his burden of proof to show that a genuine issue of material fact exists as to whether the plaintiffs' statements in the October 22, 2009 e-mail were defamatory. For that reason the court grants the plaintiffs' motion for summary judgment as to count one of the defendant's counterclaim because the alleged statements are substantially true.
III.
The court must next consider the plaintiff's motion to strike count two of the defendant's counterclaim, which alleges defamation per se for the alleged emails sent by the plaintiffs to members of the Temple Beth El community accusing the defendant of burning his house down.
" When claiming defamation, [c]ertainty is required in the allegations as to the defamation and as to the person defamed; a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom. A complaint is insufficient to withstand dismissal for failure to state a cause of action where, other than the bare allegation that the defendant's actions caused injury to the plaintiff's reputation, the complaint sets forth no facts of any kind indicating what defamatory statements, if any, were made, when they were made, or to whom they might have been made." Chertkova v. Connecticut General Life Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV 98 0486346 (July 12, 2002, Berger, J.), aff'd, 76 Conn.App. 907, 822 A.2d 372 (2003).
" Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 471, 998 A.2d 766 (2010). " Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." Romprey v. Safeco Ins. Co. of America, 129 Conn.App. 481, 497, 21 A.3d 889 (2011).
The plaintiffs argue in their motion for summary judgment that there is no genuine question of material fact as to the defamatory nature of the emails alleged in count two because the defendant has not produced a copy of the alleged e-mail or an affidavit of anyone who read the email. The plaintiffs note that the defendant has not alleged to whom the messages were sent, how many were sent, and the specific content, without which the plaintiffs are unable to defend against the allegation. The defendant's only argument against the motion is that discovery is incomplete under Practice Book § 17-47, and that other indirect evidence tends to show that the plaintiffs have a similar opinion to the statement alleged in count two.
The defendant, in supporting this assertion, argues that " other indirect evidence lends support to Eitelberg's allegations, " and then proceeds to mention two instances where the plaintiffs alluded to the defendant being involved with the fire at his home. In the first instance, the plaintiff Stephen Pollack states in court that he " wouldn't put it past [the defendant] that when it came to obtaining documents for our civil case, that this is the reason why his house went up in flames." The defendant admits that a limited privilege extends to statements made in court in the context of a legal proceeding. The second instance relates to an undated letter that the plaintiffs sent to the U.S. Attorney's Citizen's Complaint Bureau, wherein they state that the fire " is being investigated as ‘ suspicious.’ " The defendant does not, however, elaborate as to how these instances tend to show that there is discoverable evidence in the plaintiffs' possession related to any of the defamatory statements in e-mails which are the subject of count two of the defendant's counterclaim, and which would support a continuation or denial of the motion for summary judgment under § 17-47. The court has already rejected the argument for denial or delay pursuant to § 17-47 and sees no reason here to reconsider that ruling.
Alleging defamation per se relieves the plaintiff of offering proof as to the injury element of defamation claims, but does not alleviate the duty to prove the other three elements of a prima facie case for defamation, namely that 1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; and (3) the defamatory statement was published to a third person. See Gambardella v. Apple Health Care, Inc., supra, 86 Conn.App. at 848. Without any proof that the plaintiffs wrote the alleged email, that the e-mail actually contained the alleged defamatory statements, that the email was ever actually sent, and to whom it was sent, the defendant cannot overcome the burden of proof as to any of the three elements. Count two cannot stand on the defendant's unsupported assertions of defamation alone. Therefore, no genuine issue of material fact exists as to the defamatory emails alleged in count two, and the court grants the plaintiffs' motion for summary judgment as to this count.
IV.
The court will next consider whether a genuine issue of material fact exists regarding the defamation per se alleged in count three arising from the plaintiffs' statements to Norwalk Hour reporter Stephen Koback. The plaintiffs argue that the only evidence the defendant has presented is inadmissable hearsay. " The party opposing summary judgment ... must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment ... Moreover, mere conclusions are insufficient as evidence as evidence which would be inadmissable upon the trial, such as hearsay." (Citation omitted; internal quotation marks omitted.) 12 Havermeyer Place Co. v. Gordon, 93 Conn.App. 140, 157-58, 888 A.2s 141 (2006).
Hearsay is " a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted." Conn.Code of Evidence. § 8-1(3). " [F]actual assertions based on inadmissable hearsay are insufficient for purposes of opposing a motion for summary judgment." Jaiguay v. Vasquez, 287 Conn. 323, 363, 948 A.2d 955 (2008). But, on close analysis, the statements by Koback relating what he was told by plaintiff Debra Pollack (allegedly that she had told Koback that defendant Adam Eitelberg committed arson by burning down his house and embezzling funds from the Pollacks ) would not be hearsay if offered by the defendant in his case against the plaintiffs on count three of the counterclaim, because obviously Eitelberg would not be offering the statements to establish the truth of the very statements he claims to be libelous, but rather to establish the fact that the statements were made by Mrs. Pollack and published to Koback. " The purpose for which the statement is offered is crucial; if it is offered for a purpose other than to establish the truth of the matter asserted, the statement is not hearsay." Commentary (3) to Conn.Code of Evidence, § 8-1, citing, inter alia, State v. Esposito, 223 Conn. 299, 315 (1992). Furthermore, because Mrs. Pollack is a plaintiff in the case and a defendant on the counterclaim adverse to Mr. Eiltelberg, her statements would be admissible by virtue of the hearsay exception for the actual statements of a party opponent. Conn.Code of Evidence, § 8-3(1). The issue, then, is not that the conversation between Mrs. Pollack and Kobak is inadmissible hearsay, but rather the issues are what proof can be adduced as to the words spoken by Mrs. Pollack, and does that proof reflect a genuine issue of material fact? Mr. Koback's testimony as to Mrs. Pollack's verbal act of speaking, without reference to the truth of what she said, may be considered in addressing these issues.
The defendant presents no argument against the truth of the embezzling portion of the alleged statement. The claim of defamation is based entirely on the alleged statement re arson.
Although the plaintiffs admit that Debra Pollack spoke with Koback about the fire, they point to the deposition of Debra Pollack, which states that she never used the word " arson" and never said that the defendant intentionally burned his house down. The plaintiffs also rely on the deposition of Koback, wherein he attests that he could not recall who initiated the conversation about the fire, but that Debra Pollack never specifically accused the defendant of arson, and that he used that word to illicit a response from the defendant's wife. The plaintiffs claim that Koback's deposition testimony contradicts the unsupported statements alleged in the counterclaim.
The defendant relies on a portion of the transcript where Koback states, " [t]here was a claim by the defendants ... that a lot of the documentation pertaining to, I believe it was the documentation pertaining to the home improvement case, was destroyed in the fire. It was told to me off the record that I might want to look into that because the fire department deemed it suspicious ... I don't want to say 100 percent because I don't recall 100 percent that it was ever said that there was arson involved, but I do recall that thought being planted in my head but I don't recall how. It wasn't an original thought." Koback deposition, p. 37-38.
It is clear that the affidavits of Debra Pollack and Stephen Koback contradict at least as to the degree of specificity with which count three credits the alleged statements. Although, the affidavit of Koback does not entirely contradict the defamatory nature of the statements, a genuine issue of material fact still exists as to whether the statements were in some way defamatory. When asked, " did either of [the plaintiffs] ever specifically say to you that Mr. Eitelberg committed arson, " Koback responded: " They hinted at it." Koback deposition, p. 20.
" When the alleged defamatory words may seem innocuous on their face, they may nevertheless give rise to a defamatory innuendo because of extrinsic facts. Thus where the defamatory words are ambiguous as to the identity of the party defamed, the plaintiff may be allowed to show the innuendo whereby the words may be considered to refer to him. But it has often been said that while an innuendo can be used to explain the alleged defamatory words, it cannot be used to extend them." D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed.1991) § 151, p. 415. Therefore when Koback's deposition testimony is viewed in the light most favorable to the defendant, it shows that a genuine issue of material fact exists as to where the plaintiffs' statements to Koback contained defamatory innuendos. Although the plaintiffs rely heavily on the undisputed fact that Mrs. Pollack never used the word " arson, " naming the crime is unnecessary if the inference is plain that the crime was committed.
The court therefore finds that there is a genuine issue of material fact as to the content of the allegedly defamatory statements made by Debra Pollack to Stephen Koback, and denies the motion for summary judgment as to count three.
V.
The court next considers whether a genuine issue of material fact exists as to the special damages alleged in count four based on the alleged defamatory statements of the previous three counts. " To recover special damages ... the plaintiff must prove that he suffered economic loss that was legally caused by the defendant's defamatory statements, even where the defamation is per se. See 3 Restatement (Second, Torts § 622 (1977). General and specific damages together comprise compensatory damages. See 4 Restatement (Second), Torts, § 904 (1979)." Devito v. Schwartz, supra, 66 Conn.App. at 235. " The special damage ... must be of a material and, generally, of a pecuniary nature. It must result from the conduct of a person other than the defamer or the defamed, and that conduct must be directly caused by the publication of the slander." Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952).
Trial court judges have unanimously held that allegations of emotional harm are insufficient to allow for recovery of special damages, which are based only on evidence of pecuniary loss. See, e .g., Santoro v. Storm, Superior Court, judicial district of New Haven, Docket No. CV 05 4011040 (January 10, 2007, Licari, J.) (Special damages denied where plaintiff pled only mental distress but no pecuniary harm); Accurso v. Gallo, Superior Court, judicial district of New Haven, Docket No. CV 07 5009983 (December 29, 2008, Lager, J.) (Granting motion to strike where no factual allegations of economic requisite for special damages); Shea v. Waterbury, Superior Court, judicial district of New Britain, Docket No. CV 08 5007926 (February 20, 2009, Tanzer, J.) (Plaintiffs pleaded mental distress, harm to reputation, anxiety and humiliation, but not economic loss required to recover special damages).
The plaintiffs argue that count four is derivative of the first three counts, and also that the defendant has offered no evidence of economic damages. They further argue that the allegations of count four are based on the defendant's perceptions of his reputation, not on proof of any conduct undertaken by a member of the Jewish community. In his objection, the defendant first argues that, since counts one, two and three should survive the motion for summary judgment, so too should count four. His next argument is that the plaintiffs have not supplied copies of the unpublished cases on which they rely, against the procedural requirements of Practice Book § 5-9, and therefore the motion should be denied as to this count. Finally, he argues that even if his emotional harm is not recoverable as special damages, it is recoverable under general damages under counts one, two, and three. The plaintiffs respond, after submitting copies of their unpublished cases, that the defendant has essentially admitted that he cannot prevail on this claim by properly stating that emotional harm is properly characterized as general damages.
The court has herein granted summary judgment as to counts one and two, but the argument is still viable as to count three.
The defendant has not met his burden of proof to show that any material facts exist which would support his claim for special damages. His argument that summary judgment should not be granted as to the first three counts does not preclude judgment as a matter of law against him on a derivative unsupported claim. The defendant effectively admits that his claim for special damages is unsupported when he argues that emotional damage is still recoverable as general damages under the first three counts. He has submitted no evidence of the type under which special damages are recoverable, and so no issue of fact exists as to whether the defendant is entitled to such damages. Therefore, the court grants the motion for summary judgment as to count four of the defendant's counterclaim.
VI.
The court must finally consider whether to grant the motion for summary judgment as to count five which alleges intentional infliction of emotional distress, because the conduct of the plaintiffs cannot be construed as extreme and outrageous. To prevail on a claim for intentional infliction of emotional distress, " [i]t must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme or outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe. Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine ... Only where reasonable minds disagree does it become an issue for the jury ... Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ...
" Liability has been found only where the conduct has been 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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! ... Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action upon intentional infliction of emotional distress." (Internal quotation marks omitted.) Heim v. California Federal Bank, 78 Conn.App. 351, 365, 828 A.2d 129, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003).
" In assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint ... set forth behaviors that a reasonable fact finder could find to be extreme and outrageous." (Citation omitted; internal quotation marks omitted.) Cassotto v.. Aeschliman, 130 Conn.App. 230, 235, 22 A.3d 697 (2011). The court in Cassotto held the conduct in question consisting of antagonizing conduct on four occasions over a period of years not to be extreme and outrageous, comparing it to multiple other cases also finding no extreme or outrageous conduct:
" See, e.g., Morrissey v. Yale University, 268 Conn. 426, 428, 844 A.2d 853 (2004) (plaintiff's coworker and co-worker's boyfriend made insulting and derogatory comments to plaintiff and, on one occasion, defendant pointed at plaintiff and said: " ‘ [s]ooner or later I'm going to kick your fucking ass' "); Appleton v. Board of Education, 254 Conn. 205, 211, 757 A.2d 1059 (2000) (defendant supervisors' conduct not extreme and outrageous where, inter alia, they made condescending comments about plaintiff in front of colleagues, asked police to escort her from work and suspended her); Gillians v. Vivanco-Small, 128 Conn.App. 207, 213, 15 A.3d 1200 (2011) (claim that " defendants vindictively conspired to terminate the plaintiff's employment" not sufficient to allege extreme and outrageous conduct); Tracy v. New Milford Public Schools, 101 Conn.App. 560, 922 A.2d 280 (conduct not outrageous where supervisor conspired with superintendent in pattern of harassment including denial of position, initiating disciplinary actions without proper investigation, defamation of character and intimidation), cert. denied, 284 Conn. 910, 931 A.2d 935 (2007); Bator v. Yale-New Haven Hospital, 73 Conn.App. 576, 577, 808 A.2d 1149 (2002) (plaintiff alleged that he was required to report for duty when under physician's care, was recommended for discipline when he failed to report and person in authority falsely accused him of serious misconduct and of endangering patient's life), cert. denied, 279 Conn. 903, 901 A.2d 1225 (2006); Dollard v. Board of Education, 63 Conn.App. 550, 552-53, 777 A.2d 714 (2001) (supervisors engaged in concerted and successful plan to force plaintiff to resign by hypercritically examining her professional and personal conduct, transferring her involuntarily, placing her under intensive supervision and publicly admonishing her); Davis v. Davis, supra, 112 Conn.App. at 59-60 (former husband made repeated angry and hostile threats that he would have police evict plaintiff from their former marital residence, and defendant and new spouse gained access to the residence when plaintiff was not home and changed locks so that plaintiff had to telephone police to regain entry)." Cassotto v. Aeschliman, supra, 130 Conn.App. at 236-37.
By way of contrast, the Cassotto court did review the type of conduct which is deemed to be extreme and couregeous:
Courts, however, have allowed claims under circumstances more egregious ... specifically those in which the defendant subjected the plaintiff to actual physical violence. See Berry v. Loiseau, 223 Conn. 786, 614 A.2d 414 (1992) (subjecting plaintiff to false imprisonment and repeated physical abuse, including punching and choking); McKelvie v. Cooper, 190 F.3d 58, 60-61 (2d Cir.1999) (kicking plaintiff and probing his penis, testicles and anus). Id., at 237 n. 4.
The three arguments upon which the plaintiffs rely to show that their conduct cannot be considered extreme and outrageous are 1) since summary judgment should dispose of all other counts, the conduct alleged therein cannot give rise to a claim for intentional infliction of emotional distress, 2) that the statements of larceny and embezzlement are true; and 3) that any public ridicule that the defendant claims to have suffered is entirely in his own mind and without any extrinsic proof. The plaintiffs also cite Cassotto v. Aeschliman, supra, 130 Conn.App. at 235, where the court did not find extreme and outrageous conduct in a case where the defendant " made condescending comments to [the plaintiff] in front of [her] fellow colleagues questioning [her] vision and ability to read; telephoned the plaintiff's daughter, representing that the plaintiff had been acting differently and should take a few days off from work; and telephoned the police, who came to the school and escorted the plaintiff out of the building to her car."
The defendant objects, stating that the plaintiffs were aware of his previous mental condition, and that a totality of the evidence shows that the plaintiffs have " exploited every avenue available to them to disparage Eitelberg, to wrongfully accuse him of embezzling hundreds of thousands of dollars, to wrongfully accuse him of arson and to attempt to have his life destroyed." The defendant further cites the zealousness of the plaintiffs in proceeding with this case and that Debra Pollack has acknowledged that " she personally pushed the State's Attorney to bring charges against Eitelberg."
The plaintiff's reply briefly argues that the defendant has failed to cite a single case where similar circumstances led to the denial of a motion for summary judgment and that his arguments for zealous litigation cannot amount to extreme and outrageous conduct.
Summary judgment has been granted as to counts one and two. The conduct alleged therein, then, must be disregarded when assessing whether or not the court should uphold this claim of intentional infliction of emotional distress. The only conduct at issue is that alleged in count three where summary judgment has been denied. Neither the plaintiff nor the defendant directly addresses the question of whether the allegations of count three, namely inferring to a reporter that a house fire should be investigated because the homeowner may be responsible, could be conduct characterized as extreme and outrageous. Therefore the court must determine whether such an act can give rise to a claim for intentional infliction of emotional distress.
The evidence regarding the conversation between the plaintiffs and Koback is unclear as to who initiated said conversation, but even if the plaintiffs had called Koback specifically in an attempt to harass the defendant, such harassment could not reasonably be said to rise to the level of extreme and outrageous conduct. The bar for what conduct may be considered extreme and outrageous is a well established and high one, and the present facts do not approach the standard. The alleged conduct of the plaintiffs, if proven, could be characterized as an attempt to harass the defendant through the intermediary of the press, but conduct comprising patterns of threatening and intimidating behavior, which must be considered more outrageous, have not supported claims of intentional infliction of emotional distress. See Cassotto v. Aeschliman, supra, 130 Conn. .App. at 237.
Further, the court is not persuaded by the defendant's argument that zealous advocacy in a case can give rise to a finding of extreme and outrageous conduct, or else every action could give rise to a countersuit claiming intentional infliction of emotional distress. Additionally, the defendant only alleged in count three that the claim was based on the plaintiffs' conduct in making defamatory statements, and the examples of zealous advocacy in this argument fall outside of the statements alleged in the counterclaim, and have not been considered.
Because the plaintiffs' conduct cannot be characterized as extreme and outrageous, as a matter of law, no genuine question of material fact exists as to the defendant's claim of intentional infliction of emotional distress, and the plaintiffs are thus entitled to judgment as a matter of law on count five.
CONCLUSION
For the above reasons, the plaintiffs' motion for summary judgment is granted as to counts one, two, four, and five of the counterclaim and judgment is entered for the plaintiffs on counts one, two, four, and five of defendants' counterclaim. The plaintiffs' motion for summary judgment is denied as to count three of the counterclaim.