Opinion
No. 403205/10.
2011-11-10
Cheryl D. UZAMERE, Plaintiff, v. DAILY NEWS, L.P., and Scott Shifrel, Defendants.
Plaintiff, pro se. Anne Carroll, Esq., for defendants.
Plaintiff, pro se. Anne Carroll, Esq., for defendants.
EILEEN A. RAKOWER, J.
Cheryl D. Uzamere (“Plaintiff”), acting pro se, brings this action against defendants Daily News, L.P. (“Daily News” or “the newspaper”) and Scott Shifrel (“Shifrel”) seeking damages in connection with an article in the November 5, 2009 issue of the Daily News titled, “Hate-spewing wacko goes into fit in court” (“the article”). The article reports that Plaintiff “started screaming and ripping off her clothes before her arraignment yesterday on charges of threatening to kill a Brooklyn judge.” The article continued: “[Plaintiff], 50, known around courthouse circles for her anti-Semitic screeds against judges and others, was declared mentally unfit and taken to Bellevue Hospital for observation.” The article further noted that Plaintiff was screaming about her Nigerian “senator” husband, and that, according to an affidavit from her ex-husband filed in court, the “senator” is actually a cousin of the ex-husband.
Plaintiff's pro se complaint can be read as asserting causes of action sounding in defamation; fraud; violations of constitutional rights; and intentional infliction of emotional distress.
Defendants now move to dismiss the action pursuant to CPLR § 3211(a)(1) & (7). Plaintiff opposes the motion and seeks a default judgment against defendants.
With respect to Plaintiff's motion for a default judgment, said motion is denied. The record indicates that Plaintiff initially commenced this action in Supreme Court, Nassau County on June 3, 2010. Defendants were served with the complaint on June 7, 2010. On July 6, 2010, defendants filed motions to change the venue of the action to New York County, and to dismiss the action pursuant to CPLR § 3211(a)(1) & (7). That same day, defendants also attempted to serve their motion papers on Plaintiff by mailing them to her address at 1209 Loring Avenue, Apartment 6B in Brooklyn. However, due to a clerical error, the envelope misstated Plaintiff's apartment as “68” rather than “6B.” After the mail was returned as undeliverable, defendants withdrew the motions, and re-filed them with the court and mailed them to Plaintiff's correct address on July 27, 2010.
A party seeking to avoid a default judgment based upon late service of a responsive pleading need only demonstrate that it had a reasonable excuse for the delay ( seeCPLR § 3012(d); Cirillo v. Macy's, 2009 N.Y. Slip Op 3032 [1st Dept.2009] ). Here, defendants' short delay in timely serving its motion papers was the product of excusable law office failure, and Plaintiff is unable to demonstrate that she was in any way prejudiced by the delay ( see Gazes v. Bennett, 2010 N.Y. Slip Op 1575 [1st Dept.2010] ).
Turning to defendants' motion to dismiss, CPLR § 3211 provides, in relevant part:
(a)a party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
(1)a defense is founded upon documentary evidence; or
(7)the pleading fails to state a cause of action;
In determining whether dismissal is warranted for failure to state a cause of action, the court must “accept the facts alleged as true ... and determine simply whether the facts alleged fit within any cognizable legal theory.” (People ex rel. Spitzer v. Sturm, Ruger & Co., Inc., 309 A.D.2d 91 [1st Dept.2003] ) (internal citations omitted) ( see CPLR § 3211[a][7] ). On a motion to dismiss pursuant to CPLR § 3211(a)(1) “the court may grant dismissal when documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.” (Beal Sav. Bank v. Sommer, 8 NY3d 318, 324 [2007] ) (internal citations omitted) “When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977] ) (emphasis added). A movant is entitled to dismissal under CPLR § 3211 when his or her evidentiary submissions flatly contradict the legal conclusions and factual allegations of the complaint (Rivietz v. Wolohojian, 38 AD3d 301 [1st Dept.2007] ) (citation omitted).
With respect to Plaintiff's defamation claims,
Defamation has long been recognized to arise from the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society. The elements 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 (Dillon v. City of New York, 261 A.D.2d 34 [1st Dept.1999] ) (citations and internal quotes omitted).
It is well settled that the truth is an absolute defense to a cause of action for defamation ( see Silverman v. Clark, 2006NY Slip Op 6814, *9 [1st Dept.2006] ). “Even if a publication is not literally or technically true in all respects, the absolute defense applies as long as the publication is substantially true' “ (Carter v. Visconti, 233 A.D.2d 473, 474 [2nd Dept.1996] ).
Here, the court finds that Plaintiff's defamation claims must be dismissed. With respect to the article's statement concerning Plaintiff's alleged anti-Semitism, defendants annex printouts from Plaintiff's website (www.thecrimesofsenatoruzamere.net), which Plaintiff explicitly incorporates by reference in her complaint. These publications contain a number of postings that, by any objective measure, can only be described as virulently anti-Semitic. In one posting, Plaintiff displays pictures of Mayor Bloomberg, former Chief Judge Judith Kaye, Judge Nicholas Garaufis, and others with devil's horns in front of a fiery backdrop. Above the picture reads, “Allen E. Kaye
And His Diabolical Talmud–Following Minions—Even African American Civil Rights and Religious Leaders Are No Match For Them.” The inside of the picture reads, in part,
It appears from the record that Allen E. Kaye was the attorney representing Plaintiff's ex-husband in child support proceedings.
Great civil rights leaders like Reverend Jesse Jackson, Reverend Al Sharpton and Reverend Dr. Calvin Butts have no time for broke, helpless niggers who are victims of crimes that are perpetrated by powerful, diabolical Jews. It seems like Jesus is no match for their power—they have the power of life and death over us niggers-and our children.
Another post reads,
For nearly 30 years I have attempted to report my husband's and Allen Kaye's felonies to government agencies. However, based on my nearly 30 years of failures, I believe that it is virtually impossible for an African American to obtain justice when he/she has been victimized by a Jew and the complaint is filed with a governmental or non-government agency with even one Jew in a position of authority. Furthermore, save for an act of violence, it is virtually impossible for an African American plaintiff to obtain justice when both the defendant and the judge are jews.
A further posting, reacting to an unfavorable decision from the Hon. Delores Thomas, characterizes the justice-in exceedingly vitriolic terms which need not be repeated herein-as beholden to “powerful Jewish male bosses” and as a traitor to her own race (Justice Thomas is African American).
In light of the above, defendants have submitted documentary evidence which flatly refutes any allegation by Plaintiff that the article's statement that she is “known ... for her anti-Semitic screeds against judges and others” is false ( see Panghat v. New York Downtown Hosp., 2011 N.Y. Slip Op 4818, *1 [1st Dept.2011] ) (motion to dismiss granted on grounds that truth or substantial truth of statements provided complete defense to defamation claim).
Moreover, the article's characterization of Plaintiff as a “wacko” is a non-actionable statement of opinion. As the Court of Appeals held in Gross v. New York Times Co., “a statement of opinion that is accompanied by a recitation of the facts on which it is based” is not actionable because “a proffered hypothesis that is offered after a full recitation of the facts on which it is based is readily understood by the audience as conjecture” (82 N.Y.2d 146, 153–54 [1993] ). The article in question fully sets forth the factual basis of its assertion that Petitioner is a “wacko”: Plaintiff's act of “screaming and ripping off her clothes before her arraignment ... on charges of threatening to kill a Brooklyn judge,” which resulted in her being “declared mentally unfit and taken to Bellevue Hospital for observation.” Plaintiff does not dispute any of these underlying facts.
Lastly with respect to Plaintiff's defamation claims, Plaintiff alleges that defendants “defamed [her] as a liar by publishing as true and correct a fraudulent counter-affidavit from Nigeria that Plaintiff's ex-husband criminally submitted during Plaintiff's divorce action to hide his identify during Plaintiff's divorce action.” This claim is barred by Civil Rights Law § 74, which bars a libel action against “any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding.” The article in question merely recited statements from Plaintiff's husband's affidavit, which was “filed in Supreme Court.”
Plaintiff's constitutional claims must be dismissed because only government action, as distinct from private conduct, is actionable under the United States Constitution ( see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349–50 [1974] ), and none is alleged herein.
Similarly, Plaintiff's claims sounding in fraud must fail. The elements of fraud are material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff, and damages ( see Pramer S.C.A. v. Abaplus, Intl. Corp., 2010 N.Y. Slip Op 4936, *7 [1st Dept.2010] ). Plaintiff does not allege any facts in her complaint which state a cause of action for fraud. Nowhere is it alleged that either the newspaper or Shifrel made any representation of any kind to Plaintiff, much less that she justifiably relied on such a statement and incurred damages in so doing.
Finally, in order to state a claim for intentional infliction of emotional distress, Plaintiff must allege conduct that is “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 society” (Brown v. Sears Roebuck & Co., 297 A.D.2d 205 [1st Dept.2002] ). Plaintiff fails to allege any such conduct on the part of defendants in her complaint.
Wherefore it is hereby
ORDERED that Plaintiff's motion for default judgment is denied; and it is further
ORDERED that defendants' motion to dismiss is granted and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
This constitutes the decision and order of the court. All other relief requested is denied.