Unroch v Monderer

[*1] Unroch v Monderer 2006 NY Slip Op 52113(U) [13 Misc 3d 1234(A)] Decided on October 18, 2006 Supreme Court, New York County Acosta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 18, 2006
Supreme Court, New York County

William J. Unroch, Plaintiff,

against

Carol Turchin Monderer, Defendant.



105558/06



Jeffrey H. Daichman, Esq.

Michael R. Futterman, Esq.

Kane Kessler, PC

1350 Avenue of the Americas

New York, NY 10019

Attorneys for Plaintiff

S. John LeNoir, Esq.

461 Central Park West, Suite 3L

New York, NY 10025

Attorney for Defendant

Rolando T. Acosta, J.

Background [FN1]

Defendant Carol Turchin Monderer lives with her husband and three children (ages 11, 7, and 3) at 140 West End Avenue and is a shareholder in the 140 West End Avenue Owners's Corp (the "co-op"). She lives directly below defendant William J. Unroch's apartment. Unroch, an attorney, runs a modeling/actor's agency and has a modeling website with links to related websites, including at least one which contains pornographic material.

According to defendant, during the course of a board election, she learned unsavory information about plaintiff who was seeking to unseat current board members. Unroch had been the subject of several complaints to the co-op board for his alleged disruptive behavior. See Defendant's Exhibits E - G. In addition, the 22 year old women that he lives with had been arrested and escorted by the police out of the building, and an unrelated person was charged with sex-related offenses for molesting a women in Unroch's apartment. See Defendant's Exhibit K. She had also learned that plaintiff had been convicted of attempted grand larceny in the third degree in 1982 and that he had been suspended for six months form the practice of law in 1983. See Defendant's Exhibits C & D.

It was alleged in the complaint that defendant defamed plaintiff during the course of the campaign by stating to a tenant that plaintiff was a pornographer, that he lived with under-aged girls, that plaintiff made her nervous and that she feared for her children.[FN2] He also alleged that [*2]defendant made "similar outrageous and defamatory remarks to several other neighbors and other individuals in the building including building staff . . . stating to one staff member the exact date being unknown that "[t]he girl he lives with is under aged." See Complaint ¶ 22. Plaintiff, sought $10,000,000 as damages for the slanderous remarks.

Defendant seeks to dismiss the complaint on various grounds. First, she argues that the statement "he makes me nervous" and that "she feared for her children" did not derive from statements made "of and concerning" the defendant. Second, she argues that plaintiff did not plead specific damages and none of the statements fell within the slander per se exceptions, but even if they did they were protected under a qualified privilege since the statements were made to other tenants who share a common interest with defendant. Third, she argues that the statements were merely opinion and hyperbole and therefore not actionable. Last, she argues that the statements were substantially true. With respect to this argument, she notes that in his web-site, plaintiff list pornographic sites under the heading "Favorites," including one called "Model Heaven." See Plaintiff's Exhibit I. She also argues that she never called plaintiff a pedofile and that plaintiff, who is 54 years old, lives with a 22 year old women.

Analysis

In evaluating a motion to dismiss for failure to state a claim under CPLR § 3211(a)(1), the Court will construe every fact alleged by plaintiff as true. Fern v. International Business Machines Corp., 204 AD2d 907 (3rd Dept. 1994). The motion will be granted only where the documentary evidence unequivocally contradicts plaintiff's factual allegations and conclusively establishes a defense as a matter of law. Goshen v. Mutual Life Ins. Co. of New York, 98 NY2d 314 (2002); 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144 (2002); Landenburg Thalmann & Co., Inc. v. Tim's Amusements, Inc., 275 AD2d 243 (1st Dept. 2000).

With respect to CPLR § 3211(a)(7), the Court must accept the allegations of the complaint as true, and accord plaintiff the benefit of every possible favorable inference and determine only whether the facts as alleged fit within a cognizable legal theory. CBS Corp. v. Dumsday, 268 AD2d 350 (1st Dept. 2000); see also Polonetsky v. Better Homes Depot, Inc., 97 NY2d 46 (2001)(motion must be denied if "from [the] four corners [of the pleading] factual allegations are discerned which taken together manifest any cause of action cognizable at law"); Weiner v. Lazard Freres & Co., 241 AD2d 114 (1st Dept 1998 ("so liberal is th[is] . . . standard that the test is simply whether the pleading has a cause of action,' not even whether he has stated one'").

Slander is not actionable unless the plaintiff suffers special damages or falls within one of the "slander per se" exceptions to the rule.Liberman v Gelstein, 80 NY2d 429, 434-35 (1992). The four exceptions include statements that (1) charge the plaintiff with a serious crime; (2) that [*3]tend to injure another or his trade, business or profession; (3) that accuse plaintiff of having a loathsome disease; and, (4) that impute unchastity to a women. Id. at 435. When statements fall within a "slander per se" category, the law presumes that damages will result, and they need not be alleged or proven. Id. As the Leiberman Court noted, however, "[c]ourts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether. . . When compelling public policy requires that the speaker be immune from suit, the law affords an absolute privilege, while statements fostering a lesser public interest are only conditionally privileged" Id. at 437. One such conditional or qualified privilege is the "common interest privilege," which extends to a "communication made by one person to another upon a subject in which both have an interest." Id.(citing Stillman v. Ford, 22 NY2d 48, 55 (1968)); Silverman v. Clark, ___ AD3d ___, 2006 Slip. Op. 06814 (1st Dept. 2006). The common interest privilege has been found to protect a tenant's defamatory statements to other tenants in a co-op regarding the co-op's business, operation and management. Tanner & Gilbert v. Verno, 92 AD2d 802 (1st Dept. 1983); Pusch v. Pullman, et al., 11 Misc 3d 1074(A) (Sup. Ct., NY Co. 2003); see also Liberman v Gelstein, 80 NY2d 429 (communications between board members of a tenant's association).

A plaintiff can defeat the privilege by showing that defendant spoke with malice. Liberman v Gelstein, 80 NY2d at 437. Malice can be shown either at common law, by showing that ill will was the one and only cause for the publication, or by establishing constitutional malice, which is defined as publishing a statement knowing of its falsity or acting with reckless disregard for the truth or falsity of the statement. Under this standard, the "plaintiff must demonstrate that the statements [were] made with [a] high degree of awareness of their probable falsity.' . . . In other words, there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [the] publication.'" Id; Loughry v. Lincoln First Bank, 67 NY2d 369, 376 (1986)(privilege is conditioned on its proper exercise, and cannot shelter statements published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity).

Applying these legal precepts to the facts of this case, plaintiff did not plead specific damages and therefore his slander cause of action may proceed only if it falls within one of the slander per se exceptions. Since "he makes me nervous" and "I fear for my children" do not fall within any of the exceptions, those statements are dismissed.

Calling plaintiff a pornographer presents more of a problem, but in the Court's opinion that statement should be dismissed as well. Initially, calling plaintiff a pornographer is too general to impute the commission of a crime. See, e.g., Privitera v. Phelps, 79 AD2d 1 (4th Dept. 1981)(saying that someone was a member of the Mafia); Klein v McGauley, 29 AD2d 418 (2nd Dept. 1968)(calling someone a crook). Indeed, as the Court of Appeals noted in People v. P.J. Video, Inc., 68 NY2d 296, 308 (1986), cert. denied, 107 S. Ct. 1301(1987), When viewed as a whole, a challenged work may be a valueless piece of pornography, appealing only to the prurient interests. . . But the work is not criminally obscene unless [*4]so judged when applying contemporary community standards. The parameters of the "community" whose standard is to be applied are not only nonnational, but also are to be defined according to State law.

Given that a person can engage in pornography and not violate New York's obscenity statutes, see Penal Law Article 135, it cannot be said that plaintiff was accused of committing a serious offense.

Nor can plaintiff claim that calling him a pornographer tends to injure him or his trade, business or profession, when by his own admission, the site to "Model Heaven," which has pornographic material, is a legitimate modeling site.

Assuming that calling plaintiff a pornographer was slander per se nonetheless, defendant had a qualified privilege in making this statement because it was made to other tenants who shared a common interest in the co-op and in the governing of the Board. See Tanner & Gilbert v. Verno, supra, 92 AD2d 802; Pusch v. Pullman, et al., supra, 11 Misc 3d 1074(A). Moreover, there is no indication that defendant was motivated only by malice in making this particular statement. The statement was made during the course of board elections, and given the links to plaintiff's web-site, it cannot be said that the statement was made knowing of its falsity or acting with reckless disregard for the truth or falsity of the statement.

Stating that plaintiff "lives with under-aged girls," however, survives this motion. Contrary to defendant's claim that the statement was substantially true because the 53-year-old plaintiff lived with a 22-year-old women is disingenuous at best. The statement clearly implied that plaintiff was sexually involved with minors. Consensual sex with a minor is a serious offense. See, e.g., Rape in the First Degree, Penal Law § 130.35 (3) (sexual intercourse with a person less than eleven years old) & (4) (sexual intercourse with a person less than thirteen years old and the actor is eighteen years old or more); Rape in the Second Degree, Penal Law § 130.30 (1) ("being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old"); Rape in the Third Degree, Penal Law § 130.25 (2) ("[b]eing twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old").

Moreover, defendant's assertion that the statement was merely opinion or hyperbole is unavailing in the facts of this case. Whether speech is opinion or actionable fact depends on whether a reasonable person would have believed that the challenged statement was conveying facts about the plaintiff. Immuno AG v. Moor-Jankowski, 77 NY2d 235, 254 (1991). The following factors should be considered in distinguishing between fact and opinion: (1) whether the specific language used has a precise meaning which is readily understood or whether it is indefinite and ambiguous; (2) whether the statement is capable of being objectively characterized as true or false; and (3) the full context of the entire communication or the broader social context surrounding the communication, including any custom or convention that might signal to the audience that the communication is opinion. Brian v Richardson, 87 N.Y. 46, 51 (1995). [*5]Applying these factors to the facts of this case, saying that plaintiff lives with under-aged girls, in the full context of the statement, where plaintiff was also called a pornographer, carried a precise meaning, which is readily understood: plaintiff is sexually involved with minors. Moreover, the statement is capable of being objectively characterized as true or false. That is, plaintiff's girlfriend is either a minor or not. Thus, the Court finds as a matter of law that the alleged statement is not opinion.

Last, although defendant had a qualified privilege, for purposes of a CPLR § 3211 motion, it was properly alleged that the statement was "made knowing of its falsity or acting with reckless disregard for the truth or falsity of the statement," Liberman v Gelstein, 80 NY2d at 437, since plaintiff's girlfriend was 22 years old.[FN3]

Accordingly, based on the foregoing, it is hereby

ORDERED that defendant's motion to dismiss the complaint is granted solely to the extent of dismissing the following statements allegedly made by defendant, namely that plaintiff is a pornographer, that plaintiff made her nervous, and that she feared for her children.

This constitutes the Decision and Order of the Court.

October 18, 2006ENTER

____________________________

Rolando T. Acosta, J.S.C. Footnotes

Footnote 1:This decision was edited for publication.

Footnote 2:In his complaint dated April 23, 2006, plaintiff alleged that defendant operated an un-licensed day care out of her apartment. Two days later, on April 25, 2006 a complaint was filed with the New York City Department of Health and Mental Hygiene alleging that defendant was operating a Family Day Care program without a registration. An investigation was conducted on that same date and the allegations were found to be unsubstantiated. See Defendant's Exhibit L.

Footnote 3:That defendant allegedly made similar remarks presumably about plaintiff being a pornographer and that plaintiff made her nervous and she feared for her children to building staff was not plead sufficiently pursuant to CPLR 3016(a) to survive a motion to dismiss, except for the alleged statement that "[t]he girl he lives with is under age."