Bledsoe v Sandoval
Annotate this Case
Download PDF
Bledsoe v Sandoval 2012 NY Slip Op 33445(U) May 24, 2012 Supreme Court, New York County Docket Number: 110562/2011 Judge: Marcy S. Friedman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNEDONB/27/2012------------------------------ [* 1] ' ¢ ':;,,SUPREME COURT OF THf.$TATEOF NEW YORK- NEW YORK COUNTY i I·',! 1' ' ' 1.,' '' f' . PA~T. ·<PRESENT: .. , I ,' 1 57 1.1 ,' · 11t%ca~'6l1f INDl:;XNQ, MOTION DATE -v- 1 ¢11 '','1 :1. , ,1,,'1· I, I l'"I''' 11'",'.I' The following papers, numbered '1 .. b:> .-··~____.,_._war~ r'8d on thle motlo.n t ,,Ill ' ¢ ¢i '- I ·~ ',' ,- '', I '' I " 1 t. I ¢ ¢ ,'\ ·1 . 'I, " ' · ,,'1 . ' . ' ..... ¢. Sbf'ftCE COUNTY CLE~. ¢. , . i. ,1 ¢11 )I"' I' . .· NEW.YORK .. · ' . ,I ,. . ' . ' . -~. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK- PART 57 FILED JUN 27 2012 PRESENT: Hon. Marcy S. Friedman, JSC NEW YORK COUNTY CLERK'S OFFICE DAVID BLEDSOE, Index No.: 110562/11 Plaintiff, - against - DECISION/ORDER DIANE C. SANDOVAL, Defendant. On the court's own motion, the court's decision on the record on May 10, 2012, so ordered on May 24, 2012, is vacated to the extent that the decision denied defendant's motion to dismiss plaintiffs third cause of action in his second amended complaint for tortious interference with prospective economic advantage. That cause of action, as pleaded, was based on interference with prospective employment of plaintiff by Park Slope Veterinary Hospital (Park Slope). At the oral argument, plaintiff withdrew the claim of interference with employment at that hospital and sought to assert the cause of action based on termination of plaintiffs employment at Tribeca Soho Animal Hospital (Tribeca Soho) as a result of use of wrongful means - namely, alleged criminal coercion under the Penal Law, in the nature of a threat to label Tribeca Soho as "soft on animal abusers" unless it terminated plaintiff. That threat was alleged in the second amended complaint (para. 31 ). However, the third cause of action was based solely on interference with the prospective employment at Park Slope. The court's decision on the record on January 26, 2012, so ordered on February 29, 2012 1 [* 3] (prior decision), which determined a motion to dismiss plaintiffs first amended complaint, granted leave to replead the cause of action for tortious interference with prospective economic advantage. Plaintiffs request for leave to replead that cause of action was based on interference with the Park Slope employment. (See Mysliwiec Aff. In Opp. To Prior Motion, paras. 59-63.) The claim that plaintiff now seeks leave to assert under the rubric of interference with prospective economic advantage is identical to the first cause of action that plaintiff pleaded in the first amended complaint as one for tortious interference with existing contractual relations. The prior decision dismissed that cause of action with prejudice. To the extent that the May 10, 2012 decision of the instant motion to dismiss permitted the pleading of the claim for interference with the Tribeca Soho employment under the prospective interference rubric, the decision was in error. The court recognizes, however, that although plaintiffs employment with Tribeca Soho was at will, a cause of action for tortious interference with existing contract may be maintainable if the employment was terminated by wrongful means. (See Guard-Life Corp. v S. Parker Hardware Mf~. Corp., 50 NY2d 183, 194.) The court will therefore entertain a motion by plaintiff, if he is so advised, to reargue the branch of the prior motion that sought dismissal of the first cause of action of the first amended complaint for tortious interference with contractual relations. In the event such a motion is brought, plaintiff shall cite legal authority that the alleged threat, if proved, would rise to the level of criminal coercion. It is accordingly hereby ORDERED that defendant's second motion to dismiss is granted to the extent of dismissing the third cause of action in the second amended complaint, and dismissing any causes of action or parts thereof that plaintiff withdrew on the record at the May 2 [* 4] 10, 2012 oral argument. This constitutes the decision and order of the court. Dated: New York, New York June 19, 2012 FILED JUN 27 2012 NEW YORK COUNTY CLERK'S OFFICE 3 [* 5] 1 1 2 3 DAVID BLEDSOE, 4 Plaintiff, Index No. 110562/2011 5' I -against- 6 DIANE 7 c. SANDOVAL a/k/a DIANE SANDOVAL KURZON, B Defendant. ------------------------------------------------x 60 Centre Street 9 10 I New York, New York MOTION May 10, 2012 11 12 ·' 13 B E F 0 R Er HONORABLE MARCY S. FRIEDMAN, JUSTICE 14 15 A P P E A R A N C E S: FI LED 16 17 RONALD P. MYSLIWIEC, ESQ. ATTORNEY FOR THE PLAINTIFF 530 third Street Brooklyn, New York 11215 18 19 20 21 JUN 27 2012 NEW YORK COUNTY CLERK'S OFFICE JAROSLAWICZ & JAROS ATTORNEYS FOR DEFENDANT 225 Broadway Avenue New York, New York 10007 22 BY: ELIZABETH EILENDER, ESQ. 23 24 25 DENISE M. PATERNOSTER, RPR Senior Court Reporter 26 Denise M. Paternoster, RPR - Senior Court Reporter [* 6] 2, Proceedings 1 THE COURT: 2 3 Counsel, 5 good morning. your appearances, please. MR. 4 On the record, MYSLIWIEC: For the plaintiff, my name is Ron Mysliwiec. 6 MS. 7 Elizabeth Eilender, 81 Good morning, EILENDER: your Honor. the defendants. Jaroslawicz & Jaros, on behalf of ~ THE COURT! I will n-0w have oral argument on 10. the defendant's motion to dismiss the reoently 11 amended complaint. 12 to five to ten minutes per side. Please try to confine yourselves Good morning, EILENDER: your Honor. 13 MS. 14 Defendants brought on this order to show 15 cause to dismiss and request that the Court's convert 16 it into a summary judgement motion, 17 because there are simply no issues of fact requiring 18 this case to proceed. 19 This is a case, quite frankly, as your Honor is well aware, The statements that 20 founded in slander and liable. 21 the plaintiff has attributed to the defendant, 22, single statement with respect to being a verbal 23 statement, 24 by the defendants in connection with their -- with 25 our motion. 26 every has been refuted by affidavits submitted For example, plaintiff has made allegations Denise M. Paternoster, RPR - Senior Court Reporter [* 7] 3 Proceedings 1 2 in the complaint regarding statements that the 3 defendant allegedly made to prospective employers· 4 that has been proven to be false. 5 We've submitted affidavits from prospective 6 employeis who have said they have never spoken to 7 defendant Sandoval, 8 didn't even know who ahe Was. 9 the are just patently false. 10 they have never spoken -- they So those allegations We've submitted further affidavits from 11 another individual who had employed the plaintiff as 12 caretaker for her pet. 13 with Miss Sandoval. 14 was aware of that there was separation from a 15 veterinary hospital was information that she learned 16 from the plaintiff himself. 17 Likewise, she never spoke And any circumstances that she The statements with respect to e-mails sent 18 to his present employer are her opinion and are 19 protected and not considered def amatory under the 20 case law. 21 The so-called newsletter does not identify 22 the plaintiff in any fashion, 23 extrinsic facts which would lead a person to conclude 24 that it was David Blesdoe. 25 26 In fact, nor are there any there were some allegations about the reporter called him and she didn't even know who Denise M. Paternoster, RPR - Senior Court Reporter [* 8] 4 1 Proceedings I' the person who was being referred to in the 2' 3 I newsletter. Moreover, the newsletter can be protected under qualified privilege. And, moreover, 5' it's the defendant's opinion, frankly. I've never seen a complaint written in this fq.shi,on. 6' In my opinion it looks like the plaintiff just wrote up notes fo.r his lawyer and he pasted it 91 10 11 into the complaint. It's very hard to make heads or tails of the allegations. I But there are simply no issues of fact here. 1 12 And, the Court's generally favor summary judgement '13' decisions on defamation cases. 14 Your Honor previously dismissed certain 15 claims in this case; 16 interference against the contract, 17 with respect to advantage and injurious falsehood 18 claim, 19 that the complainant has just been re-branded it and 20 called it something else but, 21 of the action is the same. 22 for example, the tortious tortious inference and it appears from a review of the complaint in essence, the flavor There is no reason why this case could 23 proceed based on all the affidavits that we have 24 submitted on our motion which completely contradict 25 everything that the plaintiff has claimed. 26 These are wild allegations that the plaintiff Denise M. Paternoster, RPR - Senior Court Reporter [* 9] 5 Proceedings 1 2 is making and simply untrue, which is the basis, 3 Honor, 4 with bringing this lawsuit which we believe is 5 frivolous and was intended for some type of nefarious 6 purpose against the defendant. 7 made an application for costs. 8 9: your for our application for costs in connection And, accordingly, we But in reviewing the case law and the affidavits we 1 '1'/e submitted, I don 1 t want to waste the 10 Court 1 s time, the Court is familiar with the record, 11 there are no issues of tact which would warrant this 12 case to proceed. 13 Thank you. 14 THE COURT: 15 MR. MYSLIWIEC: May it pleases the Court. 16 First, 17 for what I had originally argued was inference with 18 contractual relations. 19 your Honor, Yes. I would like to address the claim Since you have ruled in January that this was 20 an inappropriate cause of action because it was at 21 will employment. 22 MBT Bank law. 23 24 And you ruled under Guard Life and I have to confess -- and I apologize that I didn't get the point of your ruling. I was surprised by it at the time until later and then it occurred to 26 me what you were telling me is that my client bejng Denise M. Paternoster, RPR - Senior Court Reporter [* 10] 6' 1 Proceedings 2 in an adversarial position, 3 for prospective -- suing for inference with 4 prospective economic advantage. 5 was as if he was suing Now if I'm wrong about that, I'm sure you'll 6 tell me. 7 message you were sending in your last decision in 8 this case, 9 there is a cause of action, 10 But if I'm right about that, then, I mean, as if that's the you know, the law says, look, if let i t borne forth. if what the amendmeht process reveals 11 is that there is 12 defendant argues is there is no cause of action 13 because you're either an employee with a 14 employment, 15 inference with contractual relations, 16 prospective employee and you are protected by that 17 tort, 18 just no cause of action. And what term of in which case you're protected against or you're a wrongful inference with prospective advantage. But if you are an employee who is a present 19 at will employee, 20 law doesn't cover your situation, 21 that's the case, 22 lawyer can look at the law and say that's it, 23 you are plumb out of luck if you are in this -- in 24 this small crease which is unprotected by the law. 25 26 the law just doesn't help you; your Honor. So I'm sorry it and I don't think don't think any that took me so long to figure out what you were telling me, Denise M. I the but once I read MBT Corp., Paternoster, RPR - Senior Court Reporter [* 11] 7 Proceedings 1 2 actually more than Guard Life, 3 understand. 4 there, 5 , a dispute of fact under this -- I 1 9,' 10 I'd like to proceed with the terms of is there You're asking to proceed with your cause of action for tortious inference with 7 8 And since there is a cause of action TliE COURT: 6 I thought I now prospective economic relations based not on the alleged inferertce with the job application in the Park Slope veterinary center. As I under~tand it from your papers, 11 12 withdrawn the claim involving Park Slope, 13 you have wish to proceed with the claim based on -MR. MYSLIWIEC: 14 15 client, Based on the Tribeca THE COURT: 17 MR. 18 THE COURT: 19 MR. MYSLIWIEC: 20 THE COURT: 22 Burns's employment of my that's right. 16 21 Dr. but you MYSLIWIEC: The Tribeca Soho What is the name of that? Tribeca Soho. The Tribeca Soho Animal Hospital's not hiring him in the future? MR. MYSLIWIEC: Yes. Well, I mean for 23 terminating him from his at will employment. 24 MBT Bank Corp. 25 action for inference with contractual relations 26 because there is no breach of contract in an at will What says is that you don't have a cause of Denise M. Paternoster, RPR - Senior Court Reporter --........____________ [* 12] 8 Proceedings 1 contract, 2 all right? But that must mean that then he is protected 3 I 4 5 I ,I 6 I' by prospective economic advantage, isn't there is a gap in between. because if he And I don't believe the law intended that. I' I THE COURT: 7' I am perplexed by this argument I 811 that you are making. I will look at the MBT case ! I 9 I before I rule finally on this cause of action. , I me But let 10 say also, that in the second 11 amended complaint you have not pleaded a cause, 12 anywhere that I 13 something you can show me. Anyway, can see. not if I missed J4 But the cause of action for inference with 1 :i prospective economic advantage seems to be pleaded 16 just based on the Park Slope application for 17 employment. MR. MYSLIWIEC: 18 Well, not to get your Honor, but I do carry through 19 hyper-technical, 20 the factual paragraphs into -- from above, 21 Tribeca Soho employment into the cause of action. I 22 from the agree with your Honor and I have a footnote If we are being technical, what I have 23 to the point. 24 left out 25 specific allegation that 26 used by the defendant were wrongful in bringing about and -- in amending the complaint was the the means used -- the means Denise M. Paternoster, RPR - Senior Court Reporter [* 13] 9 Proceedings 1 2 3 That's the by client's termination by Tribeca Soho. one thing that's left out. 4 That, however, has been no secret to anybody 5 here since the beginning of the case. 6 to amend to put that specifically in again, 7 But, 8 of action if there is one there to be found. 9 again, 11 MR. 12 THE COURT: 15 16 17 18 19 20 will. Let me move on to THE COURT: 14 I have the law favors the allowance of a cause 10 13 And if I What is MYSLIWIEC: -~ Okay. the cite for the MBT case that you have ref erred to? MR. MYSLIWIEC: last opinion, and I THE COURT: last opinion, then I All right. Your Honor, it was in your don't have it. All right. If I cited it in my will just look there. Let's continue with the other causes of action. MR. MYSLIWIEC: With respect to -- we've 21 dropped slander, your Honor. 22 or ability to pursue that at this time. 23 And Dr. 24 affidavit tells 25 going to change his story now and say that he would 26 have hired my client but for. Denise M. Parker, We don't have the means although I the whole story, don't think his he is certainly not So I think that's not Paternoster, RPR - Senior Court Reporter 1 [* 14] 10' I 1. Proceedings on the table. 2 What I really want to focus on is liable, 3 liable of the newsletter, 4 the your Honor. Excuse me just one minute. 5. THE COURT: 6'' (Pause taken.) 7 THE COURT: ' : Counselor, excuse me for the interruption. 8. 11 9· MR. MYSLIWIEC: THE COURT; 10: Please continue. '1 MR. MYSLIWIEC: 11 [i That's all right. Your Honor, if you would I i2'. 1 like, I would like to move to liable and, 13 specif icallyf the liable in the newsletter of August 14 12, 2011. There are five or so subtopics here and if I 15 16 go over my time, 17 I'm sure your Honor will let me know. As we talked about last time in January, 18 the 19 publication does not have to specifically identify 20 the plaintiff. 21 papers, 22 those who know him, 23 general. 24 And as we've shown in our opposition that he simply has to be identifiable to that's the law, not the public in And furthermore, that -- we 11, the evidence 2~ provided -- they're moving for summary judgement on 26 this issue, so that means they have to carry their Denise M. Paternoster, RPR - Senior Court Reporter [* 15] 11 Proceedings 1 burden of proof. 2 3 The burden of proof is attempted here by 4 plaintiff's -- I'm sorry, 5 moving affirmation, 6 that not a 7 informed me that they have been able to discern my 8 client's identity. by defendant's original paragraph eight that she says single recipient of her newsletter has Your Honor, even if one had been able to 9 10 discern my client's identity, 11 I 12 1 that would be hearsay. don't think that statement by defendant moves the burden of proof to me. 13 The second argument they make is in opposing 14 counsel -- paragraph 54 of opposing counsel's reply 15 affirmation where they say, 16 although i t ' s a delicious paragraph, 17 that my client was, 18 nobody, 19 animal hospital, 20 and I in effect, am paraphrasing where she says a mere schlepper, a somebody who worked in the basement of the Well, how would anybody know his name? how would counsel know that? Counsel's 21 affirmation on that point doesn't alter the burden of 22 proof, 23 they still have to carry it. The last thing that they provide is Amy 24 Sack's affidavit where she said she had to connect 25 the dots. 26 saying -- And we provided case law in our opposition that says that if a diligent reporter can Denise M. Paternoster, RPR - Senior Court Reporter [* 16] 12 1 Proceedings 2 connect the dots from the newsletter and from other 3 sources, 4 identify the subject of the liable. 5 then that is sufficient, THE COURT: 6 information, 7 newsletter. do you, Honor. you don't have any about the distribution of the > MR. MYSLIWIEC: 8 9 Well, you are able to And I That's a great point, your was going td address that under the 10 common interests privilege; it's our position that 11 there was excessive publication. 12 interesting point. That's a very In the moving papers they talk about the 13 14 distribution of the newsletter to the animal loving 15 community, 16 big group. 17 excessive publication even as self-described by the 18 defendant. all right? And I Now, I think that's an awfully think that that might well be But in the reply papers, 19 the defendant 20 herself at paragraphs seven and twelve of her reply 21 affidavit says that she -- in seven, 22 she got the e-mail addresses by -- from her 23 clients 24 Burns's clients is yet to be determined -- and sent 25 the newsletter to these e-mail addresses. 26 But what she doesn't say, ~- she says that whether they were her clients or Dr. what she is hazy Denise M. Paternoster, RPR - Senior Court Reporter -............_________ [* 17] ~ 13 Proceedings 1 2 about is whether she asked these people in paragraph 3 seven whether they wanted to receive her newsletter. 4 She doesn't say that. What she says in paragraph 12 of her reply 5 It says that you had to 6 affirmation is even better. 7 be registered to get the newsletter. Well, 8 9 I got the newsletter and I wasn't It is not even like Amazon.com where you registered. 10 have to send in your e-mail address and so forth and 11 so on. 12 says, 13 since then. You just push a button on the website that She changed that archives newsletter now. believe what she is describing in 14 And I 15 paragraph 12, 16 affirmation is what may currently be her policy. 17 That she's understood that she has 18 excessive publication by her old method of 19 distribution, 20 website could press archives newsletter and get the 21 newsletter. 22 Miss Sandoval, in paragraph 12 of her run the risk of which is anybody who went on her That's the way I did it, all right? But she has apparently changed that now, but 23 she hasn't told the Court in paragraph 12 that this 24 is her new way of doing things. 2S this 26 Her suggestion is is always the way you got the newsletter. So the newsletter was available to anybody Denise M. Paternoster, RPR - Senior Court Reporter [* 18] 14 Proceedings 1. 2 1 who went on her website. And she says she sent the 3 ' newsletter to people whose e-mails she has, 4; fuzzy whether those are people would asked to receive 5\ her e-mails or she was just able to get their e-mail 6 addresses when she asked for them. THE COURT: but it is I don't know if these are Well, 8 people in the Tribeca community whom might have known 9 Mr. 10 Blesdoe or not. What is in the record on that issue? Your Honor, MR. MYSLIWIEC: 11 there is very little in the record on that issue. 13 position with you is that it is their motion for 14 summary judgement and they have to carry the burden 15 of proof on that issue. They haven't, 16 all right? And I guess my 12 And so the burden 17 of proof then does not move to me on this issue. 18 what I 19 read it, 20 21 22 have done is shown you the law, And as at least I on the point. THE COURT: Is there anything else before I hear a reply from defendant's counsel? MR. MYSLIWIEC: Well, I have other issues. we've talked about excessive publication. 23 You know, 24 We've talked about my client not being identified. 25 26 We could talk about the public interest privilege for a moment. They discuss that in -- Denise M. Paternoster, RPR Senior Court Reporter ---------------- [* 19] 15 Proceedings 1 2 together with the common interest privilege, 3 although they are kind of separate subjects. And it's our position here that we can't 4 5 decide whether this is covered by the public interest 6 privilege unless and until we determine that this 7 newsletter was not issued for an ulterior purpose, 8 all right? And the purpose 9 THE COURT: 10 Am I -~ correct that you are no lif;J e-L 11 longer seeking to maintain your 12 the e-mails that Ms. 13 l~e at Tribeca Soho Animal Hospital? MR. 14 claim based on Sandoval sent to various persons MYSLIWIEC: That's right, your Honor. 15 We're strictly dealing with the newsletter, 16 our issue. 17 THE COURT: 18 MR. 19 Now, that's Please continue. MYSLIWIEC: All right. even though I asked for it in my and 20 opposing papers, the one thing we haven't seen 21 this is relevant to the public interest privilege and 22 it's relevant to the first claim of Miss Sandoval 23 making threats to Dr. 24 employment of my client -- is that nowhere have we 25 seen, 26 or the letter that defendant sent out to her clients. Burns regarding the continued even though I have asked for it, Denise M. is the e~mail Paternoster, RPR - Senior Court Reporter [* 20] 16 Proceedings 1 She calls them her clients. 2 might dispute that. Dr. Burns's They might dispute that. And Because that would throw 4 nowhere have we seen that. 5 a lot of light on whether -- what was her point, 6 was she doing and what was her intent and whether she 7 was trying _,,.,.. what she was trying to do. THE COURT: 8 What was the August, what I believe, August 11th e-mail that you were rsferring to in your 91 I I I 10 I 1 papers? I 111:' MR. MYSLIWIEC: 12 e-mail to Dr. 13 Burns's, There was an August 20th being that -- 14 THE COURT: 15 MR. 16 August 20th e-mail. 17 18 19 20 21 22 23 Have you seen that e-mail? MYSLIWIEC: THE COURT: and this was -- the timeline Yes. I mean, I've seen the I'm not sure. Didn't you refer in your papers to an e-mail in August that you haven't seen? MR. MYSLIWIEC: Yes, that's what I am talking about now. THE COURT: What is the basis for believing that there is another e-mail that you haven't seen? MR. MYSLIWIEC: That she informed her 24 clients -- and I don't think she disputes this 2s that she was ending her relationship with Dr. 26 and his hospitals. Burns That's the e-mail or the letter, Denise M. Paternoster, RPR - Sen!or Court Reporter ......... -------------~ [* 21] 17 1 Proceedings 2 3 I don't know what form i t was in. But where are you getting the THE COURT: I 4 information that she sent a communication to her 5 clients that she was terminating her relationship 6 with Tribeca Soho? 7 her affidavit? 6 I'm just asking you to focus my attention on where 9 that information is brought up. Is it something that she says in If so, just call my attention to it. Well, MR. MYSLIWIEC: 10 your Honor, I can't 11 show you this minute a paragraph in the papers, but I 12 don't believe it's disputed that she did just that; 13 that she terminated -- she sends an e-mail to Burns 14 saying that's it, 15 I mean, 16 i t ' s over between us. THE COURT: 17 it would seem -- And that was the August 20 e-mail? 18 19 THE COURT: That was August 20. MR. MYSLIWIEC: Now, would you please take 20 another couple of minutes and bring your oral 21 argument to a close. 22 MR. 23 With respect to opinion versus fact, MYSLIWIEC: Thank you. Certainly. and the question of mixed opinion, your 24 Honor, 25 present version of the complaint I 26 items on page 11 of the second amended complaint. Denise M. in my refer to five Paternoster, RPR - Senior Court Reporter I 'I [* 22] 18 Proceedings 1 And I've said in my papers that under the law 21' 3 of the Court of Appeals, 4 of the abuse applied was protected as opinion because 5 she gave the source 6 the source, I that probably the allegation mean, she didn't identify but she in fact quoted a source for this And under the Court of Appeals law, 7 that makes i t an opinion; not a 8 read it, ~ which the reader can derive their own views. Nonetheless, 10 fact, as I from to me there are at least three 11 statements, 12 allegation on June 3 about David threatening the cat 13 and pulling back his fist, 14 done this and much worse to animals for years, 15 because there was no source for that in the 16 newsletter, 17 dropout or drug addict with a 18 liable statements of fact here; the cat the allegation that he had and that he might be a high school felony record. And she denies that that was intended to 19 apply to him, but the e-mails that she sends to Burns 20 make constant reference back to this woman Ruth who 21 was a 22 down the same path. 23 credentials, 24 intended at substance abuser, I And I think in spite of her think that is evidence of what she the time. 25 THE COORT: 26 MR. MYSLIWIEC: Denise M. and saying Dave was going I must stop you now. That's fine. Thank you. Thank you very Paternoster, RPR - Senior Court Reporter 11 [* 23] 19 Proceedings 1 2 much, 3 your Honor. THE COURT: I Do you want to reply? Very briefly, your Honor. MS. EILENDER: There seems to be a tremendous amount of 5 6 subterfuge here, 7 what I 8 the cause of action in this case to the newsletter. I am hearing counsel say is that he is focusing If you look at the newsletteri 91' I and just to cut through the issues, I believe the If you 10', defendant has more than carried their burden. 11' look at the plain language of the newsletter, 1211 is no way to identify the plaintiff or the Tr ibeca 13 i S oho Ve t e r in a r y Ho s p i t there al . I; And in fact , 14 th i s report er, 2012, Arny Sacks , 15 affidavit dated March 13, 16 our papers, 17 whose was submitted with writes about issues for the Daily News. apparently she is a reporter who commonly And with respect to counsel's allegation that 1 18 19 she connected the dots, 20 actually the opposite of that. She obtained 21 information from asking around, asking people. 22 she cited a confidential source. 23 I think her affidavit is And, And so with respect to the fact that he 24 thinks his client is readily identifiable, 25 newsletter is belied by this reporter's affidavit and 26 common sense, Denise M. if you this just read it. Paternoster, RPR ~ Senior Court Reporter [* 24] 20 Proceedings 1 2 Moreover, 3 THE COURT: 4 MS. 5 the -- THE COURT: Miss Eilender · - EILENDER: I Yes. said very clearly in my prior 6 decision on the prior motion to dismiss that I 7 thought that the plaintiff was entitled to discovery 8 on that issue. 9 And I know you didn't write these papers, 10 the attorney who did these write these papers just 11 ignored that I 12 necessary. 13 ignored it. 14 MS. but indicated that discovery was just Didn't move to reargue my decision, EILENDER: Your Honor, I have a copy of 15 your decision on the record from the prior motion. 16 And in your Honor's dismissing certain claims, 17 was an understanding by my office, 18 when we made a fresh motion to dismiss the amended 19 complaint that you have to put in all those claims or 20 else they would be dismissed. 21 THE COURT: I don't I assume, there that know how the attorney who 22 wrote that could have possibly thought that based on 23 my decision. 24 leave to renew with respect to the tortious inference 25 claim when it was re-pleaded. 26 MS. Denise M. It was quite clear that I EILENDER: Your Honor, was granting then with respect Paternoster, RPR - Senior Court Reporter [* 25] 21 1 2 Proceedings 1 to the newsletter, the defendant asserts that it was 3 certainly, 4 with respect to her clients and who read the 5 newsletter. 6 privilege based on that, 7 privilege. 8 9 at the very least, a qualified privilege And that she would be entitled to a THE COURT: as well as a public policy I did leave it open for you Well, to make a summary judgement motion, but don't you 10 think there are triable issues of fact on these 11 issues of whether these statements are true and 12 whether -- well, 13 the statements in the newsletter are subject to a 14 qualified privilege? 15 MS. certainly you're not claiming that EILENDER: They can be, Judge, because 16 with respect to the community to which it was 17 disseminated 18 But, (sic). your Honor, the whole purpose of doing 19 discovery is to discover information which would 20 resolve the case1 21 THE COURT: In this case -Excuse me, are you taking the 22 position that a publication to the downtown animal 23 loving community would be s 24 privilege? 25 MS. EILENDER: 26 THE COURT; ject to the qualified It can be, your Honor. Well, show me the case that says Denise M. Paternoster, RPR - Senior Court Reporter [* 26] 22 Proceedings 1 'I Because if that is so, then that expands the 2 that. 3 concept of qualified privilege to any instance in ([ which someone believes that a cause to which they are 4 I 5 I I committed entitles them to publish information about 6 someone who they think is acting in a manner 71, I detrimental to the cause. 8d MS. I' 9! 11 10, EILENDER: Judge, I'm not saying that this defendant had carte blanche to write whatever she wanted about whomever she feels. However, in 'I, newslette~ 11 this 12 Moreover, she doesn't identify the plaintiff. the Tribeca Soho vet Hospital is not identified in the newsletter either. 13 I, 14 And so I believe under the Kahn case the 15 Courts held that unless it is readily identifiable 16 with extrinsic facts that you can tell who it is. 17 this cas -- 18 THE COURT: In She identifies the man by his 19 weight and his height. 20 community and it would be surprising if that 21 newsletter weren't going to persons who live in the 22 Tribeca community who may have patronized the Tribeca 23 Soho VETERINARY HOSPITAL with which she was 24 affiliated. r.: ,;:; :) hasn't been discovery yet. ,~) 26 We just don't know that because there MS. EILENDER: Denise M. She is working in the Tribeca Your Honor, on the face of Paternoster, RPR - Senior Court Reporter [* 27] 23 1 Proceedings 2 this motion for summary judgement we submitted all 3 these affidavits. 4 a single name or a single affidavit from anyone who 5 read the newsletter and said, 6 Blesdoe. And so if they were going to come up with 7 anything, this was the time to identify somebody. 8 9 THE· COURT: The plaintiff didn't come up with Well, ha, ha, this is David I don't think it frankly, was the plaintiff's bUrden to do that, 10 Is there anything else before I 11 MS. 12 THE COURT: EILENDER: No, Okay. recess? Judge. If you return to the 13 courtroom at 11:40 -~ 10:45 by the courtroom clock, 14 will give you a decision on this case. 15 review the Bank Corp. case before I Thank you, I'm going to rule. your Honor. 16 MS. 17 MR. MYSLIWIEC: 18 (Recess taken while the Court entertained 19 20 EILENDER: I Thank you. other cases.) THE COURT: On the record. The record will 21 reflect that as is my usual practice, 22 oral argument -- withdrawn. 23 24 I have heard Earlier this morning I heard oral argument of the motion on the record. I will now place my decision on the record. 26 Defendant moves to dismiss plaintiff's second Denise M. Paternoster, RPR - Senior Court Reporter [* 28] 24 Proceedings 1, I 2, amended complaint for failure to state a cause of 3 action pursuant to CPLR 32ll(a) (7) 4 motion to one for summary judgement. 5 and to convert the In my prior decision on the record on January I 61 26, 7 first amended complaint, 8 plaintiff to replead the slander and 9' action, I I 10 I 11 2012, which determined a motion to dismiss the this Court grf;1b:t leave to ~ia~le causes of dismissed plaintiff's cause of action for tortious inference with existing contract with prejudice and denied defendant's motion to dismiss 1 plaintiff's cause of action for tortious inference with prospective economic advantage without prejudice 14 to renew after the cause of action was 15 re~pleaded. At the time of the hearing of the prior 16 motion to dismiss, 17 of action for injurious falsehood. 18 plaintiff also withdrew his cause Plaintiff then served his second amended 19 complaint, 20' The second amended complaint, 21 as /rch:..r;aint, 22 lTs ¢~e 23 newsletter on or about August 12, 24 e-mails sent to the owner of the veterinary hospital 25 whe re p l a i n t i f f 26 supervisor at that hospital,and to other employees of to which the instant motion is addressed. pleads a first hereafter referred to cause of action for based on defendant's publication of a Denise M. wo r k e C:,, ~ t o 2011, and on pl ai nt i f f ' s i mm e di a t e Paternoster, RPR - Senior Court Reporter [* 29] 25 Proceedings 1 2 the hospital, 3. abuser. accusing plaintiff of being an animal (Complaint paragraphs 47, 52 and 53.) I 41 At the oral argument of the instant motion l ( ba_L I I 51 plaintiff withdrew the li1bse claim to the extent 61 they were based on the e-mails sent by defendant to 7 various individuals at the veterinary hospital, 81 Tr~beca 9 ~ Soho Hospital. PlQ.intiff 's cause of actioh for ~ as pleaded was also based on e-mails from defendant to Park Slope Veterinary Hospital, to which plaintiff applied for employment after he was terminated from Tribeca Soho Hospital. 14 (Complaint paragraph 54.) The complaint pleads a second cause of action 15 for slander based on telephone calls by defendant to 16 the owner and employees of the Tribeca Soho and Park 17 Slope hospitals. 18 The third cause of action of the complaint is prospective~~ic 19 for interference with 20 Defendant seeks dismissal of the 21 causes of action on the grounds that 22 st.aterne11ts were true 23 statements were true, 24 opinion and that they are protected under a qualified 25 privilege of common interest. 26 In addition, w i t he lP <Hm , advantage. e and slander ~eiRtif-f-''s t J<i: e~ de fend ant ' s that they were non-actionable defendant claims that the Denise M. Paternoster, RPR - Senior Court Reporter [* 30] 26 1 Proceedings 2 statements in the newsletter did not specifically 3 refer to plaintiff by name, 4 5 showing that the words would be tl'l J_ taken by anyone as ref erring to plaintiff ~tending 6 to defame him. and that there is not a sufficient factual 7 " Plaintiff opposes the motion on the ground, that discovery is needed. In 8 among others, 9 opposition to the motiort plaintiff withdraws his 10 slander cause of action explaining that it. ::::Q111l!i!IS, 11 "hinged on oral conversations between defendant and 12 non-hospital employees," cJ.eH1e 13 14 because they have submitted ~,)f.\,davits denying that /9 they spoke with defendanS s· ?t'i unlikely that they 15 would ever testify in his q11 te; and that ¢ 1r. 16 fav~ C"p1aintiff further states that he does not 17 have the means to pursue this claim given these 18 circumstances and will not.- spot e:, 19 windmills ¢" close qs:::c±::w. 20 paragraphs 89 through 91.) 21 { I' /,c. e._ l isb 2 "tilt at (Affirmation in opposition Plaintiff seeks to continue to maintain his claim but only based on the August 12, 22 1 23 2011 newsletter published by defendant. 24 0 I stated a moment ago he is no longer seeking r ,' kL- 25 to rn.aintain the i.; 26 defendant to various individuals at the Tribeca Soho Denise M. i11l 1 h1 claim based on e-mails sent by Paternoster, RPR - Senior Court Reporter ~· C r>-1 [* 31] 27 1 ,/ {il:eL Proceedings l'fo r doe s he s e e k t o ma int a in t he lo.is 1 ls tti 2 Ho s p it a 1 3 claim based on e-mails allegedly sent by defendant to 4 other persons. 5 paragraph 61.) 11 (See affirmation in opposition, 6 Off the record. 7 (Discussion held off the record.) 8 THE COURT: 9 Back on the record. The Court has previously held that the allegation that a veterinary technician's assistant at a 10 plaintiff, 11 ' veterinary hospital, 12 sufficient to support a defamation cause of action, 13 as it tends to expose plaintiff to contempt in his 14 employment. 15 16 abused animals under his care ls (Prior decision at five.) The Court now holds that this motion should not be copverted to a motion for summary judgement on libd- the ~b),e cause of action, as plaintiff has not had 18 the opportunity to conduct any discovery given the 19 early stage of this case. 20 The general rule is that summary judgement 21 should not be granted prior to completion of 22 discovery, 23 may exist but are within the exclusive knowledge or ?. 4 control of the moving party. where facts necessary to oppose the motion (See e.g. Integra~ 25 26 v Term Ind ies Inc 126 AD2d 484.) Denise M. Paternoster, RPR - Senior Court Reporter [* 32] 28 Proceedings 1 This is especially so where the opposing 2 3 party has not had a reasonable opportunity for 4 disclosure prior to the making of the 5 v. 6 793; 7 ,J,er;sez. ¢ ii Incorporated Village of ,Fr!feport, iii.I. · motiono~aron 143 AD2d 792, , Colicchio .v. ' 246 AD2d Port Authority of New York and N~w 464) On the prior motion to dismiss defendant 8 similarly argued that the claim based on the 10 newsletter should be dismissed because plaintiff was 11 not named in the newsletter. Plaintiff argued in opposition to the prior 13 motion and argues again now that discovery is 14 necessary on the issue of who read the newsletter and 15 whether the readers would have understood that it was 16 referring to plaintiff. 17 While the Court directed plaintiff in the 18 re-pleaded liable cause of action to set forth the 19 identities of the readers of the newsletter to the 20 extent known to him, 21 q1nt0sp> 22 unknown, 23 early juncture in which discovery has not yet been 24 conducted, 25 readers of the newsletter 26 the newsletler referred to t:Lern -- - 11 fo the Court specifically stated~ the extent that the identities are the Court agrees with plaintiff that at this Denise M. failure to plead the identities of the c~d c th<;ir,Js..n~ledge ff- -' Paternoster, RPR - p (Pt, ¢.-.17 refi;;,.rnad that tq Senior Court Reporter [* 33] 29 Proceedings 1 ~~bi:C:l"l' is not 2 fatal to the maintenance of the (Prior 3 4 decision at seven.) s I' Nothing has changed since the prior decision. I 6 In moving again to dismiss based on the fact I that plaintiff was not expressly named in the newsletter, defendant 9imply ignores the prior order I 9' determining that plaintiff i~ ! entitled to discovery I, 10 on this issue. The Court further holds that plaintiff is entitled to discovery of defendant and the parties 13 from whom defendant obtained affidavits claiming that 14 plaintiff committed animal abuse. 15 these affidavits in support of her defense of the 16 truth of her allegation that plaintiff was an animal 17 abuser. 18 As defendant~ Defendant submits and the other partie; . . 19 affidavits raise issues of credibility, 20 entitled to discovery. 21 In addition, plaintiff is plaintiff submits the affidavit 22 of plaintiff's supervisor at the 23 Soho Hospital, 24 belief that plaintiff would never harm an animal 25 other than in self-defense . Piotr Stachera, ------- 26 3~.Dm~i~:c_...._,&4£~ Tribeca in which he states his ..,C <:"°He also attests to the fact that plaintiff Denise M. Paternoster, RPR - Senior Court Reporter - - - - - - - - - - - ---··-·-----·. ---·-··- -- . - ·- -·----- --- ----------·····--------~------------- [* 34] 30 1 Proceedings 2 himself was the first person to bring to Stachera's 3 attention the incident which is the subject of the 4 newsletter involving the ear cleaning of a dog and in 5 which plaintiff was injured. And, 6 complaints about plaintiff other than the 7 8 Stachera attests to the lack of any I aforementioned incident during the six years from 2005 to 2011, during which plaintiff wQrk$d tinder Stachera's direct supervision. This affidavit raises a triable .issue of fact 111 about the truth of defendant's charge of animal abuse 13 and, thus, 14 motion to dismiss to one for summary judgement. 15 also militates against conversion of the The Court, ~~ accordingly, declines, based on 16 these 17 convert the motion to dismiss to one for summary 18 judgement. 19 r~ets issues and the need for discover~ to To the extent that defendant moves to dismiss \ t~bd.- 20 the li ¢ele claim based on the newsletter on the 21 ground that the statements in the newsletter were 22 protected opinion, the Court rejects that claim. 23 N:r&t 24 The Court finds that there are statements in ¢ ¢! <;11; it was .. ithdtdWI'!. 25 the newsletter that do not set forth the facts on 26 which they are based. And these statements include, Denise M. Paternoster, RPR - Senior Court Reporter f [* 35] 31 Proceedings 1 that plaintiff had done..- ¢rat-, 2 among others, 3 worse to animals that are patients at this hospital 4 for years 8 " ~1ij!!I p'1.vo..te ~ ¢ate. J L The;-much worse~r~~ 5 6 _ ...L- ('~~ 'I u 1 c9..-.. , f1_ "much L- ll\C-1~'> much worse than the incident regarding the ear cleaning of the dog I 7' which was the central focus of the newslettet. The Cdurt now turns to the branch bf the motion to dismiss the third cause of action for 10 tortious inference with prospective economic 11 relations. Plaintiff withdraws the part of this cause of action insofar as it relates to his job application 14 to Park Slope Hospital. ,1. :J is that based on the submission of an affidavit 16 th.,ie - 17 of the Park Slope Hospital, 18 Parker will ever testify that his failure to hire 19 plaintiff was due to defendant's intervention. 20 21 If f t1 1 :i:' His explanation for doing so on this motion by Dr. Like plaintiff's withdrawal of his slander 1 claim, this withdrawal appears then to be based on ~ the lack of any desire of plaintiff to '1$#'3, 23 wi ndmi 11 s, " cl-CPW" qo are~ 24 opposition, 26 Parker it appears unlikely that 22 2.5 ~ tilt at (See affirmation in paragraph six.) Plaintiff seeks, however, to maintain this cause of action based on his at will employment at Denise M. Paternoster, RPR - Senior Court Reporter ' ,c: \M [* 36] 32 11 Proceedings 11 I He is claiming that 2 the Soho Tribeca Hospital. 3 defendant threatened that unless the hospital 4 terminated plaintiff's employment, s she would make the Ca. foe..Lln!) 9----h o spit al the ~b j e ct of a news let t; er t& it/ 6 q;111i1 ¢ 7 1 1 I "soft/ 11 i.iJofi'w 'i!f'H ¢tw, on animal abusers. The complaint further alleges that she I I' 8 threatened to steer her cl±ents' pets' medical needs 9 to the hospital's competitors unless her demands were 10 met. (See complaint, paragraph 31.) 11 It is well-settled that a motion to dismiss 12 must be denied if from the pleading 1 s four corners, 13 b{F 14 together manifest any cause of action cognizable at 15 lawd" cl ' ¢ "factual allegations are discerned which taken 0 ?? 1''ote. In furtherance of this task, 16 the Court 17 liberally construes the complaint and accepts as true 18 the facts alleged in the complaint and any 19 submissions in opposition to the dismissal motion. 20 The Court also accords plaintiff/ the benefit 21 of 22 favorable 23 511 West 24 NY2d 144, 25 26 eve r y po s s i b l e i w :C:'" ¢ 1 ii inference. 232 Corp. v. 419ci 1 t I 1a I ts f a aai ~ and 1utl a ¢ hil!:Ldraw11. Jennifer Realty Company, (See 98 152. Applying these liberal pleading/ standards, the Court finds that the second amended complaint Denise M. Paternoster, RPR - Senior Court Reporter [* 37] 33 1 Proceedings 2 pleads a cause of action, 3 economic relations, 4 plaintiff's opposition papers to the instant motion. particularly as clarified in Plaintiff is, 5 tortious inference with in effect, claiming that 6 although plaintiff had an at will relationship with 7 Tribeca Soho Hospital, 8 to interfere with and bring about the termination of 9 plaintiff's employment from that hospital. 10 In particular, defendant used wrongful means plaintiff's claim is that 11 defendant committed the crime of coercion in the 12 second degree under Penal Law 135.60, by inducing the 13 hospital to engage in conduct which the hospital had 14 the legal right to abstain from; 15, termination of plaintiff by threatening to, 16 "expose a secret or publicize an asserted fact, 17 whether true or false, 18 to hatred, 19,' that is the ,z tending to subject some person contempt or ridicule 1 " c:lcoc Certainly, ~~Rt qao~. publicizing that a veterinary 20 hospital was soft on animal abuse would expose a 21 secret that would tend to expose it to hatred, 22 contempt or ridicule within the meaning of the 23 statute. 24 The Court notes that the pleadings in this 25 case have been anything but artful. 26 the standard Denise M. ~etermining But that is not whether the complaint Paternoster, RPR - Senior Court Reporter [* 38] 34 1 Proceedings 2 will survive a motion to dismiss. 3 And here the Court finds that the pleadings 4 are sufficiently clear to give notice of the S transactions on the basis of which the causes of 1 I, 6~1 action are sought to be maintained, 7~ underlying evidentiary facts. and the Much as the defendant would like to, 81 she 11' . I 9 I 10 I I cannot achieve dismissal of this action at this early juncture in which plaintiff has not had the 11; 1111' opportunity to obtain discovery of information which 1211: is uniquely within defendant's ~ ¢ possession~ 13' Tfi i 14 Defendant's motion is denied. 15, !ii can c 1 n d 'i 'i - i L lid 1 a Wti . This concludes the Court's decision on the motion. 16' The movant shall promptly obtain a copy of 17 the decision and file it with the clerk at Part 57 18 for transmission to me for so ordering. 19 The parties are advised that the Court may 20 correct errors in the transcript. Therefore, if it 21 , is needed for any further purpose, they should be sure they have a copy as so ordered by the Court and 23 24 not merely as signed by the court reporter. The Court notes that in the instant motion 25 defendant attached a copy of an uuo.-ordered 26 transcript rather than of the so-ordered transcript, Denise M. Paternoster, RPR - Senior Court Reporter [* 39] ... 35 1 Proceedings 2 and that should and must be avoided in the event of 3 any further motion practice in this casa. 4 I am going to open the decision to provide 5 that defendant shall serve an answer within twenty 6 days of today's date, 7 for a preliminary conference in this part on June 8 28th at 11 a.m. 9 10 and the parties shall appear The decision is now concluded. The record is closed. 11 12 * * * * * * * * * 13 14 Certified to be a true and accurate transcription of the 15 minutes taken ~n the above~captioned matter. 16 FILED 17 18 19 Denise 20 Senior Court Reporter RPR JUN 27 2012 NEW YORK COUNTY CLERK'S OFFICE 21 22 23 24 25 26 Denise M. Paternoster, RPR - Senior Court Reporter
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
