Davidowitz v 105 E. 29th St. Owners Corp.
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Davidowitz v 105 E. 29th St. Owners Corp. 2006 NY Slip Op 30829(U) August 17, 2006 Supreme Court, New York County Docket Number: 117788/05 Judge: Judith J. Gische 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. [* 1] I SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YOJ~K: PART 10 ---------------------------~-------------------------------)( SUSAN DAVIDOWITZ and NOAH KLEIN, \ Decision/Order lnde)( No.: 117788/05 Seq.No.: 002 Plaintiffs, . -agamsIt- Present: Hon. Judith J. Gische J.S.C. 105 EAST 291 H ST. bwNERS CORP., MILTON McC. GAT H, RENEE KINSELLA, DEBORAH BROWN and ERIC PLOUMIS, Defendants. ----------------------------··------------------------------)( i Recitation, as required by CPLR 2219 [a], of the papers considered in the review of this ' (these) motion(s): Papers Numbered Def Kinsella motion [ttlismiss] w/RK affid in support, e)(hs . . . . . . . . . . . . . . . . . . . . . . 1 Pitts affirm in opp (S~) w/exhs, affirm in opp (NK) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ~~--~--~-~-~~-~~~------------~------------------------------------------------- Upon the foregoing papers, the decision and order of the court is as follows: Re~ee Kinsella ("Kinsella") moves to dismiss the Amended Verified Complaint as to her. ~nly the seventh and eighth causes of actionJ the Amended Defendant acti~f°i defamation and allegr that on August 12, 2005 Kinsella told Ms. Liz K~~in t~ / : ' / ) 1 Verified Complaint ari directed to Kinsella. The seventh cause of plaintiffs did "unthinkable things, sick twisted and pr I action is for slander frightening~ eighthQ'calil'S,"of ~ tJJV-ry se and alleges that on January 26, 21m5 "'06 ~~g Mr. Gatch O'?Jr OF-J:''C~· 1 Subsequent to the submission of this motion on August 10, 2006, the court received a stipulation ated before then to adjourn this motion until August 14, 2006. None of the attorneys rought this stipulation to the court's attention on August 10, 2006; nor did any oft em object to the submission of the motion on that date. In an abundance of caution, however, the court has held the motion for consideration only after the August 14, 2 1 06 adjourned date previously agreed to by the parties. ! Page 1 of 7 • fl/If [* 2] that the plaintiffs had ,"pleaded guilty to misdemeanor criminal trespass". 1 Although defendant denies telling Ms. Karlin the words alleged, she argues that even if she did, it is 1erely her opinion and not actionable defamation. In addition, she claims that the statements made to Ms. Karlin may not form the basis of a defamation claim without pleadin~ special damages. With respect to the communication to Mr. I Gatch, Kinsella argut that it is demonstratably substantially true. In addition, she claims that all of the lleged communications were protected by a qualified privilege. Plaintiffs oppo e the motion in its entirety. In determining J hether a complaint is sufficient so as to withstand a motion to dismiss pursuant to CPLR § 3211 "the sole criterion is whether the pleading states a I cause of action, and ii from its four comers factual allegations are discerned which taken together manifest any cause of action cognizable at law." Guggenheimer v. Ginzburg, 43 NY2d 2J8 (1977). The facts as alleged must be accepted by the court as true, for purposes of slch a motion, and are to be accorded every favorable inference. Morone v. Morone, 501NY2d481 (1980); Beattie v. Brown & Wood, 243 AD2d 395 (1st dept. 1997). The coui may also rely on indisputable facts contained in documentary evidence in connectiom with determining the sufficiency of a pleading. CPLR § 3211 (a) (1 ); L & S Motors. Inc. v. Broadview Networks. Inc., 25 AD3d 767 (2"d dept. 2006). Thus, for purpoles of resolving this motion, the court assumes that the communications were flmade as alleged in the complaint. In addition, the court relies upon Certificates of Di position from the Criminal Court in the City of New York, evidencing that on January 19, 2005, the plaintiffs, Susan Davidowitz and Noah Klein, each plead guilty to P 140.05. PL 140.05 is a criminal violation of trespass. Page 2 of 7 [* 3] Defamation is 1injury to one's reputation, either by written expression (libel) or oral expression (slander)) Morrison v. National Broadcasting Co., 19 NY2d 453 (196). The ! 1 elements of plain libeI [also known as libel per quad and libel by extrinsic fact] are: [1] a false and defamatory! statement of fact; [2] regarding the plaintiff; [3] which are published to a third pry; and which [4] result in injury to plaintiff. Idema v. Wager, 120 F Supp2d 361 (SONI 2000); Ives v. Guilford Mills, 3 FSupp2d 191 (NDNY 1998). Certain statem[nts are considered libelous per se. They are limited to four categories of statements that: [1] charge plaintiff with a serious crime; [2] tend to injure 1 plaintiff in its business, trade or profession; [3] plaintiff has some loathsome disease, or [4] impute unchastity. Lieberman v. Gelstein, 80 NY2d 429 (1992); Harris v. Hirsh, 228 AD2d 206 (1st dept. 1996). The primary difference between plain libel and libel per se is that plain libel requiref proof of special harm, while libel per se does not require such pleading and proof. Lieberman v. Gelstein, supra. Special damagls contemplate the loss of something having economic or pecuniary value. Lie+rman v. Gelstein, supra. While injury to feelings is not recoverable; injury to 0ne's reputation is recoverable. Gertz v. Robert Welch. Inc., 418 US 323 (1974); Hoga~ v. Herald Co., 84 AD2d 470 W dept. 1982) affd 58 NY2d 630 (1982). If economic l+s or injury to one's reputation is proved, then compensation for emotional distress is also available as an element of libel damages. Sager v. Local It is the court's esponsibility in the first instance to determine whether a publication is suscepti!le to the defamatory meaning ascribed to it. Golub v. Enquirer/Star Group .. Inc., 89 NY2d 1074 (1997); Aronson v. Wiersma, 65 NY2d 592 Page 3 of 7 [* 4] (1985); Rejent v. Libe~ation Publications Inc., 197 AD2d 240 (1 81 dept. 1994). A court should neither strain t0 place a particular construction on the language complained of ! nor should the court s~rain to interpret the words in their mildest and most inoffensive sense to hold them nap-libelous. Rejent v. Liberation Publications. Inc., supra. I ! 1 As with any clai m for defamation, both libel per se and libel per guod are defeated in total by a !hawing that the published statements are substantially true. Newport Service & Leasing v. Meadowbrook Distributing Corp., 18 AD3d 454 (2"d dept. 2005). At common laf. defamatory statements were generally presumed false so that "truth" was a defense rat had to be proven by the defendant. Rinaldi v. Holt. Rinehart & Winston, Inc., 42 N12d 369 (1977). This rule no longer applies where the plaintiff is a public official or public figure, or the speech relates to a matter of public concern. In such circumstances a !plaintiff must prove as part of its prima facie case that a defendant acted with Jctual malice (knowing the statement was false or recklessly disregarding whether ii was true). Chapadeau v. Utica Observer Dispatch, 38 NY2d 196 (1975). Where, ai here, the plaintiff is a private individual and the statements upon which the claim is bas~d do not relate to a matter of public concern, then it is still the defendant's burden to !prove a defense of truth. In this regard, the defense is I established by a show·ng that the material is "substantially" true. It need not be literally or technically true in al respects. Carter v. Visconti, 233 AD2d 473 (2"d dept. 1996). Competing with an individual's right to protect one's own reputation, is the constitutionally guaran eed right to free speech. One of the staples of a free society is that people should be ble to speak freely. United States Constitution v. New York State Constitution, Arti le I§ 8. Consequently, statements that merely express opinion Page 4 of 7 [* 5] are not actionable as defamation, no matter how offensive, vituperative or unreasonable they may be. lmmono AG v. Moore-Jankowski, 77 NY2d 235 (1991 ). If the material, when rea~ in context, could be perceived by a reasonable person to be nothing more than a m~tter of personal opinion no claim for libel exists. lmmuno AG v. I Moor-Jankowski, 77 N+2d 235 (1991 ). Whether a potentially actionable statement is I one of fact or opinion i~ a question of law. Millus v. Newsday, 89 NY2d 840 (1996) The New York 1ourt of Appeals has held that the following factors should be considered in distinguishing fact from opinion: [1] whether the language used has a I precise meaning or whrther it is indefinite or ambiguous; [2] whether the statement is capable of objectively jeing true or false, and [3] the full context of the entire communication or the furoader social context surrounding the communication. Brian v. I Richardson, 87NY2d16 (1995). Moreover, pure opinion is a statement that is accompanied by a recitation of the facts on which the opinion is based or which does not give the impressio~ that it is based upon undisclosed facts. Gross v. New York Times, 82 NY2d 146 (1993). Both libel per fila and libel per quad may be protected by privilege. A qualified privilege has been extJnded to communications made by one person to another in which both parties hav~ an interest. Lieberman v. Gelstein, supra. Applying these principals of law to the complaint at hand, the court finds that dismissal of the compl I int is mandated. Kinsella telling third party that plaintiffs did "unthinkable things, sick twisted and opinion about the plai11iffs. The statement is ambiguous and not susceptible to Page 5 of 7 [* 6] objective verification. rn addition, contrary to plaintiffs' arguments on this motion, such statements are not slar:1derous per se. Even were the statements not protected as i opinions, plaintiffs' clair would be dismissed, because they did not plead any special damages, which are a required element of the cause of action. I The second clai~ is based upon statements that would otherwise constitute slander per se, becaus,e they pertain to the commission of a crime by plaintiffs. Kinsella's defense is slbstantial truth. Kinsella allegedly reported to a third party that the plaintiffs pied guil~ to the "misdemeanor" crime of Trespass. The "truth" is that they I pied guilty to a criminal "violation" of Trespass. While a "violation" and "misdemeanor" have different legal ratifications under New York State Penal Law, those differences are not significant in oldinary usage that would give rise to a claim for defamation. The I statements made by Knsella were substantially true in that they impart that plaintiffs pied guilty to Trespass in a pending Criminal Court matter. As a defense to a defamation claim, trut1 need not be established to an extreme literal degree. If the defamatory material on which the action is based is substantially true with minor inaccuracies, the clai1 to recover damages must fail. Ingber v. Lagarenne, 299 AD2d 608 (3rd dept. 2002). !ere the truth was near enough to preclude recovery. In view of the crrt's conclusion that the statements made are not actionable, it need not determine wlether any privilege attaches to the communications allegedly made. Sha iro v. Health Ins. Plan of Greater New York, 7 NY2d 56 (1959). Page 6 of 7 [* 7] Conclusion In accordance h~rewith it is hereby: ORDERED that refendant Renee Kinsella's motion to dismiss the seventh and eighth causes of actio1 asserted in the Amended Verified Complaint is granted; and it is further j ORDERED that rhe seventh and eighth causes of action are hereby severed and the Clerk of the court is directed to enter a judgment in favor of defendant Renee I 1 Kinsella and against pl intiffs Susan Davidowitz and Noah Klein dismissing such causes of action; and i is further ORDERED that any requested relief not expressly granted herein is denied; and it is further ORDERED that this shall constitute the decision and order of the court Dated: New York, New York I August 17, 2006 So Ordered: . GISCHE, J.S.C. Page 7 of 7
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