Seung Jin Lee v Tai Chul Kim

[*1] Seung Jin Lee v Tai Chul Kim 2007 NY Slip Op 51465(U) [16 Misc 3d 1118(A)] Decided on August 2, 2007 Supreme Court, Nassau County O'Connell, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 13, 2007; it will not be published in the printed Official Reports.

Decided on August 2, 2007
Supreme Court, Nassau County

Seung Jin Lee, Plaintiff,

against

Tai Chul Kim and Joo Ok Suh, Defendant(s).



17525/05



Glenn Backer, Esq.

Attorney for Plaintiff

292 Madison Ave., 22nd Floor

New York, NY 10017

Dechert LLP

Attorneys for Deft., Tai Chul Kim

30 Rockefeller Plaza

New York, NY 10112

Yohan Park, Esq.

Attorney for Deft., Joo Ok Suh

39-01 Main St., Suite 509

Flushing, NY 11354

Geoffrey J. O'Connell, J.

Defendant Tai Chul Kim (hereinafter "Kim") and Defendant Joo Ok Suh (hereinafter "Suh") apply to the Court for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint. Plaintiff Seung Jin Lee (hereinafter "Lee") opposes.

Background

The complaint alleges that Plaintiff Lee is the Senior Pastor of the Korean Church of Eternal Life located in Woodside, Queens County, that she has a master's degree in divinity and that she was first asked [*2]

by Pastor Lim, the then pastor of the Church of Eternal Life, to take over some of his duties commencing in March 2001. With some interruptions, Plaintiff asserts that she assisted Pastor Lim in 2002 and 2003. According to the complaint, Plaintiff was nominated to serve as Senior Pastor on June 6, 2004, and elected at a meeting held on June 27, 2004 attended by 34 members of the congregation.

In the Fall of 2004, a Trustee of the Eternal Life Church, Sook Hee Lim (identified as the widow of Pastor Lim) and the Board of Trustees commenced a declaratory judgment action in Queens County seeking a declaration that Plaintiff Lee was not the Pastor of the Church, that her purported election was null and void and that any purported secession from the Korean Presbyterian Church in America was null and void. Injunctive relief and money damages were also sought. By Order dated June 20, 2005, Justice Dorsa dismissed the Complaint in that action on the grounds that the Court was precluded by the Establishment Clause of the United States Constitution from ruling on the matter because to do so would require an impermissible interpretation of church doctrine. (Lim v Yang, Supreme Court, Queens County, Index No. 24750/2004, dec. June 20, 2005). There is no record of any appeal of Justice Dorsa's decision.

On Sept. 1, 2005, the Rev. Ki Chun Lee, as Moderator of the North-East Presbytery of the Korean Church in America, issued an order declaring, inter alia, that "Rev. Seung Jin Lee may no longer serve as senior pastor of the Korean Church of Eternal Life" and that she "has numerously violated the Constitution of the Korean Presbyterian Church in America. . . ."

In her complaint Plaintiff alleges that on Sunday, Sept. 25, 2005, Defendant Kim appeared at the church and interfered with the planned service. Thereafter, on Wednesday, Sept. 28, 2005, Plaintiff claims that Defendant Kim with nine or ten of his "followers" broke into the church, threatened Plaintiff, changed the locks and installed a new alarm system. According to the complaint, that same day in the presence of witnesses Defendant Kim stated in Korean; "You are not a pastor because you are a female even though other denominations recognize you as a pastor. If you continue to stay with the Church, you and the people related to you will be hurt. You have to follow the Korean Presbyterian Church in America which does not recognize you as the pastor because you are female. I am going to be the pastor of this church and I am going to use your office. I will give you one week's notice to vacate the pastor's study."

Plaintiff asserts that Defendant Kim again interfered with service on Oct. 2, 2005 and stated from the pulpit that Plaintiff is a "liar; she tried to cover all the truth; how could she serve the Lord with lies; and she

and her followers are satanic." It is claimed that on Oct. 9, 2005 Defendant Kim interfered with another service and read from the pulpit in Korean the following statement:

"(a) On June 7, 2004 Plaintiff Lee was caught trying to sell the Church's property and move the Church's membership from the Korean Presbyterian Church in America to the Presbyterian Church of the United States of America;

(b) on June 27, 2004, the 32 Church members who voted to make plaintiff Senior Pastorwere relatives of Plaintiff, church employees and 10 students; [*3]

(c) Plaintiff does not belong to any denomination;

(d) Plaintiff ignored a court order;

(e) on September 1, 2005, Plaintiff interfered with Reverend Young Kwan Oh's

service at the Church;

(f) on September 18, 2005, Plaintiff tried to block a staff meeting led by Rev. Oh;

(g) on October 9, 2005, Plaintiff interrupted services at the Church;

(h) Plaintiff intentionally delayed the Church's mortgage payment which resulted

in an $800 penalty and increased the mortgage payment by $600; and

(i) Plaintiff acknowledged that the Church belongs to [the] Korean Presbyterian

Church in America."

Plaintiff's First Cause of Action claims the statements made by Defendant Kim were false and defamatory. The Third Cause of Action asserts that the statements constituted the intentional infliction of emotional distress and prima facie tort. The Sixth Cause of Action is for conversion of property and the Seventh Cause of Action is for tortious interference with a contract.

In support of the Second Cause of Action, the complaint alleges that on Feb. 6, 2005 Defendant Suh stated in the presence of witnesses that Plaintiff "is not a qualified pastor"and that Defendant Suh wanted to spit in her face. It further alleges that on Sept. 28, 2005 Defendant Suh called Plaintiff a "great prostitute." Finally, it alleges that "in or about September of 2005" Defendant Suh referred to Plaintiff by a Korean term

meaning "a woman who serves men liquor in a strip joint or Korean club;" as insane, a "psychopathic bitch," "not qualified to be a pastor," "hypnotizing the congregation," "doing the dance of Satan," having stolen money from the Church, having bribed people to attend services and as having an affair with a named individual. Plaintiff claims that these statements were false and defamatory. As a Fourth Cause of Action Plaintiff asserts that these statements constituted the intentional infliction of emotional distress and prima facie tort.

In the Fifth Cause of Action Plaintiff claims that acts of changing the locks and installing a new alarm system constituted a trespass and criminal interference with Plaintiff's rights.

Defamation

(1) The Statement of Oct. 9, 2005

Defendant Kim correctly asserts; "Truth is an absolute defense to a cause of action based on defamation (citations omitted)." (Yan v Potter, 2 AD3d 842, 843 [2d Dept, 2003]). He asserts that certain of the statements contained in the statement read on Oct. 9, 2005 are true.

Defendant Kim contends that Plaintiff Lee ignored Justice Dorsa's order of June 20, 2005. Justice Dursa's decision recites that; "both parties agree that the Korean Presbyterian Church in [*4]America is part of [a] hierarchical organization subject to the rules and governance of the Korean Presbyterian Church in America." (Lim v Yang, Supreme Court, Queens County, Index No. 24750/2004, dec. June 20, 2005, p. 6).

The Court of Appeals, in First Presbyterian Church of Schenectady v United Presbyterian Church in the United States (62 NY2d 111 [1984]), drew two distinctions that bear upon the issues in this case. First, the Court distinguished between issues which implicate the free exercise of religion guarantee of the United States Constitution and are therefore left to the religious body to decide and issues involving property rights which a court may resolve without intruding into the sphere of religious doctrine. Second, the Court distinguished between hierarchical churches where the religious congregation is a subordinate member of some superior ecclesiastical body that has ultimate power citing Watson v Jones (13 Wall [80 US] 679) and autonomous religious entities. Notwithstanding these distinctions, the Court of Appeals held: ". . . [E]ven though members of a local group belong to a hierarchical church, they may withdraw from the church and

claim title to real and personal property, provided that they have not previously ceded the property to the denominational church (Nowak, Rotunda & Young, Constitutional Law [2d ed], ch 19, §IV, p. 1075).

Justice Dorsa, after discussing First Presbyterian Church of Schenectady v United Presbyterian Church in the United States, supra, and other decisions applying its principles held that; "this court is precluded from considering plaintiff's claims by the Establishment Clause . . . " andeffectively consigned the matter to the authorities of the Korean Presbyterian Church in America. This determination was never appealed or modified. On Sept. 1, 2005 the Church issued a declaration that Plaintiff could no longer serve as pastor. "Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action (Matter of Reilly v Reid, 45 NY2d 24, 27; see also, Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [Cardozo, Ch. J.]). As a general rule, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (O'Brien v City of Syracuse, 54 NY2d 353, 357; Matter of Reilly v Reid, supra, at 30). Thus, where a plaintiff in a later action brings a claim for damages that could have been presented in a prior CPLR article 78 proceeding against the same party, based upon the same harm and arising out of the same or related facts, the claim is barred by res judicata (Pauk v Board of Trustees, 111 AD2d 17, 20-21, affd 68 NY2d 702)." (Parker v Blauvelt Fire Co., 93 NY2d 343, 347 (1999).

Based upon the law and uncontested facts, the claim for defamation based on the allegation the Plaintiff ignored a court order is dismissed.

What Plaintiff has delineated as subdivision (f) in the Oct. 9, 2005 statement asserts that on that date Plaintiff interrupted services at the Church. Defendant Kim asserts that Plaintiff admitted the truth of the statement at her pretrial deposition (p. 36-37) where she testified that on Oct. 9, 2005 she repeatedly entered and left the Church while Defendant Kim was in the sanctuary. Plaintiff does not address Defendant Kim's argument as to subdivision (f) and the claim of defamation as it relates to that allegation is dismissed.

Following the same system of delineation, subdivision (i) in the Oct. 9, 2005 statement [*5]asserts that Plaintiff acknowledged that the Church belongs to the Korean Presbyterian Church. Plaintiff acknowledged as much at her deposition (p. 42) and Justice Dorsa's decisions includes an implicit finding that the statement allegedly acknowledged is true. The claim of defamation as it relates to this allegation is dismissed.

Defendant contends that the following statements are not defamatory:(b) on June 27, 2004, the 32 Church members who voted to make plaintiff Senior Pastor were relatives of plaintiff, church employees and 10 students; (e) on September 1, 2005, plaintiff interfered with Reverend Young Kwan Oh's service at the Church; and (f) on September 18, 2005, plaintiff tried to block a staff meeting led by Rev. Oh. "Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance (Tracy v Newsday, Inc., 5 NY2d 134; Sprecher v Dow Jones & Co., 88 AD2d 550, affd 58 NY2d 862). The words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction (see, e.g., Carney v Memorial Hosp. & Nursing Home, 64 NY2d 770; James v Gannett Co., 40 NY2d 415, 419-420; November v Time Inc., 13 NY2d 175, 178; Tracy v Newsday, Inc., supra, p 136; Schermerhorn v Rosenberg, 73 AD2d 276)." Aronson v Wiersma, 65 NY2d 592, 593-594 (1985).

Applying this standard, the Court finds that the challenged statements do not constitute defamation per se and, no special damages having been alleged, the claims of defamation insofar as they are based on these statements are dismissed.

(2) The Statement of Oct. 2, 2005

The Defendant Kim moves to dismiss so much of the Plaintiff's defamation cause of action as is based upon a statement made on Oct. 2, 2005 that Plaintiff is a "liar; she tried to cover all the truth; how could she serve the Lord with lies; and she and her followers are satanic." He contends that the statement is in part true and in part a statement of opinion which is not actionable. Defendant's application is denied. (Brach v Congregation Yetev Lev D'Satmar, 265 AD2d 360 [2d Dept, 1999]).

(3) Statements Attributed to Defendant Suh

Defendant Suh also seeks dismissal of the Second Cause of Action alleging defamation with regard to statements allegedly made by her on Feb. 6, 2006 and in September of 2005 particularly on Sept. 28. Defendant Suh denies making the statements which merely raises an issue of fact for the jury. However, the Court finds that the statements attributed to Defendant Suh as having been made on Sept. 28, 2005 are not defamatory in that one is a statement of opinion and the other is a statement of future intent. Any claim for defamation based on the statements allegedly made in September of 2005 to the effect that Plaintiff is not qualified to be pastor, hypnotized the congregation and was "doing the dance of Satan" are similarly found to not rise to the level of defamation. As to the remaining alleged statements, summary judgment is denied.

[*6]

Qualified Privilege

Defendant Kim contends that the remaining parts of the Oct. 9, 2005 statement (that Plaintiff Lee was caught trying to sell the Church's property, that she tried to move the Church from the Korean Presbyterian Church in America to the Presbyterian Church of the United States; that she does not belong to any denomination, and that she intentionally delayed a mortgage payment) are subject to a qualified privilege. "Courts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether (see, Bingham v Gaynor, 203 NY 27, 31). 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 (see, 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 135-136; Park Knoll Assocs. v Schmidt, 59 NY2d 205, 208-209; Toker v Pollak, 44 NY2d 211, 218-220).

One such conditional, or qualified, privilege extends to a communication made by one person to another upon a subject in which both have an interest' (Stillman v Ford, 22 NY2d 48, 53)." (Liberman v Gelstein, 80 NY2d 429, 437 1992).

However, allegations that the statements were made with malice, if proven, would overcome any defense of qualified privilege. (Mihlovan v Grozavu, 72 NY2d 506, 509 (1998).

The Complaint alleges that the allegedly defamatory statements made by Defendant Kim were made with malice. Issues of fact requiring denial of this motion exist as to whether the statement made on Oct. 9, 2005 was subject to a qualified privilege because it was made to the congregation (Berger v Temple Nbeth-El of Great Neck, 303 AD2d 346, 347 [2d Dept, 2003]) and, if so, whether the qualified privilege can be overcome by proof that the statement was made with malice (ibid., see, Liberman v Gelstein, supra at 437-438).

Intentional Inflection of Emotional Distress

Defendant Kim moves to dismiss the Plaintiff's cause of action for the intentional infliction of emotional distress. This tort has the following elements: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and injury; and (4) severe emotional distress. As to the first element, the Court of Appeals has said: ". . . the "requirements of the rule are rigorous, and difficult to satisfy" (Prosser and Keeton, Torts § 12, at 60-61 [5th ed]; see also, Murphy v American Home Products, 58 NY2d 293, at 303 (1983) [describing the standard as "strict"]). Indeed, of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous (see, Freihofer v Hearst Corp., 65 NY2d, at 143-144; Burlew v American Mut. Ins. Co., 63 NY2d 412, 417-418; Murphy, 58 NY2d, at 303; Fischer v Maloney, 43 NY2d, at 557). " 'Liability has been found only where the conduct has been so outrageous in character, [*7]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' " (Murphy, 58 NY2d, at 303, quoting Restatement [Second] of Torts § 46, comment d)." (Howell v New York Post, 81 NY2d 115, 122 [1993]).

The Court finds that the statements allegedly made by Defendant Kim do not rise to the necessary level and the cause of action is dismissed. (Wadsworth v Beaudet, 267 AD2d 727 [3d Dept, 1999]).

For the same reasons the Fourth Cause of Action asserting a claim for intentional infliction of emotional distress against Defendant Suh is dismissed.

Trespass and Conversion

Defendant Kim's motion to dismiss Plaintiff's cause of action for trespass on the grounds that Plaintiff does not have and does not claim title to or a possessory interest in the property allegedly trespassed on or converted is granted without opposition. (Niagara Falls Redevelopment, LLC v Armand Cerrone, Inc., 28 AD3d 1138 [4th Dept, 2006]). The cause of action for conversion is also dismissed without opposition.

Tortious Interference With Contract

Defendant Kim moves to dismiss Plaintiff's cause of action for tortious interference with a contract. "A claim of tortious interference requires proof of (1) the existence of a valid contract between plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procuring of the breach, and (4) damages (Israel v Wood Dolson Co., 1 NY2d 116, 120)." (Foster v Churchill, 87 NY2d 744, 749 (1996)). Here Plaintiff, even under the version of the facts most favorable to her, was an employee at will. Moreover, there has been a determination, whose authoritativeness is unchallenged, made by the Korean Presbyterian Church in America that Plaintiff could not continue to serve in the capacity of pastor. This determination is not subject to challenge because Justice Dorsa's decision that the issue was one for the Korean Presbyterian Church in America to decide was never appealed. (Parker v Blauvelt Fire Co., 93 NY2d 343, 347 (1999)(quoted above)). The cause of action for tortious interference with contract is dismissed.

It is, SO ORDERED.

Dated:_________________________________

HON. GEOFFREY J. O'CONNELL, J.S.C.