G.L. v Markowitz

[*1] G.L. v Markowitz 2010 NY Slip Op 50968(U) [27 Misc 3d 1229(A)] Decided on June 3, 2010 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 4, 2010; it will not be published in the printed Official Reports.

Decided on June 3, 2010
Supreme Court, Kings County

G.L. an infant by R. L., her grandmother having legal custody, Plaintiff,

against

Shirley Markowitz, Defendant



9913/09



Attorneys for Plaintiff

Neal M. Sher, Esq.

132 East 43rd Street

Suite 304

New York, NY 10017

(646) 201-8841

Attorneys for Defendant

Eleanor R. Goldman, Esq.

Goldman & Grossman, Esqs.

401 First Avenue, Suite 13A

New York, NY 10010

(212) 791-1275

Francois A. Rivera, J.

By notice of motion filed on February 9, 2010, under motion sequence number three, defendant Shirley Markowitz moves for an order dismissing the amended complaint pursuant to one or more of the following grounds: (1) CPLR § 3211 (a) (7) for failure to state a cause of action; ( 2) CPLR § 3211 (a) (5) on the ground of res judicata; and (3) the failure on the part of the plaintiff to comply with a prior order of this court regarding the bringing of this action. Defendant also moves for a an order dismissing the cause of action for intentional or negligent infliction of emotional distress on the basis that it is duplicative of the slander per se cause of action.

The court is cognizant of the sensitive nature of the allegations contained within the complaint. Therefore, in an effort to mask the identity of the infant plaintiff and her guardian through whom she brought the instant action, the court uses G.L. and R.L. as placeholders for their real names throughout this decision as well as in the caption.

BACKGROUND[*2]

On April 23rd, 2009, plaintiff commenced this action by filing a summons and verified complaint with the Kings County Clerk's office. Defendant joined issue with its verified answer dated June 18, 2009.

By notice of motion filed on July 9, 2009, under motion sequence number one, defendant moved to dismiss the complaint on the ground that the complaint did not comply with CPLR 3016 (a) by failing to specify: (1) the particular words of the alleged slander; (2) the particular person(s) to whom the allegedly slanderous statement was made; and (3) when, where, and how the allegedly slanderous statement was made.

By order of this court issued November 6, 2009, defendant's motion to dismiss the complaint for failing to comply with CPLR § 3016 was granted, and plaintiff was granted leave to file an amended complaint within 20 days after service of the order with notice of entry. The November 6, 2009 order was entered on November 16, 2009 and served on plaintiff's counsel with notice of entry on December 11, 2009.

On December 8, 2009, plaintiff filed an amended summons and verified complaint and subsequently caused them to be served on defendant. The amended verified complaint contains 20 allegations of fact in support of two causes of action. The first cause of action is for slander per se. The second cause of action is for "intentional and/or negligent infliction of emotional distress".

Defendant moves by the instant motion to dismiss the amended complaint before being required to answer it.[FN1]

MOTION PAPERS

Defendant's instant motion to dismiss consists of an attorney's affirmation and five exhibits. Exhibit A contains the amended summons and complaint. Exhibit B is a copy of the front of the envelope, addressed to defendant, which contained the amended summons and complaint. Exhibit C consists of the original summons and the original complaint. Exhibit D is the court's order of dismissal, together with notice of entry. Exhibit E is the aforementioned affirmation of R. L.

Plaintiff 's opposition papers consists of an attorney's affirmation and one exhibit labeled Exhibit A which is a copy of defendant's original motion to dismiss.

Defendant submitted an attorney's affirmation in reply.

LAW AND APPLICATION

Pursuant to CPLR 3211 (a) (7), "[a] party may move for judgment dismissing one [*3]or more causes of action asserted against [her] on the ground that . . . the pleading fails to state a cause of action . . ." On a motion to dismiss pursuant to CPLR 3211 (a) (7), "the pleading is to be afforded a liberal construction. The reviewing court accepts the facts as alleged in the complaint as true, accords the plaintiffs the benefit of every possible favorable inference, and determines only whether the facts as alleged fit within any cognizable legal theory" (Epifani v Johnson, 65 AD3d 224, 229 [2nd Dept., 2009]).

The elements of a cause of action to recover damages for defamation are a false statement of and concerning plaintiff published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se (see Salvatore v Kumar, 45 AD3d 560, 563 [2nd Dept., 2007], lv denied 10 NY3d 703 [2008]). Imputing unchastity to a woman constitutes slander per se (see Liberman v Gelstein, 80 NY2d 429, 434 [1992]; see also Civil Rights Law § 77 ["In an action of slander of a woman imputing unchastity to her, it is not necessary to allege or prove special damages."]).

"Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance" (Golub v Enquirer/Star Group, 89 NY2d 1074 [1997]; see also Kamalian v. Reader's Digest Ass'n, Inc., 29 AD3d 527 [2nd Dept., 2006]). "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" (Aronson v. Wiersma, 65 NY2d 592 at 594 [1985]). "In determining the meaning of a communication, account is to be taken of all the circumstances under which it is made so far as they were known to the recipient" (Restatement [Second] of Torts, § 563, comment e).

The amended complaint alleges that G. L. was born in December of 1991 and raised in a strictly orthodox Jewish community. In March 2005, G. L. was 13 years old, living with her parents and six siblings in Monroe, New York, and attending Beth Rachel School. The amended complaint also alleges the following facts.

"In or about March 2005, representing herself to be a representative of or in some way working with Kiryas Joel Union Free School District . . . and/or the Beth Rachel School, defendant Markowitz placed a telephone call to G. L.'s grandmother, plaintiff R. L. At that time R. L. was not G. L.'s legal guardian. During this phone call Markowitz recklessly, maliciously and with flagrant disregard for the truth, disseminated to R. L. the false, slanderous and defamatory allegation about the infant G. L., to wit: that G. L. had sexual intercourse with her father." (Amended Complaint, ¶ 10).

The court, viewing the statement at issue in a light most favorable to plaintiff, finds that it was not defamatory as to young G. L.; rather, if it was defamatory to any person it was solely defamatory to her father — the alleged perpetrator of the sexual abuse.

For the court to find otherwise would chill the reporting of suspected sexual abuse [*4]of children to their family members and thus would be anathema to the sound public policy of encouraging such reporting.

"The sexual abuse of children, once an undiscussed subject, has — with justification — become something of a national obsession. The concern is heightened when a family member is the suspected abuser" (Caryl S. v Child & Adolescent Treatment Services, Inc., 161 Misc 2d 563, 560 [Sup Ct, Erie County 1994]). Family Court Act § 1012 (e) (iii) defines an "abused child" as a child less than 18 years of age whose parent had a sexual intercourse,[FN2] or committed an incest,[FN3] with such child. While in proceedings brought under Family Court Act § 1012 (e) (iii), it is unnecessary to allege or prove harm or threatened harm to the child, it has been found that "a developmentally inappropriate introduction to sex" is psychologically traumatic to a child (see In re Proceeding Under Article 10 of Family Court Act, 27 Misc 3d 1210 [A] [NY Fam. Ct., Kings County 2010]).

In this case, the statement as alleged has no doubtful or uncertain import. It was such as to convey to the understanding of R. L. the alleged commission of the crimes of rape and incest by her son and G. L.'s father. The natural understanding of this statement — when its style, scope, spirit, and motive are considered (see James v Gannett Co., Inc., 40 NY2d 415, 420 [1976]) — is that it in no way injured G. L.'s reputation in the minds of "any just and right-thinking person" (Kimmerle v New York Evening Journal, 262 NY 99, 103 [1933]). The statement was conveyed by defendant, a community volunteer for G. L.'s school, to her paternal grandmother, R. L., in a private telephone conversation (Amended Complaint, ¶¶10-11). G. L.'s school, which obviously desired to stop the suspected sexual abuse, turned to her family for help. According to R. L.'s affirmation (annexed as Exhibit E to the instant motion), in June 2005 or three months after the statement at issue was made, the father allegedly confessed that he had a sexual intercourse with G. L.(¶ 5 [d]), but he subsequently retracted this confession. Although a New York State Family Court ultimately found the sexual abuse charges against the father with respect to G. L. to be unfounded, the same court awarded legal custody over G. L. to R. L. by order, dated June 12, 2006 (Amended Complaint, ¶¶ 2, 15), and G. L. moved from Monroe to Brooklyn to live with her. The effect of the statement at issue, as well as the extrinsic facts which color its meaning, leave one with hatred, ridicule, or contempt for the father, but with regret or sympathy for G. L. as an alleged victim of sexual abuse (see Sarwer v Conde Nast Publications, Inc., 237 AD2d 191 [1st Dept 1997], lv dismissed in part, denied in part 91 NY2d 865 [1997]).[FN4]

The court concludes that the statement at issue is not reasonably susceptible of a defamatory connotation as to G. L. (see Cruz v Latin News Impacto Newspaper, 216 AD2d 50, [*5]52 [1st Dept 1995] [a statement attributed to the plaintiff that her husband infected her with HIV as the result of patronizing prostitutes could be defamatory as to him, not her]). Accordingly, plaintiff's first cause of action for slander per se is dismissed, pursuant to CPLR 3211 (a) (7), for failure to state a cause of action.

Plaintiff's second cause of action for "intentional and/or negligent infliction of emotional distress" is also dismissed.

In order to make out a claim negligent or intentional infliction of emotional distress, a plaintiff must allege 1) that a defendant's conduct was extreme and outrageous, 2) that a defendant intended to cause or disregarded a substantial probability of causing severe emotional stress, 3) a causal connection between the conduct and the injury, and 4) resultant severe emotional distress (see Howell v New York Post Co., Inc., 81 NY2d 115, 121 [1993]).

Viewed in a light most favorable to plaintiff, the alleged conduct and statement made by defendant is absolutely not extreme and outrageous. As a matter of fact, defendant's conduct and statement may fairly be characterized as quite reasonable, even decent. Plaintiff alleges that defendant warned young G.L.'s grandmother that defendant suspected G.L. might be the victim of sexual abuse. The court finds this behavior on the part of defendant to be commendable at the very worst. Only in an imaginary opposite land could such behavior be characterized as extreme and outrageous for the purposes of the law of infliction of emotional distress as a tort.

In light of the dismissal of the entire amended complaint, defendant's procedural arguments — res judicata; that plaintiff failed to comply with the order of dismissal; and that R. L. lacks standing to maintain this action — are moot.

The foregoing constitutes the decision and order of the court.

Enter x

J.S.C.

Enter forthwith x

J.S.C. Footnotes

Footnote 1: An amended complaint, once served, supersedes the initial complaint and becomes the only complaint in the case as though the initial complaint was never served (see Elegante Leasing, Ltd. v. Cross Trans Svc., Inc., 11 AD3d 650 [2nd Dept., 2004], see also, Titus v. Titus, 275 AD2d 409, 410 [2nd Dept., 2000]). Therefore, as of the service of the amended complaint, issue has not been joined and the defendant's instant motion is a pre-answer motion to dismiss.

Footnote 2: Under Penal Law § 130.30 (1), a sexual intercourse by a person aged 18 or over with another person who is less than 15 years of age is a crime of rape in the second degree.

Footnote 3: Pursuant to Penal Law § 255.26, "[a] person is guilty of incest in the second degree when he . . . commits the crime of rape in the second degree, as defined in section 130.30 of this part, . . . against a person whom he . . . knows to be related to him . . . as . . . [a] descendant . . ."

Footnote 4: While a statement whose "only effect is to make a person an object of pity" may be slanderous (Katapodis v Brooklyn Spectator, 287 NY 17, 20-21 [1941]), this is not such a case.