Kahlon v Lewis

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Kahlon v Lewis 2013 NY Slip Op 32308(U) September 24, 2013 Sup Ct, New York County Docket Number: 103028/2012 Judge: Doris Ling-Cohan 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] SCANNED ON 913012013 SUPREME COURT OF THE STAT OF NEW YORK K COUNTY PRESENT: I On. Doc;r CZ,-li).kn7 PART Justice Index Number : 103028/2012 KHALON, JOSEPH INDEX NO. VS MOTION DATE LEWIS, BRUCE MOTION SEQ. NO. Sequence Number : 002 SUMMARY JUDGMENT L FI SEP 59 2013 COUNTYCLERKS~~~ I [* 2] JOSSEF KAHLON, Index No. 103028/20 12 Plaintiff, - against - Motion Seq. # 002 BRUCE I,EWIS., DORIS LING-COHAN, J.: Upon the foregoing papers, as detailed below, it is ORDERED that plaintiffs motion for summary judgment is denied. Upon searching thc p go b e z @ d record, summary judgment of dismissal is granted i as a matter of law. See CPLR 3212(b). this case is dismissed, SEP 30 ZOl.3 NWYORK Plaintiff commenced this case against defendant, a residen o r B m r t i n g two causes of W action for: (1) defamation; and (2) harassment. According to the complaint, plaintiff alleges that defendant posted defamatory statements on the Facebook page of defendant s daughter (plaintiff s ex-wife), and that with the intention of harassing plaintiff, defendant filed a false report with Ncw York City s Administration for Children s Services ( ACS ). Plaintiff demands judgment in the amount of $250,000, on each of his causes of action, and has moved for summary judgment on both causes of action. Plaintiff also seeks attorneys fees, in its notice of motion, pursuant to New York Slate Banking Law. The standards for summary judgment are well settled. The movant must tender evidence, by [* 3] proof in admissible form, to establish the cause of action succinctly to warrant the court as a matter of law in directing judgment. CPLR 4 32 12 (b); Zuckerman v City oJ New York, 49 NY2d 557, 562 (1 980). Failure to make such [a] showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Winegrad v NYU Medicul Ctr., 64 NY2d 85 1, 853 (1 985). Moreover, defendant s failure to file a cross-motion for summary judgment, does not preclude the granting of summary judgment in defendant s favor, as it is within this Court s authority and discretion pursuant to CPLK 93212, to grant summary judgment to a non-moving party. See Friernnn v. Carey Press Corp., 117 AD2d 568,569 (I Dept 1986). CPLR $3212(b) provides that [ilf it shall appear that any party other than the moving party is entitled to summary judgrncnt, the court may grant such judgment without the necessity of a cross-motion . See also Lennard v. Khan, 69 AD3d 8 12 (2ndDept 201O)(court is empowered to search the record and award summary judgment to a nonmoving party); News-Americu Murketing, Inc. v. Lepuge Bakeries, 16 AD3d 146 (1 Dept 2005)( [b]y moving for accelerated judgment, a party submits the case for disposition on the record evidence ). Applying the above principles herein, plaintiffs motion for summary judgment is denied, and, upon searching the record, summary judgment of dismissal is granted in favor of defendant. That portion of plaintiff s motion for summary judgment which seeks attorneys fees, pursuant to New York State Banking Law, is denied as no specific Banking Law statue is referred to by plaintiff and the court is unaware of any Ranking Law provision, which would entitle plaintiff to an award of attorneys fees, under the within circumstances. Thus, plaintiff s claim for attorneys fees is denied and dismissed as a matter of law. 2 [* 4] Additionally, summary judgment of dismissal is warranted as to plaintiffs second cause of action for harassment, as a mattcr of law, as New York does not recognize a civil claim for harassment. .Jacobs v. 200 E. 36 Owners Corp., 28 1 AD2d 28 1 (1 Dept 200 1); Broadway Central Property v. 682 Tenunt Corp., 298 AD2d 253 (lstDept 2002). With respect to plaintiff s cause of action for defamation, despite defendant s default on this motion, this court is obligated to nevertheless determine whether thc words at issue are defamatory, such that plaintiff can sustain an action for defamation, as a matter of law. The Court of Appeals has explained that: Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance ... 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 stained or artificial construction Aronson v Wiersma, 65 NY2d 592, 593-593 (1985); see also Golub v Enquirer/Stur Group, Inc., 89 NY2d 1074,1076 (1 997). The elcinents of defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at minimum, a negligence standard, which causes either special harm or constitutes defamation per se. See Dillon v. City y f N e w York, 261 AD2d 34, 3 8 11 Dcpt 19991). To be actionable, a false statement of fact is required, rather than increly an obvious expression of opinion. See Parks v. Steinhrenner, 131 AD2d 60 (1 Dept 1987); Gross v. New York Times Co. 180 AD2d 308 (1 Dept 1992), afirmed 82 NY2d 146 (1 993). If , the statement is of pure opinion, wen if false and libelous, and no matter how pejorative or pernicious [it] may be, such statement ...[is] safeguarded and may not serve as a basis for an 3 [* 5] action in deihmations ... . Parks v. Steinbrenner, 131 AD2d at 62 (citations omitted). The dispositive inquiry. ..is whcthcr a reasonable [reader] could have concluded that [the alleged statements] were conveying facts about the plaintiff... . Gross v. New York Times Co., 82 NY2d 146, 152 (1993). In addition, CPLR $3016(a) requires that the particular words complained of be set forth in the complaint and the complaint must allege the time, place and manner of the false statement and to whom thc statement was made. Id. Here the within complaint is deficient, in that the particular words that plaintiff alleges were defamatory, are absent from the complaint. I hus, summary judgment of dismissal is warranted on that basis alone. See Khan v. Reade, 7 AD3d 3 1 1 (1 Dept 2004); Sussower. v. Finnerty, 96 AD2d 585, appeal dismissed 61 NY2d 756 (1984). Additionally, as detailed below, the alleged defamatory statement posted by defendant, which plaintilf has now included in his memorandum of law, in support of the within motion for summary judgment, is not defamatory, as a matter of law. Plaintiff asserts that the following statement was posted on defendant s daughter s Facebook, page on April 28, 2012: I need to let you know that I contacted NYC Child Protective Services last night. I let them know about your x monsters [sic] behavior. If the legal system won t stop it I will. If his family knew what he has done they would disown him! There is no excuse for any human being to behave this way. Maybe he will have the balls to confront me instead of innocent children and their mother . Memo ofI,aw, at 2. Upon review of such statement, it is noted that plaintiff is not specifically identified in the post, 4 [* 6] since his name is not included. Moreover, portions of the posted statement, are clearly matters of non-actionable expressions of opinion, by defendant, plaintiff s former father-in-law, of which a reasonable reader would not view as factual. See Brian v. Richardson, 87 NY2d 46, 5 1. I:urther, while plaintiff maintains that defendant filed a fraudulent and false report with ACS, the alleged Faccbook posting is truthful, in that, defendant did infact contact ACS, as evidenced by the August 6,2012 letter from ACS, indicating that an assessment was made and that the report has been determined unfounded ; it s noted that defendant, in his answer, admits that he contacted ACS and filed a report which he believed to be true and honest . Notice of Motion, Exhibits A and B, 115. See Dillon v. City o New York, 26 1 AD2d 34 (1 Dept 1999)( truth provides a f coinplcte defense to defamation claims ... [citations omitted]). It is also noted that the Facebook post fails to include any specific allegations of criminal behavior or conduct. In addition, while plaintiff notes this alleged defamatory statement in a memorandum of law, such is not a sworn statement, by someone with personal knowledge and is, therefore, insufficient. It is noted that while defendant, a resident of the state of Georgia, has defaulted on the within motion, in his answer, which he filed without the assistance of counsel, defendant maintains that he: accidently posted the message on his daughter[ ] [Flacebook wall. It was intended to be sent as a private message and not posted. As soon as the mistake was known[,] it was removed ...The posting was not intentional. Notice of Motion, Exh. By1[6. As stated above, defendant further maintains that he did not file a false report with ACS and that the report was honest and intended to be in [his] granddaughter s best interest . Id. 7 22. The court notes that while defendant has filed an answer, he also sent correspondence to the court indicating that he is not financially ablc to travel from 5 [* 7] Gcorgia to New York , nor financially ablc to retain counsel, to defend this action. As such, plaintiff failed to sustain its burden on his motion for summary judgment. Morever, upon searching the record, plaintiffs claims are deficient as a matter of law, and, thus, summary judgment of dismissal is granted in favor of defendant. Accordingly, it is ORDERED that the motion by plaintiff Josseff Kahlon for summary judgment is denied; and it is further ORDERED that, upon searching the record, as this court is permitted to do on this motion for summary judgment, in accordance with CPLR $32 12(b), summary judgment of dismissal is granted in favor of defendant; and it is further OKIIERED that the Clerk of the Court shall forthwith, enter judgment of dismissal in favor of defendant, without costs; it is further ORDERED that within 30 days of entry of this order, defendant shall serve a copy of this i , . . (, Jj order upon plaintiff, with notice of entry. FILED 1 ! SEP 3 0 2013 0 1 Dated: September)-, 20 13 1 NEW YORK COUNTY CLERKS ome w Hon. Doris Ling-Cohan,J.S.C. J :\S u iiiiiiary J ud yinen t\S EA RC I 1IN G TI-I E RECORD\kahlon. lew is.wpd

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