Lipsky v Gonzalez
Annotate this CaseDecided on March 19, 2013
Supreme Court, Bronx County
Samara Lipsky, Plaintiff,
against
Jeffrey Gonzalez, Jonathan Feldman, Sonia Suchday, Roee Holtzer, Ferkauf Graduate School of Psychology, and Yeshiva University, Defendants.
20934/12E
Defendants' counsel: Dov Kesselman, Esq., Seyfarth Shaw LLP
Plaintiff's counsel: Amy L. Bellantoni, Esq., The Bellantoni Law Firm, LLP
Alexander W. Hunter Jr., J.
Defendants Jeffrey Gonzalez, Jonathan Feldman, Sonia Suchday, Roee Holtzer, Ferkauf Graduate School of Psychology, and Yeshiva University's motion for an order pursuant to C.P.L.R. 3211(a)(1) and (7), dismissing the complaint, is granted pursuant to C.P.L.R. 3211(a)(7).
Plaintiff seeks compensatory and punitive damages against defendants for defamation and defamation per se. Plaintiff alleges that the statements published by defendants were 1) materially and knowingly false; 2) made by defendants in bad faith, with actual malice and in reckless disregard of the truth; 3) published by defendants without privilege or authorization; 4) intended by defendants to impute to plaintiff unfitness to engage in the profession of Clinical Psychology; 5) intended by defendants to expose plaintiff to public contempt, ridicule, aversion, disgrace and/or induce an evil opinion of her in the minds of right thinking persons and to deprive her of her friendly interaction in society.
Plaintiff also commenced a special proceeding under C.P.L.R. Article 78 challenging her dismissal from the Clinical Psychology with Health Emphasis Ph.D. program (the "Program") at Ferkauf Graduate School of Psychology ("Ferkauf") at Yeshiva University and seeking her reinstatement as a student in the Program.
On June 29, 2011, plaintiff was dismissed from the Program. Plaintiff was dismissed after a committee of professors and the Dean of Ferkauf determined that plaintiff lacked the professionalism, responsibility, and character to be awarded a doctorate degree in psychology and they could not in good conscience bestow a Ph.D. degree on a student who they believed could not exercise the ethical responsibilities of a psychologist. [*2]
As a result of certain concerns regarding plaintiff's professionalism, ethics, and conduct as a student, defendants Sonia Suchday ("Dr. Suchday") and Roee Holtzer ("Dr. Holtzer") developed a remediation plan (the "Remediation Plan") for plaintiff. Pursuant to the Remediation Plan, plaintiff was required to write a paper addressing various questions and concerns discussed in a previous meeting between plaintiff, Dr. Suchday, and Dr. Holtzer (the "Remediation Paper").
On May 1, 2011, plaintiff submitted the Remediation Paper. Thereafter, Dr. Suchday appointed a committee consisting of defendants Jeffrey Gonzalez ("Dr. Gonzalez") and Jonathan Feldman ("Dr. Feldman") to evaluate the Remediation Paper. On May 18, 2011, Dr. Suchday forwarded the written recommendation of the committee (the "Remediation Paper Evaluation") to plaintiff. She also forwarded a document written by Dr. Holtzer (the "Holtzer document"). The committee determined that plaintiff failed to address the tasks outlined by Dr. Suchday and they allowed plaintiff to submit a revised remediation paper. On May 27, 2011, plaintiff submitted her revised remediation paper to Dr. Suchday. On June 29, 2011, plaintiff was dismissed from the Program. Plaintiff appealed her dismissal from the Program to Dean Siegel on July 28, 2011.
Subsequently, Dean Siegel formed an appeals committee consisting of Dr. Abraham Givner, Dr. Louise Silverstein, and Dr. Richard Zweig (the "Appeals Committee"). As part of the appeals process, the Appeals Committee and Dean Siegel were provided with copies of the Remediation Paper Evaluation and the Holtzer document. On November 21, 2011, Dean Siegel rejected plaintiff's appeal.
Plaintiff asserts that the statements contained in the Remediation Paper Evaluation and the Holtzer document were defamatory. Plaintiff cites the following to be defamatory statements in her complaint: 1) "pattern of lying to and misleading faculty members"; 2) "refusal to take responsibility for her actions"; 3) "Lipsky lied several times regarding the internship/readiness process"; 4) "concerned with Ms. Lipsky's pattern of lying and refusal to acknowledge her own ethical violations"; 5) "unethical and unprofessional behavior"); 6) "I find it especially concerning that Samara unequivocally lied and in writing in her remediation paper".
At the outset, defendants assert that plaintiff has failed to plead with particularity her defamation claim as required under C.P.L.R. 3016(a). Defendants aver that plaintiff has failed to allege any of the necessary elements of a cause of action for defamation. Moreover, even if the statements could be considered defamatory, the statements were privileged and they were never published to a third party. Plaintiff has also failed to allege any facts to suggest that alleged defamatory statements were made with malice or in bad faith. As such, defendants argue that plaintiff has failed to state a cause of action for defamation and defamation per se and the complaint should be dismissed.
The only individuals who were privy to the Remediation Paper Evaluation and the Holtzer document were Dean Siegel and the Appeals Committee who were charged with reviewing plaintiff's appeal. Defendants note that the complaint does not allege that that the Remediation Paper Evaluation or the Holtzer document was ever disseminated to any individuals [*3]who were not faculty members specifically charged with evaluating plaintiff's continued participation in the Program.
Defendants also argue that the alleged defamatory statements are protected by the common interest privilege. Defendants herein are all university professors who acted within the scope of evaluating plaintiff's conduct. The alleged defamatory statements are also protected by the quasi-judicial privilege since the statements were made and distributed only to the professors and Dean Siegel in the context of an administrative disciplinary proceeding. Dean Siegel and the Appeals Committee were empowered to act upon their findings and their final determination is currently under review by this court in a separate Article 78 proceeding. In addition, defendants further assert that all of the alleged defamatory statements were merely expressions of professors' opinion and as a result are not actionable.
Plaintiff argues that the complaint does sufficiently state a cause of action for defamation per se. Plaintiff asserts that by publishing statements referring to plaintiff as a liar and as being unethical, that directly injures plaintiff in her trade, business, and profession and caused her actual harm since she was dismissed from the Program and is unable to work in her field of choice as a Clinical Psychologist. Plaintiff maintains that defendants Dr. Gonzalez and Dr. Feldman published their false statements to defendants Dr. Suchday and Dr. Holtzer. They, in turn, published the false statements to Dean Siegel and the Appeals Committee.
Contrary to defendants' arguments, plaintiff avers that the defamatory statements are not protected by privilege since they were published with malice or with knowledge as to the falsity or reckless disregard as to their veracity. She maintains that when viewed in the light most favorable to plaintiff, defendants' statements were published with ill will as they contain expressions that are so offensive as to warrant an inference that they were made with malice.
As to defendants' contention that their statements are absolutely protected by a quasi-judicial privilege, plaintiff notes that no quasi-judicial proceeding took place. There was no independent investigation conducted and there was no hearing conducted. As such, the quasi-judicial privilege is inapplicable in the instant case. Assuming arguendo that this court does find that the quasi-judicial privilege is applicable, plaintiff avers that her showing of malice makes that privilege not applicable.
In reply, defendants note that plaintiff's opposition utterly fails to address the common interest privilege and fails to point to any third-party publication of the alleged defamatory statements. In addition, plaintiff's conclusory allegations as to defendants' malice is insufficient to render the common interest privilege inapplicable. Defendants also refer to plaintiff's sworn testimony in her Article 78 proceeding in which she admits to lying and engaging in unprofessional behavior.
On a motion to dismiss under C.P.L.R. 3211(a)(7), "a complaint should not be dismissed on a pleading motion so long as, when the plaintiff is given the benefit of every favorable inference, a cause of action exists." Rovello v. Orofino Realty, Co., 40 NY2d 633, 634 (1976); see also, Leon v. Martinez, 84 NY2d 83 (1994). "The test is whether the pleadings give [*4]adequate notice to the court and the adverse party of the transactions or occurrences intended to be proved." Stern v. Consumer Equities Assocs., 160 AD2d 993, 994 (2nd Dept. 1990). However, "[w]hen evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal will not eventuate." Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (1977). "If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to C.P.L.R. 3211(a)(7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action." Zurich Depository Corp. v. Iron Mountain Information Management, Inc., 61 AD3d 750, 751 (2nd Dept. 2009), quoting Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 46 AD3d 530, 530 (2nd Dept. 2007).
In order to plead a cause of action for defamation, plaintiff must allege: 1) a false statement; 2) publication without privilege or authorization to a third party; 3) constituting fault as judged by, at least a negligence standard; and 4) it must cause special harm or constitute defamation per se. Dillon v. City of New York, 261 AD2d 34 (1st Dept. 1999). Defamation per se applies in cases where the statements tend to injure another in their trade, profession, or business. Epifani v. Johnson, 65 AD3d 224 (2nd Dept. 2009).
It is well established that the public interest is served by shielding certain communications from litigation, though possibly defamatory. Lieberman v. Gelstein, 80 NY2d 429 (1992); Bingham v. Gaynor, 203 NY 27 (1911). These statements are deemed either absolutely or qualifiedly privileged. Toker v. Pollak, 44 NY2d 211 (1978). Absolute privilege is conferred only upon those individuals acting within an official capacity in a judicial, legislative, or executive function. 600 West 115th St. Corp. v. Von Gutfeld, 80 NY2d 130 (1992). "In contrast, communications protected by a qualified privilege do not provide the communicant with an immunity against the imposition of liability in a defamation action. A qualified privilege does, however, negate any presumption of implied malice flowing from a defamatory statement, and places the burden of proof on this issue upon the plaintiff." Tokar, 44 NY2d 211. A common interest privilege has been defined as good faith communications between a party having an interest in the subject matter, or a moral or societal obligation to speak, to another party having a corresponding interest. Herlihy v. Metropolitan Museum of Art, 214 AD2d 250 (1st Dept. 1995).
A qualified privilege is conditioned upon its proper exercise and it cannot shield "statements published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity." Loughry v. Lincoln First Bank, N.A., 67 NY2d 369 (1st Dept. 1986). Malice has been defined as "personal spite or ill will, or culpable recklessness or negligence and may be inferred from a defendant's use of expressions beyond those necessary for the purpose of the privileged communication or from a statement that is so extravagant in its denunciations or so vituperative in its character to warrant an inference of malice." Herlihy, 214 AD2d at 259 (internal citations omitted).
This court finds that plaintiff does not have a cause of action for defamation or [*5]defamation per se. Plaintiff failed to demonstrate that the statements contained in the Remediation Paper Evaluation and the Holtzer document were published to any third party not a member of the faculty specifically charged with evaluating plaintiff's academic conduct. The statements are further protected by the common interest privilege. The statements were made by and between faculty members in furtherance of a common interest, namely, evaluating plaintiff's fitness as a doctoral degree candidate and maintaining the overall integrity of Ferkauf. Plaintiff's conclusory allegation that defendants acted with actual malice is insufficient to overcome the common interest privilege.
Moreover, the alleged falsity of the statements contained in the Remediation Paper Evaluation and the Holtzer document are directly contradicted by plaintiff's own testimony taken on November 8, 2012 in the Article 78 proceeding. She admitted no less than ten times that she acted in an unprofessional manner and repeatedly made false statements to her professors.
Accordingly, defendants' motion to dismiss the complaint is granted and the complaint is dismissed in its entirety as against defendants.
Movants are directed to serve a copy of this order with notice of entry on plaintiff and file proof thereof with the clerk's office.
This constitutes the decision and order of this court.
Dated: March 19, 2013
ENTER:
________________________
J.S.C.
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