Dollmann v Crawford

[*1] Dollmann v Crawford 2014 NY Slip Op 51014(U) Decided on June 30, 2014 Supreme Court, Suffolk County Tarantino, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 30, 2014
Supreme Court, Suffolk County

Daniel D. Dollmann, Plaintiff(s),

against

William Crawford a/k/a WILLIAM E. CRAWFORD, CARL SICILIANO, PHILIP JACOBS, and JAMES MAYBECK, Defendant(s).



02232/2014



Daniel Dollman

Plaintiff, Pro se

335 Windsor Ave

Brightwaters NY 11718

Kaufman Borgeest & Ryan LLP

Attorneys for Defendants

120 Broadway 14th floor

New York NY 10271

212-980-9600
Andrew G. Tarantino Jr., J.

Upon consideration of the Notice of Motion for an order dismissing the complaint by the defendants, William Crawford a/k/a William W. Crawford ["Crawford"], Carl Siciliano, Philip Jacobs, and James Maybeck [collectively "the defendants"], dated February 25, 2014, the supporting affirmation, the affidavit of William Crawford and exhibits A and B, the affidavit of the plaintiff Daniel D. Dollmann, Plaintiff, Pro Se, ["the plaintiff"], entitled "Plaintiff's Reply to Attorney Affirmation in Support of Motion to Dismiss", and supporting exhibits 1 through 4, the defendants' reply affirmation, the Reply Affidavit of Dirk Smith, and the plaintiff's "Answer to Reply Affirmation in Further Support of Motion to Dismiss", it is now

ORDERED that the defendants' motion to dismiss the complaint is granted in part and denied in part in accordance herewith; and it is further

ORDERED that all self represented litigants and attorneys of record are directed to appear for a Preliminary Conference before this Court on AUGUST 11, 2014 at 9:30AM.

Unless otherwise indicated, the facts are taken from the complaint filed on January 31, 2014, which are presumed to be true for purposes of the motion to dismiss (Tanenbaum v. Molinoff, 2014 NY Slip Op 04186, —- N.Y.S.2d —&mdash, 2014 WL 2597924 [2d Dept. 2014]).

On or before August 19, 2013, the defendants collaborated or conspired to write a letter to the plaintiff signed by defendant William Crawford ["the Crawford letter"], which was "copied" to Boy Scouts of America Suffolk County Council representatives Joel Salinger and Michal Dluginski, and defendants Philip Jacobs and Joel Salinger, respectively. The letter recited as follows:

"Due to behavior reported to us that is inconsistent with the Scout Oath and Law and our own church's values we are informing you that your adult leader registration with the Boy Scouts of America is being revoked by St. Peter's by-the-Sea Episcopal Church and Boy Scout Troop 43. Kindly refrain from any participation in troop activities going forward. Thank you for your service to our church and its Scout troop."

The complaint further alleges that the defendant and Trustee of St. Peter's Church, Carl Siciliano, sent an email to the plaintiff on or about September 18, 2013, advising that as per the advice of Suffolk County Council, BSA [Boys Scouts of America], Siciliano was requesting that the Scoutmaster Conference and Board of Review for elevation of the plaintiff's son to the designation of Life Scout be handled by Suffolk County Council, BSA. The BSA's recommendation was apparently based on at least one report by Siciliano to BSA members that the plaintiff had threatened legal action based on the Crawford letter.

The next day, on September 19, 2013, the plaintiff commenced an action for defamation and injunctive relief in Suffolk County Fourth District Court against the same named defendants here. Plaintiff's wife, Joan Mason, personally served the district court complaint on Crawford on September 22, 2013. At that time Crawford is alleged to have stated to Ms. Mason, "You don't have to do this your husband did very bad things."

At a meeting on September 23, 2013, among the plaintiff, Crawford, the plaintiff's spouse, and Bishop Itty of the Episcopal Diocese, an agreement was reached that the dispute would be worked out "between the church family". At the meeting, the plaintiff was still not advised about the nature of the allegations against him or who made them.

The defendants moved to dismiss the complaint in the district court action, arguing that the Court there lacked subject matter jurisdiction. On January 27, 2014, the district court (Barbera-Dalli, J.), issued an [*2]order dismissing the complaint for failure to state a cognizable cause of action for libel or slander and for lack of subject matter jurisdiction insofar as the plaintiff sought equitable relief. Notably, the district court complaint contained no allegations concerning the incident where Crawford is alleged to have made the statement to the plaintiff's wife, "You don't have to do this your husband did very bad things." Four days after the district court case was dismissed, the plaintiff commenced this action in Supreme Court for similar, but not identical relief.

Here, the plaintiff seeks the following relief based on the facts alleged in the complaint:

"Wherefore as shown by the Defendants[] failure to seek truth or state truth or to allow the Plaintiff access to his human and civil rights, malice on the Defendants[] part is clearly present; and

Wherefore the Plaintiff respectfully requests that this Court intervene on the Plaintiffs behalf to have his rights as a human, a citizen of the United States of America and as a resident of the Great State of New York be restored and that damages of Four Hundred Thousand Dollars ($400,000) and other costs and punitive damages be awarded to the Plaintiff as the Court sees fit."

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v. Martinez, 84 NY2d 83, 87—88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Rabos v. R & R Bagels & Bakery, Inc., 100 AD3d 849, 851, 955 N.Y.S.2d 109). Nevertheless, "bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true" ( Parola, Gross & Marino, P.C. v. Susskind, 43 AD3d 1020, 1021—1022, 843 N.Y.S.2d 104; see Daub v. Future Tech Enter., Inc., 65 AD3d 1004, 1005, 885 N.Y.S.2d 115). Moreover, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate ( see Guggenheimer v. Ginzburg, 43 NY2d 268, 274, 401 N.Y.S.2d 182, 372 N.E.2d 17; Rabos v. R & R Bagels & Bakery, Inc., 100 AD3d at 851—852, 955 N.Y.S.2d 109).

Insofar as the papers submitted on the motion, including the affidavits, lay out facts that are not disputed, plaintiff's allegations state two distinct claims against the defendants collectively, and Crawford individually, for defamation. To properly state a cause of action alleging defamation, a plaintiff must allege that, without privilege or authorization, and with fault as judged, at minimum, by a negligence standard, the defendant published to a third party a false statement (see Liberman v. Gelstein, 80 NY2d 429, 435, 590 N.Y.S.2d 857, 605 N.E.2d 344; Baker v. Inamdar, 99 AD3d 742, 744, 952 N.Y.S.2d 208; Salvatore v. Kumar, 45 AD3d 560, 563, 845 N.Y.S.2d 384). Additionally, unless the defamatory statement fits within one of the four "per se" exceptions ( see Liberman v. Gelstein, 80 NY2d at 435, 590 N.Y.S.2d 857, 605 N.E.2d 344), a plaintiff must allege that he or she suffered "special damages"—"the loss of something having economic or pecuniary value" ( id. at 434—435, 590 N.Y.S.2d 857, 605 N.E.2d 344; see Epifani v. Johnson, 65 AD3d 224, 233, 882 N.Y.S.2d 234).

Where an allegedly false statement is defamatory per se, the law presumes that damages will result, so the plaintiff need not allege or prove them ( see Liberman v. Gelstein, 80 NY2d at 435, 590 N.Y.S.2d 857, 605 N.E.2d 344; El Jamal v. Weil, 116 AD3d 732, —- N.Y.S.2d —&mdash, 2014 WL 1377711 [2d Dept. 2014]). "A defamatory statement is libelous per se if the statement tends to expose the plaintiff to public contempt, [*3]ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society' " ( Matovcik v. Times Beacon Record Newspapers, 46 AD3d 636, 637, 849 N.Y.S.2d 75, quoting Rinaldi v. Holt, Rinehart & Winston, 42 NY2d 369, 379, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied 434 U.S. 969, 98 S. Ct. 514, 54 L. Ed. 2d 456 [internal quotation marks omitted] ).

The defendants assert several arguments which they claim warrant dismissal of the complaint. First they argue that the dismissal of the district court action bars this action based on principles of collateral estoppel and/or res judicata. "The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling" ( Capellupo v. Nassau Health Care Corp., 97 AD3d 619, 621, 948 N.Y.S.2d 362; see Tydings v. Greenfield, Stein & Senior, LLP, 11 NY3d 195, 199, 868 N.Y.S.2d 563, 897 N.E.2d 1044). "The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action" ( City of New York v. College Point Sports Assn., Inc., 61 AD3d 33, 42, 876 N.Y.S.2d 409; see Buechel v. Bain, 97 NY2d 295, 304, 740 N.Y.S.2d 252, 766 N.E.2d 914).

The defendants have failed to carry their burden of demonstrating that the dismissal of the complaint for insufficiency in the district court action requires dismissal of the complaint in the Supreme Court action. A comparison of the two complaints readily demonstrates that the allegations in the two complaints are different. The sine qua non of collateral estoppel is an identity of issues (Zannelli v. Walker, 27 AD3d 460, 811 N.Y.S.2d 420 [2d Dept. 2006]).

Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party ( see Gramatan Home Invs. Corp. v. Lopez, 46 NY2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328; see also Winkler v. Weiss, 294 AD2d 428, 742 N.Y.S.2d 124). Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply ( see Maitland v. Trojan Elec. & Mach. Co., 65 NY2d 614, 491 N.Y.S.2d 147, 480 N.E.2d 736; Sclafani v. Story Book Homes, 294 AD2d 559, 559—560, 743 N.Y.S.2d 283).The dismissal of a complaint for failure to state a cause of action and lack of subject matter jurisdiction is not a final adjudication on the merits ( Hendrickson v. Philbor Motors, Inc., 102 AD3d 251, 955 N.Y.S.2d 384 [2d Dept. 2012]; see also Djoganopoulos v. Polkes, 67 AD3d 726, 889 N.Y.S.2d 213 [2d Dept. 2009]).

Next, the defendants assert that the publication of the Crawford letter is not defamation but non-actionable opinion (see Shulman v Hunderfund, 12 NY3d 143, 878 N.Y.S.2d 230, 905 N.E.2d 1159[ 2009], citing Steinhilber v. Alphonse, 68 NY2d 283, 289, 508 N.Y.S.2d 901, 501 N.E.2d 550]). Alternatively, the defendants argue that in any event, the Crawford letter is privileged. The Court focuses in on the sentence in the Crawford letter, "[d]ue to behavior reported to us that is inconsistent with the Scout Oath and Law and our own church's values we are informing you that your adult leader registration with the Boy Scouts of America is being revoked by St. Peter's by-the-Sea Episcopal Church and Boy Scout Troop 43."

Defamation by its very nature requires the publication of a defamatory statement of fact known by the speaker to be false (Brian v Richardson, 87 NY2d 46, 50-51, 660 N.E.2d 1126, 637 N.Y.S.2d 347 [1995]). The factors to be considered are: "(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to "signal * * * readers or listeners that what is being read or heard is likely to be opinion, not fact" ' " ( Id. at 51, citing Gross v. New York Times Co., 82 NY2d 146, 603 [*4]N.Y.S.2d 813, 623 N.E.2d 1163 153, quoting Steinhilber v. Alphonse, 68 NY2d 283, 292, 508 N.Y.S.2d 901, 501 N.E.2d 550; accord, Immuno AG. v. Moor—Jankowski, 77 NY2d 235, 567 N.E.2d 1270, 566 N.Y.S.2d 906; Melius v. Glacken, 94 AD3d 959, 943 N.Y.S.2d 134 [2d Dept. 2012]).

When, however, the statement of opinion implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, it is a "mixed opinion" and is actionable (Steinhilber v. Alphonse, 68 NY2d 283, N.Y.S.2d , 501 N.E.2d 550 [1986], citing

Hotchner v. Castillo-Puche, 551 F.2d 910, 913 [2d Cir.], cert. denied sub nom. Hotchner v. Doubleday & Co., 434 U.S. 834, 98 S. Ct. 120, 54 L. Ed. 2d 95; see also Gjonlekaj v. Sot, 308 AD2d 471, 764 N.Y.S.2d 278 [2d Dept. 2003]). The actionable element of a "mixed opinion" is not the false opinion itself—it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking (Steinhilber v. Alphonse, supra at 289-90).

In the Court's view, the implication of the statement "[d]ue to behavior reported to us that is inconsistent with the Scout Oath and Law and our own church's values we are informing you that your adult leader registration with the Boy Scouts of America is being revoked by St. Peter's by-the-Sea Episcopal Church and Boy Scout Troop 43" is that the defendant is asserting as a fact that the plaintiff engaged in behavior that would subject him to scorn and ridicule in the community warranting expulsion from his leadership position in Troop 43. Therefore, in order to warrant dismissal of the complaint, the defendant must establish that the statement is protected by a qualified privilege.

"A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty (Colantonio v. Mercy Medical Center, 115 AD3d 902, 982 N.Y.S.2d 563 [2d Dept. 2014], citing Byam v. Collins, 111 NY 143, 150, 19 N.E. 75). To the extent that the common-interest privilege may apply to the communications at issue ( see Stukuls v. State, 42 NY2d 272, 278—279, 397 N.Y.S.2d 740, 366 N.E.2d 829), the privilege can be overcome by a showing of malice (see Sokol v. Leader, 74 AD3d 1180, 1182, 904 N.Y.S.2d 153).

At this juncture, the allegations of malice that were set forth in the subject complaint, the plaintiff's affidavit opposing the instant motion, and the plaintiff's Verified Complaint in the district court action preclude dismissal of the complaint against the defendants for failure to state a cause of action based upon privilege ( see CPLR 3211[a][7] ). Notably, a plaintiff has "no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211(a)(7)" (Sokol v. Leader, 74 AD3d at 1182, 904 N.Y.S.2d 153 [internal quotation marks omitted]; see Demas v. Levitsky, 291 AD2d 653, 661—662, 738 N.Y.S.2d 402).

In their motion to dismiss, the defendants have not addressed the allegedly defamatory statement made to the plaintiff's wife by Crawford when Crawford was served with process by Ms. Mason, "[y]ou don't have to do this your husband did very bad things". The Court finds that in light of the foregoing discussion, the statement, if made, is defamatory as it purports to be a statement of fact as distinguished from opinion which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society' " ( Matovcik v. Times Beacon Record Newspapers, 46 AD3d 636, 637, 849 N.Y.S.2d 75, quoting Rinaldi v. Holt, Rinehart & Winston, 42 NY2d 369, 379, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied 434 U.S. 969, 98 S. Ct. 514, 54 L. Ed. 2d 456 [internal quotation marks omitted] ).

Even had the defendant addressed the claim against Crawford in relation to the making of this second statement, the Court concludes that the plaintiff has stated a cause of action ( Sokol v. Leader, supra).

Regarding the plaintiff's allegations concerning the violation of his civil rights, 42 U.S.C. §1983 [*5]provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured" (42 U.S.C. § 1983; see Eckardt v. City of White Plains, 87 AD3d 1049, 1051—1052, 930 N.Y.S.2d 22; Hudson Val. Mar., Inc. v. Town of Cortlandt, 79 AD3d 700, 703, 912 N.Y.S.2d 623). Under 42 U.S.C. § 1983, a party may pursue a civil claim for damages and injunctive relief against any person who acts under color of state law to deprive that party of a constitutional right ( see Wilner v. Village of Roslyn, 99 AD3d 702, 952 N.Y.S.2d 71; Holland v. City of Poughkeepsie, 90 AD3d 841, 846, 935 N.Y.S.2d 583). A pre-requisite of a

§1983 claim is that the challenged action be undertaken by a state actor (Mays v. City of Middletown, 70 AD3d 900, 895 N.Y.S.2d 179 [2d Dept. 2010]). As there is no allegation that any of the defendants' actions were undertaken under color of state law, any potential claims premised on 42 U.S.C. §1983 are dismissed for failure to state a cause of action. Id. at 903.

Dated:______June 30, 2014____________________________________________________________

ANDREW G. TARANTINO, JR., A.J.S.C.