Zanfini v Chandler

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Giggles World Corp. v Smokers Mecca Corp 2016 NY Slip Op 32884(U) April 5, 2016 Supreme Court, Dutchess County Docket Number: 51666/2015 Judge: Christine A. Sproat Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: DUTCHESS COUNTY CLERK 04/06/2016 03:41 PM 1] NYSCEF DOC. NO. 29 INDEX NO. 2015-51666 RECEIVED NYSCEF: 04/05/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS ----------------------------------------------------------------------)( GIGGLES WORLD CORPORATION, Plaintit1: DECISION & ORDER - against - Index No. 51666/2015 SMOKERS MECCA CORP, GRANT MCCABE, ANDREW D' ALESSO and JESSICA LINQUIST, Defendants. .. ------------------------------------------------------------------------)( C. A. SPROAT, J.S.C. Defendants'Andrew D' Allessio (s/h/a Andrew D' Alesso) and Jessica Linquist move for an order, pursuant to CPLR 93211(a)(7), dismissing the first, second, third, sixth, seventh and eighth causes of action as against defendant Jessica Linquist and dismissing the third cause of action as against defendant Andrew D' Allessio for failure to state a cause of action as a matter oflaw and failure to allege defamation with particularity pursuant to CPLR 93016(a). « Defendants Smokers Mecca Corp. and Grant McCabe move for an order, pursuant to CPLR 3211 (a) (7), dismissing the complaint against them. The following papers were read: Notice of Motion - Affirmation of Kenneth M. Stenger, Esq. - 1-3 Annexed Exhibits Notice of Motion - Affirmation of Anthony M. DeFazio, Esq. - 4-6 Annexed Exhibits Louis M. Spizzirro, Esq.'s Affinnation in Opposition Affidavit of Timothy M. Serino -1- ;. 1 of 4 7-8 [* 2] Louis M. Spizzirro, Esq.'s Affinnation in Opposition - 9-10 Affidavit of Timothy M. Serino Reply Affinnation of Anthony M. DeFazio, Esq. 11 Upon the foregoing papers it is hereby ORDERED that the defendants Andrew D' Allessio and Jessica Linquist's motion is granted to the extent that the first, second, third, sixth, seventh and eighth causes of action against defendant Jessica Linquist are dismissed and the third cause of action against defendant Andrew D' Allessio is dismissed. Further, defendants Smokers Mecca Corp. and Grant McCabe's motion is granted to the extent that the third cause of action against defendant Smokers Mecca Corp. is dismissed and the third, fourth, and fifth causes of action against defendant Grant McCabe are dismissed. All other requested relief is tlenied. In the instant action for, inter alia, defamation plaintiff alleges in its first cause of action that defendant JessicaLinquist published defamatory statements about the plaintiff. Pursuant to CPLR 3016(a), "In an action for libel or slander, the particular words complained of shall be set forth in the complaint ... " While Exhibit C to the plaintiff's complaint reveals allegedly defamatory statements made or published by the other defendants, none of those statement are attributable to defendant Linquist. Accordingly, the first cause of action for defamation against defendant Linquist must be dismissed. Further, the second cause of action for an injunction enjoining defendant Linquist from making defamatory statements must be dismissed as against defendant Linquist. New York's CPLR declares that "[p]leadings shall be liberally construed. Defects shall be ignored if a substantial right of a party is not prejudiced." (McKilmey's CPLR S3026.) New York's case law makes clear that "[u]nder modern pleading theory, a complaint should n~t be dismissed on a pleading motion so long as, when the [pleading party] is given the benefit of every possible favorable inference, a cause of action exists." !' -2- 2 of 4 [* 3] t (Rovello v. Orofino Realty Co., 40 N.Y.2d 633,634,357 N.E.2d 970, 971 [1976]) It is, however, also th.e l~ulein New York that while cOUlisshall afford that liberal construction, such pleadings must set forth "a cognizable legal theory." (See, 83-17 Broadway Corp. v. Debcon Fin. Servs.! Inc., 39 AD3d 583, 585, 835 N.Y.S.2d 602, 604 [2nd Dept., 2007].) It is understood that "[u]nder the Civil Practice Law and Rules, the sufficiency of a pleading to state a cause of action or defense will generally depend upon wilether or not there was substantial compliance with CPLR 93013 providing that '[s]tatements in a pleading shall be sufficiently patiicular to give the court and patiies notice of the transactions, occunences, or series of transactions or occunences iritended to be proved and the material elements of each cause of action or defense.'" (Foley v. D'Agostino, 21 AD2d 60,62,248 N.Y.S.2d 121, 124 [1st Dept., 1964] quoting CPLR 93013.) The failure by the plaintiff to adequately allege a specific act or omission on the part of the defendant in the third through eighth causes of action faps both the material element and notice requirements of CPLR 93013. Each of these alleged causes of action contains only simple conclusory statements lacking . in any of the factual detail sufficient to sustain a cause of action in New York. Accordingly, the defendants' motions for dismissal of the third through eighth causes of action must be granted. This matteris adjourned to September 26, 2016 at 9:30 a.m. for a pre-trial conference. So Ordered. Dated: April ~~016 Poughkeepsie, New York -3- 3 of 4 [* 4] , To:. Louis M. Spizzirro, Esq. Attorney for Plaintiff 165 Bronx River Road Yonkers, NY 10704 Kenneth M. Stenger, Esq. Stenger, Roberts, Davis & Diamond, LLP Attorney for Defendants Linquist and D 'Allessio 1136 Route 9 Wappingers .. Falls, NY 12590 Smokers Mecca Corp. 285 Main Street Beacon, NY 12508 Grant McCabe 38 Rosalia Lane, Apt. B Fishkill, NY 12524 -4- 4 of 4

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