Sladkus v Englese

[*1] Sladkus v Englese 2018 NY Slip Op 50625(U) Decided on April 25, 2018 Supreme Court, New York County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2018
Supreme Court, New York County

Steven D. Sladkus, Plaintiff,

against

Melanie Englese a/k/a Melanie Sisskind, Defendant.



151712/2016



For Plaintiff: Ethan Allen Kobre, Schwartz Sladkus Reich Greenberg Atlas LLP, 270 Madison Avenue, New York, NY 10016

For Defendant: Mark A. Weissman, Herzfeld & Rubin PC, 125 Broad Street, New York, NY 10004
Carmen Victoria St. George, J.

Steven D. Sladkus, an attorney, brings this defamation action against Melanie Englese a/k/a Melanie Sisskind, his former client. Ms. Englese and her husband initiated a legal malpractice action against Mr. Sladkus and his former law firm by summons and notice on June 4, 2015 and followed with a complaint on September 27, 2015. Their complaint asserts that Mr. Sladkus and his former firm committed malpractice when they 1) allowed the statute of limitations to expire as to two allegedly appropriate defendants, and 2) due to this and other alleged malpractice, forced Ms. Englese and her husband to accept a poor settlement. The settlement Mr. Sladkus negotiated for Englese and her husband was finalized on June 5, 2012. The legal malpractice action, Englese v Sladkus (Sup. Ct., NY County, St. George, J., index No. 101006/2015 [Englese]), is also before this Court and is the subject of a pre-answer motion to dismiss, which this Court addresses in a separate decision. Additional details about the Englese case are contained in the Court's interim order on the pre-answer motion.

In the instant case, Mr. Sladkus asserts that around August 22, 2015 — more than two months after the summons with notice was filed in Englese but a little more than a month before the Englese complaint was filed — Ms. Englese defamed him to William Suk, one of his key business relations, stating that Mr. Sladkus "(i) is a lawyer who 'gives poor advice'; (ii) is 'a shitty lawyer'; (iii) caused them to lose 'a ton of money in their settlement with the sponsor; (iv) 'took advantage of [her and her husband] because [her own husband] was not effectual in the negotiations and because [she] was in [her] final term of pregnancy'; and (v) 'theatened [her and [*2]her husband] into settling' the litigation against the sponsor" (Complaint, ¶ 29). Mr. Sladkus learned of this alleged defamation when Mr. Suk contacted him and informed him of such. The complaint also asserts, on information and belief, that Ms. Englese has maligned him to other individuals as well.

In Ms. Englese's seeks dismissal of the instant matter, claiming that the complaint does not mention the action she and her husband brought against Mr. Sladkus, and instead makes it sound as if Ms. Englese spontaneously maligned Mr. Sladkus to Mr. Suk when she saw the latter gentleman in an elevator. Ms. Englese contends that, regardless of any comments she may have made, her statements to Mr. Suk are opinions and as such, are nonactionable. She further contends that Mr. Sladkus' claim that she spoke about him to other individuals is too vague to survive dismissal, and that his damages argument is too speculative. Ms. Englese asserts five bases for her motion: 1) Mr. Sladkus has not properly pled a defamation claim; 2) the alleged defamatory statements are not actionable because she merely stated her opinion; 3) her alleged statements are privileged because, under Section 74 of the New York Civil Rights Law (Section 74), it is a fair and substantially accurate account of the related malpractice case; 4) her alleged statements also are privileged under the common law because they relate to the malpractice action; and 5) the complaint does not properly plead the elements of his causes of action for prima facie tort and tortious interference with contract — which, in addition, duplicate his defamation cause of action.

Mr. Sladkus opposes the motion and cross-moves to amend the complaint. He contends that he satisfactorily set forth the allegedly defamatory words (citing Davis v Boeheim, 24 NY3d 262, 268 [2014]), and he submits evidentiary support to further clarify. He challenges Ms. Englese's contention that the complaint is insufficiently specific because some of the allegedly defamatory statements are in quotation marks and some of the quotations include bracketed words, he states that none of his alterations were substantive, and he rejects her further arguments on this issue. As Mr. Sladkus did not annex a copy of the proposed amended complaint, the Court denies the cross-motion without prejudice. As for his opposition to the motion, Mr. Sladkus contends that Ms. Englese's words constitute more than unactionable opinions, and instead are actionable allegations of fact — or, at the very least, actionable mixed opinion (citing Glazier v Harris, 99 AD3d 403 [1st Dept 2012]). Moreover, Mr. Sladkus states, statements attacking his professional competence are defamatory per se.

In addition, Mr. Sladkus contests Ms. Englese's argument that the complaint must fail because he cannot itemize his financial damages, which she claims necessary elements of his prima facie tort and tortious interference claims. To the contrary, Mr. Sladkus states that it is impossible to assess these financial damages prior to the commencement of discovery. Mr. Sladkus reiterates the contentions he set forth in moving to dismiss the Englese case — that is, that he and his firm gave Ms. Englese and her husband "a one-sided victory" (Sladkus Aff in Opp to Motion and in Support of Cross-Motion, NYSCEF Doc No 17 [Sladkus Aff], at ¶ 14), and that Ms. Englese and her husband paid his legal bills and this "confirm[s] [Ms. Englese's] complete satisfaction with the settlement" (id.). Alternatively, if the Court finds that he has not satisfied the pleading requirements, he requests leave to amend the complaint.

Mr. Sladkus further argues that Ms. Englese's statements are not privileged. He states that Ms. Englese did not refer to the malpractice action when she spoke to Mr. Suk, and therefore she cannot take refuge under the guise that the statements relate to a judicial proceeding. Section 74, he contends, only protects reports of judicial proceedings, not comments unrelated to the [*3]litigation itself. Mr. Sladkus also states that even if a privilege existed Ms. Englese waived it by suggesting that he engaged in misconduct that exceeds what she and her husband asserted in the malpractice action and by making her comments with malice. Mr. Sladkus states that because he asserts prima facie tort and tortious interference in the alternative to defamation, they are permissible at this juncture. He contends that Ms. Englese's "savagery upon [his] professional reputation supports a finding of special damages" (Mem of Law in Opp to Defendant's Motion and in Support of Plaintiff's Cross-Motion [Sladkus Memorandum], at p 20). He alleges punitive damages are proper because in making her allegedly defamatory statements Ms. Englese's sole, malicious motive was to harm him by "denigrating his professional capabilities and ethics" (id., at p 22).

In reply, Ms. Englese reiterates her prior contentions. She argues that Mr. Sladkus' opposition "only confirms that [he] cannot state a cause of action against [her]" (Reply Mem of Law of Defendant in Further Support of her Motion to Dismiss and in Opposition to Plaintiff's Motion to Amend [Reply Mem], at p 6). She contends that Mr. Sladkus has only alleged one instance of purported defamation — the allegedly defamatory comments she made in the elevator. Ms. Englese points out that the Section 74 privilege applies even where the person making the statement is not a journalist, and she urges that her motive in making the statement is not a consideration. Ms. Englese maintains that her comments to Mr. Suk substantially reflect the contentions in the legal malpractice action. Furthermore, Ms. Englese argues, the underlying lawsuit — on which she and her husband base their malpractice action — is also a judicial proceeding, and her comments were pertinent to that proceeding as well. She states that Mr. Suk was an interested nonparty in the underlying lawsuit because Mr. Sladkus had retained him as an expert. In response to this last argument, which Ms. Englese had not raised initially, Mr. Sladkus replies that the judicial exception does not apply to Ms. Englese's comments about the settlement because this related to a non-binding mediation, which therefore was not essentially a "judicial proceeding."

Discussion

The Court has thoroughly considered the parties' positions as set forth in their papers, the supplemental submissions it requested, and the transcripts from the oral arguments. The Court further notes that this is a pre-answer motion to dismiss, and for the purposes of this motion the Court accepts all the allegations in the complaint as true and affords them all possible favorable inferences (see Morgan Stanley Mortgage Loan Trust 2006-13ARX v Morgan Stanley Mortgage Capital Holdings LLC, 143 AD3d 1, 7 [1st Dept 2016]). Thus, Ms. Englese's argument that the complaint does not accurately express the context of her discussion with Mr. Suk, along with challenges to the complaint's characterizations of the facts, are inapplicable here.

"Defamation is the making of a false statement about a person that tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him or her in the minds of right-thinking persons, and to deprive him or her of their friendly intercourse in society" (Frechtman v Gutterman, 115 AD3d 102, 104 [1st Dept 2014] [citations and internal quotation marks omitted]). Opinion, on the other hand, is not actionable (see Parks v Steinbrenner, 131 AD2d 60, 62 [1st Dept 1987]). As stated earlier, Mr. Sladkus has cited five alleged defamatory comments that Ms. Englese allegedly made about him: 1) he gives poor legal advice, 2) he is a shitty lawyer, 3) he caused Ms. Englese and her husband to lose a lot of money in their settlement, 4) her husband was not effectual in the settlement negotiations and Ms. Englese was especially vulnerable due to the advanced stage of her pregnancy, and Mr. Sladkus [*4]took advantage of this, and 5) Mr. Sladkus threatened her and her husband into settling the case.

Although Ms. Englese argues to the contrary, the Court finds that the allegations of defamation are not too vague to support a claim. As Mr. Sladkus points out, the complaint sets forth the approximate date of the occurrence, the place of the occurrence, and the words Ms. Englese allegedly used. Ms. Englese's arguments in support of her motion to dismiss, including that not all the words were in quotes and that the quotes contain brackets are unpersuasive.

Next, the Court concludes that the first, second and fourth of these five statements should be dismissed as opinion. Ms. Englese's statements that Mr. Sladkus is a bad lawyer and gives bad advice are clearly opinion and, as such, are not actionable. The fourth statement listed above, as described in the complaint, is opinion because it focuses on the facts that she was in the last term of her pregnancy and that her husband was ineffectual. The statements that Mr. Sladkus caused Ms. Englese and her husband to lose a "ton of money" is set forth as fact and speaks to Mr. Sladkus' competence in his profession, and the statement that Mr. Sladkus threatened them into settling also is a factual allegation. Because the comments, in their entirety and in their proper context, essentially accuse him of incompetence in his profession, he sets forth a claim for defamation per se (Cf. Carney v Memorial Hospital and Nursing Home of Greene County, 64 NY2d 770, 772 [1985]). Moreover, as this constitutes defamation per se, the complaint does not have to assert special damages as to this claim (see Nolan v State, 158 AD3d 186, 191 [1st Dept 2018]).

Further, the Court rejects Ms. Englese's argument that her comments are privileged because they relate to her and her husband's malpractice action. The complaint, however, asserts that Ms. Englese did not tell Mr. Suk that these were her allegations in any legal action. Instead, she made her statements in the abstract. Within the context of this conversation as it is alleged in the complaint, Mr. Suk could not have understood that she was referring to her and her husband's malpractice case (compare to Highland Capital Management, L.P. v Stern, 157 AD3d 501, 501 [1st Dept 2018]). In addition, although the summons with notice was filed, Ms. Englese and her husband had not set forth their position in something "more formal and binding such as a pleading" (Cf. Hudson v Goldman Sachs & Co., Inc., 304 AD2d 315, 315 [1st Dept 2003], lv denied, 2 NY3d 707 [2004]).

For a different reason, Ms. Englese's comments are not privileged because she was describing the mediation which resolved the underlying lawsuit. Although Mr. Suk was aware of the prior case and Ms. Englese was acquainted with him solely through his involvement with the underlying action, Mr. Suk's status as a retained expert does not make him a person involved in the lawsuit within the meaning of the common law (Sexter & Warmflash, P.C. v Margrabe, 38 AD3d 163, 174 [1st Dept 2007]. Moreover, plaintiff's comments relate to the settlement, which was achieved through a non-binding mediation process and thus are not privileged as a judicial proceeding. Section 74 "confers an absolute privilege on a fair and true report of any official proceeding" (Freeze Right Refrigeration and Air Conditioning Serv., Inc. v City of New York, 101 AD2d 175, 181 [1st Dept 1984] [Freeze Right] [citing Civil Rights Law § 74]) but does not extend to "the report of anything said or done at the time or place of such a proceeding which was not a part thereof" (Freeze Right, 101 AD2d at 183 [citing Civil Rights Law § 74]). The Court finds that a nonbinding mediation with the parties, conducted outside a courtroom and a courthouse without the benefit of a judge, does not constitute a "judicial proceeding" that cloaks Ms. Englese's comments with privilege.

Ms. Englese's application to dismiss the claims for prima facie tort and tortious [*5]interference are dismissed as duplicative of the defamation claims as they are based on the same allegations and they fall entirely "within the ambit of . . . plaintiff's cause of action sounding in defamation" (Fleishcer v NYP Holdings, Inc., 104 AD3d 536, 538 [1st Dept 2013] [prima facie tort]; see Perez v Violence Intervention Program, 116 AD3d 601, 602 [1st Dept 2014] [trial court should have dismissed tortious interference claim where the claim "allege[d] no new facts and [sought] no distinct damages from the defamation claim"; additional claims dismissed on summary judgment grounds]). The caselaw upon which Mr. Sladkus relies to support his claim that he can argue these claims in the alternative is unpersuasive as there is binding precedent that supports Ms. Englese's argument.[FN1]

Moreover, the claim for prima facie tort fails because it does not allege special damages with the requisite specificity (Schoettle v Taylor, 282 AD2d 411, 412 [1st Dept 2001]). Mr. Sladkus asserts that he must conduct discovery to establish damages, but his statement is unpersuasive. The discovery he requires is from nonparties, not from Ms. Englese, and Mr. Sladkus could have learned whether there was a reasonable basis for asserting damages before he commenced the action. Under NYCRR § 1301.1 (a) [b], his counsel was required to certify that he conducted a reasonable inquiry and assured himself that these two claims were not frivolous — and therefore he should have determined there was a basis for asserting all the elements of this claim. Finally, the claim for punitive damages must be dismissed. As Ms. Englese contends, the complaint alleges unsavory conduct but does not allege actions that "rise to a level of such wanton dishonesty as to imply a criminal indifference to civil obligations" (Flomenhaft v Finkelstein, 127 AD3d 634, 639 [1st Dept 2015]), which is necessary in the context of a defamation action. Therefore, the complaint is not sufficient to support this claim.

The Court has considered the parties' remaining arguments, and they do not alter its conclusion. For the reasons above, therefore, it is

ORDERED that the motion is granted to the extent of dismissing the prima facie tort claim, the tortious interference claim, and the claim for punitive damages, and these claims are severed and dismissed; and is further

ORDERED that the remainder of the motion is denied; and it is further

ORDERED that the cross-motion to amend the complaint is denied, as cross-movant has not annexed a copy of the proposed amended complaint; and it is further

ORDERED that Ms. Englese shall serve and file her answer to the complaint within 30 days of the filing of this order; and it is further

ORDERED that the parties shall appear for a preliminary conference at 2:15 am on July 12, 2018 in Part 34, 80 Centre Street, room 308.

Dated: April 25, 2018

CARMEN VICTORIA ST. GEORGE, J.S.C. Footnotes

Footnote 1: Mr. Sladkus' contention was prevented from entering into prospective business arrangements because of the alleged tortious interference was otherwise sufficient as it asserted asserts that Ms. Englese's goal was to interfere with Mr. Sladkus' business relationships (see Schoettle v Taylor, 282 AD2d 411, 411-12 [1st Dept 2001]).