Lowe v Robbins

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Lowe v Robbins 2020 NY Slip Op 34689(U) October 1, 2020 Supreme Court, Westchester County Docket Number: Index No. 69138/2018 Judge: Terry Jane Ruderman 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: 1] WESTCHESTER COUNTY CLERK 10/01/2020 04:44 PM NYSCEF DOC. NO. 152 INDEX NO. 69138/2018 RECEIVED NYSCEF: 10/01/2020 To commence right commence the statutory statutory time time for appeals appeals as of of right (CPLR copy (CPLR 5513[a]), 5513 [a]), you are advised advised to serve serve a copy of this order, with notice notice of of entry, entry, upon of this order, upon all parties. parties. SUPREME NEW YORK YORK SUPREME COURT COURT OF THE THE STATE STATE OF NEW COUNTY WESTCHESTER COUNTY OF WESTCHESTER ---------------------------------------------------------------------x ------------------------------------------------------------~---~----x SOPHIA A. LOWE, LOWE, SOPHIA DECISION and ORDER ORDER DECISION Plaintiff; Plaintiff; Sequence Nos. 4 and Sequence Nos. and 5 Index No. 69138/2018 Index No. 69138/2018 -against-againstCHRISTINE ROBBINS, CHRISTINE ROBBINS, Defendant. Defendant. ----------------------------------------------------------------------x ----------------------------------------------------------------------x RUDERMAN,J.: RUDERMAN, J.: The papers were were considered motion for an order order pursuant pursuant to The following following papers considered on defendant's defendant's motion CPLR 3013, 3016 (a), 3211(a) 321 l(a) (7) and 3212 (b) granting judgment in favor defendant CPLR 3013,3016 granting judgment favor of of defendant plaintiffss cross-motion and dismissing dismissing the causes causes of of action action of of the complaint complaint (sequence (sequence 4), and plaintiff cross-motion pursuant to CPLR judgment (sequence pursuant CPLR 3212 3212 (b) granting granting her summary summary judgment (sequence 5): ;J I Papers Papers Notice of Motion, Affirmation, Notice of Motion, Affirmation, Exhibits Exhibits A - R, and Memorandum Memorandum of of Law Law Notice of Affidavit, Affirmation, Exhibits A - K Notice of Cross-Motion, Cross-Motion, Affidavit, Affirmation, Exhibits Reply Affirmation, Exhibit A Reply Affirmation, Exhibit Reply Cross-Motion Reply Affirmation Affirmation on Cross-Motion ·. NUmbered. Numbered 11 2 3 4 This action action arises arises out of of statements statements made made at a December of the This December 17, 2017 2017 meeting meeting of Wood Lot," homeowners association property development known as "The homeowners association for the real property development known "The Wood Lot," in Somers, New which both reside. Plaintiff Plaintiff Sophia Sophia A. Lowe Lowe alleges alleges that Somers, New York, York, in which both parties parties reside. that in the presence of members members of of the homeowners homeowners association, association, defendant defendant Christine Christine Robbins Robbins said, presence of concerning plaintiff, concerning plaintiff, 1 1 of 8 [*FILED: 2] WESTCHESTER COUNTY CLERK 10/01/2020 04:44 PM NYSCEF DOC. NO. 152 INDEX NO. 69138/2018 RECEIVED NYSCEF: 10/01/2020 and that she sent, with everyone "oh, you should see the share with everyone that sent, and didn't share emails I didn't nasty emails the nasty you should "oh, you vicious so were y personall were there of them. emails she sent to me personally vicious you them. The emails there are a lot of them." wouldn't want to see them." wouldn't want for action sounding Plaintiff's complaint t contains contains one cause cause of otaction sounding in defamatio defamationn and and another another for Plaintiff s complain distress. emotional distress. intentional of emotional infliction of intentional infliction also and also complaint, and the complaint, of the sufficiency of the sufficiency In challenges the defendant challenges motion defendant present motion the present In the the her claims; contends that lacks evidence evidence supportin supportingg her claims; she submits submits in support support the plaintiff lacks that plaintiff contends claimed the claimed hear the present to hear purportedly present were purportedly deposition who were parties who third parties the third of the transcripts of deposition transcripts denying papers denying submits papers Defendant submits claim. Defendant statement, support ~hat claim. fails to support testimony fails whose testimony but whose statement, but that in that she made defamatory statementss as alleged alleged in the complain complaint,t, and and argues argues that in any any .· ry statement made any defamato that she meaning. defamatory meaning. susceptible to a defamatory not susceptible event, hyperbolic and not statement is hyperbolic alleged statement the alleged event, the at discussion at group discussion during·a group made during'a was made Moreover, allegations, it was the allegations, based on the that based contends that she contends Moreover, she Finally, privilege. Finally, qualified privilege. protected by a qualified the associationn meeting therefore protected meeting and therefore homeowners associatio the homeowners required, as required, damages as special damages establish, special she cannot establish, and cannot allege, and not allege, does not plaintiff does that plaintiff maintains that she maintains reputation. personal reputation. her personal harm to her of harm since claim of subjective claim makes a subjective only makes since she only not obtained that she has not incomplete - in that Plaintiff since discovery discovery remains obtained remains incomplete that since responds that Plaintiff responds may plaintiff may him -- plaintiff subpoena on hini of a subpoena the service of her service despite her husband, despite defendant's husband, of defendant's deposition of the deposition action of action cause of cognizable cause that a cognizable contends that not awarded summary time. She contends this time. judgment at this summary judgment be awarded not be for defamation and that issue of of whether alleged statemen statement t is susceptib susceptiblele of of aa whether the alleged that the issue pleaded, and defamation is pleaded, for of fact. question of defamatory presents a que~tion meaning presents defamatory meaning that deposition, that her deposition, gave at her defendant gave Plaintiff suggests, based answer defendant based on an answer Plaintiff also suggests, her was asked Defendant was issue. Defendant defendant t admitted admitted making defamatory statementss at issue. asked during during her ry statement making the defamato defendan in and in deposition, and her deposition, testified at her plaintiff testified deposition what plaintiff of what disagreed of what she disagreed specify what to specify deposition to 2 2 of 8 [*FILED: 3] WESTCHESTER COUNTY CLERK 10/01/2020 04:44 PM NYSCEF DOC. NO. 152 INDEX NO. 69138/2018 RECEIVED NYSCEF: 10/01/2020 setting forth farth the the testimony testimany with with which which she disagreed, disagreed, defendant defendant failed failed t<? to. specifically specifically referred referred to to. setting plaintiffs statement statement as to to. the defamatory defamatary words wards uttered. uttered. plaintiffs both privilege, bath to. claim additian, plaintiff disputes defendant's defendant's right claim a qualifi,ed qualified privilege, right to. disputes_ plaintiff In addition, . I \ response her July because qualified privilege defense in her July 11, 2019 2019 supplemental supplemental respanse privilege defense her qualified withdrew her because she withdrew privilege defense to. plaintiffs discavery demands, demands, and and because qualified privilege defense is lost last when. when the the because the qualjfied plaintiffs discovery to. Foster v Churchill, mativatian for far making making such such statements statements was was malice, malice, spite spite or ar ill will will (citing (citing Foster Churchill, 87 motivation plainti~f asserts NY2d 744 [1996]). [1996]). To To. demonstrate demanstrate that that defendant defendant acted with such such malice, malice, plainti~f asserts that that acted with NY2d 744 assertions that defendant has has not nat specifically specifically challenged challenged plaintiffs plaintiff'sassertians that defendant defendant vilifies vilifies anyone anyane who who. defendant challenges her. Plaintiff Plaintiff argues argues that, that, .at at ieast, least, a question questian of of fact is presented presented on the issue issue of af malice malice . challenges that precludes precludes defendant defendant from fram relying relying on an the claimed. claimed privilege privilege to to. obtain abtain relief relief on an the the present present that matian. motion. that plaintiff also To. the extent extent defendant defendant relies an a common camman interest interest defense, defense, plaintiff also. argues argues that rei1es on To I\ not was nat time, she was the time, since defendant defendant was afthehameawners assaciatian at the the.homeowners association member of not a member was nat since entitled to to. be in attendance attendance at the the meeting. meeting. entitled plaintiff With regard regard to to. her her claim claim for far intentional intentianal infliction inflictian of af emotional ematianal distress, distress, plaintiff With for the maintains that that the the malevolent malevalent purpase af defendant's defendant's utterance, utterance, undertaken undertaken the sole sale purpose purpase purpose of maintains . . af destroying de straying plaintiffs plaintiffs reputation reputatian in the the community cammunity ·at at large large and and vilifying vilifying plaintiff, plaintiff, because because of plaintiff was was questioning questianing the status status quo, qua, was was outrageous autrageaus in character character and and to to. an extreme extreme degr~e as plaintiff American Home to. satisfy satisfy the elements elements of afthe tart (citing (citing Murphy Home Prods. Prods. Corp., Corp., 58 NY2d NY2d 293· 293. Murphy v American the tort to [1983]) [1983])... Discussian Discussion · requirements for pleading requirements the pleading The particularity particularity requirement afCPLR and the far CPLR 3013 and requirement of The 3 3 of 8 [*FILED: 4] WESTCHESTER COUNTY CLERK 10/01/2020 04:44 PM NYSCEF DOC. NO. 152 INDEX NO. 69138/2018 RECEIVED NYSCEF: 10/01/2020 defamation defamation claims claims (see CPLR CPLR 3016 3016 (a]) [a]) are satisfied satisfied by the the complaint's complaint's recitation, recitation, in quotation quotation · marks, place. marks, of of the the complained-of complained-of statement statement and and the the identification identification of of its time time and and place. With With regard regard to defendant's defendant's application application to dismiss dismiss for failure failure to state state a cause cause of of action action pursuant under CPLR CPLR 3211 (a) (7), the the court court must must "accept "accept the the facts facts as alleged alleged in the the complaint• complaint. pursuant to under as tru~ [[and] and] accord possible favorable Leon v accord plaintiffs plaintiffs the the benefit benefit of of every every possible favorable inference" inference" (see Leon Martinez, 84 NY2d NY2d 83, 88 [1994]). Martinez, [1994]). Among Among those those factual factual allegations allegations accepted accepted for this this purpose purpose is assertion that that defendant defendant made made the the alleged alleged statement. statement. the assertion Defamation is generally generally defined defined as "the making making of of a false false statement statement which which tends tends to Defamation expose expose the plaintiff plaintiff to public public contempt, contempt, ridicule, ridicule, aversion aversion or disgrace, disgrace, or induce induce an evil opinion opinion of persons and of him him in the the minds minds of of right-thinking right-thinking persons and to deprive deprive him him of of their their friendly friendly intercourse intercourse in society" NY2d 744, 751 [1966] society" (Foster (Foster v Churchill, Churchill, 87 NY2d 744,751 [1966] [internal [internal citatioff citation and and quotation quotation marks marks omitted]). Only Only statements statements of of fact can can be the subject subject of of a defamation defamation claim claim (see Galanos Galanos v omitted]). ]). "Expressions Cifone, Cifone, 84 AD3d AD3d 865 [2d Dept Dept 2011 2011]). "Expressions of of opinion, opinion, as opposed opposed to assertions assertions of of fact, are deemed privileged and, the subject deemed privileged and, no matter matter how how offensive, offensive, cannot cannot be the subject of of an action action for Abel, 10 NY3d NY3d 271,276 defamation" (Mann (Mann v Abel, 271, 276 [2008], [2008], cert cert denied denied 555 US 1170 [2009]). [2009]). defamation" Non-actionable opinion Non-actionable opinion includes includes insults insults and and "rhetorical "rhetorical hyperbole" hyperbole" (see Greenbelt Greenbelt Coop. Coop .. - Publishing Assn. Assn. v Bresler, Bresler, 398 US 6, 14 (1970]; Immuno AG AG v Moor-Jankowski, Moor-Jankowski, 77 NY2d NY2d 235 Publishing [1970]; Immuno [[1991]). 1991 ]). If If statements statements are not not capable capable of of being being proven proven true true or false, false, they they are likely likely to be nonnon- Brian v Richardson,~7 Richardson, ~7 NY2d NY2d actionable opinion opinion rather rather than than actionable actionable statements statements of of fact (see Brian actionable 46, 51 [1995]). 46,51 [1995]). The asserted asserted statement statement by defendant, defendant, accusing accusing plaintiff of creating creating and and sending sending "nasty" "nasty" The plaintiff of and "vicious" "vicious" emails, emails, amounts amounts to a characterization characterization of of the the tone tone of of those those emails, emails, and and as such such the the 4 4 of 8 [*FILED: 5] WESTCHESTER COUNTY CLERK 10/01/2020 04:44 PM NYSCEF DOC. NO. 152 INDEX NO. 69138/2018 RECEIVED NYSCEF: 10/01/2020 statement statement cannot cannot be proven proven true true or false; whether whether a writing writing qualifies qualifies as "nasty" "nasty" or "vicious" "vicious" is a matter matter of of opinion. opinion. Even Even if if the the language language of of the alleged alleged statement statement was considered considered to be beaa question question of of fact fact sufficiently sufficiently susceptible susceptible of of defamatory defamatory meaning meaning to leave leave the.question the question to the the fact-finder, fact-finder, dismissal dismissal _(a) (7) because would be required required pursuant CPLR 3211 3211.(a) because when when an action action concerns concerns an allegation allegation would pursuant to CPLR of plaintiff must of spoken spoken slander slander rather rather than than written written libel, libel, the plaintiff must do more more than than allege allege that that the the statement Matherson v statement exposed exposed one one to "public "public contempt, contempt, ridicule, ridicule, aversion aversion or disgrace" disgrace" (see Matherson Marchello; 100 AD2d Marchello; AD2d 233, 233, 236 236 [2d Dept Dept 1984]). 1984]). Rather, Rather, a plaintiff plaintiff alleging alleging slander slander must must allege allege that she sustained sustained "special "special damages," damages," which which contemplates contemplates "the "the loss loss of of something something and prove prove that Liberman v Ge/stein, NY2d 429, having economic economic or pecuniary value" (see Liberman Gelstein, 80 NY2d 429, 434-435 434-435 [1992]). [1992]). having pecuniary value" This damages requirement This special special damages requirement for slander slander claims claims is only only avoided avoided where where the the asserted asserted defamatory statement statement ((1) alleges that that the the plaintiff committed a crime, crime, (2) tends tends to injure injure the the defamatory 1) alleges plaintiff committed plaintiff in his or her profession, (3) alleges plaintiff has plaintiff her trade, trade, business business or profession, alleges that that plaintiff has contracted contracted a a). loathsome disease, or (4) imputes supr.a). loathsome disease, imputes unchastity unchastity to a woman woman (Liberman (Liberman v Ge/stein, Gelstein, supr. The The complaint complaint merely merely alleges alleges that that "[p]laintiffhas "[p]laintiffhas been been injured injured in her her good good rtame name and reputation, and has reputation, and has suffered suffered great great pain pain and mental mental anguish anguish and has has been been held held up to ridicule ridicule and the public." contempt by her her neighbors neighbors ~nd ';lndthe public." Even Even construing construing the the complaint complaint liberally, liberally, this this contempt allegation fails to satisfy satisfy the the special special damages damages pleading requirement for a slander slander claim. claim. allegation pleading requirement Therefore, Therefore, for the the two two foregoing foregoing reasons reasons the the branch branch of of defendant's defendant's motion motion seeking seeking dismissal dismissal pursuant to CPLR pursuant CPLR 3211 (a) (7) must must be granted: granted: the the statement statement is one one of of non-provable non-provable opinion, opinion, the pleading allege special special damages. damages. and the pleading fails to allege Moreover, even even if if that that infirmity infirmity in the the complaint did not not require require dismissal, dismissal, . defendant defendant complaint Moreover, . 5 5 of 8 [*FILED: 6] WESTCHESTER COUNTY CLERK 10/01/2020 04:44 PM NYSCEF DOC. NO. 152 INDEX NO. 69138/2018 RECEIVED NYSCEF: 10/01/2020 would be entitled judgment pursuant pursuant to CPLR based on the lack lack of would entitled to summary summary judgment CPLR 3212, 3212, based of any evidentiary damages in opposition evidentiary showing showing demonstrating demonstrating the existence existence of of special special damages opposition on the summary judgment appiication. appiication. summary judgment In addition granting summary judgment in defendant's addition to the foregoing foregoing grounds grounds for granting summary judgment defendant's favor, an additional basis for summary judgment is provided provided by defendant's unrebutted prima prima facie additional basis summary judgment defendant's unrebutted showing that there there is no third third party party who who heard heard the alleged defendant. "A of showing that alleged statement statement by defendant. "A cause cause of action for slander requires publication of the defamatory defamatory matter, matter, which which occurs occurs when when it is heard heard by action slander requires publication of some third party" (Snyder Nfusic Entertainment, Entertainment, Inc:, Inc., 252 252 AD2d AD2d 294, 298 [[1st I st Dept Dept J.1999] 999] some third party" (Snyder v Sony Sony Music 562,563 Dept 1998]). Defendant has [emphasis added]; see Rabushka Rabushka v Marks, Marks, 256 AD2d AD2d 562, [emphasis added]; 563 [2d Dept 1998]). Defendant submitted deposition testimony testimony from an an-ay persons present present at the meeting, meeting, and at each submitted deposition array of of other other persons each deposition witness denied hearing the allegedly allegedly slanderous this constitutes deposition the witness denied hearing slanderous statement; statement; this constitutes a prima prima showing of of no publication publication (Snyder, supra.). come forward facie showing supra.). In response, response, plaintiff plaintiff failed failed to come forward with proof of party who who heard heard defendant make the alleged with proof of any third third party deferidant make alleged statement. statement. On a motion motion for summary judgment, a party opposing the the motion motion must must lay bare bare her her proof proof summary judgment, party opposing (see Morgan Morgan v New New York Telephone, AD2d 728 [2d Dept Dept 1995]). to defeat a-motion a motion Telephone, 220 AD2d 1995]). In order order todefeat for summary judgment on the grounds grounds that that discovery must summary judgment discovery is still outstanding, outstanding, the opponent opponent must demonstrate that the incomplete incomplete discovery lead to relevant relevant evidence facts essential demonstrate that discovery might might lead evidence or facts essential to assist proving or defending Torres v Beth Beth Israel Israel Med. Ctr., AD3d 1097, assist in proving defending the action action (see Torres etr., 134 AD3d Dept 2015]). 1097 [2d Dept 2015]). Plaintiff asserts asserts that summary judgment improper at this this time time because because discovery discovery is not not Plaintiff that summary judgment is improper complete, in that that she was was unable unable to depose depose d_efendant's d.efendant's husband, husband, Lome Lome Robbins. Robbins. However, However, the the complete, subpoena for Lome Lome Robbins' Robbins' deposition deposition was was dated dated December December 9, 9,2019, scheduling a deposition deposition subpoena 2019, scheduling 6 6 of 8 [*FILED: 7] WESTCHESTER COUNTY CLERK 10/01/2020 04:44 PM NYSCEF DOC. NO. 152 INDEX NO. 69138/2018 RECEIVED NYSCEF: 10/01/2020 January 14, 14,2020. Upon learning learning that that Robbins Robbins was was in Florida Florida and and would would not not attend, attend, plaintiff plaintiff on January 2020. Upon had him him personally personally served served with with the subpoena subpoena on February 14, 14,2020. nothing in plaintiffs plaintiffs had on February 2020. Yet, nothing ,. submissions, which which are dated dated August August 5, 2020, 2020, demonstrate demonstrate what what steps, steps, if if any, were were taken taken submissions, between February February and and Augustto Augustto enforce enforce her her asserted asserted right right to take take that that deposition. deposition. Notably, the between Notably, the Compliance Conference Conference Order Order dated dated October October. 31, 2019 2019 directed directed that that non-party non-party depositions depositions would would Compliance completed by December December 18,2019, 18,2019, and and the the subsequent subsequent Compliance Compliance Conference Conference Order Order dated dated be completed December 11, 2019, 2019, directed directed that that depositions depositions would would be completed completed by January January 14; 14,2020. Those 2020. Those December orders also provide provide that that "Any "Any disclosqre disclos\}re demands demands not not raised raised at the the Compliance Compliance Conference Conference are orders deemed waived." waived." Plaintiffs Plaintiff s failure failure to demonstrate demonstrate that that she sought sought a court court directive directive for that that deemed particular non,-party non"'party deposition deposition at any point point up to August August 5, 2020 2020 precludes precludes her her from from relying relying on particular the lack lack of of that that particular particular deposition deposition as grounds grounds for rejecting rejecting a summary summary judgment application at the judgment application this time. time. The The Court Court notes notes that that during during those those intervening intervening months, months, plaintiff plaintiff demonstrated demonstrated that that she this capable of of making making an application application regarding regarding the the sought sought deposition deposition of of Lome Lome Robbins, Robbins, given given was capable the parties' parties' litigation litigation regarding regarding plaintiffs plaintiffs testimonial testimonial subpoena subpoena served served on defendant's defendant's attorney, attorney, the which was was resolved resolved by the June June 12, 12, 2020 2020 order order of of the court court (Hon. (Hon. Joan Joan B. Lefkowitz, Lefkowitz, J.) which quashing that that subpo~na. subpo~na. quashing Were dismissal dismissal and summary summary judgment not warranted, warranted, the the issue issue of of whether whether defendant defendant Were judgment not was entitled entitled to rely rely on the common common ·interest interest qualified qualified privilege privilege would would be left left for trial trial (see (see Ferrara Ferrara was Bank, 153 AD3d AD3d 671,673 671,673 [2d Dept Dept 2017]), 2017]), since since a qualified qualified privilege privilege "may "may be overcome overcome by a . v Bank, showing of of common common law law malice, malice, such such as spite spite or ill will, will, or by a showing showing of of actual actual malice, malice, such such showing knowledge of of the the falsehood falsehood of of a statement statement or reckless reckless disregard disregard for the the truth" truth" (Gottlieb (Gottlieb v as knowledge Wynne, 159 AD3d AD3d 799,800 799,800 [2d Dept Dept 2018]). 2018]). ·Wynne, 7 7 of 8 [*FILED: 8] WESTCHESTER COUNTY CLERK 10/01/2020 04:44 PM NYSCEF DOC. NO. 152 INDEX NO. 69138/2018 RECEIVED NYSCEF: 10/01/2020 The complaint's intentional infliction distress must The complaint's cause cause of of action action for intentional infliction of of emotional emotional distress must also tort has four elements: (ii) intent intent to be dismissed. dismissed. "The "The tort elements: (i) extreme extreme and outrageous outrageous conduct; conduct; (ii) cause, disregard of probability of causing, severe cause, or disregard of a substantial substantial probability of causing, severe emotional emotional distress; distress; (iii) a causal causal connection injury; and (iv) severe emotional distress" New connection between between the conduct conduct and injury; severe emotional distress" (Howell (Howell v New NY2d 115, 121 been found found only where the conduct York Post Post Co., 81 81 NY2d 121 [1993]). [1993]). "Liability "Liability has been only where conduct has been so outrageous beyond all possible possible bounds bounds of been outrageous in character, character, and so extreme extreme in degree, degree, as to go beyond of decency, utterly intolerable decency, and to be regarded regarded as atrocious, atrocious, and utterly intolerable in a civilized civilized community" community'" (Chanko v AmericanBroadcasting [2016]). The The allegations allegations in the (Chanko American Broadcasting Cos. Inc., 27 NY3d NY3d 46,56 46, 56 [2016]). pleading does evidentiary support submitted submitted iil pleading do not rise rise to that that level, level, nor nor does evidentiary support in opposition opposition to defendant's judgment. defendant's application application for summary summary judgment. Plaintiffs cross-motion would event, since since her her moving -papers fail to Plaintiff's cross-motion would be denied denied in any event, moving-papers establish judgment as a matter establish entitlement entitlement to judgment matter of of law. Accordingly, it is hereby Accordingly, hereby ORDERED that of defendant's seeking an order CPLR ORDERED that the branches branches of defendant's motion motion seeking order pursuantto pursuant to CPLR dismissing the complaint granted, and directed to 3211 (a) (7) and CPLR CPLR 3212 3212 dismissing complaint are granted, and the Clerkis Clerk is directed enter judgment dismissing the complaint; c01Jlplaint; and it is further enter judgment dismissing further \, ORDERED plaintiff's cross-motion ORDERED that that plaintiffs cross-motion is denied. denied. This constitutes constitutes the Decision of the Court. Court. This Decision and Order Order of Dated: White White Plains, Plains, New Dated: New York York October October __L, 2020 2020 L, v~~/ f<1~ HON. 8 8of 8 JANERUDERMAN,J.S.C.

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