Dugan v. Berini
| Decision Date | 28 October 2022 |
| Docket Number | Index No. 525698/21 |
| Citation | 2022 NY Slip Op 33774 (U) |
| Parties | Sean Dugan, Plaintiff, v. Anthony Berini, Defendant, |
| Court | New York Supreme Court |
Unpublished Opinion
At an IAS Term, Part 35 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse at 360 Adams Street, Brooklyn, New York, on the 28th day of October 2022.
PRESENT: HON. KAREN B. ROTHENBERG, Justice.
HON KAREN B. ROTHENBERG J.S.C.
The following e-filed papers read herein:
NYSCEF Doc. Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed
Opposing Affidavits (Affirmations)
_____
Affidavits/ Affirmations in Reply
Upon the foregoing papers, defendant Anthony Berini moves for an order, pursuant to CPLR 3211 (a) (7) and 3211 (g), dismissing the complaint (M.S. 1). Plaintiff Sean Dugan cross-moves for an order, pursuant to CPLR 3025, granting him leave to amend the complaint (M.S. 2).
Defendant's motion is granted to the extent that the second cause of action for intentional infliction of emotional distress, the third cause of action for false impersonation, and the fourth cause of action for an injunction are dismissed. The motion is otherwise denied.
Plaintiffs cross motion is granted to the extent that he is granted leave to amend the complaint with respect to the first cause of action for defamation and is otherwise denied.
Plaintiff alleges that he was a student at Adelphi University who graduated in May 2021. Although he did not know defendant personally, he "knew of defendant" as a member of some clubs at Adelphi. In the fall of 2020, plaintiff began to receive messages from defendant on a social media platform known as "GroupMe," to which defendant repeatedly asked plaintiff for a response. Plaintiff did not respond. In or about 2021, defendant created an Instagram account entitled "secretadelphiaconfessions," and, among other things, posted a photograph of what is identified as plaintiff's room. In June 2021, defendant changed the name of the account to "seanduganadelphi" (the Account) and changed the photograph associated with the Account to one of plaintiff.
Using the Account defendant, masquerading as plaintiff, posted comments in June 2021 that addressed issues faced by students of color at Adelphi. These comments included: "If y' all are really complaining about Adelphi then just move, you staying there is only giving them money," in response to a another poster saying that he or she had graduated "shoot you not then why you complaining," and "Not everything is about race," and one in which he referred to Black people as "colored people". On June 5, 2021, in another post using the Account, defendant posted a screen shot of Instagram messages in which the other person said "I have his dick picture," to which defendant said, "that's disgusting don't send me that . . . wait why would he send it" and the person responded by saying Defendant, still masquerading as plaintiff, commented on the post "you gotta do something about "seanyyy.d".
Plaintiff represents that, on or about June 3, 2021, he reported defendant's activities to the Adelphi Public Safety Office, where plaintiff was informed they were already aware of defendant's online harassment of other students, and the officers took a report from plaintiff. The Adelphi Public Safety Office referred plaintiff to the New York City Police Department (NYPD) as plaintiff was no longer a student at Adelphi. After making a report to his local NYPD precinct, plaintiff was informed that detectives from Computer Crimes had spoken to defendant at his home on or about June 8, 2021, and directed that defendant remove the "defamatory" statements and cease and desist in impersonating plaintiff. Plaintiff also asserts that the detectives informed him that they contacted the person who sent the text messages and he had admitted that he invented the allegations. In response to the police directives the Account was apparently deactivated from June 9, 2021, through July 3, 2021, however it was reactivated again in plaintiffs name, on July 4, 2021 along with the posts at issue. The account was again deactivated on or about July 9, 2021 after detectives once again contacted plaintiff and/or his parents. On or about October 23, 2021, defendant reactivated the Account as a "private" account under the name secretadelphiaconfessions containing the same posts as the prior Account.
In considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), "the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Mawere v Landau, 130 A.D.3d 986 988 [2015] [internal quotation marks omitted]; see J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 21 N.Y.3d 324, 334 [2013]; Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]). A court may also freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (see Leon, 84 N.Y.2d at 88). Where such evidentiary material has been submitted and considered on the motion to dismiss and the motion has not been converted into one for summary judgment, "'the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one'" (U.S. Bank N.A. v Herman, 174 A.D.3d 831, 832 [2019], quoting Rabos v R&R Bagels & Bakery, Inc., 100 A.D.3d 849, 852 [2012]; see Leon, 84 N.Y.2d at 88).
Defendants contend, inter alia, that plaintiff's action is a strategic lawsuit against public participation (hereinafter SLAPP) (see Civil Rights Law § 76-a) and that the motions are thus governed by the standard of review contained in CPLR 3211 (g) and the requirements of Civil Rights Law § 76-a (2). An action falls within the protections of 76-a when it is based upon, "any communication in a place open to the public or a public forum in connection with an issue of public interest" or is based upon "any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition" (Civil Rights Law § 76-a [1] [a]; L 2020, c 250, § 2; L 1992, c 767, § 3; see Mable Assets, LLC v Rachmanov, 192 A.D.3d 998, 999-1000 [2d Dept 2021]). Under section 76-a, the term "public interest" is to "be construed broadly, and shall mean any subject other than a purely private matter" (Civil Rights Law § 76-a [1] [d]; see Aristocrat Plastic Surgery, P.C. v Silva, 206 A.D.3d 26, 29-31 [1st Dept 2022]).
Plaintiff alleges that defendant's activities were undertaken as part of a harassment campaign and that defendant made his statements while masquerading as plaintiff.[1]Defendant's alleged activity would not fall within the protections of the First Amendment, since "[t]he First Amendment protects the right to criticize another person, but it does not permit anyone to give an intentionally false impression that the source of the message is that other person" (see People v Golb, 102 A.D.3d 601, 603 [1st Dept 2013], reversed in part on other grounds 23 N.Y.3d 455 [2014]; see also United We Stand America, Inc. v United We Stand, America New York, Inc., 128 F.3d 86, 93 [2d Cir 1997]). Moreover, there is no suggestion that plaintiff is a public figure (see Gottwald v Sebert, 193 A.D.3d 573, 576-579 [1st Dept 2021]) or that this lawsuit is brought to intimidate and silence citizen participants (see Felis v Downs Rachlin Martin PLLC, 200 Vt 465, 487, 133 A.3d 836, 853 [2015]; see also Sandals Resorts Intl. Ltd. v Google, Inc., 86 A.D.3d 32, 45 [1st Dept 2011]). Accordingly, this court does not find that this action constitutes a communication involving a matter of public interest within the purview of Civil Rights Law § 76-a.
Relatedly, the stay of proceedings governed by Civil Rights Law § 76-a that is required by CPLR 3211 (g) (4) would have no appreciable effect on the issues before the court. Namely, the court's finding below that plaintiff has a defamation cause of action is based on the affidavits and appended exhibits submitted by plaintiff that he would be entitled to submit in opposition to defendant's motion regardless of the existence of the cross motion or any stay. Based on these papers, plaintiff would also be entitled to leave to replead in order to conform the complaint to the causes of action that he has shown he has.[2]
Under Civil Rights Law § 76-a, "damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue" (Civil Rights Law § 76-a [2]). It thereby imposes the same "actual malice" standard required by the First Amendment for defamation cases involving public figures (see Singh v Sukhram, 56 A.D.3d 187, 194 [2d Dept 2008]; Guerrero v Carva, 10 A.D.3d 105, 116 [1st Dept 2004]; see also New York Times Co. v Sullivan, 376 U.S. 254, 285-288 [1964]; Prozeralik v Capital Cities Communications, Inc., 82 N.Y.2d 466, 474 [1993]). In addition, on a defendant's motion pursuant to CPLR 3211 (a) (7) and (g), the plaintiff is obligated to demonstrate that "the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law" (CPLR 3211 [g] [1]; Mable Assets, LLC, ...
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