G.L. v. Markowitz

• Citation: 2012 N.Y. Slip Op. 08493,955 N.Y.S.2d 643,101 A.D.3d 821
• Parties: G.L. (Anonymous), etc., appellant, v. Shirley MARKOWITZ, respondent.
• Decision Date: 12 December 2012
• Court: New York Supreme Court Appellate Division

101 A.D.3d 821

955 N.Y.S.2d 643

2012 N.Y. Slip Op. 08493

G.L. (Anonymous), etc., appellant,

v.Shirley MARKOWITZ, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 12, 2012.

Neal M. Sher, New York, N.Y., for appellant.

Goldman & Grossman, New York, N.Y. (Eleanor R. Goldman and Jay S. Grossman of counsel), for respondent.

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.

In an action, inter alia, to recover damages for defamation, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated June 3, 2010, as granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the amended complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.

This action was commenced to recover damages for defamation and negligent and intentional infliction of emotional distress. The amended complaint alleged that the defendant, who described herself as a community volunteer, “recklessly, maliciously, and with flagrant disregard for the truth” made the “false” and “defamatory” statement that the then 13–year–old plaintiff “had sexual intercourse with her father.” The amended complaint asserted that the defamatory statement was initially made in March 2005 and, “upon information and belief,” the defendant repeated the alleged defamatory statement to others, causing “disgrace, humiliation, [and] disrespect” to the plaintiff within her Orthodox Jewish community. Further, the amended complaint asserted that the defamatory statements allegedly made by the defendant constituted slander per se.

The defendant moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the amended complaint for failure to state a cause of action, and the Supreme Court granted that branch of the motion.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the complaint a liberal construction ( seeCPLR 3026) and “ ‘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’ ” ( Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720, quoting Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511).

The Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, alleging negligent and intentional infliction of emotional distress. Accepting the allegations in the amended complaint as true, they fail to state a cause of action to recover damages for negligent or intentional infliction of emotional distress ( see McGovern v. Nassau County Dept. of Social Servs., 60 A.D.3d 1016, 1018, 876 N.Y.S.2d 141;Tartaro v. Allstate Indem. Co., 56 A.D.3d 758, 759, 868 N.Y.S.2d 281).

However, the Supreme Court erred in granting that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action, which sought to recover damages for defamation. “Making a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation” ( Thomas H. v. Paul B., 18 N.Y.3d 580, 584, 942 N.Y.S.2d 437, 965 N.E.2d 939;see Katapodis v. Brooklyn Spectator, Inc., 287 N.Y. 17, 20, 38 N.E.2d 112 [a statement is defamatory “not only if it brings a party into hatred, ridicule or contempt by asserting some moral discredit upon his part, but also if it tends to make him be shunned or avoided, although it imputes no moral turpitude to him”] ). While “[s]lander as a rule is not actionable unless the plaintiff suffers special damage,” an exception to that rule exists for statements “imputing unchastity to a woman,” which statements would constitute “slander per se” ( Liberman v. Gelstein, 80 N.Y.2d 429, 434, 435, 590 N.Y.S.2d 857, 605 N.E.2d 344). It is for the court to determine in the first instance whether the particular challenged statements are susceptible of a defamatory meaning ( see Aronson v. Wiersma, 65 N.Y.2d 592, 593, 493 N.Y.S.2d 1006, 483 N.E.2d 1138;Tracy v. Newsday, Inc., 5 N.Y.2d 134, 136, 182 N.Y.S.2d 1, 155 N.E.2d 853;Knutt v. Metro Intl., S.A., 91 A.D.3d 915, 916, 938 N.Y.S.2d 134;). “If the contested statements are reasonably susceptible of a defamatory connotation, then ‘it becomes the jury's function to say whether that was the sense in which the words were likely to be understood by the ordinary and average [listener]’ ” ( James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 353 N.E.2d 834, quoting Mencher v. Chesley, 297 N.Y. 94, 100, 75 N.E.2d 257;see Knutt v. Metro Intl., S.A., 91 A.D.3d at 916, 938 N.Y.S.2d 134).

Applying these principles here, and accepting the facts alleged in the amended complaint as true, the plaintiff has alleged a statement made by the defendant that could be reasonably susceptible of a defamatory connotation, specifically, imputing unchastity to the infant plaintiff, so as to state a cause of action for slander per se. Furthermore, as required by CPLR 3016(a), the cause of action to recover damages for defamation set forth the “particular words” alleged to be false and defamatory.

Our dissenting colleague posits that the challenged statement cannot be reasonably understood as imputing unchastity to the infant plaintiff because “unchastity cannot be imputed to a female as a result of intercourse involving the crimes of rape and incest.” Conceivably, a statement asserting that a female had been the victim of a sex offense would not be susceptible of a defamatory meaning because it could not reasonably be interpreted by the ordinary listener as imputing unchastity to that individual. However, in assessing potential defamatory meaning, we must look to the particular words used, and, here, it was not alleged that the defendant stated that the plaintiff had been the victim of a sex offense, or even that the plaintiff's father had engaged in inappropriate sexual conduct with her. Rather, as alleged in the complaint, the defendant stated that “[the plaintiff] had engaged in sexual intercourse with her father.” Of course, by operation of law, the plaintiff was incapable of consenting to such conduct ( seePenal Law § 130.05[3] ), and if such conduct did, in fact, occur, the plaintiff would have been the victim of rape ( seePenal Law § 130.30[1] ), among other offenses. However, the dissent's position is entirely reliant upon this legal incapability of consenting to sexual conduct, whereas, in assessing potential defamatory meaning, the words must be “tested against the understanding of the average reader [or listener]” ( Aronson v. Wiersma, 65 N.Y.2d at 594, 493 N.Y.S.2d 1006, 483 N.E.2d 1138). The average listener, a lay person not trained in the law, upon hearing the statement “[the plaintiff] had engaged in sexual intercourse with her father,” might not interpret the statement to mean that the plaintiff had been the victim of rape due to her legal incapability of consenting to such conduct. The fact that any other interpretation would be incorrect from a legal standpoint does not alter our analysis of “the understanding of the average [listener]” ( id.;see November v. Time Inc., 13 N.Y.2d 175, 178–179, 244 N.Y.S.2d 309, 194 N.E.2d 126 [“The words are to be construed not with the close precision expected from lawyers and judges but as they would be read and understood by the public to which they are addressed”]; see generally James v. Gannett Co., 40 N.Y.2d at 420, 386 N.Y.S.2d 871, 353 N.E.2d 834 [“It is the duty of the court, in an action for (defamation), to understand the publication in the same manner that others would naturally do” (internal quotation marks omitted) ] ). Moreover, while it might ultimately be determined that another interpretation was not “ the sense in which the words were likely to be understood by the ordinary and average [listener],” due to the plaintiff's age or other contextual facts ( James v. Gannett Co., 40 N.Y.2d at 419, 386 N.Y.S.2d 871, 353 N.E.2d 834 [internal quotation marks omitted] ), in the context of this CPLR 3211(a)(7) motion, the Court is limited to assessing whether the plaintiff's allegations were sufficient to state a cause of action for defamation.

Additionally, the dissent invokes a definition of the term “chaste” and asserts that the plaintiff cannot be viewed as unchaste since she did not voluntarily have sexual intercourse. We note that the same dictionary our dissenting colleague relies on defines the term “chastity” as, inter alia, “that virtue which prevents the unlawful intercourse of the sexes; the state of purity or abstinence from unlawful sexual connection” (Black's Law Dictionary 236 [6th ed 1990] ). Thus, to the extent that a dictionary definition may be relied upon, the definition provided in the cited dictionary is ambiguous and inconclusive.

While the dissent further posits that permitting this action to survive past the pleading stage might have a chilling effect on the reporting of suspected cases of child abuse, our holding here is limited to the particular defamatory statement as alleged in the complaint. Again, that statement was that “[the plaintiff] had engaged in sexual intercourse with her father.” The complaint did not allege that the statement was intended as, or constituted, a report that the plaintiff had been the victim of a sex offense or of child abuse. We express no opinion as to the potential defamatory meaning of any statement other than that...