Jackson v. Gannon-Jackson

Decision Date22 June 2021
PartiesEdward Jackson, Plaintiff, v. Grace Gannon-Jackson, Kathleen Gannon-Luparello, and Robert Luparello, Defendants.
CourtNew York Supreme Court

2021 NY Slip Op 50852(U)

Edward Jackson, Plaintiff,
v.
Grace Gannon-Jackson, Kathleen Gannon-Luparello, and Robert Luparello, Defendants.

Supreme Court, Erie County

June 22, 2021


Unpublished Opinion

For plaintiff: Jon F. Minear, Esq.

For defendants: Steven Hamlin, Esq.

Amy C. Martoche, J.

Plaintiff commenced this action seeking damages for defamation and intentional infliction of emotional distress based on allegations that defendants falsely accused him of violating an order of protection issued in the underlying divorce action. In lieu of answering, defendants move for an order dismissing the complaint pursuant to CPLR 302 (a) (2) and (a) (3), CPLR 215 (3), and four subdivisions of CPLR 3211. Defendants also seek sanctions, costs, and attorneys' fees pursuant to 22 NYCRR 130-1.1.

For the reasons that follow, the part of the motion seeking dismissal of the complaint is granted. The part of the motion seeking attorneys' fees, costs, and sanctions, however, is denied.

I.

A.

Inasmuch as this application seeks an order dismissing the complaint pursuant to, inter alia, CPLR 3211 (a) (7), the court is bound to" 'accept[] the facts as alleged in the... complaint as true'" (J.F. Capital Advisors, LLC v Lightstone Group, LLC, 25 N.Y.3d 759, 762 [2015], quoting Leon v Martinez, 84 N.Y.2d 83, 87 [1994]). Plaintiff alleges that he and his wife, defendant Grace Gannon-Jackson, "are involved in a pending divorce action." In October 2019, Supreme Court, Erie County (Keane, J.), entered an order in that action that, in plaintiff's words, "prohibited all types of communication and/or contact between... [p]laintiff and [the minor child of the parties], including 'email, phone, text, or any other electronic means in addition to no contact at any public place where [that child] may be present." The relevant part of that order is appended to the complaint and, consistent with plaintiff's representation, it directs

"that on a temporary basis until there is further order of this court here shall be no contact between [plaintiff] and the [subject] child... pending resolution of the custodial issue... pending before [that] court and unless said contact is approved and agreed to by [the attorney for that child in that action]. [C]ontact[, that order further provides, ] includes, any contact by email, phone, text or any other electronic means in addition to no contact at any public place where [the child] may be present."

Plaintiff characterizes that paper as a "No Contact Order" that he contends "is not an 'order of protection as thoroughly defined in the DRL § 240.'" Plaintiff also alleges that the subject order does not prevent him "from, for example, going to a public event, which will be attended by [the child], so long as he does not attempt to communicate or make contact with [the child] by any of the means set forth in [that paper]." Similarly, plaintiff maintains, that order does not prevent him "from spectating [the subject child's] sporting events, namely, a crew/working event, so long as he does not communicate/contact [the child]."

B.

Although she had reason to believe that the "No Contact Order" was not an" 'order of protection' as thoroughly defined in the DRL § 240," defendant Gannon-Jackson, in plaintiff's words, "falsely and maliciously stated to [defendant Kathleen Gannon-Luparello] that [plaintiff] is 'violating the order of protection by attending [the child's] rowing events.'" Implicit in that statement, plaintiff adds, is the allegation that he "committed a crime by 'violating the order of protection by attending [those] rowing events.'" That false statement, plaintiff continues, constitutes defamation per se and entitles him to an award of, among other things, compensatory damages, emotional distress damages, and punitive damages. Those allegations comprise the first cause of action in the complaint.

Three other causes of action for defamation emerge from the complaint. According to plaintiff, defendant Kathleen Gannon-Luparello-a resident of Connecticut at all times relevant to this matter-stated to "[d]efendant[] Robert Luparello[] that the [p]laintiff is 'violating an order of protection.'" Through that "false... statement," plaintiff maintains, defendant Gannon-Luparello alleged that plaintiff had "committed a crime." Plaintiff further alleges that such statement constitutes defamation per se and entitles him to an award of, among other things, compensatory damages, emotional distress damages, and punitive damages. Those allegations comprise the second cause of action in the complaint.

A similar claim is levied against defendant Robert Luparello, whom plaintiff also characterizes as a resident of Connecticut at all times relevant to this matter and whom plaintiff claims falsely told a John Doe that plaintiff "is 'violating an order of protection.'" Through that "false... statement," defendant Luparello "alleged that... [p]laintiff committed a crime by 'violating the order of protection.'" Plaintiff further alleges that such statement-no matter its form-constitutes defamation per se and entitles him to an award of, among other things, compensatory damages, emotional distress damages, and punitive damages. Those allegations comprise the third cause of action in the complaint.

The complaint's fourth cause of action contains another claim for defamation against defendant Gannon-Jackson. In support of this cause, plaintiff alleges that Gannon-Jackson falsely and maliciously stated to a longtime "close friend[]" that plaintiff was" 'violating the order of protection by attending [the child's] rowing events.'" That friend-whom the court knows to be an attorney (see generally Affronti v Crosson, 95 N.Y.2d 713, 720 [2001], cert denied 534 U.S. 826 [2001]; Matter of Siwek v Mahoney, 39 N.Y.2d 159, 163 n 2 [1976]) and against whom plaintiff does not advance a claim in this action-attended an athletic event involving the child that was held on March 8, 2020. There, the subject friend told plaintiff that he was "committing a crime by 'violating the order of protection.'" Those allegations support what plaintiff characterizes as a fourth cause of action for defamation per se in which plaintiff targets only Gannon-Jackson.

Finally, in what is styled as a second fourth cause of action, plaintiff complains that the aforementioned "false and malicious statements, alleging the commission of a crime, communicated to a third party without the consent of... [p]laintiff, represent[] extreme and outrageous conduct, which intentionally or recklessly caused [him] severe emotional distress." As a result of that conduct, plaintiff adds, he suffered trauma that he believes to constitute "a cause of action for intentional infliction of emotional distress" entitling him to compensatory and punitive damages.

II.

Defendants now collectively move to dismiss the complaint based upon CPLR 302 (a) (2) and (a) (3), [1] CPLR 215 (3), [2] and four subdivisions of CPLR 3211. [3] Support for the application is provided by, among other things, an affirmation in which plaintiff's attorney in this action tenders exhibits including the complaint and a good faith letter in which defendants asked plaintiff to withdraw that instrument. That request was based on defendants' positions that plaintiff has no cause of action for defamation given the truth of the subject statement statements and the absence of allegation of a "serious crime," and that a claim for intentional infliction of emotional distress (IIED) necessarily would fail inasmuch the "claimed statements... fall far short of the high bar of outrageous conduct required to sustain a claim for [IIED]."

Defendants also support the instant motion with an affidavit of the attorney for defendant Gannon-Jackson in the underlying divorce action. That attorney avers that, in August 2019, he moved in that matter for" 'a stay away order of protection' to protect [the child] from [the plaintiff in this action]." That application, the attorney further avers, was catalyzed by plaintiff's "erratic behavior," which included "showing up uninvited at public places where [the child] was present and acting in an irrational manner that was upsetting to [defendant Gannon-Jackson] and [the child]."

The motion in the underlying action was granted, and it yielded an order that was entered in October 2019 and that the subject attorney believes followed conversations between the court and counsels in which the attorney "request[ed] that [plaintiff] not be allowed at public events where [the child] would be present." According to that counsel, that request was supported by the Attorney for the Child, agreed to by the attorney for plaintiff in that action, and granted by the court.

Plaintiff opposes the instant motion through an affirmation in which his attorney, among other things, characterizes the affidavit submitted by the attorney for defendant Gannon-Jackson in the underlying action as "odd" before stating that such counsel "brings his matrimonial style of practice before this Court and submits a self-serving, conclusory, and accusatory styled Affidavit riddled with false and unsubstantiated claims." [4]

Otherwise, through the affirmation of counsel, plaintiff posits that the paper issued in the underlying action-which is captioned as a "No Contact Order"-is not an order of protection in the statutory form modeled in Family Court Act § 430 and Domestic Relations Law § 252. Plaintiff's attorney adds that "there was never an agreement or understanding... that [plaintiff] would be prevented from attending or being in any place where [the child] would be present," and that "[a]ll of the defamatory statements were made, upon information and belief, between January 10, 2020 and July 30, 2020." [5] Those statements, counsel further contends, charge that plaintiff "violated a 'Stay Away Order of Protection', which is a serious crime, namely...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT