Matchett v. Stark

• Decision Date: 06 July 2016
• Docket Number: Index No. 595644/2014
• Parties: REBECCA MATCHETT and CHRISTOPHER MATCHETT, Plaintiffs, v. JESSICA STARK and NATHANIEL WELCH, Defendants.
• Court: New York Supreme Court

2016 NY Slip Op 31302(U)

REBECCA MATCHETT and CHRISTOPHER MATCHETT, Plaintiffs, v. JESSICA STARK and NATHANIEL WELCH, Defendants.

Index No. 595644/2014

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 45

July 6, 2016

DECISION AND ORDER

Mot. Seq. No. 001

HON. ANIL C. SINGH, J.:

In this action for, inter alia, libel and injurious falsehood, Rebecca Matchett and Christopher Matchett (together, the "plaintiffs") move for a judgment of no less than $5,000,000 against Jessica Stark ("Stark") and Nathan Welch ("Welch") individually and together with Stark ("defendants"), jointly and severally. Defendants move for an order dismissing plaintiffs' amended complaint pursuant to CPLR § 3211(a)(7) based upon failure to state a claim. (Mot. Seq. 001). Plaintiffs oppose the motion.

FACTS

This case arises from negotiations on Stark's alleged involvement in Rebecca & Drew Manufacturing, LLC ("R&D"), co-founded by Rebecca Matchett. The parties' transactions resulted in a lawsuit in this Court, wherein Stark sued the Matchetts for breach of contract. See Stark v. Matchett, et al. (Index No. 651815/2014) ("Related Action"). In an alleged effort to punish the Matchetts for the failed negotiation, in or about October 2014, Christopher Matchett ("Christopher") allegedly called Stark a "loser," at Avenues: The World School ("Avenues"), the school where both defendants' and plaintiffs' (together, the "parties") children attend. Later that day, defendants sent a series of emails to administrators of Avenues, which stated that Stark "felt very 'shaken' up by Chris calling [her] a loser in such an aggressive and threatening manner in front of [her] son," and called Christopher "an adult bully," "scammer and predator," who "should not [be] allow[ed] [] to scam other parents and [use] the school as a platform to dupe people." Am. Compl. ¶30-35, 39. One of the emails claims that "a total of 3-parents [] have issues w [sic] Matchetts. There is a clear pattern, and ... 'Chris' temper is concerning.'" Id. at 45. The administration of Avenues subsequently called plaintiffs to the school and told them to avoid all interactions with defendants. Id. at 49.

In November, Stark anonymously submitted a written regulatory tip to the Financial Industry Regulatory Authority ("FINRA"), accusing Christopher of disclosure violations. The Regulatory Tip Form alleged that "Christopher [] has never reported any of his lawsuits in the past" and called him "a predator as it related to any financial transactions he is involved in." Am. Compl. ¶57.

On December 29, 2014, defendants sent an email to the Chelsea Piers Sports & Entertainment Complex ("Chelsea Piers"), where Christopher has had a longstanding relationship, demanding Christopher be removed as a parent-volunteer in the weekly hockey class, where both defendants' and plaintiffs' children attend. The email claimed to "compile [] 'hard evidence,' including [Christopher]'s police record that I have on file," and called his behavior "'bullying' at its best, but this time with adults; not kids." Am. Compl. ¶84. Despite these allegations, administrators of Chelsea Piers rejected Stark's and Welch's demand to ban Christopher from their activities. They even emailed Stark saying that they "still feel reviewing Mr. Matchett's personal life issues was a waste of [their] time." Id. at ¶86.

Plaintiffs commenced this action seeking money damages for libel, injurious falsehood, and an order for a preliminary and permanent injunction enjoining defendants from making false and/or defamatory statements against plaintiffs. Defendants cross-move for an order dismissing plaintiffs' Amended Complaint pursuant to CPLR § 3211(a)(7).

DISCUSSION

Standard for a motion to dismiss

The standard for a motion to dismiss is well settled. On a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), all factual allegations must be accepted as true, the complaint must be construed in thelight most favorable to plaintiffs, and plaintiffs must be given the benefit of all reasonable inferences. Allianz Underwriters Ins. Co. v. Landmark Ins. Co., 13 A.D.3d 172, 174 (1st Dept 2004). The court determines only whether the facts as alleged fit within any cognizable legal theory. Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994). The court must deny a motion to dismiss, "if, from the pleading's four corners, factual allegations are discerned which, taken together, manifest any cause of action cognizable at law." 511 West 232^nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152 (2002).

"[N]evertheless, allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or contradicted by documentary evidence, are not entitled to such consideration." Quatrochi v. Citibank, N.A., 210 A.D.2d 53, 53 (1st Dept 1994) (internal citation omitted).

First Cause of Action as to Plaintiffs' Claim for Libel Based on Defendants'

Statement to Avenues

Defendants' motion to dismiss plaintiffs' first cause of action for libel based on defendants' statements to Avenues is denied.

An allegedly false written statement published to a third party is libel per se if it tends to "expose the plaintiff to public contempt, ridicule, aversion, or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him or their friendly intercourse in society." Rmaldi v. Holt, Rmehart & Winston,Inc., 42 N.Y.2d 369, 379 (1977), cert. denied 434 U.S. 969 (1977); see Roth v. United Fed'n. of Teachers, 5 Misc. 3d 888, 893 (Kings Cnty. Sup. Ct. 2004); see also Davis v. Boeheim, 24 N.Y.3d 262, 268 (2014); Idema v. Wager, 120 F.Supp.2d 361, 367 (S.D.N.Y. 2000), aff'd 29 F. App'x 676 (2d Cir 2002); Gionlekaj v. Sot, 308 A.D.2d 471, 473-74 (2d Dept 2003). "When statements fall within one of these categories, the law presumes that damages will result, and [special damages] need not be alleged or proven." Liberman v. Gelstein, 80 N.Y.2d 429, 435 (1992); see also Rinaldi, 42 N.Y.2d at 379 (holding same); accord Dillon v. City of New York, 261 A.D.2d 34, 38 (1st Dept 1999); Kamchi v. Weissman, 125 A.D.3d 142, 156 (2d Dept 2014). Libel per se is a statement "capable of being found to be defamatory...without regard to [] extrinsic evidence." See Pontarelli v. Shapero, 231 A.D.2d 407, 411 (1996).

Under New York law, libel applies to written statements whereas slander is defamatory statements communicated orally, and is more narrowly construed than libel. Moore v. Francis, 121 N.Y. 199, 204 (1890), see Penn Warranty Corp. v. DiGiovanni, 10 Misc. 3d 998, 1002 (NY Sup. Ct. 2005); see also Gurtler v. Union Parts Mfg. Co., 1 N.Y.2d 5, 8 (1956); Cavallaro v. Pozzi, 28 A.D.3d 1975, 1078 (4th Dept 2006) (dismissing a slander claim based on plaintiff's meritless reliance on a case concerning a libel claim); accord G.L. v. Markowitz, 101 A.D.3d 821, 827 (2d Dept 2012). "What gives the string to the writing is its permanence." Ostrowe v. Lee, 256 N.Y. 36, 39 (1931).

It is well settled that statements entailing "pure opinion," no matter how offensive, cannot be subject to a libel claim. See generally, Davis, 24 N.Y.3d at 269; see, e.g., Ram v. Moritt, 205 A.D.2d 516 (2d Dept 1994), Segall v. Sanders, 129 A.D.3d 819, 820 (2d Dept 2015); Penn Warranty Corp. v. Giovanni, 10 Misc. 3d 998, 1003 (NY Sup. Ct., Oct, 24, 2005); Roth, 5 Misc. 3d at 897. While a pure opinion is not actionable, an opinion that "implies that it is based upon facts which justify the opinion but are unknown those reading or hearing it ... is a mixed opinion and is actionable." Steinhilber v. Alphonse, 68 N.Y.2d 283, 289-90 (1986) (internal citation omitted). An actionable mixed opinion, unlike a protected pure opinion where "the facts supporting the opinion are set forth," deprives the reader of "the opportunity to assess the basis upon which the opinion was reached in order to draw his own conclusions concerning its validity." Silsdorf v. Levine, 59 N.Y.2d 8, 13-14 (1983); Rinaldi, 42 N.Y.2d at 381.

The question of "[w]hether a particular statement constitutes an opinion or an objective fact" is matter of law, to be resolved by the court. Mann v. Abel, 10 N.Y.3d 271, 276 (2008), cert. denied 555 U.S. 1170 (2009). In making such determination, the court should consider "(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether [] the context of the communication in which the statement appears... [is] such as to signal ... readers ... that what is beingread [] is likely to be opinion, not fact." Brian v. Richardson, 87 N.Y.2d 46, 51 (1995) (internal quotations and citations omitted). A statement is an assertion of fact if it can be proven true or false, and if a reasonable reader could have concluded that the statement was conveying facts about the plaintiff. Gross v. New York Times Co., 82 N.Y.2d 146, 152 (1993); Brian v. Richardson, 87 N.Y.2d 46, 51 (1995); Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235, 254 (1991).

To survive defendants' motion to dismiss and warrant submission of the issue to trier of fact, the statements complained of must be "reasonably susceptible of a defamatory connotation," in their ordinary meaning and in "the over-all context in which the assertions were made." James v. Gannett Co., Inc., 40 N.Y.2d 415, 418 (1976); Davis, 24 N.Y.3d at 270; Aronson, 65 N.Y.2d at 594 (1985). The motion to dismiss a libel claim must be denied unless the court determines that the contested statements are incapable of a defamatory meaning as a matter of law. See Frank v. National Broadcasting Co., Inc., 119 A.D.2d 252, 256 (2d Dept 1986); see also Armstrong v. Simon & Schuster, 85 N.Y.2d 373 (1995) (reversing a motion to dismiss libel claim where defendant suggested that plaintiff suborned perjury since the statement was capable of defamatory meaning); accord Tracy v. Newsday, Inc., 5 N.Y.2d 134,...