Mees v. Buiter, 2016–07586

• Decision Date: 30 September 2020
• Docket Number: 2016–07586,Index No. 9579/14
• Citation: 186 A.D.3d 1670,132 N.Y.S.3d 50
• Parties: Heleen MEES, appellant, v. Willem H. BUITER, respondent.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 1670
132 N.Y.S.3d 50

Heleen MEES, appellant,
v.
Willem H. BUITER, respondent.

2016–07586
Index No. 9579/14

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

Argued—February 24, 2020
September 30, 2020

132 N.Y.S.3d 51

Heleen Mees, Brooklyn, NY, appellant pro se.

Katsky Korins LLP, New York, N.Y. (Adrienne B. Koch and Quirk and Bakalor, P.C. [Timothy J. Keane ], of counsel), for respondent.

SHERI S. ROMAN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

186 A.D.3d 1670

In an action, inter alia, to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated June 1, 2016. The order, insofar as appealed from, granted those branches of the defendant's motion which were pursuant to CPLR 3211(a) to dismiss the amended complaint and to dismiss, with prejudice, the second and fourth causes of action in the original complaint.

ORDERED that the appeal from so much of the order as granted those branches of the defendant's motion which were pursuant to CPLR 3211(a) to dismiss, with prejudice, the second and fourth causes of action in the original complaint is dismissed as academic; and it is further,

ORDERED that the order is affirmed insofar as reviewed, with costs.

The plaintiff and the defendant were formerly involved in an adulterous relationship that began in or around 2008. On July 1, 2013, the plaintiff was arrested and charged with various counts of stalking and harassment. According to the criminal information, the plaintiff had sent the defendant at least 1,000 emails between

132 N.Y.S.3d 52

the period of July 1, 2011, and July 1, 2013, the defendant had told the plaintiff to stop contacting him, and the plaintiff had continued to send the defendant "several hundred emails" even after he had sent a "cease and desist letter" to her on February 27, 2013. The criminal information was subsequently amended to include, inter alia, an additional charge of menacing.

The plaintiff commenced this action by summons with notice dated June 26, 2014, and subsequently served a complaint asserting, in relevant part, causes of action alleging defamation under Dutch Law (second cause of action) and malicious prosecution (fourth cause of action). The defendant moved to dismiss the complaint, and the plaintiff thereafter served an amended complaint asserting causes of action to recover damages for defamation (first cause of action), false arrest and imprisonment (second cause of action), intentional infliction of emotional distress based on the defendant's alleged "false and misleading

186 A.D.3d 1671

information to the police" (third cause of action), tortious interference with prospective business relations (fourth cause of action), and intentional infliction of emotional distress based on, among other things, the defendant's distribution of pornographic photographs of the plaintiff that were allegedly taken without her consent to "multiple law firms he has retained, the New York Police Department, and/or the District Attorney's Office" (fifth cause of action). In a supplemental notice of motion, the defendant moved, inter alia, pursuant to CPLR 3211(a) to dismiss the amended complaint, and to dismiss, with prejudice, the second and fourth causes of action asserted in the original complaint. By order dated June 1, 2016, the Supreme Court, among other things, granted those branches of the defendant's motion. The plaintiff appeals.

Contrary to the plaintiff's contention, the defamation cause of action to the extent that it was predicated on allegedly defamatory statements uttered on May 6, 2013, May 30, 2013, and June 13, 2013, was time-barred. The defendant demonstrated, prima facie, that the plaintiff commenced this action more than one year after those allegedly defamatory statements were made and, thus, were time-barred by the applicable statute of limitations (see CPLR 215[3] ; Arvanitakis v. Lester , 145 A.D.3d 650, 651, 44 N.Y.S.3d 71 ; Sethi v. Morrissey , 105 A.D.3d 833, 834, 961 N.Y.S.2d 809 ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the statute of limitations was tolled or was otherwise inapplicable (see CPLR 2104 ; Laner v. Laner , 164 A.D.3d 1433, 1435, 82 N.Y.S.3d 547 ; Silver v. Silver , 162 A.D.3d 937, 939, 79 N.Y.S.3d 270 ). Although the parties' submissions indicated that they had contemplated entering into a...