Sokol v. Leader

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: A. GAIL PRUDENTI
• Citation: Sokol v. Leader, 74 AD3d 1180, 904 N.Y.S.2d 153 (N.Y. App. Div. 2010)
• Decision Date: 22 June 2010
• Parties: Howard SOKOL, etc., respondent, v. Micki LEADER, appellant.

904 N.Y.S.2d 153

74 A.D.3d 1180

Howard SOKOL, etc., respondent,

v.Micki LEADER, appellant.

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

June 22, 2010.

Miller Korzenik Sommers, LLP, New York, N.Y. (Louise Sommers, David S. Korzenik, and Jeffrey C. Miller of counsel), for appellant.

Suckle Schlesinger, PLLC, New York, N.Y. (Howard A. Suckle, named herein as Howard Sokol, pro se, and Melissa K. Corrao of counsel), for respondent.

A. GAIL PRUDENTI, P.J., PETER B. SKELOS, ANITA R. FLORIO, and SANDRA L. SGROI, JJ.

[904 N.Y.S.2d 155, 74 A.D.3d 1180]

In an action to recover damages for defamation, the defendant appeals from an order of the Supreme Court, Rockland County (Kelly, J.), dated December 21, 2009, which denied that branch of her motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1) and 3211(a)(7) and, in effect, denied those branches of her motion which were, in the alternative, in effect, to strike certain language from the complaint pursuant to CPLR 3016 (a) or for summary judgment dismissing the complaint pursuant to CPLR 3211 (c) and 3212.

ORDERED that the order is affirmed, with costs.

When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a causeof action, not whether the proponent of the pleading has a cause of action ( see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; Foley v. D'Agostino, 21 A.D.2d 60, 64-65, 248 N.Y.S.2d 121). In considering such a motion, 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' " ( 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). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus" ( EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26).

Here, the complaint adequately pleaded a cause of action sounding in defamation ( see Kotowski v. Hadley, 38 A.D.3d 499, 833 N.Y.S.2d 103; Scott v. Cooper, 215 A.D.2d 368, 625 N.Y.S.2d 661), and in her pre-answer motion to dismiss the complaint, the defendant did not actually contend otherwise. Rather, the defendant asserted that she had two defenses: the absolute privilege for "fair and true" reports of judicial proceedings (Civil Rights Law § 74; see Holy Spirit Assn. for Unification of World Christianity v. New York Times Co., 49 N.Y.2d 63, 424 N.Y.S.2d 165, 399 N.E.2d 1185), and the qualified common-law privilege for statements made by one person to another on a subject in which both persons share a common interest ( see Liberman v. Gelstein, 80 N.Y.2d 429, 436-439, 590 N.Y.S.2d 857, 605 N.E.2d 344). Contrary to the defendant's contention, on a motion made pursuant to CPLR 3211(a)(7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party. "CPLR 3211 allows [a] plaintiff to submit affidavits, but it does not oblige him [or her] to do so on penalty of dismissal" ( Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970). Unless the motion is converted into one for summary judgment pursuant to CPLR 3211(c), "affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint," and such affidavits "are not to be examined for the purpose of determining whether there is evidentiary support for the pleading" ( Rovello v. Orofino Realty Co., 40 N.Y.2d at 635, 636, 389 N.Y.S.2d 314, 357 N.E.2d 970; see Nonnon v. City of New York, 9 N.Y.3d at 827, 842 N.Y.S.2d 756, 874 N.E.2d 720). Thus, a plaintiff "will not be penalized because he has not made an evidentiary showing in support of his complaint" ( Rovello v. Orofino Realty Co., 40 N.Y.2d at 635, 389 N.Y.S.2d 314, 357 N.E.2d 970).

A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) ( seeCPLR 3211[c] ). If the court considers evidentiary material, the criterion then becomes "whether the proponent of the pleading has a cause of action,not whether he has stated one" ( Guggenheimer v. Ginzburg, 43 N.Y.2d at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). Yet, affidavits submitted by a defendant "will almost never warrant dismissal under CPLR 3211 unless they 'establish conclusively that [the plaintiff] has no cause of action' " ( Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595, 873 N.Y.S.2d 517, 901 N.E.2d 1268, quoting Rovello v. Orofino Realty Co., 40 N.Y.2d at 636, 389 N.Y.S.2d 314, 357 N.E.2d 970 [emphasis and alterations of original quotation omitted] ). Indeed, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied "unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it" ( Guggenheimer v. Ginzburg, 43 N.Y.2d at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17).

In this case, the defendant submitted no evidence demonstrating that any fact alleged in the indictment was, undisputedly, "not a fact at all." Moreover, even assuming, for present purposes, that the common interest privilege was applicable to the statement in question, and that the defendant did not disseminate the statement in a manner that exceeded the scope of the privilege ( see Skarren v. Household Fin. Corp., 296 A.D.2d 488, 489-490, 745 N.Y.S.2d 556) or constituted "excessive publication" ( Stukuls v. State of New York, 42 N.Y.2d 272, 281, 397 N.Y.S.2d 740, 366 N.E.2d 829), the privilege can be overcome by a showing of malice ( see Liberman v. Gelstein, 80 N.Y.2d at 437, 590 N.Y.S.2d 857, 605 N.E.2d 344), which means, inter alia, " 'knowledge that [the statement] was false or ... reckless disregard of whether it was false or not' " ( id. at 438, 590 N.Y.S.2d 857, 605 N.E.2d 344, quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686). Since, as stated above, the burden does not shift to the nonmoving party on a motion made pursuant to CPLR 3211(a)(7), a plaintiff has "no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211(a)(7)" ( Kotowski v. Hadley, 38 A.D.3d at 500, 833 N.Y.S.2d 103; see Pezhman v. City of New York, 29 A.D.3d 164, 169, 812 N.Y.S.2d 14; Arts4All, Ltd. v. Hancock, 5 A.D.3d 106, 109, 773 N.Y.S.2d 348; Terry v. County of Orleans, 72 A.D.2d 925, 927, 422 N.Y.S.2d 826; Mellen v. Athens Hotel Co., 153 App.Div. 891, 138 N.Y.S. 451). Thus, dismissal of the complaint pursuant to CPLR 3211(a)(7) was not warranted ( see Mihlovan v. Grozavu, 72 N.Y.2d 506, 508-509, 534 N.Y.S.2d 656, 531 N.E.2d 288).

The defendant's notice of motion did identify CPLR 3211(a)(1) as one of the bases of her motion, and under that provision, a defense may provide a basis for dismissing a complaint if that defense is founded upon documentary evidence. The defendant, however, failed to submit documentary evidence "conclusively establishing ... as a matter of law" ( Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190) that her allegedly defamatory statements constituted a "fair and true" report of judicialproceedings within the meaning of Civil Rights Law § 74, or that she was entitled to the benefit of the common interest privilege. Thus, dismissal of the complaint pursuant to CPLR 3211(a)(1) was not warranted.

Contrary to the defendant's additional contention, the complaint set forth "the particular words complained of," and thereby complied with CPLR 3016(a) ( see Pappalardo v. Westchester Rockland Newspapers, 101 A.D.2d 830, 475 N.Y.S.2d...