Springer v. Almontaser
| Decision Date | 13 July 2010 |
| Parties | Sara SPRINGER, etc., et al., appellants, v. Dhabah (also known as Debbie) ALMONTASER, respondent. |
| Court | New York Supreme Court — Appellate Division |
Law Offices of David Yerushalmi, P.C., Brooklyn, N.Y. (Annette G. Hasapidis of counsel), for appellants.
Davis Wright Tremaine LLP, New York, N.Y. (Victor A. Kovner, Carolyn K. Foley, and Alan Levine of counsel), for respondent.
JOSEPH COVELLO, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and ARIEL E. BELEN, JJ.
In an action to recover damages for defamation, the plaintiffsappeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated May 29, 2009, as granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7).
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1) 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 defendant.
In February 2007 the New York City Department of Education announced that it would open a public school devoted to the Arabic language and culture, and that the defendant would be its principal. The plaintiffs led a public campaign against the school. Thereafter, in August 2007, the defendant resigned as the principal of the school. Following her resignation, the defendant gave a press conference on the steps of City Hall and accused the plaintiffs of conducting a ferocious smear campaign against her, stalking her, and verbally assaulting her. The plaintiffs then commenced the instant action alleging that the defendant defamed them when she stated that they had stalked and verbally assaulted her.
A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint based on documentary evidence may appropriately be granted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense 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; Yusin v. Saddle Lakes Home Owners Assn., Inc., 73 A.D.3d 1168, 902 N.Y.S.2d 139). "[T]o be considered 'documentary,' evidence must be unambiguous and of undisputed authenticity" ( Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569, citing Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3211:10, at 21-22). The newspaper articles, printouts of web pages, and transcripts of radio and television interviews which were submitted by the defendant in support of that branch of her motion which was pursuant to CPLR 3211(a)(1) were not "of undisputed authenticity" and, thus, did not qualify as documentary evidence. Therefore, the Supreme Court erred in granting that branch of the defendant's motion which was to dismiss the complaint based upon documentary evidence.
Nevertheless, the Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. The statements alleged to be defamatory must be viewed in their context to determine whether a reasonableperson would view them as conveying any facts about the plaintiff, because only statements alleging facts can properly be the subject of a defamation action ( see Gross v. New York Times Co., 82 N.Y.2d 146, 152-153, 603 N.Y.S.2d 813, 623 N.E.2d 1163; Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 254, 566...
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