Valada v. Cucciniello

• Decision Date: 10 April 2023
• Docket Number: 3:22-CV-00703 (MAD/ML)
• Parties: MARIBETH VALADA, Plaintiff, v. ARMAND V. CUCCINIELLO, JR., ANTHONY DIGIOVANNI, and ATP INVESTIGATIONS LLC, Defendants.
• Court: U.S. District Court — Northern District of New York

1

MARIBETH VALADA, Plaintiff, v. ARMAND V. CUCCINIELLO, JR., ANTHONY DIGIOVANNI, and ATP INVESTIGATIONS LLC, Defendants.

No. 3:22-CV-00703 (MAD/ML)

United States District Court, N.D. New York

April 10, 2023

APPEARANCES:

LAW OFFICE OF RONALD R. BENJAMIN Attorneys for Plaintiff

COSTELLO, COONEY, & FEARON, PLLC Attorneys for Defendants

OF COUNSEL:

RONALD R. BENJAMIN, ESQ.

DANIEL R. ROSE, ESQ.

MEMORANDUM-DECISION AND ORDER

Mae A D'Agostino, U.S. District Judge:

I. INTRODUCTION

On May 3, 2022, Plaintiff Maribeth Valada commenced this action in the Supreme Court of the State of New York, Broome County alleging causes of action for defamation and intentional infliction of emotional distress ("IIED") against Defendants Armand V. Cucciniello, Jr. ("Defendant Cucciniello"), Anthony DiGiovanni ("Defendant DiGiovanni"), and ATP Investigations LLC ("Defendant ATP"). See Dkt. No. 2. On July 5, 2022, this action was removed to federal court. See Dkt. No. 1.

Currently before the Court is Defendants' motion to dismiss. For the following reasons, Defendants' motion is granted.

II. BACKGROUND

According to the complaint, Plaintiff began employment as a property manager for Winding Brook Management Corp. ("Winding Brook") and Holly Manor Associates LLC ("Holly Manor") in November 2011. See Dkt. No. 2 at ¶ 5. Defendant Cucciniello was the director of property management at Winding Brook and Holly Manor and Plaintiff's direct supervisor. See id. at ¶ 6. Plaintiff alleges that Defendant Cucciniello began making sexual advances toward her shortly after she was hired and used his managerial position to force Plaintiff to engage in intimate relations with him. See id. at ¶ 7. Defendant Cucciniello's behavior continued until Plaintiff resigned from her position on March 10, 2022. See id.

On March 10, 2022, Plaintiff sent a "demand letter" to Winding Brook and Holly Manor "seeking to resolve her claim without the need to resort to litigation." Id. at ¶ 8.^[1] Winding Brook, Holly Manor, and Defendant Cucciniello sent a response letter on April 4, 2022, denying the allegations and alleging that "any long-term intimate relationship between [Plaintiff and Defendant Cucciniello] was purely consensual without any element of quid pro quo." Id. at 1617.^[2] This letter also asserted that Plaintiff was "a mature adult with a possible sordid background which we intend to fully explore and properly expose if [Defendant Cucciniello] is forced to defend himself and his business enterprise." Id. at 17. The complaint alleges that Defendant Cucciniello thereafter retained Defendant ATP and Defendant DiGiovanni "for the purpose of defaming [P]laintiff, smearing her reputation, and otherwise maliciously seeking to intimidate and deter her from pursuing a sex discrimination claim ... under the veneer of doing an investigation." Id. at ¶¶ 9, 11.

Plaintiff alleges that Defendant DiGiovanni contacted various New York residents^[3] and "falsely suggest[ed] to them that [P]laintiff was promiscuous, engaged in previous relationships with married men, made or threatened false claims of sexual harassment for money, and was dishonest in every-day dealings." Id. at ¶ 15. Plaintiff specifically alleges that

(a) On or about March 29, 2022, [D]efendant DiGiovanni contacted Dawn Moochler and interviewed her extensively, during which they had an interchange in which he asked Ms. Moochler did [Plaintiff] ever say anything about being depressed, to which she responded "No[,"] whereupon defendant asked her, "Did you know that she has been treated for depression?"

(b) On or about March 29, 2022, [D]efendant DiGiovanni contacted Marty Lewis, [P]laintiff's ex-husband, and falsely told Lewis that [P]laintiff "had made claims that you [Lewis] had physically abused her." In a follow-up call to Lewis on or about April 6, [D]efendant DiGiovanni told Lewis he was calling as a "courtesy from one father to another" to let Lewis know he was going to be reaching out to speak to [P]laintiff's two sons.

(c) On or about April 6, 2022, [D]efendant DiGiovanni spoke in person with Joe DeGennaro, in the course of which [Defendant DiGiovanni] asked him, "Did you know [Plaintiff] is mentally unstable?", "Did you know [Plaintiff] has a history of carrying on affairs with married men?", and "Did you know [Plaintiff] has a history of claiming sexual harassment?"

Id. The complaint also asserts that Defendant DiGiovanni sought to intimidate Plaintiff and "other individuals" "directly" by "untruthfully threatening to subpoena those individuals even though he knew at that time there was no legal action pending" and "was not an attorney." Id. at ¶ 16.

The complaint asserts two causes of action. See id. at ¶¶ 18-33. First, Plaintiff asserts that Defendant DiGiovanni's statements constituted defamation or defamation per se because they called into question Plaintiff's "honesty, trustworthiness, dependability, and professional fitness and abilities" and suggested that Plaintiff "committed a crime by extorting [Defendant] Cucciniello and the management company." Id. at ¶ 20. In her second cause of action, Plaintiff asserts an IIED claim for "subjecting her to defamatory statements and publicly accusing her of the crime of extortion." Id. at ¶ 29. Defendants now move to dismiss the complaint, arguing that (1) Defendant DiGiovanni's statements were "made during pre-litigation investigation [and] are shielded from liability under qualified immunity"; (2) Plaintiff has failed to state a defamation claim; and (3) Plaintiff has failed to state an IIED claim. See Dkt. No. 29-1 at 10-19. Plaintiff opposes the motion. See Dkt. No. 31 at 3-5.

III. DISCUSSION

A. Legal Standard

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This assumption of truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 56 U.S. 662, 678 (2009) (citation omitted). Although a court's review of a motion to dismiss is generally limited to the facts presented in the pleading, the court may consider documents that are "integral" to that pleading, even if they are neither physically attached to, nor incorporated by reference into, the pleading. See Magnifico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).

To survive a motion to dismiss, a party need only plead "a short and plain statement of the claim," see Fed.R.Civ.P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (citation omitted). Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief above the speculative level," see id. at 555 (citation omitted), and present claims that are "plausible on [their] face," Id. at 570. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of the "entitlement to relief."'" Id. (quoting Twombly, 550 U.S. at 557). Ultimately, "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims across the line from conceivable to plausible, the [] complaint must be dismissed[,]" Id. at 570.

B. Qualified Immunity

Under New York law, "absolute immunity from liability for defamation exists for oral or written statements made by attorneys in connection with a proceeding before a court 'when such words or writings are material and pertinent to the questions involved.'" Front, Inc. v. Khalil, 24 N.Y.3d 713, 718 (2015) (quoting Youmans v. Smith, 153 N.Y. 214, 219 (1897)). Although absolute immunity has not been extended to communications made prior to the commencement of anticipated litigation, see id. at 719, a qualified immunity is available for pre-litigation statements that are "pertinent to a good faith anticipated litigation." Id. at 720. "This requirement ensures that privilege does not protect attorneys who are seeking to bully, harass, or intimidate their client's adversaries by threatening baseless litigation or by asserting wholly unmeritorious claims, unsupported in law and fact, in violation of counsel's ethical obligations." Id.

The Court notes that the "pre-litigation privilege [was] intended to protect attorneys from defamations claims 'so that those discharging a public function may speak freely to zealously represent their clients without fear of reprisal or financial hazard.'" Giuffre v. Maxwell, No. 15-CV-7433, 2017 WL 1536009, *8 (S.D.N.Y. Apr. 27, 2017) (emphasis added) (quotation omitted). Defendant DiGiovanni is a non-attorney private investigator who was alleged to be acting at the behest of Defendant Cucciniello, also a non-attorney. See Dkt No. 2 at ¶¶ 6, 13. Because these statements cannot be attributed to an attorney retained in anticipation of litigation, Defendants are not entitled to qualified immunity for Defendant DiGiovanni's alleged statements. See Giuffre, 2017 WL 1536009, at *8 ("Where the statement cannot be...