Ford v North Hills Country Club, Inc.
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Ford v North Hills Country Club, Inc. 2015 NY Slip Op 32752(U) November 30, 2015 Supreme Court, Nassau County Docket Number: 600757-15 Judge: Jerome C. Murphy Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NASSAU COUNTY CLERK 12/02/2015 11:09 AM 1] INDEX NO. 600757/2015 0 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 12/02/2015 SUP REME CO URT : ST AT E OF NEW YORK COUNTY OF NASSAU P RESENT: HON. JER OME C. MU RPH Y, Justice. EDWA RD J . FO RD, Plaintiff, T RI AL/IAS PART 22 Ind ex No.: 600757-1 5 Mo tion Da te: 9/11/15 Sequ ence No.: 001 - against DEC ISION AN D ORDE R NORTII lllLLS COUNTRY CL UB, INC., Defe ndan t. x:1r The following papers were read on this motion: Motion to Dismiss Complaint with Ex hibits............................... ...... ........... ........... . Memorandum of Law in Support of Motion ............................................................ 2 A ffirn1ation in Opposition and Exhibits....... .......................................................... . 3 Reply Affinnation................................................................................................... 4 PRELIMfNARY STATEMENT Defendant moves for di smi ssal of the Complaint pursuant to CPLR ~ 32 11 (a)( I) on the ground that the defense is based on documentary evidence; and pursuant to CPLR §§ 30 I6(a) and 32 11 (a)(7) on the grounds that the Complaint fails to stale a cause of action upon wh ich rel ief may be granted and that plaintiff has fa iled lo plead his claims with sufficient particularity. BACKGRO U D Plaintiff commenced this action seeking compensato1y and punitive damages for alleged defamation per se by defendant against plaintiff. The Complaint al leges that plaintiff has been a member of North Hills Country Club since 1958. Plaintiff Edward .I. Ford ("·Ford..) alleges that on August 6. 20 14, while socializing in the clubhouse. he felt discomfo rt in his chest, and asked members present if anyone had aspirin. A fellow member. John De Vivo. sa id he knew where to locate aspirin, and retri eved aspirin for Ford. Two clays later, on August 8. 2014. Ford alleges that the General Manager, pub lished an e-mail on behalf of the Board of Governors, and forwarded it to numero us members and former [* 2] members of the club, accusing Ford of vandalizing property (Exh ... ff· to Motion), stating specifically as follows: On Wednesday, August 6, 2014 at approximately 9:20 PM you were observed vandalizing the Locker Room Attendants Room in the Men's Locker Room. This behavior is not acceptable, and as such, in accordance with our By-Laws, Article IV, Section 8, you will be required lo appear before the Board of Governors on Wednesday, August 20, 2014 at 5:00 PM. Al that meeting, you will have the oppo11unity to speak on your own behalf. Whether or not you choose lo attend, the Board of Governors will determine what disciplinary action to take. [n the interim, and under the same provision of the By-Laws, the Executive Commiuee of the Board of Governors has elected to impose an immediate suspension conm1encing Sunday, August I 0, 20 14. During your suspension, you will not be permitted lO use the Club in any capacity, including your presence at the Club facility. until the Board of Governors hearing. Ford alleges that the foregoing statement about him is false: was knowingly made in bad faith; was published without authorization or pri vilege; was intended to impute plaintiff's unfitness to engage in hi s professional activities as a legal videographcr; was intended to mali gn plaintiff's personal and professional reputation as a professional legal videographcr; was intended to expose plaintiff to public contempt , ridicule, aversion, disgrace and/or to induce an evil opinion of Plaintiff in the minds of right-thinking persons and depri ve plaintiff of his friendly intercourse in society; intended to harm plainti frs business as it related to his legal videography; and publicl y accused plaintiff or criminal activity. Plaintiff alleges three causes of action: defamati on under the common law of New York: defamation per se; and intentional interference wi th business relations. Defendant moves to dismiss the complaint on the ground that the attachment to the email in question is directed to Mr. De Vivo, and docs not accuse plaintiff or vandalizing the Attendant's Room. The e-mail itself, to which the letter was attached, reads as follows: '·Gentlemen, attached is the letter to be sent to Mr. DeVivo and Mr. Ford. Please review and comment. Time is of the essence, as thi s leller must be sent immed iately. Thank you, Michael Bomengo." Defendant also contends that the complaint fai ls to properly plead any of the required clements to set fo rth a claim in defamation, defamation per se, or intentional interference with 2 [* 3] business relations. Plaintiff, they contend, has failed to allege special damages, failed to assert facts accusing him of committing a serious crime, or tending to injure him in his trade, business or profession. As to the third cause of action, plaintiff has allegedly failed to state a valid claim for intentional interference with contractual relationships, in that he has failed to identify any third-party with whom he had a business relationship which was damaged by defendant's conduct. Plaintiff submits an Affi rmation, as opposed to an Affidavi t, in opposition to the Motion. CPLR § 2106(a) authorizes an attorney. who is not a party to an action. to submit a subscribed and affirmed document in lieu of and with the same force and effect as an affidavit. tv1r. ford is the plainli ff in the action, and the Affo111ation in li eu of an Affidavit is therefore not authorized. Nevertheless, in his opposition, plaintiff asserts by Al'ficlavit (although labeled Affirmation) that the attached letter to the e-mail in quest ion was also add ressed to and sent to him, including the same language as the letter to Mr. DiVivo, and that he was immediately suspended from membership in North Hills Country Club. l le does not provide a copy of this letter. He also submits an affidavit from Scott Raffa, a member o f the club. who received the subject e-mail, which he, and other members of the club, interpreted as meaning that both Mr. DiVivo and Mr. Ford were accused of vandalizing the locker room. Plaintiff also asserts that the email and attachment accuse him of vandalism. which constitutes a felony if the damage exceeds $250.00, citing Penal Law § 145, and therefore constitutes libel per se. As a consequence, he claims that he is not required to allege special damages. Nevertheless, plaintiff aimexes to his Affi rmation a copy of a Supplemental Summons and Amended Complaint, in which he specifies special damages. Plaintiff also agreed to discontinue the Third Cause of Action for interference with business relations. Defendant replies to pl aintiffs opposition, in which they reiterate that the document upon Jr. which plaintiff rel ics does not accuse him , as opposed to 1 Di Vivo. or vandalizing the lockc:r room. They also contend that plaintiff has failed to alleged special damages, failed to explain how this e-mai l harmed him in his business or profession. and failed to state a cause of action for interference with a business relationship. DISCUSSION CPLR § 321 1 (a)(l) provides as follows: (a) Motion to di smiss cause of action. A party may move for judgment dismissing one or more causes or action asserted against 3 [* 4] him on the ground that: I. a defense is founded upon documentary evidence. In order to succeed in a claim based upon documentary evidence. " ... the defendant must establish that the documentary evidence which form the basis of the del'ense be such that it resolves all factual issues us a matter of law and conclusively disposes or the plaintiff's claim" (Symbol Technologies, Inc. v. Deloilfe & Touche, LLP. 69 A.D.3d 191, 194 l2d Dept. 2009]); (DiGiacomo v. Levine, 2010 WL 3583424 (N.Y.J\. D. 2d Dept.]). While plaintiff has attached only the letter addressed to DiVivo. chis docs not resolve all factual questions as a matter of law. Plaintiff asserts that a letter contai ning the identical language was addressed and mailed to him , and the cover e-mail made it clcnr that the letter was to be mailed to both plaintiff and Mr. Di Vivo. The name or plainti ff does not appear as a recipient ofa courtesy copy of the letter addressed to DiVi vo, and plaintiff has submitted an affidavit that he received the letter addressed to him, and was suspended for the period August I0, 2014 through September 30, 2014, as a result of the action referred to in the letter. Defendant's motion to dismiss the complaint based upon a defense based on documentary evidence is denied. Defendant also moves to dismiss the complaint fo r fail ure or plaintiff to comply with the particularity requirement of CPLR § 30 l 6(a). That statute requires particularity in specific actions and provides in pertinent pan as follows: ..(a) Libel or slander. In an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their application to the pl aintiff may be stated generally." Defendant attaches a copy of the Complai111 as Exh. "A" to the motion. In i111 , plaintiff quotes verbat im from the leltcr addressed to Mr. DiVivo, but stated in the e-mail cover to be sent lo both Di Vivo and Ford. Plaintiff alleges that the e-mai l with attached Jetter was sent to ..numerous members and former members or the country club", and submits an affidavit from Scott Raffa. a member of the club, who states that he was a recipient or the letter, and that he understood it to mean that both DiVivo and Ford ·were being accused or vanda lizing the locker room. Plainti IT has met the particularity requirement of CPLR § 30 l 6(a), and has adequately identified the persons 10 whom the e-mail was sent. The motion to dismi ss based upon the failure of plaintiff to set forth with particularity the language complained of as constituting libel is denied. 4 [* 5] Defendant also contends that plaintiff has fai led to assen special damages. and opposes his application to amend the Complaint to do so. " The elements of a cause of action [to recO\·er damages] for defamation are a false statement, published w itho ut privilege or authorization to a third party, constituting fa ult as judged by, at a min imum, a negligence s tandard , and it must either cause special harm or constitute defama tion per se. "(Martinov. /I V Ne ws, LLC, 114 A.D.3d 9 13, 913-914 [2d Dept. 20 14). A defamatory statement is libelous per se if it" ' tends to expose the plaintiff to public contempt, ridicule, avers ion or disf,rrace, or induce an evil opinion of him in the minds of right-thinking persons. and to deprive him of thei r friendly intercourse in society.'" (lvfatovic v. Times Beacon Record Newspapers, 46 A.0.3d 636 [2d Dept. 2007]. quoting from Rinaldi v. I loft, Rinehart & Winston, 42 N.Y.2d 369, 379 1. 1977]). S lander as a rule is not actionable unless the plainti ff suffers special damage. Special damages contemplate" ' the loss of something having econom ic or pecuniary value.' '' (Liberman v. Ge/stein, 80 1 .Y.2d 429, 434-435 l1992], quoting Restatement econd of Torts§ 575). In the absence of special damages, slander claims are not sustainable unless they fall within one of fou r exceptions to the rule. These exceptions, constituting .. slander per se ... consist of statements (i) charg ing plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, bus iness or profession: (iii) that plainti ff has a loathsome d isease; or (iv) imputing unchastity to a \Voman (Id. at 435). Plaintiff claims that the statement was slanderous per se, in that it charged him with criminal conduct. Not every imputation or criminal conduct, however, is s landerous per sc. (Id.). As the Court in Liberman therefore noted , wit h the extension of criminal puni shment to many minor offenses, it became necessary lo di ffe rentiate between serio us and relatively minor offenses, and only statements regarding the former arc actionable without proof of damages. The Court points to the li st or crimes contained in Com ment g to § 57 1 of the Restatement, which delineates the types of crimes actionable as per se slander, as including murder, burglai)', larceny. arson, rape, and kidnapping (Id.) It is unclear what is meant by the term "vanda lizing" . It does not appear as a crime in the Penal Law. Penal Law§§ 145.00 el seq. sets fo urth fo ur degrees of cri m ina l mischief. Criminal misch ief in the Fourth Degree(§ 145.00), a Class A misdemeanor, involves intentional damage to the property of another. Criminal Mischief in the Third Degree (§ 145.05). a C lass E felony, deals w ith intentional damage to the property of another in an amount exceeding $250.00, as well 5 [* 6] as intentional damage to a motor vehicle. Criminal Mischief in the Second Degree(§ 145.10) deals with damage in excess of $ 1,500.00, and is a Class D Felony. Criminal Mischief in the First Degree(§ 145.12), is a Class B Felony involving damage to property by use of explos ives. The Merriam-Webster definition of "vanda lize" is "to deliberately destroy or damage (property)." The Court is umvilling to presume that the term as contained in the e-mail necessarily imported damage in excess of $250.00, which would constitute an E felony. Even if the damage was in excess of $250.00, the Court would be hard-pressed to regard this as a "serious crime", in the category of those denominated in the Comment to the Restatement. The Court therefore concludes that the assertion as to "vandalizing" does not import a serious crime, is not slander per se, and is not actionable in the absence of special damages. Without cross-moving fo r leave to amend the Compla int in accordance with CPLR § 3025, plaintiff appends a Supplemental Summons and Amended Complaint, in \\·hich he itemizes costs attendant to his membership in the country club for the period from August 8. 2014 through September 30, 2015, the period of his suspension, as constituting "special damages." These dues and fees were not caused by any action on the part or defendant. Rather, they are simply concomitant with hi s obligations as a member of the club. While he was precluded from utilizing the facilities of the club during the term of his suspension, he nevertheless remained a member. and was required to make the alleged payments. More importantly, however, and seemingly not raised by either side, is the issue of qualified privilege. "A qualified privilege attaches to a communication made by a person vvith a legitimate interest in maki ng or a duty lo make the communication, and the commun ication is sent to a person with a corresponding interest or duty, even though, without the priv il ege, the communication would be defamatory.,. ( 14 N. Y.Prac., New York Law of Torts § I :51; Presler v. Domestic & Foreign i'vfissionary Socy. Ofthe Prot. Episcopal Church in the United States of 1 Am., 113 A.D.3d 409 [ 1$ Dept. 2014]). The subject communication in this case was generated by the General Manager of the North Hills Country Cl ub, Michael Bomcngo, and directed, apparentl y, to members of the Board of Governors, seeking their approval to forward the letters to Messrs. Ford and Di Vivo. While the nature and extent of the vandalism is not set forth in U1e communication. it is clear that Ir. Bomengo had a duty to advise members of the governing board of the happening or the event. and make arrangements for a meeting in compliance with the By-Laws of the Club. As such, he 6 [* 7] had a legitimate interest and a duty to make the communication to persons w ith a corresponding interest or duty, whether or not the language wou ld otherwise be defamatory. Defendant's motion to dismiss the Complaint is granted on the grounds that the communication was qualifiedly privileged. This constitutes the Decision and Order of the Court. Dated: Mineola, New York November 30, 2015 ENTER: JEROM E C. MURPI.J.S.C. ENTERED DEC 0 2 2015 NASSAU COUf\lTY COUNTY CLERK·s OFFICE 7
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