Opinion
Index 151711/2020
12-15-2021
AMALIA PALADINO, Plaintiff, v. CLAUDIA COJOCARU, Defendant. Motion Seq. No. 001
HON. DAVID B. COHEN JUSTICE
Unpublished Opinion
DECISION + ORDER ON MOTION
HON. DAVID B. COHEN JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 23, 24, 25, 26, 27, 28, 29, 30, 31, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 were read on this motion to/for DISMISS/SANCTIONS.
In this action, Amalia Paladino (Plaintiff or Paladino) seeks civil and punitive damages against Claudia Cojocaru (Defendant or Cojocaru) in connection with certain "statements" made by Defendant, as discussed below. In her complaint dated July 17, 2020 (Complaint; NYSCEF Doc. No. 6), Plaintiff asserts sixty-four (64) causes of action against Defendant, which sound in negligence, negligent infliction of emotion distress, libel, libel per se, prima facie tort, intentional infliction of emotional distress, injurious falsehood and disparagement. Defendant moves to dismiss the Complaint and the causes of action therein, pursuant to CPLR 3211 (a) (1), (a) (5) and (a) (7), as well as for sanctions against Plaintiff, pursuant to CPLR 8303-a and Rule NYCRR § 130-1.1 (motion sequence 001; NYSCEF Doc. No. 23).
Plaintiff opposes the motion and cross-moves for an order denying Defendant's motion to dismiss, as well as for an order, pursuant to CPLR 3217 (b), granting Plaintiff leave of court to voluntarily discontinue or withdraw, without prejudice, certain "duplicative" causes of action asserted in this action, as discussed below (NYSCEF Doc. Nos. 35 and 36).
After consideration of the parties' contentions, as well as a review of the relevant statutes and case law, the respective relief requested in Defendant's motion, as well as in Plaintiffs cross motion, is granted in part and denied in part.
Factual and Procedural Background
The factual allegations for this action, unless otherwise indicated herein, are primarily based upon Plaintiffs Complaint (Complaint, ¶¶ 7-148), and Defendant's memorandum of law in support of the motion to dismiss (Def Brief; NYSCEF Doc. No. 29), the relevant portions of which are set forth therein under the heading "Allegations of the Complaint" (Def. Brief at 3-13).
Plaintiff received her undergraduate, graduate, master and doctorate degrees in criminal justice from the John Jay College of Criminal Justice (John Jay) of the City University of New York (CUNY) (Complaint, ¶¶ 7-12). Thereafter, Plaintiff became an adjunct professor at John Jay, teaching in its sociology and psychology departments from 2010 to the present (id., ¶¶ 13-14). Defendant was an undergraduate student at John Jay from 2012 to 2014, and became an adjunct professor thereafter, teaching in John Jay's anthropology and psychology departments from 2017 to 2019 (id., ¶¶ 16-17).
In June 2019, Defendant, together with a former John Jay student named Naomi Haber, filed a lawsuit in the United States District Court for the Southern District of New York (SDNY Suit; Cojocaru v City University of New York et ah, Civ. Case No. 19-cv-5428 [AKH]) against John Jay and four of its professors (Richard Curtis, Anthony Marcus, Barry Spunt and Leonardo Dominguez), alleging violations of Title IX, including allegations of "rape, sexual abuse, sex trafficking and sexual harassment" (Complaint, ¶¶ 140 and 142; Def. Brief at 3). In February 2020, Defendant and Haber filed an amended complaint in the SDNY Suit (Complaint, ¶ 141). In their respective answers to the amended complaint, Curtis, Dominquez and Spunt denied the allegations therein, and interposed counterclaims against Defendant and Haber for defamation, libel and slander per se, in connection with an interview they had given to the New York Post, which resulted in a newspaper article published in September 2018 entitled "College Professors Allegedly Sold Drugs [And] Pimped Out Students" (id., ¶¶ 143-144).
In the Complaint, the allegations against Defendant are based upon certain "statements" she had made during the following periods: her April 6, 2018 email (Complaint, ¶¶ 35-38); her November 29, 2018 text messages (id., ¶¶ 39-43); her email exchanges with a book publisher from December 6, 2018 to January 22, 2019 (id., ¶¶ 44-56); her March 11, 2019 text messages (id., ¶¶ 57-59); her June 21, 2019 to June 22, 2019 tweets (id, ¶¶ 60-67); and her July 30, 2019 tweets (id., ¶¶ 68-69). After discussing the foregoing "statements" in the Complaint, Plaintiff alleges that Defendant was motivated by "greed, malice and actual malice to undermine and malign Plaintiffs credibility for her own personal profit and to conceal her own lack of research credentials," because "Plaintiff could provide admissible evidence against Defendant and her co-plaintiff in their pending SDNY Suit filed against CUNY and the four John Jay professors (id., ¶¶ 70-148). In other words, certain of the Complaint's allegations are based on the "statements" Defendant had made concerning Plaintiffs alleged involvement or relationship with one or more of the professors in the SDNY Suit. The Complaint then asserts the sixty-four (64) causes of action against Defendant based on all the foregoing "statements" she had made (id., ¶¶ 149-956).
Summarizing the allegations and the numerous causes of action in the Complaint, Defendant sets forth a chart identifying each of the 12 "statements" (consisting of four emails, two text messages and six tweets) and the eight types of related causes of action, namely: negligence; negligent infliction of emotional distress (NIED); prima facie tort; intentional infliction of emotion distress (IIED); libel; libel per se; injurious falsehood; and disparagement (Def. Brief at 5-13; summary chart at 5). Defendant also points out that, besides the amended complaint filed in the SDNY Suit and the Complaint filed in this action in July 2020, Plaintiff also filed with this Court an additional complaint against Defendant in August 2020 (Paladino v Cojocaru, Sup Ct, NY County, Index No. 156016-2020), which totaled "an additional 479 pages and 91 causes of action," and included "duplicative claims to those asserted here" (Def. Brief at 1; referring to the additional action as "Paladino II"). In light of the additional action asserting duplicative claims, Defendant requests that this Court impose sanctions against Plaintiff because she "is improperly using the judicial system to harass Ms. Cojocaru" (id.).
Applicable Legal Standards
As noted above, Defendant seeks to dismiss the Complaint pursuant to CPLR 3211 (a) (1) and (a) (7), among other grounds. In considering a CPLR 3211 (a) (7) motion to dismiss, the court is to determine whether the pleading states a cause of action. "The motion must be denied if from the pleadings' four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law" (Richbell Info. Servs., v Jupiter Partners, 309 A.D.2d 288, 289 [1st Dept 2003], quoting 511 W. 232nd Owners Corp. v Jennifer Realty Corp., 98 N.Y.2d 144, 151-152 [2002]). Plaintiffs' pleadings are afforded a liberal construction, and the courts "accord plaintiffs the benefit of every possible favorable inference" (Leon v Martinez, 84 N.Y.2d 83, 87 [1994]; see also Nonnon v City of New York, 9 NY3d 825, 827 [2007] [dismissal warranted only if pleading failed to allege facts that fit within any cognizable legal theory]). While factual allegations of a complaint are afforded a favorable inference, bare legal conclusions and inherently incredible facts are not entitled to preferential treatment (Matter of Sud v Sud, 211 A.D.2d 423, 424 [1st Dept 1995]).
Moreover, when documentary evidence, such as a written agreement, flatly contradicts the factual claim, there is no presumption of truth or favorable inference accorded the plaintiff (Scott v BellAtl. Corp., 282 A.D.2d 180 [1st Dept 2001]; see also Berger v Temple Beth-El of Great Neck, 303 A.D.2d 346 [2d Dept 2003] [where defendant moves to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence must resolve all factual issues as a matter of law and conclusively dispose of plaintiff s claim]).
Further, the courts will, pursuant to CPLR 3211 (a) (5), dismiss causes of action that are barred by the applicable statute of limitations (Arvanitakis v Lester, 145 A.D.3d 650, 651 [2d Dept 2016] [dismissed defamation claims barred by the statute of limitations]).
Legal Conclusions
Defendant's Arguments in Support of Dismissal of Claims and Imposition of Sanctions
As an initial matter, Defendant argues that the claims sounding in negligence should be dismissed because (1) Plaintiff cannot "masquerade" defamation claims as negligence claims (Def. Brief at 13-16); (2) Plaintiff cannot "recast" defamation claims as negligence claims so as to extend the statute of limitations period (id. at 16-18); (3) Plaintiff failed to plead the elements of negligence (id. at 18-21); and (4) Plaintiff has not pleaded NIED claims (id. at 21-23). With respect to the libel claims, Defendant argues that (1) her statements of opinion are not actionable; (2) many of the statements are not libelous since they do not even mention Plaintiff; and (3) the libel per se claims fail because many of them are "private statements" with Defendant's "former intimate partner," which do not injure Plaintiff s "trade or profession" and "cannot be connected to Plaintiff without extrinsic knowledge" (id. at 23-28). As to the claims of injurious falsehood, Defendant argues for dismissal because (1) similar to claims of "slander of title," these claims require "damage to property, typically real property" but Plaintiff "has not alleged any damage to property or title;" and (2) Plaintiff failed to plead "special damages with particularity," a required element of such claims (id. at 28-29).
Defendant argues that the prima facie tort claims must be dismissed because (1) they are barred by the one-year statute of limitations, and many of these "statements" were alleged to have occurred more than one year from the commencement of this action; (2) Plaintiff failed to plead the four required elements: (i) intentional infliction of harm solely motivated by malice, (ii) causing special or measurable loss, (iii) with no excuse of justification, and (iv) damages caused by acts that would otherwise be lawful (id. at 30-32). Defendant also argues for dismissal of the tort of IIED where the four required elements are (1) a defendant's extreme and outrageous conduct, (2) an intent to cause a substantial probability of severe emotional distress, (3) a causal connection between the conduct and injury, and (4) severe emotional distress; but Defendant's statements in this action do not "constitute anything close to extreme and outrageous conduct," and any "conclusory allegations" by Plaintiff are "insufficient to establish intentional infliction of emotional distress" (id. at 32-34). In addition, Defendant argues that Plaintiff failed to plead the claims of disparagement because the "only form" of disparagement recognized as a "stand-alone tort in New York has to do with tangible products" and Plaintiff has not pleaded such a claim (id. at 34-35).
Finally, Defendant asserts that sanctions against Plaintiff are warranted in this action because of "Paladino's malicious conduct in prosecuting this action," and "Paladino's claims are clearly frivolous and intended only to attack Cojocaru" (id. at 38-39). Defendant also avers that this Court has the inherent authority to impose sanctions for unethical, frivolous or vexatious litigation practices, as evidenced by Plaintiffs filing of the "Paladino II" action, which consists of "an additional 479 pages of frivolous" and "duplicative claims" to harass Defendant (id.).
Plaintiffs Opposition to Defendant's Motion to Dismiss and Plaintiffs Cross Motion
Notably, in counsel's affirmation in support of Plaintiff s cross motion (Plf Affirmation; NYSCEF Doc. No. 36) and in the opposition brief to Defendant's motion to dismiss and in support of the cross motion (Plf. Opposition; NYSCEF Doc. No. 72), Plaintiff acknowledges that, after review of Defendant's motion to dismiss, "it is clear that multiple causes of action [in the Complaint] should be discontinued as they are subsumed by other causes of action" (Plf. Affirmation, ¶ 8; Plf. Opposition at 1-2). In addition, Plaintiff concedes that "multiple causes of action related to the statements Defendant made on Twitter on June 21, 2019, June 22, 2019 and July 30, 2019 were duplicated in a subsequent action [i.e. Paladino II]" and that such causes of action "were included in this action erroneously" (Plf. Affirmation, ¶ 10; Plf. Opposition at 2-3). Hence, Plaintiff requests that this Court permit her to voluntarily discontinue a significant number of causes of action (55 out of 64), leaving the following nine causes of action to be decided by the court in this action: negligence (4th) and NIED (5th) related to the November 29, 2018 text messages; negligence (7th) and NIED (8th) related to the December 6, 2018 email; negligence (10th) and NIED (11th) related to the January 4, 2019 email; negligence (13th) and NIED (14th) related to the January 22, 2019 email; and libel per se (16th) related to the March 11, 2019 text messages (Plf. Opposition at 3). Plaintiff also requests this Court's permission to voluntarily discontinue, without prejudice, her 18 Twitter-related causes of action asserted in this action "so that they may be prosecuted in Paladino II" (Plf. Affirmation, ¶ 12; emphasis added).
Besides requesting that this Court permit her discontinuance of many claims, Plaintiff contends that the negligence claims are not a scheme to extend the statute of limitations of the defamation claims; that such claims are adequately pleaded; and that Defendant's conduct meets the elements of the NIED claims (Plf. Opposition at 10-35). Plaintiff also contends that Defendant's March 11, 2019 text messages posted on Twitter constitute libel per se because they disparage Plaintiff in her profession; that such defamatory messages based on false facts are actionable; that Defendant's defamatory messages were made with "actual malice;" and that Defendant's "claimed privilege under Civil Rights Law" is without merit (id. at 35-47).
Defendant's Reply to Plaintiffs Cross Motion
In her reply to the cross motion (Def. Reply; NYSCEF Doc. No. 77), Defendant argues, as a threshold matter, that all of the 55 claims to be voluntarily discontinued by Plaintiff should be dismissed on the merits (Def. Reply at 3-4). Specifically, Defendant argues that Plaintiff s request that the 18-Twitter related claims be discontinued "without prejudice" in this action and be prosecuted later in Paladino II (while making "no indication" that the other 37 claims will be reasserted) is "simply to avoid adjudication," and that the courts should not allow a plaintiff to discontinue claims to avoid an adverse ruling (id. at 4-5, citing Lui v Chinese-American Planning Council Inc., 300 A.D.2d 80 [ 1 st Dept 2002] [request to permit claim discontinuance denied because it was evident that plaintiff s request, made while defendant's motion to dismiss was pending, was to avoid adverse decision on the merits]). Thus, Defendant asserts that these claims, which are the subject of the cross motion, must be "ordered dismissed or discontinued with prejudice" {id. at 5; emphasis in original). Defendant also argues that allowing Plaintiff to withdraw claims without prejudice will deprive Defendant of the opportunity to be heard in this "first-filed matter," and Defendant will thus be prejudiced because Plaintiff has read the briefs filed by Defendants in both actions (i.e. in this action and in Paladino II), but Plaintiff "prefers to oppose the second motion" to gain an advantage over Defendant in Paladino II (id. at 6-7, citing Hirschfeld v Stahl, 242 A.D.2d 214, 217 [1st Dept 1997] [plaintiffs request to allow claim discontinuance without prejudice should have been granted with prejudice where plaintiff sought to gain an advantage to defendant's detriment in two actions to be later consolidated]).
Plaintiffs Response to Defendant's Reply
Responding to Defendant's Reply and in further support of the cross motion (Plf. Reply; NYSCEF Doc. No. 83) Plaintiff contends, without an explanation, that she "did not seek to gain an advantage by filing a second action" (i.e. Paladino II) and that "there was no advantage" (Plf. Reply at 1-2). Plaintiff also contends that, because her Twitter-related claims are identical in connection with both of Defendant's motions to dismiss (i.e. motions filed in this action and in Paladino II), there will be "no prejudice" to Defendant if Plaintiff s cross motion is granted (id. at 5). Therefore, Plaintiff asserts that she should be permitted to voluntarily discontinue her 18 Twitter-related claims asserted in this action, without prejudice, since "both actions were timely brought" (id.).
Plaintiffs Cross Motion
Plaintiffs contentions are unpersuasive. As noted above, Plaintiff fails to explain in detail in her papers why Paladino II was commenced, despite conceding that her Twitter-related claims asserted in this action are duplicative of those in Paladino II. Indeed, as pointed out by Defendant, "Plaintiffs explanation for commencing two actions, both described as actions pertaining to 'defamatory statement,' is beyond comprehension" (Def Reply at 1; referencing Plf. Opposition at 2). Moreover, in her reply, Plaintiff fails to address or distinguish the cases relied upon by Defendant that support of Defendant's argument that these 55 identified claims should be discontinued with prejudice and that the cross motion should be denied. Instead, Plaintiff alleges that Defendant and her counsel misled this court by mischaracterizing the facts of this case, thus "warranting this Court to choose to discredit or disbelieve Defendant's other statements in this action and in Paladino II" (Plf. Reply at 2-3). Plaintiff also asserts that her affidavit of merit, dated January 13, 2021 (Plf. Affidavit; NYSCEF Doc. No. 37), is in proper evidentiary form, and is admissible as it is based on her personal knowledge (Plf. Reply at 5-9). However, both her allegation and assertion are irrelevant to the issue of whether the causes of action she seeks to discontinue should be discontinued with or without prejudice.
CPLR 3217 (b) states, in relevant part, that an order resolving a motion seeking leave of court to discontinue claims may be based upon terms and conditions as the court deems proper. Here, Plaintiff does not dispute Defendant's assertion that the 37 identified claims she seeks to voluntarily discontinue or withdraw in this action will not be asserted in Paladino II. Therefore, discontinuance or withdrawal of these 37 claims shall be "with prejudice." With respect to the 18 Twitter-related claims in this action that are concededly "duplicative" of those in Paladino II, Plaintiff does not explain, with any detail, why she has chosen to discontinue such claims in this action, as opposed to discontinuing identical or duplicative claims in Paladino II. Undisputedly, Plaintiff has the opportunity in this "first-filed action" to oppose Defendant's instant motion to dismiss these claims. As Defendant contends, allowing Plaintiff to discontinue, "without prejudice," these 18 Twitter-related claims in this action may afford her an "improper" advantage over Defendant in Paladino II, and this Court will not allow Plaintiff to withdraw claims so as to avoid an adverse ruling in the pending action (Def Reply at 6).
In light of the foregoing, Plaintiff s cross motion, pursuant to CPLR 3217 (b), seeking leave of this Court to discontinue (i) the 37 identified claims (1st, 2nd, 3rd, 6th, 9th, 12th, 15th, 17th, 18th, 19th, 20th, 21st, 24th, 25th, 26th, 27th, 28th, 31st, 32nd, 35th, 38th, 39th, 40th, 41st, 42nd, 46th, 47th, 50th, 53rd, 54th, 55th, 56th, 57th, 61st, 62nd, 63rd and 64th causes of action of the Complaint) is granted to the extent that such claims shall be discontinued "with prejudice"; and (ii) the 18 identified Twitter-related claims (22nd, 23rd, 29th, 30th, 33rd, 34th, 36th, 37th, 43rd, 44th, 45th, 48th, 49th, 51st, 52nd, 58th, 59th and 60th causes of action of the Complaint) is denied, and Plaintiff is required to respond to Defendant's instant motion to dismiss such claims within 20 days from the date of entry of this order.
Analysis of the Complaint's Remaining Nine Causes of Action
The nine remaining claims which Plaintiff seeks to have this Court determine are of three types - negligence, NIED, and libel per se -- the 4th, 5th, 7th, 8th, 10th, 11th, 13th, 14th and 16th causes of action of the Complaint.
Responding to Plaintiffs opposition to Defendant's motion to dismiss, Defendant argues that eight (four negligence claims and four NIED claims) of the nine claims are "not viable" because they are actually defamation claims recast by Plaintiff as "negligence," and the one-year statute of limitations for these actual defamation claims makes them untimely (Def Reply at 7; CPLR 215 [3]). These eight claims related to Defendant's text messages of November 19, 2018, as well as the emails of December 6, 2018, January 4, 2019 and January 22, 2019, which took place more than one year before Plaintiff commenced the instant action (Def. Reply at 7). Moreover, Defendant asserts that, based on Plaintiffs own affidavit, these allegedly defamatory text messages and emails injured her reputation and professional abilities as a professor and author, which "reinforce her belief that the true cause of action is Defamation," and that the "reputational harm and purported falsity of Ms. Cojocaru's statements [are both] elements of Defamation claims" (Def. Reply at 7-8, referencing Plf. Affidavit, ¶¶ 78-82).
Defendant also points out that Plaintiff ignored the cases cited in Defendant's Brief, which "unequivocally" hold that New York law does not allow a plaintiff to circumvent an expired statute of limitations by disguising a defamation claim as a negligence claim (Def. Reply at 8, citing, inter alia, Colon v City of Rochester, 307 A.D.2d 742, 744 [4th Dept 2003], appeal dismissed, 100 N.Y.2d 628 [2003] [negligence claim dismissed because defamation claim could not be transformed into one for negligence by casting it as such; plaintiff s remedy for reputational damage could be sought under the law of defamation but not under the principles of negligence]; Sprecher v Thibodeau, 148 A.D.3d 654, 655 [1st Dept 2017] [negligence claim dismissed because alleged facts were inseparable from the tort of defamation, which was admittedly time-barred]).
Defendant also correctly asserts that the cases relied upon by Plaintiff for the proposition that her negligence claims are "not a scheme to extend the statute of limitations of a defamation claim" are "totally inapposite" (Def. Reply at 9-20, addressing cases cited in Plf. Opposition at 10-12). Specifically, three of the four cited cases by Plaintiff dealt with typical negligence claims (not defamatory statements) and the statute of limitations was not at issue (Relfv City of Troy, 169 A.D.3d 1223 [3d Dept 2019]; Averett v County of Broome, 16 Misc.3d 1120 [A], 2007 NY Slip Op 51524[U] [Sup Ct, Broome Cty 2007]; and Truppin v Cambridge Dev., LLC, 2017 WL 495951 [Sup Ct, NY County 2017]). Indeed, as noted by Defendant, these cases do not involve attempts to "plead in the alternative" or to "disguise defamation claims as negligence or NIED claims" to avoid the statute of limitations (Def. Reply at 9). Defendant further asserts that the fourth case cited by Plaintiff, Singer v Jefferies & Co. (160 A.D.2d 216 [1st Dept 1990]), is also inapplicable. Defendant points out that the Singer appellate court allowed the plaintiff s claims to proceed under fraud (not negligence, thus permitting the claims to be governed by the six-year statutory time period for fraud rather than the one-year period for defamation); that the plaintiff did not seek recovery for damages solely for injury to his reputation; and that the plaintiff did not assert that the defendants released information which communicated to the public that he was involved in criminal activity (Def. Reply at 10). Thus, Defendant argues that the facts in Singer, which are unlike those in this case, do not support Plaintiffs claims as they are "so clearly limited to defamation, because they arise out of her complaints about what Ms. Cojocaru is alleged to have said to other people about Plaintiff (id.)
Nowhere in her reply does Plaintiff rebut Defendant's arguments (Plf. Reply at 1-14). Similarly, Plaintiff counsel's reply affirmation in further opposition to Defendant's motion to dismiss and in further support of Plaintiff s cross motion is silent (NYSCEF Doc. No. 79). Hence, these four negligence and four NIED causes of action, which are apparently disguised defamation claims, should be dismissed based upon the statute of limitations defense alone.
Notwithstanding the foregoing, Plaintiff contends that her negligence claims are "adequately pled" because (1) the Title IX complaints "created a duty that Defendant refrain from retaliating against, harassing, or engaging in adverse treatment" towards Plaintiff (Plf. Opposition at 19-23); (2) Defendant had "a duty not [to] interfere with Plaintiffs academic freedom and to refrain from acts endangering her mental or physical health" (id. at 23-25); (3) Defendant "breached her duties under the CUNY policies" (id. at 25-29); (4) Plaintiff "suffered damages due to Defendant's negligent statements" (id. at 29-30); and (5) it was "foreseeable that Plaintiff would be harmed based on Defendant's negligent statements" (id. at 30-31). Plaintiff further contends that Defendant's alleged conduct "objectively satisfies" the elements of her NIED claims against Defendant (id. at 31-35).
Replying to Plaintiffs contentions, Defendant asserts that "the standard for analyzing the very rare situations in which statements can constitute Negligence is clear" (Def. Reply at 10, citing White v Guarente, 43 N.Y.2d 356, 363 [1977] [a negligent statement is "not actionable unless expressed directly, with knowledge or notice that it will be acted upon, to one to whom the author is bound by some relation or duty, arising out of contract of otherwise, to act with care if he acts at all"]). Defendant also points out that Plaintiffs other contention that the duty of care in performing a contract is not owed solely to the contracting party, but may "inure to the benefit of others," is "unconvincing and illogical" (Def Reply at 11, referring to Plf. Opposition at 17). More specifically, Defendant asserts that Plaintiff "fails to understand" that the duty discussed in White is "a defined bond as is created by contract or a substitution for a contract, and therefore more similar to a fiduciary relationship than not," and that the phrase "inure to the benefit of others" (as used in White) is "plainly about third-party beneficiaries anticipated by the nature of a contractual relationship, which simply does not apply here" (Def. Reply at 11, citing cases). Defendant also asserts that "Plaintiff fails to explain how Ms. Cojocaru's relationship to Plaintiff is akin to that scenario which involved a services contract" (Def. Reply at 12).
Defendant further asserts that Plaintiffs reliance upon Matter of Doe v Cornell Univ. (163 A.D.3d 1243 [3d Dept 2018]), to support the proposition that Defendant owed a duty to Plaintiff is "misguided" (Def. Reply at 12), because Doe involved an Article 78 proceeding against a university (not an individual) and did not involve a claim of negligence, as this case does, and that at issue in Doe "were the acts of filing formal complaints, not statements made in emails or text messages," which render Doe inapplicable (id.). In addition, Defendant asserts that Plaintiff takes an "illogical path" with respect to these two propositions: a duty arose and was owed by Defendant (1) when Plaintiff filed a Title IX complaint about Defendant after Plaintiff learned of Defendant's Title IX complaint against the John Jay professors for their "bad acts"; or (2) under the so-called "no contact orders" and "CUNY policies" that govern student codes of conduct (id. at 13). Furthermore, Defendant argues that Plaintiffs propositions of law do not meet the requirements of White, and Plaintiff "fabricates an alternate theory not grounded in the law" (id.).
As to the four NIED claims, Defendant argues that these claims cannot meet the "very high standard for NIED" established by the courts (Def. Reply at 14, citing Sheila C. vPovich, 11 A.D.3d 120, 130 [1st Dept 2004] [NIED claims must be supported by allegations of conduct that are "so outrageous in character, and so extreme in degree, so as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community"). Defendant also asserts that "Plaintiff does not cite to a single controlling authority supporting her position that [Defendant's] messages constituted extreme and outrageous conduct" (Def. Reply at 15, referencing Plf Opposition at 31-35). In sum, Defendant argues that these eight negligence-based claims (four negligence and four NIED) are frivolous and must be dismissed because "the complained of statements were not made directly to Plaintiff," and "nothing about the statements can be construed as an act, nor can the statements arise out a 'special relationship' similar to one cognizable in contract" (id. at 13-14, citing cases).
Defendant's arguments are persuasive. It is noteworthy that Plaintiff fails to rebut or address Defendant's arguments regarding these negligence-based claims (Plf. Reply at 1-14). Accordingly, these claims (4th, 5th, 7th, 8th, 10th, 11th, 13th and 14th causes of action in the Complaint) should be dismissed on the merits, in addition to being time-barred.
With respect to the last remaining (16th) cause of action sounding in libel per se, the complained of statement was the March 11, 2019 text message sent by Defendant to her former fiance, Mark Johnson, which stated, in relevant part: "Amalia [Plaintiff] filed a complaint against me [Defendant] ... She plagiarized one of my papers. I was so disappointed when I realized that. So I contacted the editor to take it down. She retaliated" (Complaint, ¶¶ 57, 59).
To establish a claim for libel per se, a plaintiff does not have to plead special damages, and the statement is libelous per se if, on its face or without the need for extrinsic evidence, it "tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of friendly intercourse in society" (Rinaldiv Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 379 [1977][internal quotation marks and citation omitted]). A statement is also libelous per se if it (1) charges the plaintiff with a serious crime; (2) tends to injure the plaintiff in her business, trade or profession; (3) asserts that the plaintiff has a loathsome disease; or (4) imputes unchastity upon the plaintiff (Liberman v Gelstein, 80 N.Y.2d 429, 435 [1992] [Liberman]).
Defendant argues that the subject statement is not libelous per se because "plagiarism is not a crime recognized in the Penal Code," and the statement was made during a private text conversation between Defendant and her "former intimate partner," which did not injure Plaintiff s trade or profession, "particularly when Mr. Johnson has nothing to do with Plaintiffs trade" (Def. Brief at 27).
In opposition, Plaintiff contends that the statement is libelous per se because it "denigrated and disparaged her professional abilities as an academic, teacher and author, including her skill [and] professionalism ...." (Plf. Opposition at 36-37; citing cases for the proposition of law that a defamatory statement disparaging a plaintiff in her profession or trade is libel per se). Plaintiff also contends that, although Defendant asserts that the statement is an "opinion" and thus is nonactionable, application of the "three factor analysis" confirms that the statement connotes "facts" rather than an "nonactionable opinion" because (1) the statement has a precise meaning that can be readily understood; (2) the statement can be proven true or false; and (3) the context of the statement makes clear that Defendant was conveying "specific facts, albeit false statements] of fact[ ]," about Plaintiff (id. at 37-38, citing Davis v Boeheim, 24 N.Y.3d 262, 270 [2014] [applying three factor analysis]) (id. at 37-41). Thus, Plaintiff contends that the subject statement, even if it were an "opinion," is actionable because it is based on "false or omitted facts" (Plf. Opposition at 41-44; citing, inter alia, Gross vNew York Times Co., 82 N.Y.2d 146, 152-153 [1993] [opinion or statement containing provable false factual allegation is actionable and subject to defamation action]). Plaintiff also contends that Defendant's statement "would be interpreted [by a reasonable reader to mean] that Plaintiff retaliated against [Defendant] by filing a Title IX complaint after Defendant notified her publisher that one of Plaintiff s academic publications was plagiarized from her" (Plf. Opposition at 44). Alternatively, Plaintiff contends that Defendant's statement is an actionable "mixed opinion" because the "purported facts upon which Defendant's opinion is based are falsely misrepresented and grossly distorted" (id. at 45, citing, inter alia, Parks v Steinbrenner, 131 A.D.2d60, 62-63 [IstDept 1987] [defamatory opinion ostensibly accompanied by recitation of facts where such facts were falsely misrepresented or grossly detorted was actionable as "mixed opinion"]).
In reply, Defendant asserts that, based on Liberman, a statement which is libelous per se "must be made with reference to a matter of significance and importance for that purpose, rather than a more general reflection upon the plaintiffs character or qualities" (citing Liberman, 80 N.Y.2d at 436), but the subject statement Defendant texted her former fiance (alleging Plaintiffs plagiarism) did not disparage Plaintiff because it was not made "for the purpose of stating that Plaintiff is incompatible with her profession," and that the statement was "not tethered to Plaintiff s status as an adjunct professor" (Def Reply at 16-17, referencing Liberman). Defendant also asserts her belief that Plaintiff "stole her ideas in an article" (i.e., plagiarism) is just a "genuine expression of opinion and feeling" and is thus nonactionable, and Plaintiffs "conjured timeline" [i.e. Plaintiff retaliated by filing a Title IX complaint against Defendant after Defendant notified the publisher of the alleged plagiarism] as proof to show that Defendant's opinion statement, even if factually false, is "irrelevant" (id. at 18). Therefore, Defendant argues that Plaintiffs opposition is "completely unpersuasive as the text message conversation is not actionable and the libel per se cause of action must [therefore] be dismissed" (id. at 19).
In rebuttal, Plaintiff asserts that Defendant's repeated argument, that her expression of an "opinion" to her former fiance (via the statement) was not libelous, and thus nonactionable, even though the "opinion statement" was factually false, is "audacious" (Plf Reply at 9; apparently referring to the term "irrelevant" used in Defendant's Reply at 18). Plaintiff also points to the publisher's response that an investigation revealed "no evidence of plagiarism" two months prior to her text message to her former fiance as showing "the knowing falsity of those statements when made [by Defendant]" (Plf. Reply at 9; attaching publisher's response as Exhibit 5D at pages 253 and 254 to Plf. Affidavit [NYSCEF Doc. No. 37] and indicating same in footnotes 72 and 73 therein). Thus, Plaintiff contends that "where the alleged facts which are stated as the basis of [Defendant's] opinion are false, the Defendant is subject to liability for the false factual statements" (id., citing Court of Appeals' decisions). Plaintiff further asserts that, because Defendant prevented the publisher "from notifying [her] about [Defendant's] fallacious claims, [Plaintiff] did not learn about them until March 18, 2020, over twenty (20) months after she filed her Title IX complaint, [and thus] it was impossible for Plaintiffs Title IX complaint to have been in retaliation for Defendant's false allegations of plagiarism," which makes the allegation of retaliation "knowingly false when made" (Plf. Reply at 9-10). Therefore, Plaintiff contends that Defendant's subject statement constitutes libel per se, and is actionable as it was "based on false or omitted facts" (id. at 10).
Plaintiffs contentions are more persuasive. First, Defendant's assertion that the subject statement did not injure Plaintiff in her profession is unconvincing because the allegation of plagiarism defames Plaintiffs status as a college professor and denigrates her academic skills, which is one of the elements of libel per se set forth in Liberman (statement is libel per se if it tends to injure the plaintiff in her business or profession). Further, Defendant's argument that the statement simply reflected her "genuine opinion" (as opposed to a factual assertion) is also unconvincing and factually false because, as pointed out by Plaintiff, the publisher did not find evidence of plagiarism after an investigation, which also substantiates Plaintiffs rebuttal that her Title IX complaint against Defendant was not filed in retaliation, thus rendering Defendant's allegation of retaliation "knowingly false when made." These two important points, along with others discussed above, support Plaintiffs assertion that the Complaint adequately pleaded the libel per se (16th) cause of action, which therefore survives Defendant's motion to dismiss.
Requests for Sanctions and Countersanctions
Along with the motion to dismiss, Defendant seeks sanctions against Plaintiff, alleging that "Ms. Paladino's claims are so clearly frivolous and intended only to attack Ms. Cojocaru," and that "sanctions are the only way to send a message that this Court cannot be used for such an improper purpose" (Def Brief at 38-39). Plaintiff contends that sanctions are unwarranted since "this action is not frivolous and the remaining causes of action are meritorious, and that any causes of action which should have been withdrawn have been addressed." (Plf. Opp. at 50).
As explained above, the cause of action for libel per se is adequately pleaded against Defendant, and thus not all claims in the Complaint are "so clearly frivolous." Accordingly, sanctions are not warranted against Plaintiff, despite Defendant's argument to the contrary.
Notably, in her reply, Plaintiff alleges, for the first time, that Defendant recently has "embarked on a campaign of witness intimidation against those she considers her enemies," and that such "aggression and intimidation are detailed in the February 23, 2021 Sworn Affidavit of Mark Johnson, Defendant's former finance and a key witness in [Plaintiffs] lawsuit against [Defendant]" (Plf. Reply at 10-12 [Plaintiff notes that this was not raised in her cross motion because witness intimidation occurred ten days after the cross motion was filed]). Plaintiff also asserts that sanctions should be imposed against Defendant, in this Court's discretion, in light of "Defendant's egregious conduct, ranging from knowingly making false and/or misleading statements ... to blatantly misrepresenting her purported supporting case law, to now repeatedly intimidating one of Plaintiff s witnesses" (Plf. Reply at 12).
Plaintiff s request for sanctions against Defendant cannot be considered by this Court since it is raised for the first time in its reply papers in further support of its cross motion. Doc. 79 (See Azzopardi v American Blower Corp., 192 A.D.2d 453, 454 [1st Dept 1995]). Even if this argument were to be considered, it would be premature since Defendant has not yet been afforded an opportunity to respond to Plaintiff s request for this relief. Indeed, Plaintiff acknowledges that "an award of costs or the imposition of sanctions may be made ... upon the court's own initiative, after a reasonable opportunity to be heard" (Plf. Reply at 13, citing cases).
Accordingly, it is hereby:
ORDERED that Defendant's motion to dismiss all causes of action of the complaint (motion sequence number 001) (i) is granted to the extent of dismissing the following eight (4th, 5th, 7th, 8th, 10th, 11th, 13th and 14th) causes of action of the complaint, and (ii) is denied with respect to the sixteenth (16th) cause of action of the complaint; and it is further
ORDERED that Plaintiffs cross motion, pursuant to CPLR 3217 (b), seeking leave of court to discontinue (i) the following thirty-seven causes of action (1st, 2nd, 3rd, 6th, 9th, 12th, 15th, 17th, 18th, 19th, 20th, 21st, 24th, 25th, 26th, 27th, 28th, 31st, 32nd, 35th, 38th, 39th, 40th, 41st, 42nd, 46th, 47th, 50th, 53rd, 54th, 55th, 56th, 57th, 61st, 62nd, 63rd and 64th causes of action of the complaint) is granted to the extent that such causes of action shall be discontinued by Plaintiff with prejudice within 20 days of the date of entry of this decision and order; and (ii) the following eighteen causes of action (22nd, 23rd, 29th, 30th, 33rd, 34th, 36th, 37th, 43rd, 44th, 45th, 48th, 49th, 51st, 52nd, 58th, 59th and 60th causes of action of the complaint) is denied, and Plaintiff is required to respond to Defendant's motion to dismiss with respect to these 18 causes of action within 20 days from the date of entry of this decision and order; and it is further
ORDERED that the branch of Defendant's motion seeking the imposition of sanctions against Plaintiff is denied; and it is further
ORDERED that the parties shall appear before this Court for a preliminary conference on April 12, 2022 at 9:30 a.m. unless they first provide to this Court, at least two business days prior to the conference, a completed preliminary conference order (a blank preliminary conference order will be provided to the parties by the Part 58 Clerk), in which case there will be no need to appear at that time. The parties may email the completed preliminary conference form to SFC-Part58-Clerk@nycourts.gov.