Opinion
20180015
02-05-2019
Debra R. RICKERSON, Plaintiff, v. Barry PORSCH, Finger Lakes Times, David L. Shaw, in his official capacity as a reporter for the Finger Lakes Times and Individually, and Finger Lakes Publishing, Inc., Defendants.
Jarrod W. Smith, Esq., Jarrod W. Smith, Esq., PLLC, Attorneys for the Plaintiff Christopher D. Thomas, Esq., Nixon Peabody LLP, Attorneys for Defendants Finger Lakes Times, Finger Lakes Publishing and David L. Shaw, Patrick B. Naylon, Esq., Goldberg Segalla, LLP, Attorneys for Defendant Porsch
Jarrod W. Smith, Esq., Jarrod W. Smith, Esq., PLLC, Attorneys for the Plaintiff
Christopher D. Thomas, Esq., Nixon Peabody LLP, Attorneys for Defendants Finger Lakes Times,
Finger Lakes Publishing and David L. Shaw, Patrick B. Naylon, Esq., Goldberg Segalla, LLP, Attorneys for Defendant Porsch
Daniel J. Doyle, J.
On or about September 8, 2017, Defendant Porsch, the Seneca County District Attorney, served a Notice of Claim on Seneca County (the "County") and a Seneca County employee, Plaintiff Rickerson, who is a Seneca County Probation Officer Assistant. Porsch's notice of claim purports to place the County on notice of potential claims for libel, slander, and defamation of character. FingerLakes1.com, reported the notice of claim in an article published on its website on September 11, 2017. The FingerLakes1.com article did not reference Plaintiff by name and Plaintiff's name was redacted from a photo of Porsch's notice of claim.
On September 14, 2017, in a story written by Defendant David L. Shaw and published by Defendants Finger Lakes Times and Finger Lakes Publishing Inc. (Collectively, "The FLT Defendants") posted an article online discussing the notice of claim filed by Defendant Porsch. In the September 14th article, Porsch was quoted regarding his reasons for filing the notice of claim. The September 14th article did not identify the Plaintiff by name or by other identifying information.
On September 28, 2017, Plaintiff served her own notice of claim on Defendant Porsch and Seneca County and, as a result, on October 2, 2017, the FLT Defendants reported on Plaintiff's notice of claim against Defendant Porsch. In the October 2nd story, the FLT Defendants again quoted Defendant Porsch's reasons for filing the notice of claim and his stated goal for doing so.
On October 11, 2017, the FLT Defendants reported on the fact that the County had hired a law firm to handle the notices of claim filed by Plaintiff and Defendant Porsch. Finally, on November 3, 2017, in a story about the race for County district attorney, the FLT Defendants again quoted Defendant Porsch discussing the notices of claims filed by Defendant Porsch and Plaintiff.
Plaintiff commenced this action by electronic filing in the NYSCEF system of a summons and complaint on March 21, 2018 and filed an amended summons and complaint on April 10, 2018. The amended complaint has 6 causes of action for (1) negligent infliction of emotional distress as against all the Defendants; (2) negligence against Defendant Porsch; (3) defamation as against Defendant Porsch; (4) defamation as against the FLT Defendants; (5) intentional infliction of emotional distress; and (6) retaliation against the Plaintiff for being a "whistleblower."
Pending before the Court are the following three motions:
1. Defendant Porsch's motion to dismiss pursuant to CPLR 3211.
2. Plaintiff's motion for default judgment against Defendants Finger Lakes Times, Finger Lakes Publishing, Inc., and David L. Shaw.
3. The FLT Defendants' motion to dismiss pursuant to CPLR 3211 or, in the alternative, for leave to file a late answer.
A. The Plaintiff's motion for default judgment against FLT Defendants
Plaintiff has moved for default judgment pursuant to CPLR 3215 against the FLT Defendants. Plaintiff commenced this action by electronic filing in the NYSCEF system of a summons and complaint on March 21, 2018. By affidavit of service, Plaintiff states that both the Finger Lakes Times and David Shaw were served with the summons and complaint on March 28, 2018. Prior to the expiration of the FLT Defendants' time to answer the original complaint, Plaintiff filed an amended summons and complaint on April 10, 2018.
Thereafter, on August 19, 2018, Plaintiff moved for default judgment against the FLT Defendants pursuant to CPLR 3215. Plaintiff produced no affidavit of service indicating that she served the amended summons and complaint on the FLT Defendants.
In order to establish entitlement to a default judgment, the Plaintiff was required to submit proof of valid service of process, the facts constituting the causes of action, and the default ( First Fed. Sav. & Loan Assn. of Charleston v. Tezzi , 164 AD3d 758 [2d Dept 2018] ). And in order to demonstrate a default under CPLR 3215[f], the Plaintiff has to establish that the Defendants' time to answer has expired (see McFadden v. Schneiderman , 137 AD3d 1618, 1618 [4th Dept 2016] ).
Plaintiff's default judgment motion is supported by affidavits of service of the original summons and complaint, but not with affidavits of services of the amended summons and complaint. Though Plaintiff was free to amend her complaint as of right (see CPLR 3025[a] ), the filing of an amended summons and complaint superseded the original complaint ( St. Lawrence Explosives Corp. v. Law Bros. Contr. Corp ., 170 AD2d 957 [4th Dept 1991] ) and would have restarted the time in which for the FLT Defendants were to answer had the amended summons and complaint been served. The filing of the amended summons and complaint on the NYSCEF system does not constitute service upon the FLT Defendants under 22 NYCRR § 202.5-b as the FLT Defendants had not yet consented to NYSCEF e-filing. Thus, while the Plaintiff established valid service of process, she did not establish a default in pleading. Therefore, Plaintiff has not established her entitlement to a default judgment under CPLR 3215 and her motion for default judgment is denied.
It also bears mentioning that Plaintiff's motion for default judgment against the FLT Defendants does not attach the amended summons and complaint and the attorney affirmation makes no mention of the filing of an amended summons and complaint. To the extent that Plaintiff's motion can be construed as an application for a default judgment on the original summons and complaint, such application would be denied as the original complaint "is no longer viable, inasmuch as the amended complaint takes the place of the original pleading" (Golia v. Vieira, 162 AD3d 864, 865 [2d Dept 2018] ) and the Court can take no action on the original complaint (see Chalasani v. Neuman , 64 NY2d 879, 880 [1985] ).
B. The applicable standards under CPLR 3211
1. A defense founded upon documentary evidence under CPLR 3211[a][1]
CPLR 3211(a) (1) allows a motion to dismiss a cause of action on the basis that a defense is founded on documentary evidence. In order to succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must resolve all factual issues as a matter of law and conclusively dispose of the Plaintiff's claim ( Wells Fargo Bank, N.A. v. Zahran , 100 AD3d 1549, 1550 [4th Dept 2012] ).
2. Failure to state a cause of action under CPLR 3211[a][7]
CPLR 3211(a)(7) authorizes the summary dismissal of a complaint for failure to state a cause of action. The Court of Appeals has held that "the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one" ( Guggenheimer v. Ginzburg , 43 NY2d 268, 275 [1977] ). On a motion made pursuant to CPLR 3211[a][7], 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" ( Leon v. Martinez , 84 NY2d 83, 87—88 [1994] ). In determining a motion to dismiss under CPLR 3211[a][7], The Fourth Department has held that the Court may consider under CPLR 3211[c] evidentiary material submitted on a motion to dismiss for the limited purpose of assessing the facial sufficiency of a complaint, but may only grant dismissal if the evidentiary material establishes "conclusively that plaintiff has no cause of action" ( Liberty Affordable Hous., Inc. v. Maple Ct. Apartments , 125 AD3d 85, 89 [4th Dept 2015] (emphasis in the original) ).
The dismissal motions of both Defendants are addressed together below.
C. The defamation causes of action
The elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se ( Jackie's Enterprises, Inc. v. Belleville , 165 AD3d 1567 [3d Dept 2018] ). In a defamation case involving a media defendant, the Plaintiff must establish the following six elements: (1) that the statement was defamatory; (2) that the statement referred to the Plaintiff, meaning that the statement would be reasonably understood to be about the Plaintiff; (3) that Defendant published or broadcasted the statement, meaning that the Defendant communicated the statement to someone other than the Plaintiff; (4) that the statement was false, meaning substantially untrue; (5) that Defendant published the statement in a grossly irresponsible manner without consideration for the standards of information gathering and dissemination followed by responsible parties; and (6) that the statement proximately caused actual harm to the plaintiff, meaning that the plaintiff suffered damages such as personal humiliation, mental anguish and suffering or damage to plaintiff's reputation or standing in the community ( Knutt v. Metro Intern., S.A. , 91 AD3d 915, 915-916 [2d Dept 2012] ).
CPLR § 3016[a] requires that in "an action for libel or slander, the particular words complained of shall be set forth in the complaint. The particularity requirement of CPLR 3016[a] "is strictly enforced" ( Lemieux v. Fox , 135 AD3d 713, 714 [2d Dept 2016] ). The reason for the requirement of specific pleading in defamation cases is to give adequate notice to the defendant as to the occurrence constituting the wrong and to discourage the institution of vexatious actions" ( Pappalardo v. Westchester Rockland Newspapers, Inc. , 101 AD2d 830, 830 [2d Dept 1984], aff'd, 64 NY2d 862 [1985] ).
Whether particular words are defamatory "presents a legal question to be resolved by the court in the first instance" ( Aronson v. Wiersma , 65 NY2d 592, 593 [1985] ). As the focus of a defamation claim lies in the falsity of a statement "only statements alleging facts can properly be the subject of a defamation action" as only "facts are capable of being proven false" ( Trump Vil. Section 4, Inc. v. Bezvoleva , 161 AD3d 916, 917 [2d Dept 2018] quoting Gross v. New York Times Co. , 82 NY2d 146, 153 [1993] ).
a. The September 11th Fingerlakes1.com statement
Beginning with the publication of the article online on September 11, 2017 at Fingerlakes1.com, the Defendants are entitled to dismissal of this specification of defamation. As an initial matter the FLT Defendants were not responsible for its publication, and, as a result, the essential element of publication is missing against the FLT Defendants.
Even if the FLT Defendants had published the September 11th article at FingerLakes1.com, the Plaintiff does not allege that the story was false nor can it be said that the story referred to the Plaintiff. Plaintiff's allegation that the story could only have been about her and that her friends and family understood it as such misses the mark. To determine whether the publication is reasonably susceptible to plaintiff's interpretation, a court must construe the statements "in their general understanding and ordinary meaning as perceived by the average reader " ( Obi v. Amoa , 58 Misc 3d 446, 451 [Sup Ct 2017] (emphasis added) ). To determine whether the average reader would find a statement defamatory, the Court must assess whether "a reasonable [reader] could have concluded that [the publications were] conveying facts about the plaintiff" ( Levin v. McPhee , 119 F.3d 189, 195 [2d Cir.1997] ). Here, the September 11th article makes no mention of the Plaintiff's identity specifically and only states that the individual was a "County employee." Thus, no reasonable reader could have read the September 11th article as being about the Plaintiff. Finally, Plaintiff fails to identify anything in the September 11th article that was false and even if the Plaintiff had, what was reported was the filing of a notice of claim with Seneca County which, as discussed below, is not actionable based upon the application of Civil Rights Law § 74. Thus, the Defendants are entitled to dismissal of the September 11th statement.
b. Civil Rights Law § 74 applies to any reporting on the notice of claims
Defendants argue that Civil Rights Law § 74 bars any claims of defamation regarding the reporting of the filing and content of the notice of claims filed by Plaintiff and Defendant Porsch. Civil Rights § 74 states that:
A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published.
Plaintiff argues that Civil Rights Law § 74 does not apply because a notice of claim is not a pleading and, thus, any report on the notice of claims is not a reporting on a judicial proceeding. Though Plaintiff is correct that notice of claim is not defined as a pleading per se (see CPLR 3011 ), a notice of claim is a jurisdictional pre-requisite to the filing of a plenary action against a municipal corporation such as Seneca County (see GML § 50-e ; County Law § 52 ), and is a pleading adjunct, that can be amended by leave of court (see GML § 50-e[6] ; Fabian v. New York City Tr. Auth. , 271 AD2d 244, 245 [1st Dept 2000] ), even prior to the commencement of an action upon which the notice of claim is predicated ( Waverly Vil. Apartments v. Town of Webster , 60 AD2d 780, 780 [4th Dept 1977] ).
While reporting on a notice of claim may best be understood as reporting on a judicial proceeding, Civil Rights § 74 is broader than just judicial proceedings, as it includes any "other official proceeding." The notice of claim procedure is an official proceeding prescribed by law with its own procedures which include: (1) the filing of a notice of claim ( GML § 50-e ); (2) that the notice of claim be recorded ( GML § 50-f ); that the claimant submit to an examination under oath and that testimony may be used in an action upon which the claim was made ( GML § 50-h ); and (4) that as a result of that examination, the municipality may adjust the claim to the satisfaction of the claimant ( GML § 50-i ). Therefore, even if proceedings on notice of claims are not "judicial proceedings," they are undoubtedly official proceedings and Civil Rights Law § 74 is still applicable (see, e.g. Komarov v. Advance Mag. Publishers, Inc. , 180 Misc 2d 658, 660 [Sup Ct 1999] (reporting on an FBI report was not defamatory as FBI investigation was an official proceeding) ).
As a result, any reporting about the notice of claims presented by Plaintiff and Defendant Porsch is not actionable under Civil Rights Law § 74.
c. The statements in the articles are not actionable
While Civil Rights Law § 74 bars a defamation claim based upon the reporting upon proceedings (judicial and/or official), and background material, it does not cover statements made outside the proceedings that do not cover the substance of the proceeding (see Fishof v. Abady , 280 AD2d 417, 417 [1st Dept 2001] ).
Nothing contained in the September 14th Finger Lakes Times article is actionable defamation. The statement in the September 14th article specified in the amended complaint is "Porsch said the employee made what he called a false allegation against him to a state agency. He said his goal by filing the notice of claim is to correct an ongoing problem his office has with this person, who said is attempting to influence the way cases in Seneca County are prosecuted." The first sentence of the statement indicates that it is an opinion and opinion statements are not actionable defamation ( Boulos v. Newman , 302 AD2d 932, 933 [4th Dept 2003] ). The remainder of the statement is likewise not actionable because like the September 11th statement, it neither identifies the Plaintiff nor does the Plaintiff state that it is false.
Plaintiff specifies one statement in the October 2nd article:
Porsch said his goal in filing the notice of claim is to correct an ongoing problem his office has with Rickerson, who he said is attempting to influence the manner in which cases in Seneca County are prosecuted. He said he is seeking an acknowledgment from Rickerson that what she did was wrong and an assurance it won't happen again.
Much like the September 14th statement, this statement is nothing more than the expression of Defendant's Porsch's opinion and, as such is not actionable Park v. Capital Cities Communications, Inc. , 181 AD2d 192, 196 [4th Dept 1992] (plaintiff referred to as a "rotten apple"); Hollander v. Cayton , 145 AD2d 605, 606 [2d Dept 1988] (statements that plaintiff was "immoral," "unethical," and had "mismanaged cases" was not actionable) ). Moreover, the reader would view the statement as one of opinion and not fact. In addition, Plaintiff has not identified any part of the statement that is false.
The Plaintiff has failed to specify any statement within the October 11th article and, therefore, fails to plead a cause of action for defamation regarding the October 11, 2017 article.
Finally, regarding the November 3rd article, Plaintiff identified one statement:
I have not commenced a lawsuit and am not seeking any money damages. We reached a tentative settlement whereby the employee would acknowledge that what she did was wrong and agreed not to do it again
Though Plaintiff identified the second sentence as being a "figment" of Defendant Porsch's imagination, the statement is "too vague and imprecise in meaning to support a defamation claim" ( Dillon v. City of New York , 261 AD2d 34, 40 [1st Dept 1999] ). In addition, the statement was contained in an article not about the Plaintiff, but about the upcoming elections for office (including for District Attorney for which Defendant Porsch was seeking election), and, as a result, even if it can be said that the challenged statement could be considered one of fact, the context in which it was made was in a piece about election campaign that the average reader would understand contains expressions of opinion (see Frechtman v. Gutterman , 115 AD3d 102, 106 [1st Dept 2014] ("even apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in public debate, heated labor dispute, or other circumstances in which an audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole").
d. The alleged defamatory statements were not defamatory per se and Plaintiff failed to plead special damages
In order to be relieved from the requirement of pleading special damages in a defamation action, Plaintiff must allege that the challenged statements were defamatory per se. A statement is defamatory per se only where the alleged statement (1) accuses the plaintiff of a serious crime, (2) claims the plaintiff has a loathsome disease, or (3) tends to injure the plaintiff in her trade, business, or profession Liberman v. Gelstein , 80 NY2d 429, 435 [1992] ). For a statement to injure a plaintiff in her trade, business, or profession it "must be more than a general reflection upon [Plaintiff's] character or qualities" and instead, "must reflect on [Plaintiff's] performance or be incompatible with the proper conduct of her business" Golub v. Enquirer/Star Grp., Inc. , 89 NY2d 1074, 1076 (1997] ). Nowhere in any of the articles complained of by the Plaintiff does there appear a statement that would rise to the level of defamation per se. As nothing in the complaint would rise to the level of defamatory per se, the failure of the Plaintiff to plead special damages mandates dismissal of the defamation causes of action ( Cook v. Relin , 280 AD2d 897, 898 [4th Dept 2001] ).
Based upon the foregoing, the Defendants are entitled to dismissal of the Plaintiffs third and fourth causes of action alleging defamation.
Relying the Third Department's holding in Sweeney v. Prisoners' Legal Services of New York, Inc. , 146 AD2d 1, 6 [3d Dept 1989] that law enforcement officers are public officials, Defendants also argue that because Plaintiff is a probation employee, she is a law enforcement officer and a public official and the failure to allege actual malice, which is required when the Plaintiff is a public figure. Plaintiff counters that Plaintiff is not a law enforcement official. Though the Court is granting dismissal, it is not based upon the argument that Plaintiff is a public official as the Court of Appeals has held that a probation officer is not a "law enforcement officer" for the purposes of Miranda warnings (see People v. W., 24 NY2d 732, 735 [1969] ).
D. The remaining causes of action
In her fifth cause of action, Plaintiff alleges what appears to be a claim for the intentional infliction of emotional distress. The intentional infliction of emotional distress is an intentional tort governed by a one-year statute of limitations period ( Goldner v. Sullivan, Gough, Skipworth, Summers and Smith , 105 AD2d 1149, 1151 [4th Dept 1984] ). As a result, the only conduct that could possibly form the basis for the tort of intentional infliction of emotional distress relates to the same conduct underlying the Plaintiff's causes of action for defamation. The Court of Appeals has held that the tort of intentional infliction of emotional distress is likely not available "where the conduct complained of falls well within the ambit of other traditional tort liability" ( Fischer v. Maloney , 43 NY2d 553, 558 [1978] ). In applying Fischer , the Fourth Department has observed that a claim for intentional infliction of emotional distress is duplicative of a claim for defamation and subject to dismissal, holding:
Here, the causes of action for intentional infliction of emotional distress are redundant of the causes of action for defamation. If the latter fail, the former must also fail. If the words spoken by the defendant are true, the defendant had a right to say them, and that right cannot be subverted by allowing an action for intentional infliction of emotional distress. If the words spoken were false, they are slanderous per se, and damages for emotional distress are recoverable on the defamation causes of action ( Rozanski v. Fitch , 113 AD2d 1010, 1010 [4th Dept 1985] (internal citations omitted) ).
Thus, Defendants are entitled to dismissal of the fifth cause of action.
In her first cause of action, Plaintiff alleges what appears to be a claim for the negligent infliction of emotional distress. As the statute of limitations period for a claim for negligent infliction of emotional distress is three years ( CPLR 214 ), the allegations in the complaint that were outside the one-year statute of limitations period for the intentional infliction of emotional distress could be considered for the purposes of negligent infliction of emotional distress. That analysis would not include any allegations regarding defamation since negligent infliction of emotional distress, like intentional infliction of emotional distress discussed above, would b e redundant to a claim for defamation (see Misek-Falkoff v. Am. Lawyer Media, Inc. , 300 AD2d 215, 216 [1st Dept 2002] ).
However, even if that were the case, none of those allegations pertain to the FLT Defendants and, as a result of that fact and for the reasons stated above, the FLT Defendants would be entitled to dismissal. In addition, as the Fourth Department has held that a cause of action for negligent infliction of emotional distress must be "premised on conduct that unreasonably endangers the plaintiff's physical safety or causes the plaintiff to fear for his or her physical safety" ( Passucci v. Home Depot, Inc. , 67 AD3d 1470, 1471 [4th Dept 2009] ). The Plaintiff's complaint is devoid of any allegation that the Defendants engaged in conduct that unreasonably endangered the Plaintiff's physical safety or caused her to fear for her safety.
In order to support a claim for negligent infliction of emotional distress, Plaintiff was also required to allege conduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" Murphy v. Am. Home Products Corp. , 58 NY2d 293, 303 [1983] ). The extreme and outrageous conduct "must be clearly alleged in order for the complaint to survive a motion to dismiss" ( Sheila C. v. Povich , 11 AD3d 120, 131 [1st Dept 2004] ).
As a claim for negligent infliction of emotional distress arises out of negligence, Plaintiff must allege that the Defendants owed Plaintiff a duty and the breach of that duty owed to the Plaintiff "either unreasonably endangers the plaintiff's physical safety, or causes the plaintiff to fear for his or her own safety" ( Santana v. Leith , 117 AD3d 711, 712 [2d Dept 2014] ). Plaintiff fails to identify any duty owed to her by the Defendants.
Finally, the negligent infliction of emotional distress must be based upon negligent conduct — or, put another way, conduct that is intentional in nature will not support a cause of action for negligent infliction of emotional distress ( Santana v. Leith , 117 AD3d 711, 712 [2d Dept 2014] ). The conduct Plaintiff attributes to Defendant Porsch in 2016 and early 2017 that falls outside the one-year period in which Plaintiff had commenced this action was intentional in nature and cannot support a claim for negligent infliction of emotional distress.
Thus, the Defendants are entitled to dismissal of the first cause of action.
The Plaintiff's second cause of action alleges that "Defendant Porsch committed negligence, recklessness and carelessness against the Plaintiff." Taking this cause of action to assert a claim for negligence, Defendant Porsch argues that Plaintiff failed to state a cause of action.
A tort obligation is a duty imposed by law to avoid causing injury to others" ( New York Univ v. Continental Ins. Co , 87 NY2d 308, 316 [1995] ). In defining the tort of negligence, the Court of Appeals held that "negligence is not a stereotyped thing, but, as courts have wisely said, it is a matter of time, place and circumstance" ( Levine v. City of New York , 309 NY 88, 92-93 [1955] ) The elements of a negligence claim are: (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom ( Solomon v. City of New York , 66 NY2d 1026, 1027 [1985] ).
Negligence arises from a breach of a legal duty, ( Strauss v. Belle Realty Co. , 65 NY2d 399 [1985] ; Pulka v. Edelman , 40 NY2d 781 [1976] ) and not a moral one, ( Daily v. Tops Markets, LLC , 134 AD3d 1332 [3d Dept 2015] ).According to the Court of Appeals, duty "is essentially a legal term by which we express our conclusion that there can be liability... It tells us whether the risk to which one person exposes another is within the protection of the law" De Angelis v. Lutheran Med. Ctr. , 58 NY2d 1053, 1055 [1983] ). As stated by the Court of Appeals, a "finding of negligence may be based only upon the breach of a duty," ( Darby v. Compagnie National Air France , 96 NY2d 343 [2001] ), and, thus, "without a duty running directly to the injured person there can be no liability in damages" ( Landon v. Kroll Lab. Specialists, Inc. , 22 NY3d 1, 6 [2013] ).
Here, as discussed above, Plaintiff fails to identify any duty owed to the Plaintiff by the Defendants and, as a result, the Plaintiff has failed to state a cause of action for negligence and Defendant Porsch is entitled to dismissal.
The Plaintiff's sixth cause of action alleges that Plaintiff has been retaliated against by Defendant Porsch's notice of claim for being a " ‘Whistleblower.’ " Whether this cause of action can be construed as a claim for retaliation under Executive Law § 296 or else as a violation of the "Whistleblower" statute ( Labor Law § 740, et seq ), it would fail based upon the failure to plead essential elements including, but not limited to, an employment relationship between the Plaintiff and Defendant Porsch, and a lack of adverse employment action. Thus, Defendant Porsch is entitled to dismissal of the sixth cause of action.
Order
Based upon the foregoing it is hereby
ORDERED that the Plaintiff's motion for default judgment is DENIED in its entirety; and it is further
ORDERED that the motion to dismiss pursuant to CPLR 3211[a][7] of Defendant Barry Porsch is GRANTED in its entirety; and it is further
ORDERED that the motion to dismiss pursuant to CPLR 3211[a] 1] and CPLR 3211[a] 7] of Defendants David L. Shaw, The Finger Lakes Times, and Finger Lakes Publishing, Inc., is GRANTED in its entirety; and it is further
ORDERED that the Plaintiff's complaint is dismissed as against all Defendants in its entirety.