Notice of Motion, Affm., & Memo of Law 1 Affirmation in Opposition, Affds., & Exhs 2 Reply Affirmation, Affd., Exhs & Memo of Law 3 Upon the foregoing papers the motion by defendant, Rud Morales (“Defendant”), for an order pursuant to CPLR 3211 (a)(7) dismissing plaintiff’s First, Second, Third1, Fifth, Sixth and Seventh Causes of Action in the plaintiff, Dorpatie Ram’s (“Plaintiff”), Complaint for failure to state a cause of action, is determined as follows. The underlying action seeks damages resulting from the defendant’s alleged willful and deliberate dissemination, at public hearings, of defamatory statements made with the purpose to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of the plaintiff in the minds of right-thinking persons, and to deprive the plaintiff of their friendly intercourse in society. The defendant moves to dismiss the plaintiff’s claims sounding in: (1) defamation per se; (2) Libel per se; (3) slander per se; (5)2 harassment; (6) prima facie tort and (7) intentional infliction of emotional distress. The defendant argues inter alia, that as the claims have a one (1) year statute of limitations, all allegations prior to August 2, 2018 should be dismissed as time barred; that claims related to the verbal statements made on July 25, 2018 and July 19, 2019 should be dismissed as they were absolutely privileged, or in the alternative were not of and concerning to the plaintiff, were not defamatory and plaintiff failed to plead special damages, that the words attributed to the defendant in the October 2018, New York Post, Page 6 article are constitutionally protected statements of opinion. The defendant further asserts that New York does not recognize a civil cause of action for harassment, that plaintiff’s complaint fails to satisfy the stringent pleading requirements for a claim of intentional infliction of emotional distress and plaintiff’s claim for prima facie tort is in essence duplicative of the plaintiff’s other claims. The plaintiff opposes the defendant’s motion but concedes that the allegation’s related to the statements and alleged assault that occurred prior to August 2, 2018 are time barred and withdraws those allegations. In considering defendant’s motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the plaintiffs’ claims must be liberally construed, the factual allegations must be deemed true, and the pleading party must be accorded the benefit of every possible favorable inference (Dinger v. Cefola, 133 AD3d 816[2d Dept. 2015]; Webb-Weber v. Community Action for Human Services, Inc., 23 NY3d 448 [2014]; Leon v. Martinez, 84 NY2d 83 [1994]; Fuller v. Collins, 114A.D.3d 827 [2014]). The “sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law….” (Guggenheimer v. Ginzberg, 43 NY2d 268 [1977]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss.” (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). “When a party moves to dismiss a complaint pursuant to CPLR 3211 (a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action…” and “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.” (Sokol v. Leder, 74 AD3d 1180, 1181 [2d Dept. 2010]). “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. A false statement constitutes defamation per se when it charges another with a serious crime or tends to injure another in his or her trade, business, or profession (Geraci v. Probst, 61 AD3d 717, 718-19 [2d Dept 2009] (Internal quotes and citations omitted)). “The complaint must set forth the particular words allegedly constituting defamation, and it must also allege the time when, place where, and manner in which the false statement was made, and specify to whom it was made”(Epifani v. Johnson, 65 AD3d 224 [2nd Dept. 2009]) The Court has reviewed the plaintiff’s Verified Complaint and all of the submissions of the parties hereto. At this early stage in the litigation, considering the pleadings in a light most favorable to plaintiff and allowing plaintiff the benefit of every possible inference, the complaint sufficiently sets forth the causes of action relating to defamation, but fails to state claims for Harassment, Prima Facie Tort and Intentional Infliction of Emotional Distress. Therefore, it is hereby ORDERED the defendant’s motion to dismiss the plaintiff’ causes of action for: Harassment (fifth) ; Prima Facie Tort (sixth) and Intentional Infliction of Emotional Distress (seventh) is granted and those causes of action are dismissed. It is further ORDERED the defendant’s motion to dismiss the plaintiff’ causes of action for: Defamation Per Se (first); Libel Per Se (second) and Slander Per Se (third), is granted to the extent that all claims related to anything that occurred prior to August 2, 2018, are dismissed and denied as to all remaining claims in those causes of action. Plaintiff is directed to serve a copy of this order upon the Differentiated Case Management Part (“DCM”) Case Coordinator of the Nassau County Supreme Court, and upon counsel for the defendant, within thirty (30) days of the date of this Order. The parties shall appear for a Preliminary Conference on September 23, 2020 at 9:30A.M. in IAS Part 22, Nassau County Supreme Court, to schedule all discovery proceedings.3 This constitutes the decision and Order of this Court. Any request for relief not expressly granted herein is denied. Dated: May 12, 2020
