| Sheridan v Carter |
| 2008 NY Slip Op 01131 [48 AD3d 444] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Fontaine Sheridan et al., Appellants, v Cindy Carter et al.,Respondents, et al., Defendant. |
—[*1] Frederick K. Brewington, Hempstead, N.Y., for respondent Cindy Carter. Weil, Gotshal & Manges LLP, New York, N.Y. (Richard L. Levine and Ryan M. Philp ofcounsel) and Haeyoung Yoon, New York, N.Y., for respondent Domestic Workers United (onebrief filed).
In an action, inter alia, to recover damages for defamation, the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), enteredJuly 3, 2006, as granted the motion of the defendant Domestic Workers United pursuant to CPLR3211 (a) (7) to dismiss the complaint insofar as asserted against it and granted that branch of theseparate motion of the defendant Cindy Carter which was for summary judgment dismissing thecomplaint insofar as asserted against her.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costspayable by the respondents, the motion of the defendant Domestic Workers United pursuant toCPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it is denied, and thatbranch of the separate motion of the defendant Cindy Carter which was for summary judgmentdismissing the complaint insofar as asserted against her is denied.
For approximately 2½ years, the plaintiffs employed the defendant Cindy Carter as adomestic worker at their home in Massapequa Park. On July 6, 2005 Carter and the plaintiffFontaine Sheridan (hereinafter Fontaine) were involved in a physical altercation on the frontlawn [*2]of the plaintiffs' property. Fontaine was arrested inconnection with the incident and ultimately pleaded guilty to harassment in the second degree.
Between August and November 2005 various newspapers in the New York City metropolitanarea published a total of six articles in which Carter made a series of allegations about theplaintiffs. In sum, Carter's published statements included claims that she had been physically andverbally abused by the plaintiffs over the entire course of her employment, that Fontaine hadthreatened to disclose her immigration status to the authorities, that the plaintiffs had paid her thesum of only $300 per week for working long hours, and that Fontaine had yelled racial slurs atCarter during the July 2005 altercation. On November 10, 2005 the defendant Domestic WorkersUnited (hereinafter DWU) allegedly staged a protest outside of the Manhattan office buildingwhere the plaintiff Donald Sheridan worked. At this protest, the plaintiffs alleged, DWUdistributed flyers which contained allegations about the plaintiffs similar to those Carter hadmade to the press.
The plaintiffs commenced the instant action, inter alia, to recover damages for defamation.They alleged, among other things, that Carter's published statements and the statements inDWU's flyer concerning the plaintiffs were false and defamatory. DWU moved pursuant toCPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it for failure to state acause of action, and Carter separately moved, inter alia, for summary judgment dismissing thecomplaint insofar as asserted against her. In a single order, the Supreme Court, inter alia, grantedboth DWU's motion to dismiss the complaint insofar as asserted against it, and that branch ofCarter's motion which was for summary judgment dismissing the complaint insofar as assertedagainst her. We reverse that order insofar as appealed from.
"Upon a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), thecourt must determine whether from the four corners of the pleading 'factual allegations arediscerned which taken together manifest any cause of action cognizable at law' "(Salvatore v Kumar, 45 AD3d 560,563 [2007], quoting Morad vMorad, 27 AD3d 626, 627 [2006]). In determining such a motion, the court may freelyconsider additional facts contained in affidavits submitted by the plaintiff to remedy any defectsin the complaint (see International OilField Supply Servs. Corp. v Fadeyi, 35 AD3d 372, 375 [2006]). The allegations in thecomplaint, and in any supporting affidavit, must be taken as true, and the plaintiff must beaccorded the benefit of every possible favorable inference (see Schlackman v Robin S. Weingast & Assoc., Inc., 18 AD3d 729,729-730 [2005]; Montes Corp. v CharlesFreihofer Baking Co., Inc., 17 AD3d 330 [2005]; Cooney v Cooney, 13 AD3d 407, 409 [2004]).
Contrary to the Supreme Court's determination, the complaint sufficiently alleged a cause ofaction to recover damages for libel against DWU. We agree with the Supreme Court that DWU'spublished statements addressed a matter of public concern (see Chapadeau v UticaObserver-Dispatch, 38 NY2d 196, 199 [1975]). In its flyer, DWU presented its allegationsconcerning the plaintiffs' treatment of Carter within the broader context of the allegedlypervasive abuse and exploitation of domestic workers, a matter of legitimate public concern.That being so, in order to avoid dismissal for failure to state a cause of action sounding in libel,there must also be allegations which, if proven, would show that DWU "acted in a grosslyirresponsible manner without due consideration for the standards of information gathering anddissemination ordinarily followed by responsible parties" (Chapadeau v UticaObserver-Dispatch, 38 NY2d at 199).
Here, the plaintiffs' allegations were sufficient, if proven, to make such a showing. Inaddition to their allegations regarding falsity and defamation, the plaintiffs alleged, through their[*3]complaint and supporting affidavit, that DWU published itsstatements "with reckless and wanton disregard of whether the allegations set forth therein werefalse and untrue," without examining police records or contacting the plaintiffs, and after beingnotified by the plaintiffs' lawyer that Carter's claims were baseless. Assuming the truth of theseadditional allegations, and according the plaintiffs the benefit of every favorable inference(see Schlackman v Robin S. Weingast & Assoc., Inc., 18 AD3d at 729-730), thecomplaint and supporting affidavit adequately alleged that DWU published its flyer "in a grosslyirresponsible manner without due consideration for the standards of information gathering anddissemination ordinarily followed by responsible parties" (Chapadeau v UticaObserver-Dispatch, 38 NY2d at 199; see D'Agrosa v Newsday, Inc.,158 AD2d 229,235 [1990]; Udell v New York News, 124 AD2d 656, 657-658 [1986]; Rossein vWarner, 113 AD2d 825, 827 [1985]; cf. Yellon v Lambert, 289 AD2d 486 [2001]).Although the factual allegations as to DWU's malice may have been somewhat anemic, that isnot a basis to dismiss for failure to state a cause of action (see Kotowski v Hadley, 38 AD3d 499, 500-501 [2007]).
The Supreme Court also erred in awarding summary judgment to Carter. "The essence of thetort of libel is the publication of a statement about an individual that is both false anddefamatory" (Brian v Richardson, 87 NY2d 46, 50-51 [1995]). In the first instance,Carter's published statements, which depicted the plaintiffs as racists who physically abused andeconomically exploited their domestic employee, were clearly defamatory per se (see Rinaldiv Holt, Rinehart & Winston, 42 NY2d 369, 379 [1977], cert denied 434 US 969[1977]; Herlihy v Metropolitan Museum of Art, 214 AD2d 250, 260 [1995]). Moreover,Carter failed to make a prima facie showing of entitlement to judgment as a matter of law withrespect to the truth of her allegations about the plaintiffs (see generally Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). Furthermore, Carter's published statements were notshielded by the qualified privilege which extends to communications made between persons whoshare a common interest in the subject matter (cf. Liberman v Gelstein, 80 NY2d 429,437 [1992]). Thus, the Supreme Court should have denied that branch of Carter's motion whichwas for summary judgment dismissing the complaint insofar as asserted against her. Spolzino,J.P., Florio, Miller and Dickerson, JJ., concur.