| Sheridan v Carter |
| 2008 NY Slip Op 01132 [48 AD3d 447] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Fontaine Sheridan et al., Appellants, v Cindy Carter et al.,Defendants, and Stand Up Ministry, Respondent. |
—[*1] Valerie A. Hawkins, Hempstead, N.Y., for respondent.
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.), datedDecember 4, 2006, as granted that branch of the cross motion of the defendant Stand Up Ministrywhich was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (7)and, in effect, denied their application pursuant to CPLR 3211 (e) for leave to replead the thirdcause of action.
Ordered that the order is modified, on the law and in the exercise of discretion, (1) bydeleting the provision, in effect, denying the plaintiffs' application pursuant to CPLR 3211 (e) forleave to replead the third cause of action and substituting therefor a provision granting theplaintiffs' application and (2) by adding thereto, following the phrase "the defendant Stand UpMinistries' [sic] motion is granted" the words "without prejudice to the plaintiffs' right torenew their opposition to the motion of the defendant Stand Up Ministry after they haverepleaded the third cause of action"; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements.
In their action, inter alia, to recover damages for defamation, the plaintiffs alleged that, onNovember 15, 2005, the defendant Stand Up Ministry (hereinafter SUM) distributed a flyer andposted a message on its Web site which contained false and defamatory statements about them.In the flyer and on the Web site, SUM claimed, among other things, that over a span of threeyears, the [*2]plaintiffs physically abused the defendant CindyCarter, their former domestic employee.
The Supreme Court correctly granted that branch of SUM's cross motion which was todismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (7). Contrary tothe plaintiffs' contention, the Supreme Court properly concluded that SUM's publishedstatements addressed a matter of public concern (see Chapadeau v Utica Observer-Dispatch,38 NY2d 196, 199 [1975]). The exhibits attached to the complaint demonstrated that theplaintiffs' alleged mistreatment of Carter, a physical altercation between Carter and the plaintiffFontaine Sheridan, and the related criminal proceedings against Fontaine Sheridan had been thesubject of local media coverage for several months at the time SUM published its statementsrelated to those matters (see Gaeta v New York News, 62 NY2d 340, 349 [1984]). Thus,to recover on the cause of action alleging libel, there must be allegations, which if proven, wouldshow that SUM "acted in a grossly irresponsible manner without due consideration for thestandards of information gathering and dissemination ordinarily followed by responsible parties"(Chapadeau v Utica Observer-Dispatch, 38 NY2d at 199). Taking the allegations in thecomplaint and supporting affidavit as true, and according the plaintiffs the benefit of everypossible favorable inference (seeSchlackman v Robin S. Weingast & Assoc., Inc., 18 AD3d 729, 729-730 [2005]; Montes Corp. v Charles Freihofer BakingCo., Inc., 17 AD3d 330 [2005]; Cooney v Cooney, 13 AD3d 407, 409 [2004]), the plaintiffs failedto allege that SUM published its statements in a grossly irresponsible manner. Accordingly, theSupreme Court properly dismissed the complaint insofar as asserted against SUM for failure tostate a cause of action.
However, viewing the record on appeal as a whole, we conclude that there are sufficientevidentiary facts to justify granting the plaintiffs' application for leave to replead this cause ofaction, which was made in opposition to SUM's motion to dismiss. Accordingly, that branch ofSUM's cross motion which was to dismiss the complaint for failure to state a cause of actionshould have been granted without prejudice to the plaintiffs' right to renew their opposition to themotion after they have repleaded the third cause of action.
The plaintiffs' remaining contention is without merit. Spolzino, J.P., Florio, Miller andDickerson, JJ., concur.