| DeNaro v Rosalia |
| 2009 NY Slip Op 01190 [59 AD3d 584] |
| February 17, 2009 |
| Appellate Division, Second Department |
| Carol DeNaro et al., Respondents-Appellants, v StephanieRosalia et al., Appellants-Respondents, and City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and RonaldE. Sternberg of counsel), for appellant-respondent Ralph Perfetto, and for respondent City ofNew York. Sweeney, Gallo, Reich & Bolz, LLP, Rego Park, N.Y. (Michael H. Reich and John L.Wolthoff of counsel), for respondents-appellants.
In an action, inter alia, to recover damages for defamation, (1) the defendants StephanieRosalia and Salvatore Lipari appeal, as limited by their brief, from so much of an order of theSupreme Court, Queens County (Kerrigan, J.), entered December 20, 2007, as denied, in part,that branch of their motion which was for summary judgment dismissing the first cause of actionto recover damages for defamation insofar as asserted against them, and denied that branch oftheir motion which was for summary judgment dismissing the fourth cause of action to recoverdamages for prima facie tort insofar as asserted against them, (2) the defendant Ralph Perfettoseparately appeals, as limited by his brief, from so much of the same order as denied, in part,those branches of his motion, made jointly with the defendant City of New York, which werepursuant to CPLR 3211 to dismiss or, in the alternative, for summary judgment dismissing thefirst cause of action to recover damages for defamation insofar as asserted against him, anddenied those branches of that motion which were pursuant to CPLR 3211 to dismiss or, in thealternative, for summary judgment dismissing the fourth cause of action to recover damages forprima facie tort insofar as asserted against him, and (3) the plaintiffs cross-appeal, as limited bytheir brief, from so much of the same order as granted that branch of the motion of the defendantCity of New York, made jointly with the defendant Ralph Perfetto, which was pursuant [*2]to CPLR 3211 to dismiss the complaint insofar as asserted againstit.
Ordered that the order is reversed insofar as appealed from, on the law, and those branchesof the motion of the defendants Stephanie Rosalia and Salvatore Lipari which were for summaryjudgment dismissing the first cause of action to recover damages for defamation insofar asasserted against them, and the fourth cause of action to recover damages for prima facie tortinsofar as asserted against them, and those branches of the motion of the defendant RalphPerfetto, made jointly with the defendant City of New York, which were pursuant to CPLR 3211to dismiss the first cause of action to recover damages for defamation insofar as asserted againsthim, and the fourth cause of action to recover damages for prima facie tort insofar as assertedagainst him, are granted in their entirety, and those branches of the motion which were forsummary judgment dismissing those causes of action insofar as asserted against him areotherwise denied as academic; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the appellants-respondents appearing separatelyand filing separate briefs.
These appeals arise from a dispute between the plaintiffs and their neighbors, the defendantsStephanie Rosalia and Salvatore Lipari. The plaintiffs allege that in October 2004, Rosaliacontacted the defendant Ralph Perfetto, an employee of the Office of the Public Advocate for theCity of New York, and falsely alleged that the plaintiffs had violated several local ordinances orlaws. After meeting with the plaintiffs on December 22, 2004, Perfetto sent five letters to variousNew York City agencies requesting an investigation of those allegations. The plaintiffs claimthat those letters were defamatory. After serving a notice of claim dated May 26, 2005, theplaintiffs commenced this action. The first four causes of action, asserted against all of thedefendants, are to recover damages for defamation, prima facie tort, intentional infliction ofemotional distress, and injurious falsehood.
Rosalia and Lipari moved, inter alia, for summary judgment dismissing the first four causesof action insofar as asserted against them. Perfetto and City of New York moved to dismiss thecomplaint pursuant to CPLR 3211 insofar as asserted against them or, in the alternative, forsummary judgment dismissing the complaint insofar as asserted against them. The SupremeCourt, among other things, denied, in part, those branches of the defendants' motions which werefor summary judgment dismissing the first cause of action to recover damages for defamationinsofar as asserted against Rosalia, Lipari, and Perfetto, and denied those branches of theirmotions which were for summary judgment dismissing the fourth cause of action to recoverdamages for prima facie tort insofar as asserted against those three defendants, holding, interalia, that the evidence raised triable issues of fact as to whether they could be held liable fordefamation and prima facie tort. The Supreme Court granted that branch of the City's motion,made jointly with Perfetto, which was pursuant to CPLR 3211 to dismiss the complaint insofaras asserted against it.
The Supreme Court properly granted that branch of the City's motion, made jointly withPerfetto, which was pursuant to CPLR 3211 to dismiss the complaint insofar as asserted againstit based on the plaintiffs' failure to serve a timely notice of claim (see General MunicipalLaw § 50-e [1] [a]). The plaintiffs' argument that there was evidence that the defendantssubsequently republished the letters was not raised before the Supreme Court and is not properlybefore this Court (see Edme vTanenbaum, 50 AD3d 624 [2008]; Matter of Mercury Ins. Group v Ocana, 46 AD3d 561 [2007]).
The plaintiffs were required to serve a timely notice of claim upon the City in connectionwith their claims against Perfetto, since Perfetto made the allegedly defamatory statements whileacting in the discharge of his duties within the scope of his employment with the Office of thePublic Advocate for the City of New York (see W.E. Rest., Inc. v Wilson, 38 AD3d 762 [2007]; DeRise v Kreinik, 10 AD3d 381,382 [2004]; Smith v Collins, 221 AD2d 518, 519 [1995]; Agins v Darmstadter,153 AD2d 600, 601 [1989]). Accordingly, the Supreme Court should have granted thosebranches of Perfetto's motion, made jointly with the City, which were pursuant to CPLR 3211 todismiss the first cause of action to recover damages for defamation insofar as asserted againsthim, and the fourth cause of action to recover damages for prima facie tort insofar as assertedagainst him, in its entirety.
The Supreme Court should have awarded summary judgment to Rosalia and Liparidismissing the first cause of action to recover damages for defamation in its entirety. Thosedefendants established their prima facie entitlement to judgment as a matter of law bydemonstrating that a qualified privilege applied to the challenged statements (see Liberman vGelstein, 80 NY2d 429, 437-438 [1992]; Stukuls v State of New York, 42 NY2d272, 279-280 [1977]; Simpson v CookPony Farm Real Estate, Inc., 12 AD3d 496, 497 [2004]; Cohen-Putnam Agency vProfessional Show Managers' Assn., 253 AD2d 511 [1998]). In opposition to that primafacie showing, the plaintiffs failed to raise a triable issue of fact as to whether Rosalia and Lipariexceeded the scope of that privilege (see Berger v Temple Beth-El of Great Neck, 41 AD3d 626 [2007];Anas v Brown, 269 AD2d 761 [2000]), or as to whether they acted based solely on spiteor ill will or with reckless disregard for the truth (see Liberman v Gelstein, 80 NY2d at437-438). In this regard, any evidence regarding the failure of Rosalia and Lipari to investigatethe truth of the statements does not raise a triable issue of fact as to whether they acted withreckless disregard for the truth (see Berger v Temple Beth-El of Great Neck, 41 AD3d at627; Hoyt v Kaplan, 263 AD2d 918, 920 [1999]).
The Supreme Court also should have granted those branches of the motion of Rosalia andLipari which were for summary judgment dismissing the fourth cause of action to recoverdamages for prima facie tort insofar as asserted against them. " '[P]rima facie tort should notbecome a "catch-all" alternative for every cause of action which cannot stand on its own legs' "(Freihofer v Hearst Corp., 65 NY2d 135, 143 [1985], quoting Belsky vLowenthal, 62 AD2d 319, 323 [1978], affd 47 NY2d 820 [1979]). In order to sustaina cause of action alleging prima facie tort, the plaintiff must submit evidence that, inter alia,"disinterested malevolence to injure plaintiff constitutes the sole motivation for defendant'sotherwise lawful act" (Molinoff v Sassower, 99 AD2d 528, 529 [1984] [internalquotation marks omitted]). "This means that 'the genesis which will make a lawful act unlawfulmust be a malicious one unmixed with any other and exclusively directed to injury and damageof another' " (id., quoting Burns Jackson Miller Summit & Spitzer v Lindner, 59NY2d 314, 333 [1983]). Here, Rosalia and Lipari established, prima facie, that the allegedlydefamatory acts were committed at least partly in furtherance of legitimate motives. In response,the plaintiffs failed to raise a triable issue of fact as to whether the actions of those defendantswere motivated solely by disinterested malevolence. Rivera, J.P., Miller, Carni and McCarthy,JJ., concur.