M.H.B., an Infant, by His Parents and Natural Guardians, C.B., et al., Plaintiffs–Respondents, v. E.C.F.S., et al., Defendants–Appellants. (2019)

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered March 13, 2019, which denied defendants' CPLR 3211(a)(7) motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiffs, whose son attended defendant school, allege that, after they made complaints concerning race-related problems at the school and issues experienced by their biracial son, defendants retaliated against them by making a false report of child neglect to Child Protective Services (CPS). The complaint alleges with specificity that defendants had no good faith basis for making the CPS report, and that, despite defendant Head of School acknowledging that the reporter had gone “rogue” and not followed school protocol, defendants failed to comply with their obligation to inform the CPS investigator that the allegations against the parents were untrue. Based on these allegations, plaintiffs assert causes of action for intentional infliction of emotional distress, defamation, violations of the New York State and City Human Rights Laws, and negligent hiring, training and supervision.

Defendants moved to dismiss all of these causes of action on the basis that plaintiffs would be unable to prove any of these claims because they did not know the identity of the CPS reporter and would be unable to learn it in discovery. They rely on the settled law that a mandated reporter is immune from liability for making a good faith child protective report, based on “reasonable cause” to suspect that the child might have been abused or neglected (Villarin v. Rabbi Haskel Lookstein School, 96 A.D.3d 1, 6, 942 N.Y.S.2d 67 [1st Dept. 2012]; Social Services Law § 419). However, in the context of this motion to dismiss, the Court does not assess the relative merits of the complaint's allegations against defendant's contrary assertions or to determine whether or not plaintiffs can produce evidence to support their claims (see e.g. Residence on Madison Condominium v. W.T. Gallagher & Assoc., 271 A.D.2d 209, 210, 706 N.Y.S.2d 325 [1st Dept. 2000]). Whether plaintiffs “can ultimately establish [their] allegations is not a part of the calculus in determining a motion to dismiss” (J.P. Morgan Sec. Inc. v. Vigilant Ins. Co., 21 N.Y.3d 324, 334, 970 N.Y.S.2d 733, 992 N.E.2d 1076 [2013], quoting EBC I, Inc. v. Goldman Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005]). Thus, regardless of whether plaintiffs will be able to obtain disclosure concerning the identity of the CPS reporter (Social Services Law § 422[4][A]; see DeLeon v. Putnam Valley Bd. of Educ., 228 F.R.D. 213 [S.D. N.Y.2005]; Selapack v. Iroquois Cent. Sch. Dist., 17 A.D.3d 1169, 794 N.Y.S.2d 547 [4th Dept. 2005]), defendants have not demonstrated entitlement to dismissal of the well-pleaded complaint for failure to state a cause of action (see Oglesby v. Eikszta, 2007 WL 1879723, *5 [N.D. N.Y.2007]). Moreover, contrary to defendants' contention, it is not clear that plaintiffs would require the name of the reporter in order to prevail on all of their causes of action or that the circumstantial evidence will be insufficient to support their claims.

Plaintiffs also assert a cause of action for libel based on an email sent to the entire school community by defendant Head of School. The motion court properly denied defendants' motion to dismiss this claim, finding that the contested statements are reasonably susceptible of a defamatory connotation (Armstrong v. Simon & Schuster, 85 N.Y.2d 373, 380, 625 N.Y.S.2d 477, 649 N.E.2d 825 [1995]; Aronson v. Wiersma, 65 N.Y.2d 592, 593–594, 493 N.Y.S.2d 1006, 483 N.E.2d 1138 [1985]), and that the letter does not contain only nonactionable opinions, but “mixed” statements of fact and opinion, which imply they are based upon facts that justify the opinion but are unknown to the listener or reader (Steinhilber v. Alphonse, 68 N.Y.2d 283, 289–290, 508 N.Y.S.2d 901, 501 N.E.2d 550 [1986]; see Davis v. Boeheim, 24 N.Y.3d 262, 273, 998 N.Y.S.2d 131, 22 N.E.3d 999 [2014]).