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S.R., Plaintiff, v. James OLIVERI, Defendant.
Upon the foregoing papers, the defendant James Oliveri (“Defendant”) moves for an order (1) dismissing the plaintiff's complaint on statute of limitations grounds pursuant to CPLR 3211(a)(5); (2) dismissing the plaintiff's complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7); and (3) pursuant to CPLR § 8303 and 22 NYCRR § 130-1.1, awarding costs to Defendant, and for such other and further relief as this Court deems just and proper.
The plaintiff R.S. (“Plaintiff”) opposes the motion and cross-moves for an order dismissing Defendant's counterclaim pursuant to CPLR 3016(a), (b), CPLR 3211(a)(1), (7), and (4). Defendant opposes the cross-motion.
Plaintiff commenced this action by filing a summons with notice on January 2, 2020. Plaintiff thereafter filed an amended complaint on July 13, 2020. Plaintiff alleges that Plaintiff and Defendant dated briefly in 2007 and during that time, Plaintiff eventually allowed Defendant to film their sexual encounters. Once the relationship began to sour, Defendant threatened to share these intimate videos with Plaintiff's father is she terminated the relationship. Defendant continued to harass her over the years through various means until 2010 when a police officer whom Plaintiff had met to file a report directed Defendant to stop contacting Plaintiff or risk harassment charges.
Plaintiff alleges that in 2012, she learned that Defendant had posed two of her intimate images online and had done so using her unusual first name. The images thus could be located by simply using Google to search her name. Plaintiff had these images removed from the internet.
On December 2, 2019, Plaintiff's now-husband received a phone call at work from someone who identified himself as Plaintiff's “lover.” The caller told Plaintiff's husband that he and Plaintiff had been having sex the entire time they had been dating. The caller further said that there was proof online that Plaintiff was “cheating” on him, and he directed Plaintiff's husband to various pornographic web sites to view his wife engaging in sexual acts.
Plaintiff then checked the internet at found at least four videos posted to a pornographic web site under the username “cuminmouth19.” Plaintiff alleges that she was completely unaware of the existence of three of the videos which were over a decade old. Information provided by the web site provided that the account was created using the e-mail address “firstname.lastname@example.org” on November 11, 2019 and thus the four videos uploaded to that account could not have been uploaded at an earlier date. Plaintiff further states that Google confirmed that the individual who created this e-mail account provided a phone number. Plaintiff alleges that, upon information and belief, that phone number belongs to Defendant.
The videos clearly show Plaintiff's face as she engages in sexual acts and was viewed approximately 2,000 times according to a counter on the web site. One of these videos was also posted to a different web site under the username “Lennyny.” This view also contained Plaintiff's full face in view and the title of it also contained Plaintiff's name. The counter for this video showed that it had been viewed 97,144 times. In the comment section of this video, the uploader of the video directed viewers to other videos, and wrote that Plaintiff wanted to engage in various sexual acts with him. Plaintiff claims that the username “Lennyny” profile showed that the account was created on September 1, 2019, thus the video could not have been uploaded to the internet any earlier than that date. Plaintiff alleges that searching the title of one of the videos containing her name returns 58 Google results.
Plaintiff claims that on January 15, 2020, her husband was contacted again at work this time by e-mail. The e-mail was sent to his workplace from the e-mail address “email@example.com” and asked “[w]ant to share her? Double team?” Plaintiff alleges that, as provided above, “firstname.lastname@example.org” is Defendant's e-mail address.
Plaintiff's amended complaint asserts causes of action under New York City Administrative Code § 10-180, Civil Rights Law § 52-b, and for defamation, and intentional infliction of emotional distress.
Defendant now moves to dismiss Plaintiff's complaint, and Plaintiff cross-moves to dismiss Defendant's counterclaims.
II. Defendant's Motion
A. Statute of Limitations
When a defendant moves to dismiss a complaint pursuant to CPLR 3211(a)(5) as barred by the statute of limitations, the movant must establish, prima facie, that the time within which to use has expired (Flintlock Construction Services, LLC v. Rubin, Fiorella & Friedman, LLP, 188 AD3d 530 [1st Dept. 2020]). Once this showing has been made, “the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period” (id., quoting Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085 [2d Dept. 2016][internal quotation marks omitted]).
Defendant's motion initially focuses on Plaintiff's defamation claim. “Making a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation” (Martin v. Daily News L.P., 121 AD3d 90, 99 [1st Dept. 2014][internal citations and quotation marks omitted]). The elements of 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” (Dillon v. City of New York, 261 AD2d 34, 38 [1st Dept. 1999][internal citations omitted]). Defamation claims are subject to a one-year statute of limitations (CPLR 215) which generally accrues “on the date of the first publication” (Biro v. Condé Nast, 171 AD3d 463, 464 [1st Dept. 2019]).
Defendant argues that Plaintiff's defamation claim is untimely because Plaintiff admitted that she knew of “intimate pictures/video of herself” existed as far back as 2012, but she did not file this complaint until January 2020. Defendant's contentions, however, ignore the allegations in Plaintiff's complaint. Plaintiff's defamation claim is based on (1) oral statements made by a caller, believed to be Defendant, to Plaintiff's husband in December 2019 asserting that Plaintiff had been cheating on him and directing him to certain pornographic web sites, and (2) statements made on videos posted to web sites in 2019 alleging inter alia that Plaintiff had certain sexual perversions. Plaintiff's defamation claims cannot be predicated on images posted online in 2012, because images do not constitute “false statements.”
Defendant's motion does not specifically address any of Plaintiff's other causes of action. The motion does allege that under New York Penal Law 245.15 — Unlawful Dissemination or Publication of an Intimate Image - a victim may commence a legal action within three years after the embarrassing image is published or one year from when it was, or reasonably should have been, discovered. Defendant argues that, since Plaintiff admittedly knew of the intimate pictures/videos of herself as of 2012, and assumed that Defendant posted the videos, Plaintiff's January 2020 claim is untimely. Defendant alleges that any republication of the video was “within the same circulation of internet video sites and was not a new or modified publication. Plaintiff is complaining of the same video” (Def. Aff. In Support at Par. 27).
Plaintiff, however, does not allege that the “two images” that she found online in 2012 were the same as the four videos posted to web sites in 2019. Moreover, Plaintiff alleges that Defendant made oral and written defamatory statements in 2019. Therefore, this is not a circumstance where the “single publication rule” applies to bar Plaintiff's claims as untimely (see generally Firth v. State, 98 NY2d 365 ). In addition, Plaintiff alleges that the videos posted from newly created accounts in September and November 2019 contained additional defamatory comments from the uploader, who Plaintiff alleges is Defendant. Plaintiff does not claim that any of these comments were made in the images that were posted online in 2012. Defendant thus failed to carry his initial burden of establishing that any of Plaintiff's causes of action are barred by the statute of limitations.
B. Failure to State a Cause of Action
Defendant also moves to dismiss Plaintiff's complaint for failure to state a cause of action. On a motion to dismiss pursuant to CPLR 3211(a)(7), a court's role is ordinarily limited to determining whether the complaint states a cause of action (Frank v. DaimlerChrysler Corp., 292 AD2d 118 [1st Dept. 2002]). In other words, the determination is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (see Stendig, Inc. v. Thom Rock Realty Co., 163 AD2d 46 [1st Dept. 1990]; Leviton Manufacturing Co., Inc. v. Blumberg, 242 AD2d 205 [1st Dept. 1997] [on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true]; see also M.H.B. v. E.C.F.S., 177 AD3d 479, 480 [1st Dept. 2019][“[I]n 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”]). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see, CPLR 3026). 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 into any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83, 87—88 ). The motion should be denied if, from the pleading's four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law (McGill v. Parker, 179 AD2d 98 [1st Dept. 1992]).
In this case, Defendant's moving papers fail to specify which cause of action was insufficiently pleaded. Defendant argues that Plaintiff has failed to allege or demonstrate that it was Defendant depicted in the “video,” or that the individuals who uploaded the “video” were in fact Defendant. First, whether Defendant was depicted in the video(s) is irrelevant to the issue of whether Plaintiff's causes of action are adequately pleaded. Second, on a motion to dismiss, the allegations contained in the complaint must be accepted as true and the pleadings are liberally construed. Plaintiff's amended complaint sufficiently alleges that Defendant is the person who uploaded the videos, and the pleading sets forth the factual basis for that claim. Defendant's affidavit denying that the cited e-mail address belongs to him is improperly submitted for the first time in reply, and in any event is not a basis to dismiss pursuant to CPLR 3211(a)(7). Accordingly, Defendant's motion to dismiss pursuant to CPLR 3211(a)(7) is denied.
In light of the foregoing, Defendant's motion for costs and sanctions pursuant to CPLR § 8303 and 22 NYCRR § 130-1.1 is denied.
III. Plaintiff's Cross-Motion
Plaintiff cross-moves to dismiss Defendant's counterclaims. The Court notes that while Defendant has submitted an affirmation in opposition to the cross-motion, the affirmation of counsel contains no substantive legal arguments opposing dismissal of the counterclaims. Defendant's amended answer contains three counterclaims. Defendant alleges that he and Plaintiff had a consensual relationship and mutually agreed to record their sexual interactions. Defendant alleges again that “the video” that Plaintiff complains of does not depict Defendant. He alleges that Plaintiff has shared sexual videos with others, and “one such sexual video was published on the internet as early as 2012.” Defendant alleges, among other things, that Plaintiff is aware that Defendant is not in the video, and that Defendant did not post the video to the internet. Defendant claims that Plaintiff's complaint seeks to extort money from Defendant. Defendant alleges that Plaintiff identified Defendant's private business entity in the complaint for no reason other than to embarrass Defendant with a publicly filed complaint. Defendant's counterclaims are as follows: (1) that Plaintiff is attempting to extort money from Defendant; (2) that Plaintiff is “pursuing a malicious prosecution against Defendant”; and (3) Defendant repeats his allegation that Plaintiff is pursuing a malicious prosecution against Defendant. Defendant then alleges, “[p]ursuant to CPLR § 8303a. permits the award of ‘costs and reasonable attorney's fees not exceeding ten thousand dollars’ against a party, his attorney, or both, who are found to have brought a frivolous action in bad faith or as a means of ‘harass[ing]’ the successful adversary.”
First, Defendant's counterclaim alleging “extortion” must be dismissed because extortion is a criminal offense that “do[es] not imply a private right of action” (Minnelli v. Soumayah, 41 AD3d 388, 388 [1st Dept. 2007], citing Penal Law 155.05[e]).
Second, Defendant's counterclaims alleging “malicious prosecution” are insufficiently pleaded. To state a civil malicious prosecution claim, a plaintiff must allege “(1) the commencement or continuation of a proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor the [plaintiff], (3) the absence of probable cause for the proceeding, and (4) actual malice” (Facebook, Inc. v. DLA Piper LLP [US], 134 AD3d 610, 613 [1st Dept. 2015], quoting Broughton v. State of New York, 37 NY2d 451, 457 , cert denied sub nom, Schanbarger v. Kellogg, 423 U.S. 929 [internal quotation marks omitted]). Plaintiff must also allege and prove a “special injury” (Wilhelmina Models, Inc. v. Fleisher, 19 AD3d 267, 269 [1st Dept. 2005], quoting [internal citation and quotation marks omitted]). The instant lawsuit is the basis for Defendant's malicious prosecution claim. However, this proceeding has not yet been terminated in Defendant's favor (see Laval Realty, Inc v. Shell Realty Co., 151 AD2d 321 [1st Dept. 1989][“[i]n interposing its malicious prosecution claim as a counterclaim before a favorable resolution of the action defendant has proceeded prematurely”]). Defendant also failed to allege that he suffered a “special injury” which is “some concrete harm that is considerably more cumbersome that the physical, psychological or financial demands of defending a lawsuit” (Wilhelmina Models, Inc. v. Fleisher, 19 AD3d 267, 269 [1st Dept. 2005], quoting Engel v. CBS, Inc., 93 NY2d 195, 205  [internal quotation marks omitted]). Defendant alleges that Plaintiff identified Defendant's private business entity solely to try to embarrass Defendant, but he does not allege any concrete special injuries endured as a result of Plaintiff's claims (see, e.g., Ivancev v. Garrido, 184 AD3d 422, 423 [1st Dept. 2020]).
Defendant's third counterclaim appears to be duplicative of his second counterclaim, and therefore it must be dismissed. To the extent that this counterclaim constitutes a claim for sanctions and attorneys fees, “New York does not recognize an independent cause of action for the imposition of sanctions under either CPLR 8303-a or Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1,” (Cerciello v. Admiral Ins. Brokerage Corp., 90 AD3d 967, 968 [2d Dept. 2011]). Defendant must pursue such sanctions by notice of motion (see CPLR Supplemental Practice Commentaries, by Vincent C. Alexander, McKinney's Cons. Laws of NY Annotated, CPLR 8303-a. ).
Accordingly, it is hereby
ORDERED, that Defendant's motion is denied, and it is further,
ORDERED, that Plaintiff's cross-motion is granted, and Defendant's counterclaims are dismissed, and the Clerk of this Court is hereby directed to enter judgment accordingly.
This constitutes the Decision and Order of this Court.
Mary Ann Brigantti, J.
Response sent, thank you
Docket No: Index No. 20052/2020E
Decided: February 14, 2022
Court: Supreme Court, Bronx County, New York.
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