Steven Hoffman, Plaintiff, v. AND WHORTLEKILL ROD AND GUN CLUB INC MICHAEL NUNES ROBIN MOORE JIMMY GOODWIN JEROD FAYE GEORGE ROBERTSON TOM COLKIN 22 22 (2023)

The following papers were read on Defendants' motion to dismiss the Complaint and on Plaintiff's cross-motion seeking leave to serve an Amended Complaint:

Document/NYSCEF Doc. No(s).:

NOTICE OF MOTION 3

AFFIRMATION IN SUPPORT 4

EXHIBITS A—C 5-7

AFFIRMATION OF SERVICE DATED 11/17/22 9

AFFIRMATION OF SERVICE DATED 11/28/22 10

NOTICE OF CROSS-MOTION 11

AFFIRMATION IN SUPPORT 12

MEMORANDUM OF LAW IN SUPPORT 13

EXHIBITS 1—2 14—15

AFFIRMATION IN REPLY 17

This action arises out of the alleged defamation of Plaintiff, Steven Hoffman, by Defendants, which are the Whortlekill Rod and Gun Club, Inc. (the "Club") as well as members Randy Ryan, Michael Nunes, Robin Moore, Jimmy Goodwin, Jerod Faye, George Robertson, Tom Colkin, and other unidentified members. The Defendants move pre-answer to dismiss the Complaint in its entirety pursuant to CPLR § 3211(a)(5),¹ (a)(7), and (a)(8). Plaintiff opposes the motion and cross-moves for leave to serve an Amended Complaint.²

BACKGROUND

As alleged in the Complaint, Plaintiff was an "honorary member" of the Club until January of 2022. In his first cause of action for defamation, Plaintiff alleges that Defendant Ryan was a member of the Club, who allegedly made defamatory verbal and written statements to other members of the Club, that Plaintiff had engaged in the "immoral, wrongful and illegal conduct of public masturbation at the cabin owned by [the Club] at 270 Braun Hill Road, Middleburgh, NY," including via a letter to the president of the Club. Plaintiff alleges that as a result of Defendant Ryan's statements, "approximately 40 members learned about the defamatory statement," thereby "sham[ing] Plaintiff . . . in front of the entire Club." Plaintiff further alleges that "on or about January 3, 2022, Defendant Randy Ryan then agreed that the accusation he previously made" concerning Plaintiff "was not true."

In his second cause of action, Plaintiff alleges that the board members of the Club in or about January 3, 6 or 7, 2022, adopted Defendant Ryan's statement regarding Plaintiff as their own and terminated Plaintiff's honorary membership in the Club. Plaintiff further alleges that Defendant Ryan's statement was published by the Club to "approximately 40 other members and thereby to the public at large."

This alleged defamation is claimed to have caused Plaintiff "personal injuries, lost earnings and . . . expenses for medical treatment, special harm and defamation per se and other damages." Plaintiff seeks the sum of $20,000,000.00, plus punitive damages. Plaintiff also claims that Plaintiff's honorary membership in the Club was wrongfully terminated.

DISCUSSION

Defendants move to dismiss the Complaint on several grounds: failure to state a cause of action, lack of personal jurisdiction as to all defendants except Defendant Ryan, and expiration of the statute of limitations with respect to the wrongful termination of membership claim.

Defendants' Motion to Dismiss due to the expiration of the statute of limitations.

Initially, and given the independence of this issue from the defamation claims that are the primary subject of the Complaint, Defendants are entitled to dismissal of claims asserted in Plaintiff's second cause of action insofar as that cause of action alleges that Plaintiff's honorary membership in the Club was wrongfully terminated, due to the expiration of the applicable statute of limitations.

"On a motion to dismiss a cause of action pursuant to CPLR § 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired." Wells Fargo Bank, N.A. v Burke, 155 AD3d 668, 669-70 [2d Dept 2017]. Once this showing has been made, the burden shifts to the plaintiff to "aver evidentiary facts establishing that the action was timely or to raise an issue of fact as to whether the action was timely." Lessoff v 26 Ct. St. Assoc., LLC, 58 AD3d 610, 611 [2d Dept 2009]. "The plaintiff has the burden of establishing that the statute of limitations has not expired, that it is tolled, or that an exception to the statute of limitations applies." Lake v New York Hosp. Med. Ctr. of Queens, 119 AD3d 843, 844 [2d Dept 2014].

A challenge to a voluntary association's termination of membership is properly the subject of an Article 78 proceeding, subject to a four-month statute of limitations, and regardless of the form of the claim as alleged by the plaintiff.³ CPLR § 217(1); Dormer v Suffolk County Police Benev. Ass'n, Inc., 95 AD3d 1166 [2d Dept 2012]. That limitation period begins to run when the challenged action or determination "becomes final and binding" (CPLR § 217(1)), which occurs when it inflicts an "actual, concrete injury" on the plaintiff (Walton v NY State Dept. of Correctional Servs, 8 NY3d 186, 194 [2007]).

Here, Plaintiff alleges that his honorary membership in the Club was wrongfully terminated not later than January 7, 2022, a claim that may only be asserted in an Article 78 proceeding. Since this action was not commenced until October 26, 2022, Defendants met their initial burden of showing that any wrongful termination claim is untimely. Plaintiff submitted no opposition on this point. It is therefore

ORDERED that Plaintiff's wrongful termination of membership claim is dismissed.

Defendants' Motion to Dismiss for failure to state a cause of action

On a motion to dismiss for failure to state a cause of action pursuant to CPLR § 3211(a)(7), this court must afford the claims a liberal construction, accept all facts alleged as true and accord the claimant the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87 [1994]). The court's function is to determine only whether the facts as alleged fit within any cognizable legal theory (id.)

Aside from the wrongful termination of membership claim, the Complaint asserts two causes of action for defamation: the first against Defendant Ryan only; and the second against the Club, several named members, and also "all members."

In general:

The elements of a cause of action for 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. The complaint must set forth the particular words allegedly constituting defamation, and it must also allege the time, place, and manner of the false statement and specify to whom it was made.

Tsatskin v Kordonsky, 189 AD3d 1296, 1299 [2d Dept 2020] (internal citations and quotations omitted); CPLR § 3016(a). "A statement is defamatory per se if it (1) charges the plaintiff with a serious crime; (2) tends to injure the plaintiff in her or his trade, business or profession; (3) imputes to the plaintiff a loathsome disease; or (4) imputes unchastity to a woman." Levy v Nissani, 179 AD3d 656, 658 [2d Dept 2020].

Additionally, defamation "as a rule is not actionable unless the plaintiff suffers special damage," which "contemplate[s] 'the loss of something having economic or pecuniary value.' " Liberman v Gelstein, 80 NY2d 429 [1992] (quoting Restatement [Second] of Torts § 575). Special damages are required to be pleaded with specificity (see Drug Research Corp. v Curtis Pub. Co., 7 NY2d 435 [1960] ("special damage must be fully and accurately stated")), and allegations of round figures of damages or vague allegations of lost income, medical expenses, or loss of reputation are insufficient (id.; Falk v Anesthesia Assoc. of Jamaica, 228 AD2d 326 [1st Dept 1996]; Boyle v Stiefel Labs. Inc., 204 AD2d 872 [3d Dept 1994]; Matherson v Marchello, 100 AD2d 233 [2d Dept 1984], abrogated on other grounds by Laguerre v Maurice, 192 AD3d 44 [2d Dept 2020]).

Here, the Court agrees that the Complaint does not allege defamation per se within one of the four above-mentioned categories. Plaintiff was therefore required to specifically plead special damages as part of his defamation claims. However, the Complaint only alleges generally that Plaintiff suffered personal injuries, lost earnings, medical expenses and "special harm" without any itemization. Additionally, Plaintiff's monetary demand for the sum of Twenty Million Dollars is a round figure that Plaintiff also fails to itemize. Finally, insofar as Plaintiff alleges that the loss of his honorary membership in the Club was due to the alleged defamation, Plaintiff does not allege that such membership had any economic or pecuniary value. As a result, Plaintiff's defamation claims, i.e., the remainder of the first and second causes of action, are legally insufficient. It is therefore further

ORDERED that Plaintiff's first and second causes of actions sounding in defamation are also dismissed.

In light of the foregoing, the Court need not reach Defendants' other arguments for dismissal.

Plaintiff's Cross-Motion for Leave to Serve and Amended Complaint

In response to Defendants' motion to dismiss, Plaintiff cross-moved for leave to serve an Amended Complaint. The proposed amended pleading was attached to Plaintiff's cross-motion as Exhibit 1.

"In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit," which determination is "committed to the sound discretion of the trial court." Attias v Costiera, 120 AD3d 1281, 1283 [2d Dept 2014].

As an initial matter, however, the Court observes that while Plaintiff's cross-motion is accompanied by the proposed amended complaint, it does not meet the requirement that it "clearly show(ing) the changes or additions to be made to the pleading," which is mandatory for such a motion. CPLR § 3025(b). Mendoza v Enchante Accessories, Inc., 185 AD3d 675, 679 [2d Dept 2020]. It is not the Court's obligation "to comb through a litigant's papers to find information that is required." Abizadeh v Abizadeh, 159 AD3d 856, 857 [2d Dept 2018].

While such an omission may not constitute sufficient independent grounds to deny a motion for leave to amend in all cases (Greene v Esplanade Venture Partnership, 36 NY3d 513, 526 n.3 [2021]), a review of the proposed Amended Complaint indicates that it fails to remedy the failure to allege special damages with specificity. The proposed amended pleading is, therefore, palpably insufficient and devoid of merit. Based on the foregoing, it is

ORDERED that Plaintiff's cross-motion seeking leave to serve an Amended Complaint is denied, and this action is dismissed with prejudice.

The foregoing constitutes the decision and order of the Court.

Dated: January 13, 2023

Poughkeepsie, New York

ENTER:

___________________________________

MARIA G. ROSA, J.S.C.

FOOTNOTES

1.   Although not specifically set forth in Defendants' Notice of Motion or supporting Affirmation, which only reference CPLR § 3211(a)(7) and (a)(8), Defendants' supporting Affirmation raises an argument for dismissal of certain claims in the Complaint on the basis of the expiration of the applicable statute of limitations, i.e. relief available under CPLR § 3211(a)(5). Given that the Notice of Motion also requests "such other and further relief as to this Court may seem just and proper," and Plaintiff did not oppose Defendants' statute of limitations arguments either procedurally or substantively, the Court elects to consider these arguments here. See Tirado v Miller, 75 AD3d 153, 158 [2d Dept 2010].

2.   Both the motion to dismiss and cross-motion for leave to serve an amended pleading are denoted Motion Sequence #1 in the NYSCEF System. They will be treated here as separate motions.

3.   The Court notes that Plaintiff's second cause of action does not, in any event, specify the nature of the claim, which asserts allegations concerning both defamation and wrongful termination of membership from the Club.

Maria G. Rosa, J.