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Supreme Court, Appellate Division, Fourth Department, New York.

Michael R. CAVALLARO, Plaintiff-Respondent, v. David POZZI, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  HURLBUTT, J.P., GORSKI, GREEN, PINE, AND HAYES, JJ. Hoffmann, Hubert & Hoffmann, LLP, Syracuse (Terrance J. Hoffmann of Counsel), for Defendant-Appellant. Meggesto, Crossett & Valerino, LLP, Syracuse (Heather R. La Dieu of Counsel), for Plaintiff-Respondent.

During a custody and support proceeding, defendant sought to terminate overnight visitation between his ex-wife and their children based in part on alleged marital “discord” between his ex-wife and plaintiff, her then husband.   In that proceeding, defendant submitted an affidavit (hereinafter, Affidavit) alleging, inter alia, that plaintiff had been “engaging in extra-marital affairs and that he regularly views pornography in the home.”   Plaintiff commenced this action asserting causes of action for defamation and intentional infliction of emotional distress.   After issue was joined, defendant moved for dismissal of the complaint “pursuant to CPLR § 3212” and for sanctions pursuant to CPLR 8303-a.   Despite noting that defendant's motion had been brought pursuant to CPLR 3212, Supreme Court sua sponte treated the motion as one to dismiss under CPLR 3211(a)(7) and denied it.

 We agree with defendant that the court erred in “converting” the motion into a CPLR 3211 motion without affording him notice of the nature of the motion and without affording him the opportunity to contest the conversion of that motion (see 7 W. Foods v. Forty-Seventh Fifth Co., 109 A.D.2d 658, 486 N.Y.S.2d 246;  cf. Lanzisera v. Miller, 289 A.D.2d 1015, 1016, 735 N.Y.S.2d 282;  Village of Webster v. Monroe County Water Auth., 269 A.D.2d 781, 782, 703 N.Y.S.2d 648).

 We further agree with defendant that the court erred in denying that part of his motion seeking summary judgment dismissing the first cause of action, for defamation, and we therefore modify the order accordingly.   Defendant met his initial burden by establishing that the statements contained in the Affidavit were “absolutely privileged” (Martirano v. Frost, 25 N.Y.2d 505, 507, 307 N.Y.S.2d 425, 255 N.E.2d 693), and plaintiff failed to raise a triable issue of fact on the issue whether the statements were actually pertinent to the custody and support proceeding (see generally id. at 507-508, 307 N.Y.S.2d 425, 255 N.E.2d 693).  “The standard for determining pertinence is broad” (Regan v. Coldwell Banker Residential Real Estate Servs., 176 A.D.2d 864, 865, 575 N.Y.S.2d 887, lv. denied 79 N.Y.2d 756, 583 N.Y.S.2d 192, 592 N.E.2d 800), and here it cannot be said that the challenged statements were “so unrelated to, or out of context with, the underlying [proceeding] to indicate that they were motivated solely by a desire to defame” (id.;   see Martirano, 25 N.Y.2d at 508, 307 N.Y.S.2d 425, 255 N.E.2d 693).   In other words, the statements were not “so outrageously out of context as to permit one to conclude, from the mere fact that [they were] uttered, that [they were] motivated by no other desire than to defame” (Martirano, 25 N.Y.2d at 508, 307 N.Y.S.2d 425, 255 N.E.2d 693;  see generally Lewittes v. Blume, 18 A.D.3d 261, 795 N.Y.S.2d 13).

 To the extent that the complaint, as amplified by the bill of particulars, alleges that defendant repeated the statements contained in the Affidavit to his children and current wife, those statements are not absolutely privileged (see generally Park Knoll Assoc. v. Schmidt, 59 N.Y.2d 205, 209-210, 464 N.Y.S.2d 424, 451 N.E.2d 182).   We conclude, however, that defendant established that those statements do not as a matter of law support the defamation cause of action.   Where, as here, a plaintiff has not sustained special damages, i.e., “ ‘the loss of something having economic or pecuniary value’ ” (Liberman v. Gelstein, 80 N.Y.2d 429, 434-435, 590 N.Y.S.2d 857, 605 N.E.2d 344), liability cannot be imposed with respect to a defamation cause of action based on slanderous statements unless the underlying slanderous statements fall within one of the “four established exceptions” to the rule requiring special damages for such a cause of action (id. at 435, 590 N.Y.S.2d 857, 605 N.E.2d 344).   Only the first of those exceptions, for statements “charging plaintiff with a serious crime,” has any relevance to this case (id.).   We conclude, however, that it does not apply because the alleged crime of adultery is not a serious crime within the meaning of Liberman.   Adultery is a class B misdemeanor (Penal Law § 255.17), which is the lowest grade of criminal offense.   Thus, if adultery were deemed a serious crime, then all crimes necessarily would constitute serious crimes and the use of the adjective “serious” in Liberman would be rendered superfluous.   Plaintiff's reliance on cases decided before Liberman is misplaced.   In those cases, the statement that a person was having an “affair” was held to constitute slander per se (see e.g. Meyer v. Somlo, 105 A.D.2d 1007, 482 N.Y.S.2d 156;  Jordan v. Lewis, 20 A.D.2d 773, 247 N.Y.S.2d 650), because, until Liberman was decided, slander per se was committed if the statement charged the plaintiff with “the commission of a punishable crime” (Jordan, 20 A.D.2d at 774, 247 N.Y.S.2d 650) or merely “ ‘the commission of a crime’ ” (Meyer, 105 A.D.2d at 1008, 482 N.Y.S.2d 156, quoting Privitera v. Town of Phelps, 79 A.D.2d 1, 3, 435 N.Y.S.2d 402, appeal dismissed 53 N.Y.2d 796).  Liberman now requires that the statements charge the plaintiff with the commission of a serious crime.

We likewise note that plaintiff's reliance on Donati v. Queens Ledger Newspaper Group, 240 A.D.2d 696, 659 N.Y.S.2d 306 is misplaced because it concerns libel per se and therefore is inapplicable to that part of the complaint alleging slander per se.

 We reject the further contention of defendant that the court erred in denying that part of his motion seeking summary judgment dismissing the second cause of action, for intentional infliction of emotional distress.   Although defendant met his initial burden, we conclude that plaintiff raised an issue of fact whether defendant's conduct was so “ ‘extreme and outrageous' as to ‘go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community’ ” (Wende C. v. United Methodist Church, N.Y. W. Area, 6 A.D.3d 1047, 1049, 776 N.Y.S.2d 390, affd. 4 N.Y.3d 293, 794 N.Y.S.2d 282, 827 N.E.2d 265, cert. denied 546 U.S. 818, 126 S.Ct. 346, 163 L.Ed.2d 57, quoting Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86).   The determination whether the requisite outrageousness has been established is, in the first instance, an issue of law for the courts (see 164 Mulberry St. Corp. v. Columbia Univ., 4 A.D.3d 49, 56, 771 N.Y.S.2d 16, lv. dismissed 2 N.Y.3d 793, 781 N.Y.S.2d 291, 814 N.E.2d 463), and it is well settled that a cause of action for intentional infliction of emotional distress is viable where “severe mental pain or anguish is inflicted through a deliberate and malicious campaign of harassment or intimidation” (Nader v. General Motors Corp., 25 N.Y.2d 560, 569, 307 N.Y.S.2d 647, 255 N.E.2d 765;  see Cohn-Frankel v. United Synagogue of Conservative Judaism, 246 A.D.2d 332, 667 N.Y.S.2d 360).   Here, plaintiff stated in his affidavit in opposition to defendant's motion that defendant engaged in a constant campaign of harassment and intimidation, which included threatening to kill plaintiff and his children, and thus we conclude that plaintiff raised a triable issue of fact whether defendant's conduct rose to the requisite level of outrageousness (see e.g. Gill Farms v. Darrow, 256 A.D.2d 995, 997, 682 N.Y.S.2d 306;  Bunker v. Testa, 234 A.D.2d 1004, 652 N.Y.S.2d 181;  Stram v. Farrell, 223 A.D.2d 260, 264-265, 646 N.Y.S.2d 193;  cf. Levy v. Grandone, 14 A.D.3d 660, 662, 789 N.Y.S.2d 291;  Seltzer v. Bayer, 272 A.D.2d 263, 264-265, 709 N.Y.S.2d 21).   Contrary to defendant's contention, plaintiff was not required to submit medical evidence in order to defeat the motion with respect to the second cause of action inasmuch as plaintiff alleged in his verified bill of particulars that he sought “medical and professional advice and treatment” for his claimed injuries (see e.g. Garcia v. Lawrence Hosp., 5 A.D.3d 227, 228, 773 N.Y.S.2d 59;  Murphy v. Murphy, 109 A.D.2d 965, 966-967, 486 N.Y.S.2d 457;  cf. Christenson v. Gutman, 249 A.D.2d 805, 808-809, 671 N.Y.S.2d 835;  Erani v. Flax, 193 A.D.2d 777, 598 N.Y.S.2d 268).

Finally, based on our determination that the court properly refused to dismiss the second cause of action, we conclude that the court properly denied that part of defendant's motion seeking sanctions based on the alleged ground that the second cause of action is frivolous (see CPLR 8303-a;  Kopach v. Olympia & York, 215 A.D.2d 304, 627 N.Y.S.2d 12).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the first cause of action and as modified the order is affirmed without costs.