SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER. SUMMARY JUDGEMENT.
DOLORITA “DONNA” MCKIE , Plaintiff, – against -HELENA R. EDWARDS, Defendant.
Plaintiff commenced this case against defendant, asserting causes of action for libel, slander intentional infliction of emotional distress and negligence infliction of emotional distress. According to the complaint, MCKIE alleges that EDWARDS posted defamatory statements on EDWARDS Facebook page, and leaving defamatory remarks on plaintiff’s voicemail. Defendant now moves to dismiss the complaint in its entirety pursuant to CPLR 3211(a)(7).
Defamation can sound in libel or slander. Libel involves publication, something in writing or pictures, and slander involves statements, something. To allege a cause of action for defamation, plaintiff must show 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 .
“In determining whether a complaint states a cause of action to recover damages for defamation, the dispositive inquiry is whether a reasonable listener or reader could have concluded that the statements were conveying facts .
The Judgement says EDWARDS pointed out the statements made failed to comply with the standards of CPLR 3016(a), Moreover, the challenged statements do not bear precise meanings which are readily understood, and are not capable of being proven true or false.
Looking at the content of the entire communication, its tone and apparent purpose, the court determines that a reasonable person would not consider it as conveying facts about plaintiff. Based upon the submissions of the parties, defendant has demonstrated that plaintiff failed to allege a false statement by defendant made to third parties, including statements charging the plaintiff with a serious crime, or statements that tend to injure the plaintiff in his or her trade, business, resulting in injury to reputation.
This court recognizes, as other courts do that”the culture of Internet communications, as distinct from that of print media such a newspapers and magazines, has been characterized as encouraging a “freewheeling, anything-goes writing style (Sandals Resorts Int’l Ltd. v. Google, Inc., 86 AD3d 32, 43 [1st Dept 2011]).
Given the context in which defendant’s statements were made, a reasonable reader would have believed that defendant made hyperbolic expressions of opinion and not assertions of fact. It is clear that the Facebook posts were subjective expressions, rhetoric and the like which are generally protected and not actionable, and failed to include any specific allegations of criminal behavior or conduct.
Addressing the slander branch of plaintiff’s complaint, the complaint alleges that on February 11, 2015, defendant left voice mail messages on plaintiff’s private phone, and that one of the messages was listened to via the phone speaker by plaintiff’s friend. One of the statements was “that plaintiff was sexually molested while the other talked about the Plaintiff facial features and the problems it caused for both mother and father in their relationship.
These statements according to the judgement hand down amounted to mere name calling and a matter of opinion. There is no sufficient allegation that defendant published the statement to a third party, thus dismissal of this cause of action is warranted.
With regard to the statement that defendant wounded plaintiff’s reputation in the professional community by stating falsely that plaintiff is not a paralegal, but a paralegal assistant. The court fails to see by identifying plaintiff as a paralegal assistant rather than a paralegal would be a defamatory statements.
Even if the court accepts all factual allegations pleaded in plaintiffs complaint as true, and gives plaintiff the benefit of every favorable inference , the defamation causes of action based on these statements must be dismissed on the ground that the alleged statements constitute non-actionable expressions of opinion.
For her intentional infliction of emotional distress cause of action a plaintiff must show “(i) extreme and outrageous conduct, (ii) an intent to cause—or disregard of substantial probability of causing severe emotional distress, (iii) a causal connection between the conduct and the injury, and (iv) the resultant severe emotional distress”.
Moreover, “the complaint must allege conduct that was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and [was] utterly intolerable in a civilized community”.
The challenged conduct plaintiff claims defendant made include: Called plaintiff’s home six times; tagged facebook statement to plaintiffs boyfriend; copied plaintiffs Linkedin employment information to her Facebook page; threatened to call plaintiff’s employer; ; threatened to post an inbox message that plaintiff had sent to her regarding her father; among others, confirmed that she has all of plaintiff’s business in her inbox.
Based on these facts, while some of the conduct is disrespectful, vulgar, and is not polite dinner conversation, as a matter of law they do not rise to the level of outrageousness necessary to maintain a cause of action to recover damages for the intentional infliction of emotional distress.
Lastly, plaintiff seeks in this action to recover damages for negligent infliction of emotional distress, which generally requires a plaintiff to show a breach of a duty owed to him which unreasonably endangered his physical safety, or caused him to fear for his own safety (Sacino v Warwick Valley Cent. Sch. Dist., 138 AD3d 717, 719 [2d Dept 2016]). New York courts have been reluctant to recognize claims grounded in negligence when the damages are solely emotional (Nadal v Jaramillo, 102 AD3d 843, 844 [2d Dept 2013]).
However, under these circumstances, a cause of action sounding in negligence may not lie (Nadal v Jaramillo, 102 AD3d 843, 844 [2d Dept 2013]). Thus, accepting the allegations in the complaint as true, and affording the plaintiff the benefit of every favorable inference the complaint failed to state a cause of action to recover damages for negligent infliction of emotional distress, as the complaint fails to allege any duty defendant owed to plaintiff (Pailliere v Town of Hempstead,
Wherefore, it is hereby
ORDERED, that defendant’s application is granted in its entirety, and the complaint is dismissed; and it is further
ORDERED, that the Clerk shall mark his records accordingly.
Any other relief requested and not decided herein is denied. The foregoing shall constitute the Decision and Order of this Court.
Dated: White Plains, New York
September 26, 2016
