Sokol v. Leader
904 N.Y.S.2d 153
N.Y. App. Div.
2010
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Howard Sokol, Respondent, v Micki Leader, Appellant.

Supreme Court, Rockland County

December 21, 2009

[904 NYS2d 153]

Kelly, J.

In an action to recover damages for defamation, the defendant appeals from an order of the Supreme Court, Rockland County (Kelly, J.), dated December 21, 2009, which denied that branch of her motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) and, in effect, denied those branches of her motion which were, in the alternative, in effect, to strike certain language from the complaint pursuant to CPLR 3016 (a) or for summary judgment dismissing the complaint pursuant to CPLR 3211 (c) and 3212.

Ordered that the order is affirmed, with costs.

When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action (see ; ). In considering such a motion, 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 within any cognizable legal theory” (, quoting ). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus” ().

Here, the complaint adequately pleaded a cause of action sounding in defamation (see ; ), and in her pre-answer motion to dismiss the complaint, the defendant did not actually contend otherwise. Rather, the defendant asserted that she had two defenses: the absolute privilege for “fair and true” reports of judicial proceedings (Civil Rights Law § 74; see ), and the qualified common-law privilege for statements made by one person to another on a subject in which both persons share a common interest (see ). Contrary to the defendant’s contention, on a motion made pursuant to CPLR 3211 (a) (7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party. ”CPLR 3211 allows [a] plaintiff to submit affidavits, but it does not oblige him [or her] to do so on penalty of dismissal” (). Unless the motion is converted into one for summary judgment pursuant to CPLR 3211 (c), “affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint,” and such affidavits “are not to be examined for the purpose of determining whether there is evidentiary support for the pleading” (; see ). Thus, a plaintiff “will not be penalized because he has not made an evidentiary showing in support of his complaint” ().

A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211 (a) (7) (see CPLR 3211 [c]). If the court considers evidentiary material, the criterion then becomes “whether the proponent of the pleading has a cause of action, not whether he has stated one” (). Yet, affidavits submitted by a defendant “will almost never warrant dismissal under CPLR 3211 unless they ‘establish conclusively that [the plaintiff] has no cause of action‘” (, quoting [emphasis and alterations of original quotation omitted]). Indeed, a motion to dismiss pursuant to CPLR 3211 (a) (7) must be denied “unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” ().

In this case, the defendant submitted no evidence demonstrating that any fact alleged in the indictment was, undisputedly, “not a fact at all.” Moreover, even assuming, for present purposes, that the common interest privilege was applicable to the statement in question, and that the defendant did not disseminate the statement in a manner that exceeded the scope of the privilege (see ) or constituted “excessive publication” (), the privilege can be overcome by a showing of malice (see ), which means, inter alia, “knowledge that [the statement] was false or . . . reckless disregard of whether it was false or not” (, quoting ). Since, as stated above, the burden does not shift to the nonmoving party on a motion made pursuant to CPLR 3211 (a) (7), a plaintiff has “no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211 (a) (7)” (; see ; ; ; ). Thus, dismissal of the complaint pursuant to CPLR 3211 (a) (7) was not warranted (see ).

The defendant’s notice of motion did identify CPLR 3211 (a) (1) as one of the bases of her motion, and under that provision, a defense may provide a basis for dismissing a complaint if that defense is founded upon documentary evidence. The defendant, however, failed to submit documentary evidence “conclusively establishing . . . as a matter of law” () that her allegedly defamatory statements constituted a “fair and true” report of judicial proceedings within the meaning of Civil Rights Law § 74, or that she was entitled to the benefit of the common interest privilege. Thus, dismissal of the complaint pursuant to CPLR 3211 (a) (1) was not warranted.

Contrary to the defendant’s additional contention, the complaint set forth “the particular words complained of,” and thereby complied with CPLR 3016 (a) (see , affd for reasons stated ).

Finally, the Supreme Court providently exercised its discretion in declining to convert the defendant’s motion into a motion for summary judgment pursuant to CPLR 3211 (c) (see ; ; ; ; ; ). In the absence of such a conversion, preceded by the required notice to the parties (see CPLR 3211 [c]), the motion could not be treated as one for summary judgment, since, contrary to the defendant’s further contention, the parties did not make it “unequivocally clear” that they were “laying bare their proof” and “deliberately charting a summary judgment course” (; see ; ).

Prudenti, P.J., Skelos, Florio and Sgroi, JJ., concur.