New York Criminal Lawyer Blog
Plaintiff and defendant are brothers. The parties have been estranged since an event which occurred on Mother’s Day in 2003 at a family gathering. There have been numerous Family Court matters involving this family.
The allegations:
For the First Cause of Action – A New York Drug Crime Lawyer said the defendant has falsely accused plaintiff of a serious crime, namely filing a false police report, a criminal violation of New York State Penal Law. That accusation by defendant was a false and defamatory statement of and concerning plaintiff; specifically that she had filed a false criminal complaint against him for threatening her by brandishing a gun. Defendant made this false accusation to third parties, including but not necessarily limited to, family members.
For the Second Cause of Action – Defendant has falsely accused plaintiff of being the subject of a protective order regarding defendant’s children. That false accusation disparaged plaintiff in her trade, business, and/or professional reputation as an educational professional who works with children. That allegation by defendant was a false and defamatory statement of and concerning plaintiff, specifically and falsely suggesting that plaintiff personally had engaged in improper behavior relative to defendant’s children. Defendant made this false accusation to third parties, including, but not necessarily limited to, plaintiff’s supervisor.
For the Third Cause of Action – Defendant’s harassing conduct toward plaintiff and her family was extreme and outrageous. Defendant intentionally or recklessly engaged in that harassment as part of his continual emotional assault on his sister, the plaintiff. As a result of this extreme and outrageous, intentional conduct, a New York Drug Possession Lawyer said the plaintiff suffered severe emotional distress.
The defendant has moved for a motion for summary judgment.
The Court’s Ruling:
Under the law, a party is entitled to summary judgment when it is apparent that there are no issues in factual dispute which require a trial. Courts have held that this remedy should only be granted where there are no triable issues of fact. Issue-finding, rather than issue-determination is the key to the summary judgment procedure.
In order to prevail on a motion for summary judgment, a Nassau Couny Drug Possession Lawyer said the movant must present a prima facie case demonstrating entitlement to judgment as a matter of law due to an absence of any material issues of fact. Once the movant has established its prima facie case entitling it to summary judgment as a matter of law, the party opposing a motion for summary judgment must produce evidentiary proof sufficient to require a trial of material questions of fact.
First – The law provides that a person is guilty of offering a false instrument for filing in the second degree when, knowing that a written instrument contains a false statement or false information, he offers or presents it to a public office or servant with knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant. Offering a false instrument for filing in the second degree is a class A misdemeanor.
Here, a Queens Drug Possession Lawyer said the plaintiff has pointed to a specific section of the penal law as she argues the defendant is guilty of slander per se, however, the section pointed to in the papers is simply a misdemeanor. It is not a serious crime or an indictable offense.
Accordingly, the first allegation regarding the defendant accusing the plaintiff of filing a false police report is not slander per se and as such is dismissed pursuant to the rules.
Second – It is important to note that, by definition, defamation is a false statement that exposes a person to public contempt, ridicule, aversion or disgrace.
Here, record reveals that the statements provided in the (amended) complaint are cryptic at best and offer no insight as to who they were said to or what the specific language was. Plaintiff has failed to allege a particular person or persons to whom the alleged statement regarding the order of protection was made. Such a failure warrants dismissal.
As was the case with the original complaint, which was the subject of a motion to dismiss and further Appellate Division Second Department action, the statements currently pled regarding the second allegation are subject to dismissal for failing to abide by the mandate of the rules which requires that the defamatory statements be delineated in haec verba. An allegation of defamation which fails to comply with CPLR special pleading requirement that the complaint set forth the particular words complained of mandates dismissal.
The amended complaint simply states “Defendant accused plaintiff of being the subject of a protective order regarding defendant’s children”. Such statement is not specific enough to support a finding of slander per se.
In fact, it is true that there were many orders of protection between members of the subject family and it is also true that the incessant fighting between these parties started regarding something that had happened to one of the defendants children at a family party.
In addition, members of this family at one time had a number of dockets in the Family Court and a number temporary orders of protection were issued as a result of those Family Court matters.
Therefore, it is impossible for the court to discern what was meant by the statement that plaintiff is the subject of a protective order. The statement as offered by the plaintiff could in fact mean that she was the protected party that the order of protection was issued in favor of and, in fact, she was the protected party in a Temporary Order of Protection issued under a Family Court Index Number.
Given the lengthy Family Court history involving members of this family this court is left unable to conclude that the statement as offered constitutes slander per se. As such, the statement appears to be subject to various interpretations and is not nearly onerous enough to rise to the level necessary to support a claim for slander per se.
Third – The court is left to deal with the only remaining claim which involves an allegation of “intentional infliction of emotional distress”. Initially, it is worth noting that the plaintiff has repeatedly sued the defendants in multiple case before multiple courts in this county. More importantly, the matter in Family Court where the plaintiff filed a family offense petition against one of the defendants under Article 8 of the Family Court Act resulted in finding that no family offense had occurred after a trial before a Family Court judge.
In order to recover under a claim of intention infliction of emotional distress the plaintiff must prove four elements: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and injury; and (4) severe emotional distress.
Here, the “bare bones” allegations before the court regarding intentional infliction of emotional distress fall well below the standard necessary to successfully bring such a claim. The complaint gives no details or facts as to what behaviors are being complained of; rather, the plaintiff uses mere conclusory allegations such as “the conduct was extreme and outrageous” and “defendant intentionally or recklessly engaged in that harassment as part of his continued emotional assault on his sister”. These statements, even if true, are insufficient to succeed on an allegation of intentional infliction of emotional distress.
In order to state a claim for intentional infliction of emotional distress, conduct must be alleged which is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. The law does not compensate for “threats, annoyances or petty oppressions or other trivial incidents which must necessarily be expected and are incidental to modern life no matter how upsetting.
Clearly, the plaintiff has not alleged any facts which demonstrate extreme and outrageous conduct on the part of the defendant.
Accordingly, the final action in the amended complaint is dismissed.
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