In an action to recover damages for defamation, the defendant moves to dismiss the complaint pursuant to CPLR 3211(a)(1) & (7): Papers Considered NYSCEF Doc. No. 5-8; 12-17 1. Notice of Motion/Affirmation of Joseph Myers, Esq./Exhibits A-B; 2. Affidavit of Jinkyu Chang; 3. Reply Affirmation of Joseph Myers, Esq./Exhibits C-D. Factual and Procedural Background On or about April 2, 2020, attorneys for Sonia Arroyava issued a letter for settlement purposes only to Chang K. Park, the CEO of Universal Remote Control, Inc. The letter, for settlement purposes only, enclosed a draft complaint to the United States District Court for the Southern District of New York, entitled Arroyave v. Universal Remote Control, Inc., Jin Chang, et al. The draft complaint asserts allegations regarding gender discrimination, race discrimination, hostile work environment, national origin, retaliation, and violations of Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law. The draft complaint asserted that Arroyava, a female, was an employee of Universal Remote, and Chang, an Asian male, was a vice president of finance for Universal Remote. The letter states it was being sent in a good faith attempt to resolve the matter prior to litigation. On May 27, 2020, plaintiff Jinkyu Chang commenced this action against Arroyave seeking damages for defamation. The complaint in this action alleges that Arroyave had been employed by Universal Remote since 2001 and was currently a supervisor for accounts payable. The complaint asserts that by letter dated April 2, 2020, Arroyave’s agent, at her request, disseminated false claims to the CEO of Universal Remote including the following statements: Arroyava was “subject to an abusive and hostile work environment by [Chang] because of her gender, race and national origin”; Chang engaged in “unlawful conduct, which permeates [Arroyava's] working environment with discrimination and hostility”; Change “‘appeared to imply that [Arroyava's] relationship’ with another employee is inappropriately ‘special’ and ‘was sexual in nature’”; Arroyava “continued to endure discriminatory treatment at the hands of [Chang]; and Chang committed “an assault on [Arroyava]“. Chang disputes each allegation made within the challenged statements. The complaint asserts that the publishing of the statements constituted negligence and undermined and damaged Chang’s personal and professional reputation. The statements exposed Chang to contempt, ridicule, aversion, and disgrace, and injured his business, trade, and profession. The complaint asserts that Arroyava made the defamatory statements to Chang’s employer knowing they were false in order to extract a monetary payment for her claims and that the statements are defamatory per se. Defendant moves, pre answer, pursuant to CPLR 3211(a)(1) & (7), to dismiss the complaint based upon the documentary evidence and for failure to state a cause of action. In opposition, Chang submits an affidavit attesting that despite knowing her claims were false, Arroyava motivated by bad faith to extort money from Universal Remote, maliciously accused him of creating a hostile work environment. Discussion On a motion to dismiss a complaint pursuant to CPLR §3211(a)(7) for failure to state a cause of action, “the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Minovici v. Belkin BV, 109 AD3d 520 [2d Dept 2013]; see Leon v. Martinez, 84 NY2d 83, 87-88 [1994]; Treeline 990 Stewart Partners, LLC v. RAIT Atria, LLC, 107 AD3d 788, 791 [2d Dept 2013]). The defendant argues that pursuant to Front v. Khalil, 24 NY3d 713 (2015), the complaint fails to state a cause of action and must be dismissed. Defendant argues that the alleged defamatory statements were made in a letter by counsel, prior to litigation, describing the basis of the anticipated complaint and seeking a possible resolution of the matter prior to litigation. In opposition, plaintiff argues that a qualified privilege defense, even if applicable, is not absolute and only applies to communications made in advance of “good faith” litigation. Plaintiff argues that the defense does not apply because no litigation had been commenced by Arroyava in the three months since the defamatory statements were made and therefore the communication cannot be deemed a “pre litigation” communication. Moreover, even if considered a pre litigation communication, the privilege is not conferred where a threatened lawsuit is predicated on false claims, would be filed in bad faith, and is being misused for ulterior purposes to extract financial gain. The law provides absolute immunity from liability for defamation based on oral or written statements made by attorneys in connection with a proceeding before a court “when such words and writings are material and pertinent to the questions involved” (Strujan v. Kaufman & Kahn, LLP, 168 AD3d 1114, 1116 [2d Dept 2019] quoting Front, Inc. v. Khalil, 24 NY3d 713, 718 [2015] [internal citations omitted]). However, extending privileged status to communication made prior to anticipated litigation has the potential to be abused (Front, Inc. v. Khalil, 24 NY3d at 719). Applying an absolute privilege to statements made during a phase prior to litigation would be problematic and unnecessary to advance the goals of encouraging communication prior to the commencement of litigation (Front, Inc. v. Khalil, 24 NY3d at 719). Thus, statements made by attorneys prior to the commencement of litigation are protected by a qualified privilege (Front, Inc. v. Khalil, 24 NY3d at 719). [T]the privilege should only be applied to statements pertinent to a good faith anticipated litigation. This requirement ensures that privilege does not protect attorneys who are seeking to bully, harass, or intimidate their client’s adversaries by threatening baseless litigation or by asserting wholly unmeritorious claims, unsupported in law and fact, in violation of counsel’s ethical obligations. Therefore, we hold that statements made prior to the commencement of an anticipated litigation are privileged, and that the privilege is lost where a defendant proves that the statements were not pertinent to a good faith anticipated litigation (Front, Inc. v. Khalil, 24 NY3d at 719-720). Here, the challenged statements were made in a proposed draft complaint that was sent to Chang’s employer in anticipation of resolving the matter without resorting to litigation. While these statements may be subject to a qualified privilege, the complaint states a cause of action for defamation. According the plaintiff the benefit of every favorable inference, the allegations in the complaint sufficiently infer that the challenged statements were not pertinent to a good faith anticipated litigation and therefore, the qualified privilege has been lost. “Whether the complaint will withstand a subsequent motion for summary judgment, or whether the plaintiff will be able to prove his claim, is irrelevant to the determination of a pre-disclosure CPLR 3211 motion to dismiss (see Nasca v. Sgro, 101 AD3d 963, 964 [2d Dept 2012]). Moreover, the defendant failed to demonstrate entitlement to dismissal of the complaint based upon the documentary evidence. A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the complaint’s factual allegations, conclusively establishing a defense as a matter of law (Gorbatov v. Tsirelman, 155 AD3d 836 [2d Dept 2017] citing Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]; Cavaliere v. 1515 Broadway Fee Owner, LLC, 150 AD3d 1190, 1191 [2d Dept 2017]). The defendant submits the proposed draft complaint and correspondence that was sent to Universal Remote as documentary evidence. Defendant has not conclusively established through these documents that the challenged statements were pertinent to a good faith anticipated litigation. Accordingly, it is ORDERED that the defendant’s motion to dismiss the complaint is DENIED; and it is further ORDERED that the plaintiff shall serve a copy of this order with notice of entry within twenty days from the date hereof; and it is further ORDERED that the defendant shall serve its answer within ten days of service of this order with notice of entry (see CPLR 3211[f]). The parties are directed to appear in the Preliminary Conference Part, room 800, for further proceedings, at a date and time to be provided. Dated: August 12, 2020
