The following electronically filed documents read on this motion by plaintiff for an Order seeking dismissal of plaintiff’s complaint, pursuant to CPLR 3211 (a) (1), (2), and (7), and pursuant to CPLR 3211(g) and Civil Rights Law 76-a, ordering plaintiff to pay defendants’ costs and attorneys’ fees in an amount to be determined: Papers Numbered Notice of Motion-Affirmation-Affidavit-Exhibits EF 5-15 Memo. of Law in Opposition EF 16 Memo. of Law in Reply EF 17 Upon the foregoing papers, it is ordered that the instant motion is determined as follows: This action was commenced in December 2020, seeking damages resulting from an alleged defamation per se. Plaintiff’s complaint claims that defendants, on December 28, 2019, “posted…a notice on the bulletin board of the New York Church of Christ”, and later on a “webpage”, that plaintiff “had been fired from his post as Senior Pastor and Evangelist.” The complaint further alleges that such statement was untrue and that defendants knew of its falsehood when they posted it. The complaint states a single cause of action for defamation per se. Defendants move for dismissal, pursuant to CPLR 3211(a)(1), based on defenses founded on documentary evidence; (a)(2), for lack of subject matter jurisdiction, based on the claim that the action is nonjusticiable as it relates to a religious dispute in contravention of the 1st and 14th Amendments of the Constitution; and (a)(7), for failure to state a cause of action. Plaintiff opposes. The branch of defendants’ motion based on CPLR 3211(a)(1), a defense founded upon documentary evidence, and the branch based on CPLR 3211(a)(2), for lack of subject matter jurisdiction, must be considered simultaneously as the items submitted in support of the motion allegedly demonstrate that the lawsuit is one involving a religious controversy. “The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs” (Matter of Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 9 NY3d 282, 286 [2007]; see Watson v. Jones, 80 US 679 [1872]; Laguerre v. Maurice, 192 AD3d 44 [2d Dept 2020]). However “[c]ivil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution…[requiring] the court to apply objective, well-established principles of secular law to the issues” (id.; see First Presbyt. Church of Schenectady v. United Presbyt. Church in U.S. of Am., 62 NY2d 110 [1984]; Laguerre v. Maurice, 192 AD3d 44). The instant matter, involving, in relevant part hereto, a question of whether or not plaintiff was terminated from his job “does not present a nonjusticiable issue necessitating an inquiry into” ecclesiastical matters, but “[r]ather, neutral principles of contract law are applicable in resolving the issues presented in this action, without reference to any religious interpretation or doctrine, and the Supreme Court thus [does] not lack subject matter jurisdiction over it” (Tendler v. Bais Knesses of New Hempstead, Inc., 52 AD3d 500, 501-502 [2d Dept. 2008]; see Queens Branch of Bhuvaneshwar Mandir, Inc. v. Sherman, 156 AD3d 658 [2d Dept. 2017]). As such, the branch of defendants’ motion seeking dismissal pursuant to CPLR 3211(a)(2) is denied. The branch of defendants’ motion for dismissal on the grounds of a defense based on documentary evidence is denied. The evidence submitted in support of this contention, i.e., pleadings, letters, and affidavits, are not to be considered “documentary” within the meaning of CPLR 3211(a)(1) as such evidence is not of undisputed authenticity, unambiguous and undeniable (see Qureshi v. Vital Tranp., Inc., 173 AD3d 1076 [2d Dept. 2019]; Anderson v. Armento, 139 AD3d 769 [2d Dept. 2016]; Pasquaretto v. Long Island University, 106 AD3d 794 [2d Dept. 2013]); does not conclusively establish defenses to plaintiff’s claim as a matter of law (see Greenberg v. Spitzer, 155 AD3d 27 [2d Dept. 2017]; Shofel v. DaGrossa, 133 AD3d 649 [2d Dept. 2015]); and does not undeniably support movants’ claims and/or utterly refute plaintiff’s factual allegations (see Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]; Bernard v. Citibank, N.A., 195 AD3d 783 [2d Dept. 2021]; Arnell Construction Co. v. New York City School Construction Auth., 177AD3d 595 [2d Dept. 2019]; U.S. Bank National Assoc. v. Hunte, 176 AD3d 894 [2d Dept. 2019]). Further, such evidence does not resolve all factual issues as a matter of law, and fails to conclusively dispose of plaintiff’s claim (see Rovello v. Orofino Realty Co., 40 NY2d 633 [1996]; Pacella v. RSA Consultants, Inc., 164 AD3d 806 [2d Dept. 2018]; Matter of Koegel, 160 AD3d 11 [2d Dept. 2018]; Philips v. Taco Bell Corp., 152 AD3d 806 [2d Dept. 2017]; Sciadone v. Stepping Stones Associates, L.P., 148 AD3d 953, 954 [2d Dept. 2017]). The branch of defendants’ motion seeking to dismiss the complaint, pursuant to CPLR 3211(a)(7), for failure to state a cause of action, is denied. Initially, the sole criterion to dismiss a complaint is whether the pleading, and the factual allegations contained within its four corners, manifests any cause of action cognizable at law (see Gaidon v. Guardian Life Ins. Co. of America, 94 NY2d 330 [1999]; Guggenheimer v. Ginzburg, 43 NY2d 268 [1977]). “When assessing the adequacy of a complaint in light of a CPLR 3211(a)(7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff…’the benefit of every possible favorable inference’” (AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 NY3d 582, 591 [2005], quoting Leon v. Martinez, 84 NY2d 83, 87 [1994]; see J.P.Morgan Securities, Inc. v. Vigilant Ins. Co., 21 NY3d 324 [2013]; Webster v. Sherman, 165 AD3d 738 [2d Dept. 2018]; Murphy v. Department of Educ. of the City of N. Y., 155 AD3d 637 [2d Dept. 2017]), and “determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 NY2d at 87-88), and not whether plaintiffs can ultimately prove such facts (see J.P.Morgan Securities, Inc. v. Vigilant Ins. Co., 21 NY3d 324; People ex rel. Cuomo v. Coventry First LLC, 13 NY3d 108 [2009]; Starr Indem. & Liab. Co. v. Global Warranty Group, LLC, 165 AD3d 1308 [2d Dept. 2018]; Webster v. Sherman, 165 AD3d 738). A motion to dismiss merely addresses the adequacy of a pleading, and does not reach the substantive merits of plaintiff’s cause of action (see Kaplan v. New York City Dep’t. of Health and Mental Hygiene, 142 AD3d 1050 [2d Dept. 2016]; Lieberman v. Green, 139 AD3d 815 [2d Dept. 2016]). Whether the pleading will later survive a summary judgment motion, or plaintiff will ultimately prevail on the claims is not relevant on a pre-discovery motion to dismiss (see Lieberman v. Green, 139 AD3d 815; Tooma v. Grossbarth, 121 AD3d 1093 [2d Dept. 2014]). “To withstand dismissal, the requisite elements of the cause of action must be discernable from the pleadings, and the complaint must give notice of the transactions and occurrences to be proved” (CPLR 3013; see Dolphin Holdings, Inc. v. Gander & White Shipping, Inc., 122 AD3d 901 [2d Dept. 2014]). The elements of a cause of action to recover damages for “libel per se” are if the offending document/statement “(1) charges the plaintiff with a serious crime; (2) injures the plaintiff in her or his trade, business or profession; (3) imputes to the plaintiff a loathsome disease; or (4) imputes unchastity to a woman” (Levy v. Nissani, 179 AD3d 656, 658 [2d Dept. 2020]; see Liberman v. Gelstein, 80 NY2d 429 [1992]; Emby Hosiery Corp. v. Tawil, 196 AD3d 462 [2d Dept. 2021]). Further, “[t]he complaint must set forth the particular words allegedly constituting defamation, and it must also allege the time when, place where, and manner in which the false statement was made, and specify to whom it was made” (Kimso Apartments, LLC v. Rivera, 180 AD3d 1033, 1034 [2d Dept. 2020], quoting Epifani v. Johnson, 65 AD3d 224, 233 [2d Dept. 2009]). A defamation action “is subject to dismissal if the statements are insufficiently pleaded, constitute nonactionable opinion, or are subject to a qualified privilege defense” (Landa v. Capital One Bank (USA), N.A., 172 AD3d 1052, 1053 [2d Dept. 2019]). In the case at bar, plaintiff has no other “defamation per se” option, but to claim the existence of a statement which “injures the plaintiff in his or her trade, business or profession.” Plaintiff has, minimally, articulated a cause of action based on a statement “made to a third party” which could be interpreted as “accusing the plaintiff of fraud, dishonesty, and misconduct” in his profession (Mable Assets, LLC v. Rachmanov, 192 AD3d 992, 1001 [2d Dept. 2021]). By claiming plaintiff “was fired”, the alleged improper statement made by defendants herein could “on its face, defame plaintiff in [his] trade, business or profession and thus [could constitute defamation] per se…and [could be] incompatible with the proper conduct of his business” (Aronson v. Wiersma, 65 NY2d 592, 594 [1985]). As such, the branch of the motion to dismiss, brought pursuant to CPLR 3211(a)(7) is denied. The parties’ remaining contentions and arguments either are without merit or need not be addressed in light of the foregoing determinations. Accordingly, and for the reasons stated above, it is hereby ORDERED, that the motion by defendants YOON SUP CHOI and HAERAN CHOI is denied in its entirety. Dated: September 30, 2021
