In an action to recover damages for defamation, (1) the plaintiff moves for partial summary judgment as to liability against the defendant; and (2) the defendant moves for summary judgment, pursuant to CPLR 3212: Papers Considered Motion Seq. 3 NYSCEF DOC NO. 56-77; 111-134; 149-158; 161-163 1. Notice of Motion/Statement of material facts/Exhibits 1-18/ Affidavit of Jinkyu Chang/Memorandum of law/letter and notice of hard copy submission/Affidavit of service 2. Affirmation of Joseph Myers, Esq. in opposition/Exhibits A-E/Affidavit of Sonia Arroyave/Response to statement of material facts/Memorandum of law in opposition 3. Reply Affirmation of Joshua E. Kimerling, Esq./Exhibit 1/Reply memorandum of law Motion Seq. 4 NYSCEF DOC NO. 78-110; 138-148; 160 1. Notice of Motion/Affirmation of Joseph Myers, Esq./Exhibits A-BB/ Affidavit of Sonia Arroyave/Memorandum of law/Statement of material facts 2. Response to statement of material facts/Exhibits 1-8/Affidavit of Jinku Chang in opposition/Memorandum of law in opposition/letter and notice of hard copy submission 3. Reply memorandum of law DECISION & ORDER Factual and Procedural Background Plaintiff commenced this action by the filing of a summons and complaint on or about May 27, 2020 seeking damages for defendant’s alleged defamation of plaintiff. The basis of the alleged defamation concerns defendant’s dissemination of a letter dated April 2, 2020 with a draft complaint sent to plaintiff and defendant’s mutual employer Universal Remote Control, Inc. (“URC”) and URC’s Chief Executive Officer, Chang K. Park (“Park”).1 Plaintiff alleges the following statements contained in the draft complaint are false: defendant was “subject to an abusive and hostile work environment by [Plaintiff] because of her gender, race, and national origin;” plaintiff engaged in “unlawful conduct which permeates [Defendant's] working environment with discrimination and hostility;” plaintiff “appeared to imply that her [defendant's] relationship with another employee was inappropriately ‘special’ and ‘was sexual in nature;’” defendant “continued to endure discriminatory treatment at the hands of [Plaintiff];” and plaintiff committed “an assault on [Defendant].” In his complaint, plaintiff denied the foregoing allegations and asserted that the allegations were knowingly false; undermined and damaged plaintiff’s personal and professional reputation; exposed plaintiff to, inter alia, contempt, ridicule, aversion, or disgrace; injured plaintiff in his business, trade or profession; cast plaintiff in a negative light; adversely affected his competence in his professional duties; constituted defamation per se; were an attempt to pressure plaintiff to extract a monetary payment for defendant’s claims; and were made with spite/ill-will. By answer dated August 24, 2020, defendant asserted, inter alia, that the statements made in the draft complaint are true or substantially true. Defendant also asserts affirmative defenses, inter alia, that to the extent the complained of statements were statements of opinion, they cannot constitute defamation; all statements allegedly made by defendant and complained of by plaintiff are protected by and entitled to qualified privilege; and defendant at all times acted in good faith and without malice, willfulness or evil intent. Plaintiff’s motion for partial summary judgment Plaintiff moves for judgment only as to liability for defamation based on the false accusations of mistreatment allegedly based on defendant’s race and national origin2. Plaintiff claims that defendant’s statements in April 2020 published to plaintiff’s employer threatening litigation were made in bad faith and knowingly false, or, at the very minimum, made with reckless disregard of the truth. Plaintiff claims that defendant’s race and/or national origin had nothing to do with how she claims to have been treated by plaintiff or her interactions with him, there is no evidence of race-based discrimination or treatment by plaintiff, and defendant herself never made any such allegation to her employer when she claimed a few months prior to her defamatory statements that plaintiff had talked rudely and condescendingly to her in a meeting and asked her employer to investigate the matter. Plaintiff argues that defendant never raised a claim that she was discriminated against because of her race and/or national origin during the month’s long investigation by her employer’s human resources department and an outside human resources firm, during which defendant was interviewed on multiple occasions. Plaintiff claims that defendant’s contemporaneous written statements and lengthy interviews are devoid of any discrimination claim. Plaintiff alleges that defendant had actual knowledge that she had never raised such a claim and that no other employee interviewed during the investigation corroborated any notion of racial discrimination as she had been provided with the entire human resources investigation file which included written memoranda and detailed notes and audio recordings of interviews of her and other employees. Plaintiff argues that the two individuals who supervised the investigation have also testified that no claim of racial discrimination had ever been made to them by defendant and that no evidence of racial discrimination was uncovered during their investigation. As a result, plaintiff argues that the record confirms the falsity of accusations accusing plaintiff of engaging in an unlawful race-based discriminatory conduct in his professional capacity, that defendant knew these claims were false before she made them, recklessly and in bad faith, in an apparent effort to disparage and impugn plaintiff’s reputation and extract an underserved settlement from plaintiff’s employer. Plaintiff further argues that defendant’s statements that plaintiff discriminated against defendant and created a hostile work environment against her because of her race and national origin are defamatory per se, and that the qualified privilege for pre-litigation statements does not protect plaintiff’s false statements threatening bad faith and unmeritorious claims alleging racial discrimination. Plaintiff argues that proof that defendant’s statements were in bad faith knowing they were false is due to her failure to raise a claim of racial discrimination against plaintiff in October 2019 when she complained to human resources about an interaction with plaintiff at an office meeting regarding an accounting project and in the months’ long investigation thereafter conducted by URC. Plaintiff also argues that defendant was privy to and had in her possession the entire contents of the investigation which had no allegation nor evidence of any race-based discrimination, and therefore knew and recklessly disregarded that no other employee would corroborate the claim of racial discrimination. In opposition, defendant argues that plaintiff mischaracterizes the statements at issue by removing “gender” from the statement which changes the meaning. Defendant argues that there is a question of fact as to whether defendant was subjected to an abusive and hostile work environment by plaintiff because of her race and national origin, and that plaintiff has failed to meet his burden to show, prima facie, that these statements are false. Defendant argues that plaintiff’s argument that qualified privilege does not apply lacks merit. Defendant argues that plaintiff has failed to show that the claim is “wholly” unmeritorious as plaintiff does not challenge defendant’s statements with regard to gender discrimination. Defendant also argues that the question of good faith is judged at the time of the allegedly defamatory statements were made and plaintiff presents no evidence as to the substance of defendant’s belief on April 2, 2020. Defendant also argues that on October 28, 2019, during the time period plaintiff references, defendant contacted the Equal Employment Opportunity Commission (“EEOC”) and indicated that plaintiff was subjecting her to a hostile work environment on the basis of her race and national origin as well as her gender. Defendant’s motion for summary judgment In support of her motion for summary judgment, defendant argues that the five statements at issue are privileged against claims of defamation, and plaintiff cannot demonstrate that the statements were not made pertinent to a good faith anticipated litigation. Defendant argues that there is no dispute that the statements at issue were pertinent to planned litigation, the only question presented is whether the underlying litigation, represented by the draft complaint, was alleged in good faith. Defendant argues that the draft complaint was sent as a good faith attempt to resolve the matter prior to litigation, and that after failed negotiations, defendant did commence the action in the Southern District of New York on September 29, 2020. Defendant claims that, in the federal court action, plaintiff moved to dismiss defendant’s hostile work environment claims, which are the same at issue in this action claimed by plaintiff to be defamatory, and the federal court denied the motion. Defendant also argues that the evidence shows that defendant believed for years that plaintiff harassed and discriminated against her, making numerous verbal complaints between 2013 and 2019, exceeding five in number, to URC’s director of human resources. Defendant also complained to EEOC on October 28, 2019. Defendant argues that prior to mailing the draft complaint, defendant had written documentation substantiating prior complaints by other non-Asian, non-Korean female employees about plaintiff’s hostile behavior towards them, as well as the opinions of the investigators into plaintiff’s behavior. In addition, defendant claims that statements one to four are not actionable as they are pure opinion, and that plaintiff cannot show that statement five is false. In opposition, plaintiff argues that there is no privilege for statements that are published in bad faith with knowledge of their falsity or made in reckless disregard of the truth. Plaintiff argues that this Court did not grant the defendant’s prior motion to dismiss the complaint finding that the qualified privilege is not absolute and not conferred where a threatened lawsuit is predicated on false claims. Plaintiff claims that false claims are at the heart of the threatened lawsuit which defendant seeks to hide behind to avoid liability for her defamatory statements. Plaintiff argues that discovery has confirmed that the fabricated statements of fact and evidence in the record refute summary judgment based on the qualified privilege. Plaintiff argues that plaintiff’s counterstatement of facts and affidavit highlight numerous fact issues, which, if resolved in plaintiff’s favor, would permit a jury to conclude that defendant’s defamatory statements are not protected by the qualified privilege. Plaintiff argues that the defendant had the contents of the ADP investigation which had no allegation of evidence of race-based discrimination. Plaintiff also argues that the defamatory statements do not constitute opinion, and are capable of being proven true or false, and that the assault statement is false. Discussion The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v. N.Y. Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v. N.Y. Univ. Med. Ctr., 64 NY2d at 853). “Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; see Zuckerman v. City of New York, 49 NY2d at 562). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat a prima facie showing of entitlement to summary judgment (see Zuckerman v. New York, 49 NY2d at 562). The elements of a cause of action sounding in defamation are (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published without privilege or authorization to a third party, (3) amounting to fault as judged by, at a minimum, a negligence standard, and (4) either causing special harm or constituting defamation per se (Levy v. Nissani, 179 A.D.3d 656, 657-658 [2d Dept 2020]). A statement is defamatory per se if it (1) charges the plaintiff with a serious crime; (2) tends to injure 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 (id. at 658). 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]). As a matter of policy, due to the potential to abuse privileged status to communication made prior to anticipated litigation, the courts confine absolute privilege to a very few situations (Front, Inc. v. Khalil, 24 N.Y.3d 713, 719 [2015]) To ensure that such communications are afforded sufficient protection the privilege should be qualified (Front, Inc. v. Khalil, 24 N.Y.3d 713, 719-720 [2015]). Rather than applying the general malice standard to this pre-litigation stage, the privilege should only be applied to statements pertinent to a good faith anticipated litigation (id. at 720). A statement is subject to a qualified privilege when it “is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his [or her] interest is concerned” (Stega v. New York Downtown Hosp., 31 N.Y.3d 661, 669-670 [2018] quoting Toker v. Pollak, 44 NY2d 211, 219 [1978]). When subject to this form of conditional privilege, statements are protected if they were not made with “spite or ill will” or “reckless disregard of whether [they were] false or not”, i.e., malice (id. at 670 [internal citations omitted]). A qualified privilege “places the burden of proof on this issue [of malice] upon the plaintiff” (id.). The instant lawsuit concerns defamation only, and it is the burden of plaintiff to prove defendant’s statements were made with malice (Stega v. New York Downtown Hosp., 31 N.Y.3d 661, 670 [2018]). The alleged defamatory statements at issue are the heart of a lawsuit brought by defendant against plaintiff, as well as the company of defendant’s former employer and its CEO, which is currently being litigated in Southern District of New York. The issue of whether defendant’s allegations, i.e. the statements in the Draft Complaint sent to the company’s CEO in an effort to settle the claims pre-litigation, are true or false is the core of that lawsuit. Defendant has met her prima facie burden to show that the qualified privilege applies to the statements in the Draft Complaint. However, in opposition, plaintiff has raised an issue of fact as to whether the alleged defamatory statements in the Draft Complaint were made with malice. Plaintiff argues that the defendant did not make any verbal or written complaints that the treatment by the defendant was based on her Hispanic ethnicity, and further that the investigation revealed that defendant felt that plaintiff mistreated “everyone”. Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action (Kasavana v. Vela, 172 A.D.3d 1042, 1044 [2d Dept 2019]). Thus, an expression of pure opinion is not actionable no matter how vituperative or unreasonable it may be (id. At 1045). A pure opinion may take one of two forms: it may be a statement of opinion which is accompanied by a recitation of the facts upon which it is based, or it may be an opinion not accompanied by such a factual recitation so long as it does not imply that it is based upon undisclosed facts (id.). Conversely, an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, is a mixed opinion and is actionable (id.). The latter is actionable not because they convey false opinions but rather because a reasonable listener or reader would infer that the speaker or writer knows certain facts, unknown to the audience, which support the opinion and are detrimental to the person toward whom the communication is directed (id.). Whether a particular statement constitutes an opinion or an objective fact is a question of law (Kasavana v. Vela, 172 A.D.3d 1042, 1045 [2d Dept 2019]). In distinguishing between facts and opinion, the factors the court must consider are (1) whether the specific language has a precise meaning that is readily understood, (2) whether the statements are capable of being proven true or false, and (3) whether the context in which the statement appears signals to readers or listeners that the statement is likely to be opinion, not fact (id.). Defendant argues that statements 1 through 4 are non-actionable opinion. Specifically, defendant argues that statements 1, 2 and 4, are variations of the same claim, that plaintiff subjected defendant to a hostile work environment, and that the concept of a hostile work environment is not a concrete statement of fact, capable of being proven true or false. The statements at issue are allegations based on underlying acts as well as an investigation, which as mentioned above, are the basis of a federal court action which is currently pending, regarding whether the defendant suffered discrimination at work due to her race, national origin and/or gender, at the hands of the plaintiff. As such, statements 1 through 4 do not constitute personal opinion since they could reasonably be found to contain assertions of objective fact which do not fall within the ambit of protected opinion (Scott v. Cooper, 226 A.D.2d 360, 361 [2d Dept 1996]). Whether statement 5 is true or false is an issue of fact. Accordingly, it is hereby ORDERED that plaintiff’s motion for partial summary judgment is DENIED; and it is further ORDERED that defendants’ motion for summary judgment is DENIED. The parties are directed to appear for a settlement conference on July 11, 2022 at 3:00 p.m., subject to confirmation by the virtual conference link emailed by this Court. Dated: April 7, 2022
