FILED: NEW YORK COUNTY CLERK 10/19/ :43 PM INDEX NO /2017 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/19/2017

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1 Motion Seq. No. 2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X CAROLINA GILDRED, an individual, : Plaintiff, : INDEX No /2017 vs. MICHAEL D. FOSTER (aka DARREN M. FOSTER, an individual, : Defendant X : : OPPOSITION TO DEFENDANT S MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION Defendant s motion for summary judgment is properly denied on both procedural and substantive grounds. Plaintiff is cognizant that Defendant is attempting to proceed pro se and is afforded a more liberal standard than represented parties. Nevertheless a motion for summary judgment is a dispositive motion and critically affects Plaintiff s rights. It is the procedural equivalent of a trial. LaGrega v. Farrell Lines, Inc., 548 N.Y.S.2d 464, 465 (N.Y. App. Div. 1989). Plaintiff must comply with basic CPLR requirements and set forth actual evidence in support of his motion. 1 He has not done so. In contrast, Plaintiff herewith submits admissible evidence in the form of a sworn affidavit and exhibits supporting the facts underlying her causes of action for intentional infliction of emotional distress and defamation. The affidavit and exhibits demonstrate Defendant s relentless campaign of harassing and threatening conduct as well his admission of defamation. Indeed, his campaign has now extended to berating this Court and Plaintiff s counsel. He has published false 1 Defendant retained counsel at the outset of the case and counsel filed a notice of appearance. See Exhibit 1 to the Rafkin Affirmation. Although Defendant continues to represent that he is proceeding pro se, no withdrawal has been filed. Undersigned has repeatedly raised this issue with Defendant s counsel but has received no response. See e.g., Exhibit 2 to the Rafkin Affirmation (letter to counsel dated October 11, 2017). 1 of 8

2 and disparaging remarks about this Court (see Gildred Aff. Ex. 8) and sent defamatory and disparaging statements about undersigned to his former law firm. At a bare minimum, it is plain that there are disputed issues of material fact abound. Accordingly, the motion should be denied in its entirety. II. LEGAL STANDARD A party moving for summary judgment must first make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact. Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (N.Y. 2003). It is well established that in order for summary judgment to be properly granted, it must clearly appear that no triable issue of fact exists in the given case. Freese v. Schwartz, 611 N.Y.S.2d 37, 38 (N.Y. App. Div. 1994). Should any doubt exist as to whether there is a triable issue of fact, summary judgment should be denied. Id. (The duty of the court is merely to determine whether an issue of fact exists, not to resolve it. ). The court must draw all reasonable inferences in favor of the non-moving party. Airco Alloys Division, Airco Inc. v. Niagara Mohawk Power Corp., N.Y.S.2d 179, 184 (N.Y. App. Div. 1980). The moving party on a summary judgment motion carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 (N.Y. 1986). A defendant seeking summary judgment must first establish a prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to alleged gaps in plaintiff's proof. Mondello v DiStefano, 792 N.Y.S.2d 177, 178 (N.Y. App. Div. 2005). Only after this showing is made does the burden shift[] to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution. Giuffrida, 100 N.Y.2d at of 8

3 New York s Civil Practice Law Rules provides that a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. CPLR 3212(b). The movant s evidence must be in a form that would be admissible at trial. LaGrega, 548 N.Y.S.2d at 465. Statements made on "information and belief" are inadmissible and may not be considered in granting or denying summary judgment. See Berger v. Fogarty, 273 N.Y.S.2d 620, 624 (N.Y. Sup Ct. 1965). Statements made by a party without offering any basis for the party's knowledge are treated as statements made on "information and belief" and thus may not be considered by the court as evidence in support of or in opposition to summary judgment. Grullon v. City of New York, 747 N.Y.S.2d 426, 429 (N.Y. App. Div. 2002). III. ARGUMENT A. Defendant Has Not Made A Prima Facie Showing Of Entitlement To Judgment As A Matter of Law As an initial matter, Defendant does not identify any specific issue for summary judgment or any purported undisputed material facts. At points, Defendant s moving papers ask the court to apply Federal Rules of Civil Procedure 56, FRCP 12(b) (and also refer to FRCP 11) and also ask the Court to analyze Litigants claims under the Federal Tort Claims Act (Dft s Motion p. 7). Defendant points to authority from other states (North Carolina, Tennessee, etc.). None of this, of course, apples to proceedings before this Court. Further, his submission repeatedly refers to Plaintiff s abuse of process or abuse of procedure (e.g. Dft s Motion pp. 3, 4, 6) and appears to request the Court award $2.5 million in lost wages and an additional $50,000 in punitive damages to Defendant. 2 One of Defendant s headings of his discussion section reads Defendant in action to this matter as Prose have seen 2 To the extent Defendant seeks any relief beyond summary judgment of Plaintiff s claims as set forth in the Complaint, Plaintiff opposes such efforts as an improper subject of a motion for summary judgment of 8

4 the got dirt of terror in defending oneself in Court and out of Court and begs the Court to lend honor in its judicial processions. We assume for purposes of this opposition that Defendant alleges he is entitled to summary judgment pursuant to the applicable state procedural rule, CPLR 3212 and on the ground that Plaintiff cannot establish an essential elements of her claim(s). Even granting these assumptions, however, Defendant plainly fails to provide sufficient, admissible evidence to demonstrate that he is entitled to judgment as a matter of law. A summary judgment motion must be supported by an affidavit of a person having knowledge of the facts, together with a copy of the pleadings and other available proof. S. J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341 (1974). Defendant has not submitted a sworn affidavit from anyone purporting to have personal knowledge of any material facts nor a copy of the pleadings. (The complaint is attached as Exhibit 3 to the Rafkin Affirmation.) This alone bars summary judgment under CPLR 3212(b). See Mickelson v. Babcock, 593 N.Y.S.2d 657, 658 (N.Y. App. Div. 1993) (reversing summary judgment for the defendant in negligence case because it submitted no affidavit by a person having first-hand knowledge showing that [the defendant] did not have written notice of the alleged defect in the highway or negating plaintiff's allegations that the highway was in a deteriorated and unsafe condition. ). Indeed, none of the evidence that Defendant states throughout his submission is supported by any affidavit, deposition testimony or any other admissible proof. It amounts to unsworn, self-serving assertions in motion papers and unverified exhibits, all of which must be disregarded on summary judgment. Pagano v. Kingsbury, 587 N.Y.S.2d (N.Y. App. Div. 1992) ( [W]hen a defendant moves for summary judgment dismissing the complaint based on the plaintiff's failure to establish "serious injury" and relies solely on findings of the defendant's own medical witnesses, those findings must be in admissible form, i.e., affidavits or affirmations, and not unsworn reports, in order to make a "prima facie showing of entitlement to judgment as a -4-4 of 8

5 matter of law. ). Plaintiff objects to each and every contention in Defendant s moving papers as inadmissible statements made on information and belief and unsupported by sworn affidavits as required under CPLR 3212, and submits that none of it should be considered. Defendant s moving papers also fail to comply with basic CPLR and court rules. For example, Defendant has not filed a copy of the pleadings with his motion. CPLR 3212(b). Defendant has not separately filed the notice of motion, motion, affidavit and exhibits, etc. as required by Your Honor s chamber rule IV.A.6. Instead, he filed one document (multiple times) purporting to contain all of his moving papers. He also purports to incorporate other documents filed previously with the court (see Dft. s Motion pp. 1, 16). This is not permitted by CPLR 3212(b), nor are any of those purportedly incorporated documents affirmed via affidavit or affirmation. (Defendant s Amended Answer purports to be verified but it is signed only by Defendant and does not include the requisite affidavit to verify a pleading pursuant to CPLR 3021). Again, we are cognizant of Defendant s pro se status but a liberal standard cannot mean no standard at all. B. Plaintiff Has Set Forth Admissible Evidence Supporting Her Causes of Action. As set forth above, Defendant has not established a prima facie entitlement to summary judgment such that any burden shifts to Plaintiff. See Alvarez, 68 N.Y.2d at 324 ( Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. ). Even assuming that he had, summary judgment is still properly denied. Plaintiff s complaint states two claims: Intentional Infliction of Emotional Distress ( IIED ) and defamation. Intentional infliction of emotional distress requires a plaintiff to establish "(i) extreme and outrageous conduct, (ii) an intent to cause or disregard of substantial probability of causing severe emotional distress, (iii) a causal connection between the conduct and the injury, and (iv) the resultant severe emotional distress." Lau v. S & M Enters., 898 N.Y.S.2d 42, 43 (N.Y. App. Div. 2010). The outrageousness element may be satisfied where severe mental -5-5 of 8

6 pain or anguish is inflicted through a deliberate and malicious campaign of harassment or intimidation." Allam v. Meyers, 2011 BL 56796, 6-7 (S.D.N.Y. Feb. 24, 2011) (applying New York state law). The elements of defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se. Dillon v. City of New York, 704 N.Y.S.2d 1, 5 (N.Y. App Div. 1999). Defendant s sole substantive argument appears to be that Plaintiff s IIED claim fails because her distress was caused by her husband, not Defendant. See Dft s Motion, Discussion VII IX (pp ). Even crediting Plaintiff s unsupported arguments that Plaintiff s husband somehow caused her distress, at most he creates a disputed issue of material fact as to the third element of IIED (causal connection). Plaintiff s attached affidavit details how Defendant s year-long campaign of text, , voic and other harassment and intimidation caused her difficulty sleeping, extreme anxiousness, nausea, anxiety, fear for her safety and that of her family. Plaintiff s Aff Among other things, Defendant s actions included relentless calls, texts, s etc. to Plaintiff, her husband, and their associates/representatives (Id. at 4); making false statements to third parties regarding Plaintiff s marital infidelity (Id. at 5, 6); setting up sham websites in Plaintiff (and her husband s) name (Id. at 11, 12); falsely accusing Plaintiff s husband of criminal conduct (Id. at 9); contacting her husband s business office personnel with false information regarding Plaintiff and her husband (Id. at 9, 12, 18); voice mail messages stating that when Plaintiff kisses her husband, her husband is tasting Defendant s big black dick (Id. at 15); threatening Plaintiff and her husband and children (Id. at 17, 19); maintaining a YouTube handle using Plaintiff s (and Foster s) name and posting pictures and derogatory and defamatory -6-6 of 8

7 videos about Plaintiff and her husband (Id. at 23); and seeking to extort money from Plaintiff and her husband. Id. at As noted at the outset of this memorandum, Defendant s conduct has continued since the filing of this case and indeed expanded to target the Court as well as Plaintiff s counsel. For example, after the Court ruled on Plaintiff s motion to dismiss, Defendant ed a business associate of Plaintiff s husband as well as Plaintiff s legal counsel in other matters (John Mayer) the following link: Gildred Aff. 12, 13; Ex. 8. Among other things, the website provides Defendant s account of the Motion to Dismiss hearing calling Your Honor the informal (incognito) judge and abrasive ; states that the Court granted a subpoena for the Medical Mental status of wife Carolina and a case report about Tom Gildred s... step daughters at home drunkenness adolescent teen tampering case ; and states of Mr. Rafkin (and his purported $0.99 umbrella) Perhaps the FBI is coming to see Seth Rafkin about the alleged missed hit one night on Michael Foster. Gildred Aff. 12, 13; Ex. 8. As the non-moving party, Plaintiff s facts are taken as true and more than carry her burden to establish a disputed issue of fact that Defendant s outrageous conduct is the cause of her emotional distress. See, e.g., Stram v. Farrell, 646 N.Y.S.2d 193, 195 (N.Y. App. Div. 1996) (In a neighbor dispute where the defendant s most egregious conduct included outrageous threats directed at plaintiff and his young daughters, the jury could rationally conclude that considered in its entirety his conduct was extreme and outrageous and that he had engaged in a deliberate and malicious campaign of harassment and intimidation directed at plaintiffs. ); Gray v. Schenectady City School Dist., 927 N.Y.S.2d 442, (N.Y. App. Div. 2011) (Allegation that individual defendant vandalized plaintiffs' property and harassed and intimidated plaintiffs through electronic means and menacing phone calls sufficient to state a cause of action of intentional infliction of emotional distress against that defendant); Dana v. Oak Park Mar., Inc., 660 N.Y.S.2d 906, of 8

8 (N.Y. App. Div. 1997) (allegation that defendant surreptitiously videotaped plaintiff without her consent, viewed videotapes of plaintiff and others in various stages of undress and displayed those tapes to others for purposes of trade sufficiently alleged extreme and outrageous causing plaintiff s emotional distress). Defendant does not address Plaintiff s claim for defamation. It is easy to understand why. The Gildred Affidavit and exhibits thereto are replete with instances of Defendant s defamatory statements published to third parties. E.g. Gildred Aff. Ex. 2, 5, 7, 8, 11, 14. It also contains Defendant s admission that he had indeed made false statements. See Gildred Aff. Ex.13. IV. Conclusion For the foregoing reasons, we respectfully request the court deny Defendant s motion for summary judgment in its entirety. Executed at Randolph, New Jersey Dated: October 19, 2017 RAFKIN ESQ SUSSEX TURNPIKE, SUITE 102 RANDOLPH, NJ (973) By: Seth A. Rafkin Attorneys for Plaintiff -8-8 of 8

CHARLES N. INTERNICOLA, ESQ. CASE LITIGATION REPORT

CHARLES N. INTERNICOLA, ESQ. CASE LITIGATION REPORT For Additional Information, Contact: Charles N. Internicola, Esq. 800.976.4904 cinternicola@dddilaw.com www.businessandfranchiselaw.com * RE: DISMISSAL