FILED: KINGS COUNTY CLERK 01/27/ :45 PM INDEX NO /2015 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 01/27/2016

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1 FILED: KINGS COUNTY CLERK 01/27/ :45 PM INDEX NO /2015 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 01/27/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS x STEVEN ANDERSEN, Index No /2015 -against- LISA DELLA PIETRA, Plaintiff Defendant x REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFF S MOTION TO STRIKE Defendant s attorney s affidavit, the third party affidavits, and the section of the brief relying on them (Lisa Della Pietra Memorandum of Law in Support of Motion to Dismiss ( LPD MTD ) at pp ), are irrelevant to a determination of whether or not Mr. Andersen has adequately pled his defamation causes of action. They should be stricken. See Plaintiff s Brief in Opposition to Motion Dismiss at p 65 & cases cited therein. The gravamen of Della Pietra s opposition to Plaintiff s motion to strike is that these affidavits support her argument that certain of her allegations in her action against Poly Prep (also pending before Your Honor) which are the bases of Mr. Andersen s defamation causes of action are substantially true. See LDP Reply Memo at p. 57; see also LDP MTD at p. 51 ( As the declarations to this submission demonstrate, multiple allegedly defamatory statements in Della Pietra's privileged court filings will be shown defendable as true. Specifically, the falsity of Della Pietra's statements regarding Andersen's bullying a Middle School student is refuted by the 1

2 Declaration of Carrie Shumway (the student's mother) ) However, the three cases which she cites in support of this argument are inapposite. In the three cases, it was the alleged defamatory statements themselves (the news articles) which were examined, without reference to external affidavits or evidence, and which the courts decided were substantially truthful. Here, Della Pietra is requesting that this Court examine affidavits from third parties who have not been subject to deposition, to support her claim that the alleged defamatory statements - contained in her complaints - are accurate. None of these three cases thus supports reference to the statements of third parties to support a motion to dismiss on truthfulness or accuracy grounds prior to discovery. In the first case, Liebgold v. Hofstra Univ., 245 A.D.2d 272 (2d Dep t 1997), the Second Department found that plaintiff's libel action has been properly dismissed. The Court found: The complaint and the challenged newspaper articles appended thereto unequivocally demonstrate that the articles contain substantially truthful factual assertions and that, when read as a whole and in the appropriate context, the articles are not reasonably susceptible of a defamatory connotation. This case is distinguishable because the Second Department s decision is based on a review of the complaint claiming defamation and the appended articles containing the alleged libel. Here, there is no claim that the allegations of student bullying by Mr. Andersen in Della Pietra s action against Poly Prep were in the press. The basis for Mr. Andersen s libel claim was Della Pietra s inclusion of such a false allegation in the publically filed complaints in her action against Poly Prep. The appended documents of relevance here are Della Pietra s complaints in the action against Poly Prep, which are annexed as Exhibits B through D to the Affidavit of Alan S. Futerfas in Opposition to the Motion to Dismiss, not an article in the press, and certainly not a third party affidavit. Liebgold v. Hofstra Univ. simply does not support Della Pietra s proposition that 2

3 a motion to dismiss can rely on extraneous affidavits in an attempt to establish the substantial truth of the defamatory statements. The second case Della Pietra relies on for this argument, Guarneri v. Korea News, Inc., 214 A.D.2d 649, (2d Dep t 1995), is similarly inapposite. In making its substantial truth determination, the Second Department indicated it relied on, in addition to the allegations in the plaintiff s complaint, a review of the statements in the three newspaper articles. This case, like Liebgold v. Hofstra Univ, supra, provides no support for Della Pietra s proposition that third party affidavits can be relied on to establish substantial truth to support an argument in favor of dismissal of a defamation claim. In the third case, Stepanov v. Dow Jones & Co., 120 A.D.3d 28, (1st Dep t 2014), the First Department makes no reference to third party affidavits in coming to its determination that the statements at issue are substantially true. The case is a lawsuit against a defendant by a Russian businessman alleging defamation in an article the defendant or one of its media outlet subsidiaries published. The only document outside of the complaint referenced by the Court in the portion of the case cited by Della Pietra is the allegedly defamatory article. Della Pietra also relies on two cases for the generic, non-compelling proposal that a court may review affidavits furnished in support of the motion[.] See LDP Reply Memo at p. 57. Neither case actually says that, and in neither case is the court faced with an attack on or question regarding an affidavit s relevance. Moreover, in the first of the two cases cited, similarly to the three cases discussed above, in Sondik v. Kimmel, 33 Misc. 3d 1237(A), 941 N.Y.S.2d 541 (Sup. Ct. 2011) aff'd, 131 A.D.3d 1041 (2d Dep t 2015), the additional evidence submitted (which the court itself doubted it could consider, id. at fn. 4 ( Even if the DVD supplied by defendants cannot 3

4 be considered, defendants comedic intent can be inferred from the description of the segment contained in the complaint in conjunction with common knowledge relating to the entertainment generally provided on late-night shows such as defendants )) was a DVD containing the excerpt of the Jimmy Kimmel Show which plaintiff claimed defamed him. There was no extraneous third party evidence or affidavit under consideration just a recording of the allegedly defamatory segment of the show described in the complaint. The second case cited by Della Pietra in support of this proposition is an over twenty page written decision by the New York Court of Appeals addressing [p]laintiff taxpayers challenge[s to] two directives by executive and county officials that recognize out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits. In the brief portion of the decision which Della Pietra relies, the Court of Appeals explains and finds: A taxpayer suit under General Municipal Law 51 lies only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes. Because plaintiffs allege no fraud, their action succeeds only if they state a claim for illegal dissipation of municipal funds. Plaintiffs' amended complaint contains the allegation that Executive Order No. 3 has resulted and will continue to result in the illegal disbursement of County funds by providing County-funded benefits to couples in same-sex marriages. Although on a motion to dismiss plaintiffs' allegations are presumed to be true and accorded every favorable inference, conclusory allegations claims consisting of bare legal conclusions with no factual specificity are insufficient to survive a motion to dismiss. Here, plaintiffs have not identified any specific impact that the Executive Order has had on any public employee or private individual in Westchester County. Even assuming the allegations in the Godfrey complaint to be true, plaintiffs fail to specify a circumstance where taxpayer funds were expended as a result of the Executive Order that would not have been expended in the absence of the order. We find this lack of specificity fatal to plaintiffs' cause of action. In support of his motion to dismiss, Executive Spano submitted an affidavit of the Commissioner of Finance for Westchester County, dated November 17, The Commissioner stated that he could think of no instance where the County has expended funds or extended benefits in connection with [the] Executive Order. 4

5 That statement is unsurprising in that Westchester County already insured same-sex domestic partners and dependents of county employees before the Executive Order was issued, requiring only that applicants for domestic partner coverage have lived with their domestic partners in a committed financially interdependent relationship for at least a year. Indeed the Executive Order begins by acknowledging that the County of Westchester has long provided health benefits to the qualifying domestic partners of its members. Although the affidavit does not in itself warrant dismissal under CPLR 3211, because it does not establish conclusively that plaintiffs have no cause of action, it supports our judgment that the conclusory nature of plaintiffs' allegations is more than a matter of inartful pleading. Godfrey v. Spano, 13 N.Y.3d 358, (2009) (internal citations omitted). It is clear that the proposition for which Della Pietra cites this case, see LDP Reply Brief at p. 57 (a court may reviews affidavits furnished in support of the motion[.] citing Godefrey v. Spano for the statement that "Although the affidavit does not in itself warrant dismissal under CPLR 3211 [(a)(7)], because it does not establish conclusively that plaintiffs have no cause of action it supports our judgment that the conclusory nature of plaintiffs' allegations is more than a matter of inartful pleading") is only marginally supported by this case. The first paragraph above is the Court s holding and closes with the finding that this lack of specificity is fatal to plaintiff s cause of action. The second paragraph quote above is dicta, and even therein the Court does not accord the affidavit much weight. Della Pietra s statement in her opposition to the motion to strike that Andersen pleads in relatively conclusory terms that statements in Della Pietra's pleadings are false and defamatory.... including her allegations regarding the Andersen family's bullying of a Middle School student, see LDP Reply at p. 57, are plainly contradicted by a review of Andersen s Verified Amended Complaint. This statement is offered in support of the proposition that while Andersen is correct that the Court must accept his allegations as true to determine whether his claims can 5

6 survive dismissal it need not do so with respect to conclusory definitions[.] In fact, the response to the false and defamatory allegations of bullying were not conclusory, but were detailed over the course of 26 paragraphs. See Verified Amended Complaint at , pp ). A similar depth of treatment is given to each statement in Della Pietra s complaints which Andersen claims as defamatory. CONCLUSION For the foregoing reasons, Defendant s cross-motion to strike should be granted. Dated: New York, New York January 27, 2015 Law Offices of Alan S. Futerfas By: /s/ Matthew C. McCann 565 Fifth Avenue, 7th Floor New York, New York Tel: (212) mmccann@futerfaslaw.com Attorneys for Plaintiff Steven Andersen 6