Anthony P.
and Dawne R., Plaintiffs,
against
Ericka F. and Jeffrey F.,
Defendants.
|
4559/2012
MICHAEL H. JOSEPH, ESQ.
Attorney for Plaintiffs
203 East
Post Road
White Plains, New York 10601
WILLIAM J. WOLFE,
ESQ.
Wolfe Law Firm, P.C.
Attorney for Defendant Jeffrey F.
P.O. Box
808
Port Jervis, New York 12771
THOMAS J. CIONE, ESQ.
Attorney for Defendant Ericka F.
48 North Church Street
Goshen, New
York 10924
John P. Colangelo, J.
On March 8, 2011, Ericka F. ("Ericka" or "Ericka F.") brought a complaint
to the New York State Police that her then boyfriend, plaintiff Anthony P. ("Anthony P."
or "A.P."), had forcibly raped her the previous evening. (Complaint herein, � 10). Soon
thereafter, A.P. was arrested and charged with the offenses of the Class B Felony of Rape
in the First Degree and sexual misconduct. (Id. � 17). On May 16, 2011, A.P.
plead guilty in the Town of Minisink Court to the Class A Misdemeanor of Sexual
Misconduct in full satisfaction of all charges. (Affirm. of Assistant District Attorney
Michael Milza, dated October 11, 2011, � 4 (the "Milza Affid."), annexed to Plaintiffs'
Sur-Reply Affirm. of Latoya Matthews, Esq. dated September 18, 2014, as Exh. 1). In
this action, Anthony P. and his mother Dawne R. ("Dawne R.") (collectively "Plaintiffs")
allege that the statements made by Ericka to the State Police, and later to the Orange
County District Attorney, were false and defamatory since any sexual activity between
Anthony P. and Ericka had been consensual.
In September 2011, prior to
A.P.'s sentencing, Ericka telephoned A.P.. In a [*2]conversation recorded by Dawne R., Ericka admitted to
A.P. that she had fabricated the "sexual allegations against him . . . apologized for
making the allegations, acknowledged that they were not true, and stated that she had
made them in fear of her parents finding out that she had sexual intercourse." (Milza
Affid. � 5). Anthony P.'s then counsel, James Monroe, alerted Michael Milza - - the
Assistant District Attorney who had prosecuted the case against A.P. - - of this
conversation and Mr. Milza promptly interviewed Ericka. During that interview, Ericka
reaffirmed that "the sexual intercourse between herself and the defendant [A.P.] was
consensual, that he had never forced her and that she had lied to the police because she
was afraid of her parents' reaction, if they found out that she had engaged in sexual
intercourse." (Id. � 6).
The District Attorney's Office then began the
process of exonerating Anthony P.. Based upon Ericka F.'s recantation, the District
Attorney moved to dismiss the charge of Sexual Misconduct against A.P. in the interests
of justice, which the Court granted. As the Complaint herein states, "on October 17, 2011
. . . [t]he charges and prosecution were resolved in Plaintiff [A.P.'s] favor." (Compl., �
23).
The District Attorney did not stop there. Ericka was soon arrested,
prosecuted, convicted (presumably for the misdemeanor of filing a false statement), and
sentenced to probation. (See Affirm. of Plaintiffs' counsel Latoya Matthews,
dated September 18, 2014, � 17 ("Defendant Ericka F. was subsequently prosecuted and
convicted for providing false statements to authorities."). There is no indication in any of
the motion or opposition papers that Ericka's father, co-defendant Jeffrey F. ("Jeffrey F."
or the "Father") was ever charged with any crime - - such as aiding and abetting Ericka's
actions - - in connection with the incident at issue.
At that point, Anthony P.
could have - - and arguably, should have - - thanked his lucky stars and called it a day.
After all, despite his guilty plea and, most likely, allocution to it in open Court, A.P. had
been fully exonerated, and his accuser - - who had placed herself in jeopardy of criminal
sanction by coming forward - - punished. However, Anthony P. and his mother Dawne
R. instead chose the path of retribution; they brought the instant suit for damages against
not only Ericka, but her father Jeffrey F. as well. By their Complaint, Plaintiffs set forth
several alleged causes of action, all sounding in intentional tort: for malicious
prosecution/false arrest; prima facie tort; "injurious falsehood"; defamation and
slander; and intentional infliction of emotional distress. Plaintiffs seek compensatory,
punitive, and special damages.
On June 5, 2012, Plaintiffs purported to serve
their Summons and Complaint upon Ericka F. by substitute service upon Jeffrey F.,
followed by mailing a copy to her at her alleged residence. Plaintiffs served Jeffrey F.
individually by personal service on June 5, 2012. Jeffrey F. answered the Complaint;
Ericka F. did not.
The Justice Marx Decision.
Plaintiffs
then moved before Justice Paul I. Marx for a default judgment against Ericka F. based
upon her alleged failure to answer. Ericka F. pointed out in her response to Plaintiffs'
motion before Judge Marx that since she was a minor (17 years of age) at the time of the
purported service of process, the substituted service relied upon by Plaintiffs was
defective under CPLR 309(a). Plaintiffs conceded the deficiency, effectively withdrew
their default motion, and in its stead interposed a cross-motion to extend for 60 days the
time to effect service of process upon Ericka. The Court "in the exercise of its
discretion," granted Plaintiffs' "request [for] an extension of time to serve Ericka F.,
pursuant to CPLR § 306-b, of 60 days beyond the [*3]date of the Court's decision on their application." (The
"Marx Decision", dated March 22, 2013 at pp. 5, 4). Parenthetically, this Court notes that
in his decision, Justice Marx also denied Ericka's substantive cross-motion to dismiss
Plaintiffs' malicious prosecution cause of action on the ground of infancy.
The Marx Decision was dated March 22, 2013. Plaintiffs thus had 60 days from that
date to effect service upon Ericka F.. Despite the extension - - for the time period sought
by them - - Plaintiffs failed to serve her.
The Instant Motions.
Notwithstanding the related facts that Plaintiffs "concede[d]" before Justice
Marx that their "service upon [Ericka F.] on June 5, 2012 was defective" (Marx Dec. , p.
3) and that Plaintiffs actually prevailed on their motion for an extension of time to serve
Ericka F., Plaintiffs now seek to "renew" their motion that led to the Marx Decision and
have this Court, upon such renewal, grant a default judgment against Ericka F., or, in the
alternative, extend Plaintiffs' time to effect service of process upon her for an additional
ninety days. Relatedly, Plaintiffs also seek to compel Defendant Jeffrey F. to identify his
daughter's current address, and to permit Plaintiffs to serve her by publication pursuant to
CPLR 316. Defendants oppose Plaintiffs' motion. In addition Defendant Jeffrey F. has
interposed a separate motion to dismiss the Complaint as to him for failure to state a
cause of action (CPLR 3211(a)7); Plaintiffs oppose Jeffrey F.'s motion.
As
explained more fully below, the Court holds that Plaintiffs' motion is denied in all
respects, Defendant Jeffrey F.'s motion granted, and the Complaint dismissed.
Plaintiffs' Motion.
Plaintiffs' motion - - in the guise of a purported
motion to renew under CPLR 2221 - - to grant relief in addition to that previously sought
by Plaintiffs and granted by the Court, is at once lacking in merit and unworthy of the
Court's exercise, yet again, of its discretion to salvage Plaintiffs' purported claims against
Ericka F..
As far as the lack of merit of Plaintiffs' motion is concerned, Plaintiffs
conceded before Justice Marx that in view of Ericka F.'s minority at the time, they did
not properly effect service upon her in 2012; instead, Plaintiffs asked for and received an
extension of sixty days to do so. Whether a motion to renew may permissibly be made by
a party who - - as Plaintiffs did here - - prevailed on a motion, as opposed to a party who
did not, is at best questionable. Indeed, as the statute itself seems to indicate, there does
not appear to be a place for sore winners under the rubric of CPLR 2221. See
CPLR 2221; Siegel, New York Practice pp 448-451 (5th Ed. 2011).
Assuming arguendo that Plaintiffs may permissibly so move, their motion to
renew nonetheless fails to pass muster for one salient and determinative reason: it is not
based upon new matter of which Plaintiffs were unaware at the time of their prior
motion. Indeed, Plaintiffs motion to renew, based upon supposedly newly discovered
evidence, hangs by a slender thread: a purported stipulation (the "Stipulation") to extend
time to move or answer. The Stipulation is dated June 25, 2012 and signed by both
Plaintiffs' counsel and Jeffrey F.'s counsel over 2 ½ years ago. Plaintiffs claim that
by the terms of their Stipulation, Jeffrey F.'s counsel purported to appear for Defendant
Ericka F. as well, and waived service of process on her behalf. (See Exh. 4 to Pl's.
Motion).
Plaintiffs' protestations to the contrary notwithstanding, it is clear
that Plaintiffs' [*4]counsel had the Stipulation in his
possession for months before their prior motion was decided by Judge Marx in March
2013. After all, it is Plaintiffs' counsel of record, Michael Joseph, who signed it.
Moreover, even when armed with such purported Stipulation, Plaintiffs admitted to
Justice Marx that Ericka F. had not been properly served and requested additional time to
serve her; significantly, Plaintiffs did not then claim that service upon her had been
waived. Accordingly, Plaintiffs cannot now plausibly contend, nearly two years after
Judge Marx' Decision and over two and one-half years after the Stipulation was signed,
that "the proof being offered on the motion [to renew] has been only recently discovered
and that the movant is acting with reasonable dispatch in bringing it before the court."
(Siegel, New York Practice, p. 449-450).
Thus the explicit statutory requirement that in order to prevail on a motion to
renew, a "reasonable justification for the failure to present such facts on the prior
motion" plainly remains unfulfilled. (CPLR 2221 (e)(3)); see, e.g., Sobin v. Tylutki, 59
AD3d 701, 702 (2d Dept. 2009) ("Here, in support of that branch of her motion
which was for leave to renew, the plaintiff submitted additional facts known to her at the
time of the prior motion without demonstrating a reasonable justification for failing to
submit them on the earlier motion . . . . Thus, the Supreme Court properly denied the
branch of plaintiff's motion which was for leave to renew."); Worrell v. Parkway Estates,
LLC , 43 AD3d 436 (2d Dept. 2007).
Whether the Stipulation would
have been effective at all in view of Ericka F.'s minority at the time it was allegedly
signed on her behalf is problematic and may well have rendered any such agreement a
dead letter. (See CPLR 1201; Siegel, New York Practice, p. 110). Perhaps
Plaintiffs' counsel recognized as much and, for that reason, failed to bring the Stipulation
to Judge Marx' attention.
In any event, Plaintiffs have manifestly failed to
satisfy the statutory criteria for granting a motion to renew: Plaintiffs not only prevailed
on the original motion, but the "new" evidence proffered in support of the instant motion
is not new at all, but was known to Plaintiffs long before the Marx Decision was
rendered. To reward Plaintiffs for their recalcitrance by allowing renewal at this late date
would subvert the purpose of CPLR 2221 and potentially lead to a waste of judicial
resources by encouraging never ending series of motions based on facts that could have
and should have been brought to a court's attention in the first place - - the reason behind
CPLR 2221's prescription that on a motion to renew, any new matter must have "been
only recently discovered." (Siegel, New York Practice at p. 450; see Ramerez
v. Khan 60 AD3d 748 (2d Dept. 2009) ("[A] motion for leave to renew is not a
second chance freely given to parties who have not exercised due diligence in making
their first factual presentation.").Nor have Plaintiffs presented a sufficient basis to induce
the Court to exercise its discretion to grant either renewal or any of the alternative
remedies sought by Plaintiffs' current motion. To the contrary, although the remedies
sought by Plaintiffs lie in the sound discretion of the Court (see, e.g., Simpson v. Cook Pony Farm
Real Estate Inc. , 12 AD3d 496 (2d Dept. 2004); North Fork Preserve, Inc. v.
Kaplan 68 AD3d 732 (2d Dept. 2009)), the facts underlying Plaintiffs' motion
and the instant action militate against its exercise.
Plaintiff Anthony P. has
already been vindicated, and his accuser punished: as to A.P., the charges against him
have been withdrawn, his conviction vacated, and his record sealed (See CPL §
160.50) As to his accuser, Ericka F., she is the one who now bears the stigma of a [*5]criminal record. According to Plaintiffs, she was
prosecuted for and convicted of the Class A Misdemeanor of Falsely Reporting an
Incident. (Penal Law § 240.50).
Plaintiffs may well consider themselves
justified in further pursuing now 20 year old Ericka F. to seek monetary damages. Be that
as it may, it is not, to this Court, asking too much to insist that under circumstances such
as those that obtain herein - - where Ericka F. has already been criminally punished and
A.P. exonerated - - a putative plaintiff turn square corners when his or her principal aim
appears to be to extract but another pound of flesh. In other words, a court need not bend
over backward to accommodate the pursuit of a vendetta.Indeed, to do so might well, in
future cases, prove counterproductive: would the inclination of a false accuser to do the
right thing and come forward - - as Ericka F. did here - - be tempered by the threat of not
only prosecution, but the lingering economic consequences of a civil judgment?
The quality of mercy, strained or not, has its place in the criminal law, most
notably in the context of a Court's sentencing discretion. Its place in the civil arena is less
certain; however, it is surely a permissible factor for a Court to consider when a Court is
being asked to decide whether to exercise its discretion to assist a party in pursuing what
appears to be a less than noble purpose. Accordingly, Plaintiffs' motion with respect to
Ericka F. is denied in all respects.
Defendant Jeffrey F.'s Motion to
Dismiss
Ericka's father Defendant Jeffrey F. has interposed a motion to
dismiss the Complaint against him pursuant to CPLR 3211(a)(7) for failure to state a
cause of action. An examination of the Complaint reveals that it purports to set forth a
laundry list of intentional tort claims, ranging from malicious prosecution to prima
facie tort to defamation. In opposition to Jeffrey F.'s motion, Plaintiffs chose to
"submit . . . evidence that could properly be considered on a motion for summary
judgment" as CPLR 3211(c) permits. In spite of, or perhaps because of, such
submissions and the Court's review of such supplementary material as well as the four
corners of the pleadings, the Court concludes that the Complaint against Jeffrey F. cannot
stand.
In their Complaint, Plaintiffs do not specifically allege that Jeffrey F.
was ever in contact with the State Police or the District Attorney's Office, or that, by his
own words or conduct, Jeffrey F. directly importuned anyone in authority to bring
criminal charges against A.P.. Rather, the substantive allegations against Jeffrey F. are
derivative of the words spoken by or other conduct of his daughter Ericka, or action
taken by the State Police or the District Attorney in response to such words or conduct.
The most that Plaintiffs can manage to allege as far as what Jeffrey F. actually said or did
is the indirect claim that he "knew that Ericka F. had engaged in consensual intercourse
with Anthony P. but nevertheless coerced, manipulated, forced or otherwise caused
Ericka F. to make the allegations to the aforesaid police officers, with full knowledge of
the falsity of said allegations." (Compl. � 11).
However, evidence adduced on
the instant motion by Plaintiffs themselves contradict this assertion - - particularly the
allegation that Jeffrey F. "knew that Ericka F. had engaged in consensual
intercourse with A.P." (Compl., � 11; emphasis added) - - and thereby undermine
Plaintiffs' claims against him. To sustain a viable intentional tort claim against Jeffrey F.
for his daughter's admittedly false allegations against A.P., Plaintiffs must, at the very
least, show that Jeffrey F. knew that Ericka and Anthony P. had engaged in consensual
sex, yet insisted to Ericka that she report a rape. Aside from the fact that such conduct
would fly in the [*6]face of common sense expectations
of parental behavior - - after all, such a false report would place both Father and daughter
in legal jeopardy - - the evidence adduced by Plaintiffs themselves does not support such
a version of events.
Indeed, based upon the pleadings and the supplementary evidence submitted
by Plaintiffs pursuant to CPLR 3211(c), there is no support for the proposition that either
of Ericka's parents knew that the sexual encounter between Ericka and Anthony P. had
been consensual, or that Plaintiffs could plausibly so allege. Such evidence includes,
most prominently, the Affirmation of Assistant District Attorney Michael Milza (the
"Milza Affirm."). As previously noted, Mr. Milza was the ADA who investigated
Ericka's recantation, interviewed her in connection with it, and ultimately and
successfully moved before the Town of Minisink Court to dismiss all charges against
Anthony P.. As recounted by ADA Milza, at no time did Ericka F. claim that her father
had forced or coerced her to make allegations which he knew to be false. According to
Mr. Milza, Ericka F. failed to make such an assertion either in her conversations with
him, or in the telephone conversation between Ericka F. and Anthony P. which Dawn R.
recorded and the substance of which Anthony P.'s attorney, Mr. Monroe, related to Mr.
Milza. Indeed, the only reasonable interpretation of Ericka's conversations with Mr.
Milza as well as her telephone conversation with A.P. was that both her Father and her
mother were unaware that she had engaged in consensual sexual intercourse with A.P.
and that "she had lied to the police because she was afraid of her parents' reaction, if
they found out that she had engaged in sexual intercourse." (Emphasis supplied). As
the Milza Affirmation states in pertinent part,
"1. That I am a duly appointed
Assistant District Attorney of and for the Countyof Orange, State of New York and I
make this Affirmation in support of thePeople's motion to dismiss the charges of Sexual
Misconduct in the interests ofjustice.2. This application is made based on personal
conversations had with thewitness, Ericka F., as well as Investigator Jan Golding of the
New York StatePolice, James Monroe, attorney for the defendant, and the defendant,
AnthonyP..
3. On March 8, 2011 Ericka F. gave a sworn statement to the New YorkState Police
alleging that the defendant Anthony P. had forcibly subjectedher to sexual intercourse on
March 7, 2011.
****4. On May 16, 2011, the defendant appeared in the Town of Minisink
Courtwith his attorney, James Monroe, and pled guilty to Sexual Misconduct, infull
satisfaction of all charges regarding March 7, 2011.
5. On September 8, 2011, James Monroe approached your affiant inOrange County
Supreme Court and stated that Ericka F. had approachedthe defendant and had
apologized for making the sexual assault allegationsagainst him. Furthermore, Mr.
Monroe stated that Ericka F. had called the A.P.residence, and had a telephone
conversation with the defendant where (in sumand substance) she again apologized for
making the allegations, acknowledgedthat they were not true, and stated that she had
made them in fear of her parentsfinding out that she had sexual intercourse. That
conversation was recorded bythe defendant's mother.
6. On September 22, 2011, your affiant interviewed Ericka F. At that time,Ericka
F. stated that the sexual intercourse between herself and the defendantwas consensual,
that he had never forced her and that she had lied to the policebecause she was afraid of
her parents' reaction, if they found out that she hadengaged in sexual intercourse."
(Milza Affid., attached as Exh. 1 to the LatoyaMatthews' Sur-Reply Affirm.; emphasis
added).
The Milza Affirmation thus indicates that Ericka's parents either did not know that
she and A.P. had engaged in sex at all until the fateful allegations of rape were made by
her, or were under the impression from their daughter that any such sex had not been
consensual. The Milza Affirmation is clear that Ericka cried rape because she feared
what her parents might think or do, not that they, together, cooked up a false tale. Even
Ericka's alleged conversations with A.P. as recounted in his Affidavit so indicate. Indeed,
Plaintiffs' reliance on the Affidavit of Plaintiff Anthony P. - - also submitted as part of
their opposition to the Jeffrey F.'s motion - - is misplaced, and for the same reason: it
does not show that Jeffrey F. knew that his daughter's accusations against Anthony P.
were false. As the Anthony P. Affidavit states, in pertinent part:
"2. In March, 2011, I was romantically involved with Ericka F. and we
hadconsensual sexual relations and in fact, she initiated a sexual encounterwhich
occurred on March 7, 2011 at or about 7:00 p.m.
3. The following Monday,
Ericka called me and asked me to meet her at arestaurant and when I showed up, I was
arrested and subsequently chargedwith Raping Ericka F.. I learned that Ericka F. had
made falseallegations that I forced her to engage in the sexual encounter and I
wasprosecuted.4. Ericka and I were both in High School together and in
approximatelySeptember, 2011, Ericka F. ran up to me and apologized and told
methat her father was a hot head and had forced her to falsely accuse me. Iknew that
Ericka was always very fearful of her father.
5. My then criminal attorney, reported to the District Attorneys's office,
thestatement that Ericka had made to me and after an investigation, all of thecharges
against me were dismissed and charges were instituted againstEricka F. for filing a false
report. I later learned from Ericka that shewas convicted and received probation for
having filed the report." (A.P.Affid., annexed to Matthews' Sur-Reply Affirm. as Exh. 2;
emphasis added).
Significantly, the A.P. Affidavit simply states that the accusations that Ericka F. was
purportedly forced by her Father to make were false - - not that Jeffrey F. knew of their
falsity at the time. In this regard, the A.P. Affidavit is, not surprisingly, consistent with
the version of events recounted by Ericka F. in her direct conversations with ADA Milza
and her telephone conversation with A.P. as related to ADA Milza - - that she fabricated
claims of forcible sex in fear of her parents "finding out that she had sexual intercourse"
(Milza Affid. � 5) - - not that her parents knew that her allegations against A.P. were
untrue.
Thus, the evidence furnished by Plaintiffs themselves of Ericka's
statements to ADA Milza and as well as to A.P. - - as reflected in the A.P. Affidavit as
well as ADA Milza's report of such conversation - - support Jeffrey F.'s position herein
and lead to the conclusion that Ericka concocted the story of a sexual assault because she
feared her parents' reaction if they knew the truth: that the encounter had taken place and
had been consensual. The fact that her parents, particularly her Father, then apparently
did what others would, and at least arguably, should do when told by their daughter that
she had been the victim of a sexual assault - - encourage if not insist that she go to the
police - - cannot serve as the basis of a tort claim against [*7]him when the statements made by his daughter ultimately
turn out to be fabricated. The case law so shows.It is axiomatic that the hallmark of
any intentional tort claim predicated upon false statements such as those asserted herein
against Jeffrey F. are knowledge by the defendant that such statements are false, together
an intent to harm by communicating them. As the Milza Affirmation makes plain, such
knowledge and intent on Jeffrey F.'s part is manifestly lacking here. The law is clear that
absent such critical elements of knowledge of the falsity of such statements, coupled with
an intention to communicate them for the malicious purpose of harming a plaintiff, such
intentional tort causes of action will not lie.
For example, with respect to the claim of malicious prosecution, as the Court of
Appeals stated in the leading case of Munoz v. City of New York , 18 NY2d 6,
10 (1966):"If the apparent facts are such that a discreet and prudent person would be
led tothe belief that a crime has been committed by the person charged, he will
bejustified [in making a report to the police], although it turns out that he wasdeceived
and the party accused was innocent' (Carl v. Ayers, 53 NY 14, 17). One may act
on what appears to be true, even if it turns out to be false.'Vann, J. in Burt v.
Smith, supra, p. 6)"
See also, e.g., Best v. Genung's Inc., 46 AD2d 550, 552 (3d Dept.
1975). (In dismissing a claim of malicious prosecution, the Court stated that "[t]o sustain
such an action a prosecution must be instituted in malice, without probable cause that it
could succeed, which finally ends in failure". . . and "[i]t would seem that there must be a
showing of some deliberate act punctuated with awareness of "conscious falisity" to
establish malice (Munoz v. City of New York, 18 NY2d 6).").
Here,
such knowledge and intent on Jeffrey F.'s part is plainly lacking. In light of the facts
recounted in both the Milza Affirmation and A.P. Affidavit, both adduced by Plaintiffs,
Plaintiffs cannot plausibly allege or prove such an "awareness of conscious falisity"
(id) by Jeffrey F. since, for all he knew and was told, his daughter had not
engaged in consensual "sexual intercourse" with Pitt. (Milza Affirm., � 6).
Plaintiffs' present inability to now allege or prove such awareness by Jeffrey F. that
Ericka's statements to him (and therefore any actions he allegedly took in response to
them) were false similarly impugns the remaining causes of action interposed by
Plaintiffs. Common to all such intentional tort claims are the necessary elements that a
defendant's conduct be intentional, actuated by malice and, with most, beyond the pale of
decency. Absent knowledge by a defendant that a statement on which he or she relies is
false, such elements cannot be shown.In light of the Milza Affirmation and A.P.
Affidavit, no such knowledge of falsity, and therefore intentional or "outrageous"
behavior, all essential to such tort claims, can be established. See, e.g.,
SRW Associates v. Bellport Beach Property Owners, 129 AD2d 328, 331-332
(2d Dept. 1987) (Since no credible allegations that materially and knowingly false
statements were made by defendants or that defendants could have acted with malicious
intent, the Second [*8]Department dismissed plaintiffs'
claims of injurious falsehood and prima facie tort against defendants); Patane
v. Griffin, 164 AD2d 192, 196 (3d Dept. 1990). (Since plaintiff could not show that
defendants' "communications to a prosecutor concerning possible criminal activity prior
to the commencement of a criminal proceeding" were made with knowledge that they
were false, or that defendants acted with malice, plaintiffs causes of action for
defamation and prima facie tort did not lie); Zuber v. Bordier, 135 AD2d
709, 711 (2d Dept. 1987). (The Second Department held that since the "tort of
intentional infliction of emotional distress predicates liability on the basic of extreme and
outrageous conduct, while so transcends the bounds of decency as to be regarded as
atrocious and intolerable in a civilized society," statements of opinion or observations
without knowledge of their falsity are insufficient as a basis for such claims); Klein v. Metropolitan Child
Services, Inc., 100 AD3d 708, 710-711 (2d Dept. 2012) (Complaint charging
intentional infliction of emotional distress dismissed since defendant's statement of
allegedly illegal conduct was not "so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency.")
The Court also notes that
the Complaint is devoid of any allegations that either Defendant did or said anything - -
much less anything derogatory - - concerning Dawne R.. Therefore, none of Plaintiffs'
claims, all sounding in intentional tort, can be read to apply to Dawne R.. Accordingly,
the causes of action as asserted on her behalf do not lie.
Plaintiffs' last resort
is to argue that since, as they allege, Jeffrey F. "forced" or "coerced" his daughter by
virtue of her fear of him to lie to him and the authorities, he should bear responsibility for
her statements. (Complaint � 11; Matthews Sur-Reply Affirm. �� 30-32, and Exhs. 1 and
2). Such assertions are both legally and factually meritless. Plaintiffs have cited no
authority for the novel proposition that if subjective fear motivates the making of
defamatory falsehood by a defendant, the person who is the source of such fear is
likewise liable, and for good reason: fear of what someone might do if he or she knew
the true facts is a far cry from that person actively forcing or coercing an untruth, and
therefore cannot serve as the predicate for the intentional tort claims asserted by Plaintiffs
herein. The sine qua non of all the intentional tort claims alleged by Plaintiffs is
intent and knowledge of falsity on the part of the defendant - - here, allegedly Jeffrey F. -
- not the purely subjective state of mind of another actor. (See cases discussed
infra pp. 14-15).
Despite Plaintiffs' efforts to induce the Court to do so, the Court refuses to
be drawn into the thicket of the F.'s family relationship. To be sure, Ericka F. may well
have been and may remain in fear of her Father, and that fear may have supplied a motive
by her to lie not only to him, but to the police as well. However, a third party cannot
exploit that fear and use it as a basis for a tort claim absent evidence that the person
charged with abetting the false claims actually knew that they were false. As described
above, such evidence as well as any potential for it is manifestly lacking herein.
Indeed, the evidence which Plaintiffs themselves adduced - - particularly the Milza
Affirmation - - effectively belies any claim of such knowing coercion on the part of
either of Ericka F.'s Father or mother. As the Milza Affirmation recounts, Ericka made
the false allegations about Anthony P. "in fear of her parents finding out that she
had sexual intercourse." (Milza Affirm. � 5; emphasis supplied). Plaintiffs' purported
causes of action as against Jeffrey F. thus fall of their own weight.Accordingly, by
reason of the foregoing, Defendant Jeffrey F.'s motion to dismiss the Complaint as
against him is granted in all respects and the Complaint is dismissed.
The foregoing constitutes the Decision and Order of this Court.
Dated: Goshen, New YorkMarch 3, 2015
Hon. John P. Colangelo
Supreme Court Justice