The following e-filed documents, listed by NYSCEF document number (Motion 002) 33, 34, 35, 36, 37, 38 were read on this motion to/for DISMISSAL.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 were read on this motion to/for AMEND CAPTION/PLEADINGS.

In July 2023, plaintiff Dustin Duncan commenced this defamation action against defendants Dick Blick Holdings, Inc. (hereinafter, "Dick Blick"), and Sawyer Allen, a/k/a Sawyer Quinn (hereinafter, "Allen," or together, "defendants") related to various social media posts Allen made while employed by Blick that accused plaintiff of stalking and harassing him. In Motion Sequence 002, defendants move to dismiss plaintiff's amended complaint in its entirety pursuant to CPLR 3211(a)(7).^[FN1] Plaintiff opposes the motion in its entirety; alternatively, [*2]to the extent the Court is inclined to grant any part of the motion, in Motion Sequence 003, plaintiff moves for leave to file a second amended complaint .(NYSCEF doc. no. 39, notice of motion.) The proposed second amended complaint adds additional facts concerning his defamation claims and seeks to add a cause of action for malicious prosecution. (NYCEF doc. no. 40, memo in support.) For the following reason, defendant's motion is granted in part, and plaintiff's motion is granted in its entirety.

According to his first amended complaint, plaintiff is a professor of epidemiology at Columbia University whose fields of research focus on the intersectionality of health equity and black gay, bisexual, and other marginalized communities. In April 2023, he visited Harlem Dick Blick Store, a local art supplier near his campus, and placed an order to have certain works of art framed. Plaintiff first met Allen, an employee of Harlem Blick, while placing this order. During their interaction, Allen requested plaintiff's Instagram handle, which he provided, and both communicated with each other through the app for a period of a few weeks. (NYSCEF doc. no. 36, first amended complaint; see also NYSCEF doc. no. 23, Instagram screenshots.)

On or around June 9, 2023, plaintiff returned to the Harlem Dick Blick to pick up the framed artwork, at which time a manager approached him and stated that he would not be able to have additional artwork framed at their store. (Id. at ¶ 29.) The manager explained, in front of other customers, that an unnamed employee had made accusations that he had been harassing or stalking them and that he would not be permitted to visit the store as pretext to engage in further harassment. (Id. at ¶¶28-30.) Thereafter, on June 23, 2023, Allen posted the accusations of harassment to his Instagram account next to plaintiff's professional Columbia University photograph. (Id. at ¶36, complaint exhibit f.) The post's caption reads:

"I need help!! This man has been stalking & harassing me for nearly three weeks now. He was a customer that came into my job to get some of his artwork framed . . . .since that day he would come to the store asking for me. After he picked up his artwork, they banned him from coming back to the store. Since then he has been messaging me nonstop! I have already blocked him off four accounts. I tried getting an order of protection, but they denied it. Because he hasn't done any physical harm to me [sic] . . . [T]his man needs to be stopped!! #columbia university." (Id.)

The post is accompanied by screenshots of messages purportedly sent from plaintiff that promise to continue the harassment unless Allen speaks to him. (NYSCEF doc. no. 36, complaint exhibit g.)^[FN2] According to the complaint, however, the messages were sent from an Instagram account with the username @d.d_can, an account which, as reveal through a subpoena [*3]issued to Meta (Instagram's parent company), was created using Allen's phone number (and the same number that is attached to the Instagram account that Allen originally gave plaintiff when they first met). (Id. at ¶46.) Screenshots of what appears to be Allen's Facebook profile reveal that he posted the same allegations on that platform as well, including one that tagged Columbia University, and that he created a Go Fund Me page entitled "Columbia University professor harassment, organized by Sawyer Allen." (Id. at ¶52, complaint exhibit h.)

Plaintiff further alleges that Allen contacted Columbia University on June 28, 2023, and filed a complaint with the school, which prompted it to open a formal investigation. (Id. at ¶ 38; NYSCEF doc. no. 30, Columbia investigation letter.) Through Columbia's investigation, plaintiff learned that Allen accused him of "following him on the subway on more than one occasion while wielding a knife, including on the L train to Brooklyn" on June 15, 2023, and of "lurking, walking by, and/or standing on the driveway of his home on or about June 24, June 25, and June 27, 2023." (Id.) Plaintiff denies each of these allegations. Further, according to its determination letter, Columbia's investigation "did not find, by a preponderance of the evidence standard, that you [plaintiff] engaged in conduct amounting to sexual harassment, stalking, and discriminatory harassment . . . Based on the investigation, [The Office of Equal Opportunity and Affirmative Action] did not find Complainant's allegations to be supported by the evidence." (NYSCEF doc. no. 31, Columbia's determination letter.)

Plaintiff's causes of action are for (1) defamation per se against both Allen and Dick Blick, as his employer, (2) negligent supervision and retention against Dick Blick, (3) intentional infliction of emotional distress against Allen, and (4) negligent infliction of emotional distress against both defendants. In addition, in motion sequence 003, plaintiff seeks to interpose a second amended complaint and assert a cause of action for malicious prosecution against Allen. This claim is premised on Allen filing false police reports that resulted in a grand jury indictment and his arrest on September 18, 2023. The indictment was ultimately dismissed on March 7, 2024.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Leon v Martinez, 84 NY2d 83, 87-88 [1994].) A court's inquiry is limited to assessing the legal sufficiency of the plaintiff's pleadings—that is, whether or not the facts set forth by the plaintiff sufficiently apprise the court and the defendants of the transactions and/or occurrences that make up the material elements of a cause of action. (See CPLR 3013.) Accordingly, the Court's only function is to determine whether the facts as alleged fit within a cognizable legal theory. (JF Capital Advisors, 25 NY3d at 764.)

Defamation is recognized to be a "false statement, published without privilege or authorization to a third party, constituting fault as judged by, at minimum, a negligence standard, [*4]and must cause either special harm or constitute defamation per se." (Dillon v. City of NY, 261 AD2d 34, 38 [1st Dept 1999].) The four established categories of defamation per se are where the statement(s) (1) charge plaintiff with a serious crime; (2) injure another in his or her trade, business, or profession; (3) allege a loathsome disease; or (4) impute unchastity to a woman. (Liberman v. Gelstein, 80 NY2d 429, 435 [1992)].) A claim of defamation per se is subject to the pleading standard set forth in CPLR § 3016 (a) which requires that the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally.

Defendants contends that plaintiff has failed to state a claim against Dick Blick for defamation per se because it cannot be vicariously liable for Allen's conduct as he was not acting within the scope of his employment when he posted the accusations of harassment and stalking to his Instagram account and filed a complaint with Columbia University. Under the doctrine of respondeat superior, an employer may be held vicariously liable for intentional torts committed by employees acting within the scope of their employment, as long as those acts were "generally foreseeable and a natural incident of employment." (Summors v Port Auth of NY & N.J., 203 AD3d 558, 561 [1st Dept 2022], citing Rivera v State of New York, 24 NY3d 383, 389 [2019].) In determining whether Allen was acting within the scope of his employment, the Court must consider the connection between the time, place, and occasion for the act, the history of the relationship between employer and employee, whether the act is one commonly done by such an employee, the extent of departure from normal methods of performance, and whether the specific act was one that the employer could reasonably have anticipated. (Rivera, 34 NY3d at 390.) Where an employee's actions do not further the employer's interest or are not necessary to carrying out duties incumbent on them, or where the employee's actions are taken for wholly personal reasons unrelated to their job, vicarious liability cannot attach. (Bisono v Viva Viva Taqueria, 214 AD3d 484, 485 [2d Dept 2025].)

Here, plaintiff alleges that Allen, in sum and substance, falsely claimed—to Dick Blick no less—that he had engaged in a serious criminal conduct by harassing and stalking him, that Allen publicly posted to Instagram these false allegation, with screenshot that made it appear as though plaintiff was continuing to engage in the harassment, and then Allen filed a complaint with Columbia University, accusing him of stalking him with a knife. These factual allegations—that Allen, for reasons unknown, "waged a campaign of harassment and defamation" against him—do not contain a nexus to any purported employment-related duties that he may have had at Dick Blick. In his opposition, plaintiff contends that the Court should permit him to engage in discovery that may uncover evidence that Allen was acting within the scope of his employment. Yet plaintiff has not explained to the Court how Allen's conduct could theoretically come within the ambit of his job duties. As Dick Blick argues, if Allen defamed plaintiff to his manager or management in general by making the false accusations he did and Dick Blick, on this basis, refused his future business, Dick Blick's interest could not have been served by Allen's conduct. In other words, plaintiff has not identified any facts that may be in defendant Dick Blick's sole possession that are essential to justify opposition to the motion but cannot now be stated. (See Truesdell v Roman Catholic Diocese of Brooklyn, NY, 211 AD3d 414, 413 [1st Dept 2022]; CPLR 3211[d].) Nor does the fact that Allen allegedly sent fake messages during business hours support the conclusion that Allen's actions were within the scope of his employment. (See Summors, 203 AD3d at 562 [finding that defendant's employee was wearing the company badge, without more, is not probative of whether he was carrying out his duties at [*5]the time of the incident].) As framed in Rivera, the conduct for which plaintiff seeks to hold Dick Blick vicariously liable could not have been reasonably anticipated, did not further its interest, were not necessary in discharging Allen's duties as a store employee, and represented a complete departure from the normal method of performing his responsibilities.

Plaintiff also suggests that Dick Blick can be held liable by "adopt[ing] and/or support[ing]" Allen's defamatory statements. Yet plaintiff's citation to Samide v Roman Catholic Diocese of Brooklyn (194 Misc 2d 561)—a 2003 Queens County Supreme Court decision concerning vicarious liability in the context of office sexual harassment—does not support a finding that Dick Blick adopted Allen's defamatory statements when a Dick Blick manager approached him and explained, "You will not be allowed to get any other art work framed at this location because an employee mentioned you harassed them." (See NYSCEF doc. no. 36 at ¶65.) Nor does that case support a finding of vicarious liability based on plaintiff's allegation that Dick Blick provided Allen with security footage from the Dick Blick premises.

As to plaintiff's defamation per se claim against Allen, defendants argue that the allegedly false statements that he posted to Instagram and Facebook and made to Columbia University did not impugn the performance of his professional duties and did not accuse him of a serious crime. The Court need not address whether Allen's statements concern plaintiff in his professional capacity because both the first and second amended complaints plainly plead that Allen's statements charged him of a serious crime. Allen's statements accusing plaintiff of harassing and stalking are not "vague and loose" as defendants claim: the letter from Columbia University, referenced on numerous occasions in his amended complaint (see NYSCEF doc. no. 36 at ¶¶38,57, and 83), demonstrates that Allen accused him of stalking him with a knife on multiple instances, allegations that he appears to have repeated to police that formed the basis for plaintiff's arrest and indictment for stalking. In a footnote, defendants maintain that the first amended complaint does not set forth any details of those charges and does not reference any statement Allen made to police; yet the first amended complaint does reference Allen's statements to Columbia University with sufficient particularity to demonstrate that Allen accused him of a serious crime. (See CPLR 3016 [a].) Regardless, in his proposed second amended complaint, plaintiff alleges that Allen "disseminated his false words of [plaintiff's] conduct to his employer, Columbia University, that [he] . . . allegedly stalked Allen on the L train to Brooklyn while wielding a knife, lurked outside Allen's home, and knocked [him] off from his skateboard while cursing him with verbal slurs." (See NYSCEF doc. no. 43 at ¶ 73, second amended complaint.) These allegations sufficiently plead a cause of action for defamation per se.

Defendants contend that plaintiff's second cause of action for negligent supervision and retention should be dismissed because (1) plaintiff alleges that Allen's conduct was within the scope of his employment, and (2) there is nothing in the record that shows Dick Blick knew or should have known of Allen's propensity to defame customers. The first argument is unpersuasive: unlike Moncho v Miller (200 AD3d 533, 535-536 [1st Dept 2021]), defendants dispute whether plaintiff was acting within the scope of his employment (as described supra) and plaintiff may plead causes of action in the alternative. (Kerzhner v G4s Govt. Solutions, Inc., 138 AD3d 564, 565 [1st Dept 2016] ["While plaintiff's allegation that Ray was acting within the scope of his employment and other allegations of vicarious liability are incompatible with [*6]plaintiff's negligent hiring, supervision, and training claim, dismissal is not required, because plaintiff may plead alternative, inconsistent theories"] [internal citations omitted].)

Nonetheless, defendants are entitled to dismissal of this claim for failure to plead a necessary element of the cause of action. Negligent hiring, retention, and supervision requires allegations that the employer knew of its employee's harmful propensities, that it failed to take necessary action, and that this failure caused damage to others. (See Gonzalez v City of New York, 133 AD3d 65, 67-68 [1st Dept 2015].) An essential element of a claim for negligent hiring, retention, and supervision "is that the employer knew, or should have known, of the employee's propensity for the sort of conduct which caused the injury." (Norris v. Innovative Health Sys., Inc., 184 AD3d 471, 472 [1st Dept 2020].) Here, as defendants contend, plaintiff's complaint is devoid of allegations as to how Dick Blick, from Allen's previous conduct, knew or should have known about a propensity to defame or make false accusations against customers to its management. Plaintiff's opposition only highlights this defect. He argues that Dick Blick knew or should have known about Allen's "propensity to misuse social media and Go Fund Me sites" (NYSCEF doc. no. 37 at 17, plaintiff's memo of law; NYSCEF doc. no. 36 at ¶78), but his complaint does not identify previous instances in which Allen misused social media in a way comparable to the allegations made here. Plaintiff further argues that "had Dick Blick . . . been supervising properly, [it] knew or should have known that—its employees were leveling accusations against [him] that were unsubstantiated." (Id.) In plaintiff's view, this is because Dick Blick "was aware" of the false and public statement made by its manager that an "employee mentioned you [plaintiff] harassed them." (NYSCEF doc. no. 36 at ¶79.) Yet it is unclear how Dick Blick, at this point in time, could have known or suspected that Allen's complaint against him was false. And indeed, the manager's statement was in fact true: an employee, in fact, complained to the store. In other words, other than conclusory assertions, plaintiff has not pled facts from which it could be inferred that Dick Blick had reason to know of Allen's propensity toward defaming customers—whether before, from previous acts, or while the conduct was ongoing.^[FN3]

To properly plead such a claim for intentional infliction of emotional distress, plaintiff must allege (1) extreme and outrageous conduct, (2) an intent to cause, or disregard of a substantial probability of causing, severe emotional distress, (3) a causal connection between the [*7]conduct and injury, and (4) severe emotional distress. (Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 56 [2016]; Cohn-Frankel v United Synagogue of Conservative Judaism, 246 AD2d 332, 332 [1st Dept 1998].) However, where claims of emotional distress "fall within the ambit of other traditional tort liability, which, in this case is reflected in plaintiff's causes of action sounding in defamation," the emotional distress claims are considered duplicative and must be dismissed. (Hirshfeld v Daily News, L.P., 269 AD2d 248, 249 [1st Dept 2000]; Akpinar v Moran, 83 AD3d 458, 459 [1st Dept 2011] [finding plaintiff's cause of action for IIED to be duplicative of his defamation cause of action]; Matthaus v Hadjedju, 148 AD3d 425, 425 [1st Dept 2017] [same].) This is true of negligent infliction of emotional distress claims as well. (Reeves v Associated Newspapers, Ltd., 217 AD3d 550, 551 [1st Dept 2023].) To the extent that plaintiff opposes and argues that Allen's conduct meets the threshold to be "extreme and outrageous"—or conduct that goes "beyond all possible bounds of decency and to be regarded as atrocious"—plaintiff advances no reason why the claim should not be dismissed for being duplicative of his defamation claim.^[FN4]

Leave to amend pleadings should be freely granted in the absence of prejudice or surprise so long as the proposed amendment is not palpably insufficient as a matter of law. (Mashinksy v Drescher, 188 AD3d 465, 466 [1st Dept 2020].) Leave to amend may be denied when the proposed allegations fail to establish any element of the underlying cause of action as such allegations are deemed palpably insufficient. (See Ganeiva v Black, 216 AD3d 424 [1st Dept 2023].)

As described above, plaintiff's proposed second amended complaint seeks to interpose a malicious prosecution claim against defendant Allen based on alleged false reports he made to police that subsequently led to plaintiff's arrest and indictment. In opposition, defendants argue that, as asserted, the claim is deficiently pled and patently lacking in merit. In their view, plaintiff has not adequately alleged that Allen initiated the criminal proceeding against plaintiff; rather, he merely sought police assistance to report a crime, which cannot be the basis for a malicious prosecution claim. This line of argument is unpersuasive. First, while they accurately quote Present v Avon Prods. Inc (253 AD2d 183, 189 [1st Dept 1999])—that "one who does no more than disclose to a prosecutor all material information within his knowledge is not deemed to be the initiator of the proceeding"—this does not accurately reflect the allegations made in the second amended complaint. In Du Chateau v Metro-North Commuter R.R. Co. (253 AD2d 128, 131 [1st Dept 1999]), also cited a by defendants, the First Department granted the defendant summary judgment on a malicious prosecution claim, noting that "a civil complainant, by merely seeking police assistance or furnishing information to law enforcement authorities . . . will not be held liable for false arrest or malicious prosecution." Critically, its judgment was based on the [*8]fact that "there is no evidence that [the defendant] gave false information or withheld information from [law enforcement]. Thus, as a matter of law, plaintiff has failed to show that [the defendant] initiated the prosecution." (Id. at 131-132.) Defendants' argument, then, ignores plain letter law that, in providing false evidence to the police or withholding evidence that might affect the determination by the police, a defendant may be said to have initiated a criminal proceeding. (Brown v Sears Roebuck & Co., 297 AD2d 205, 210 [1st Dept 2002]; DeJesus v Moshiashvili, 176 AD3d 649, 650 [1st Dept 2019].)

Here, taking the allegations as true, plaintiff alleges that Allen did not "merely report" a crime, but invented one. His complaint details that Allen reported to police that plaintiff "displayed a knife" and stated, "just listen to me or else" on June 14, 2023—a date in which, according to plaintiff, he was traveling outside New York. (NYSCEF doc. no. 43 at 62.) He further alleges that Allen provided police with the messages from his own fake Instagram account, in which he pretended to be plaintiff. Those messages include, "I hate this saying. But you can run, but you can't hide for long," "Eventually you are going to have to face me. Whether it's in court or in person. And I am not worried about court," "Drop the investigation or else. Do you care about your family's lives," and "Good morning, I need you to drop this investigation now! I don't need to follow you to know where you are. But trust me. If you don't drop this investigation, this won't end well on your end." (Id. at ¶61.) According to the complaint, one of the charges returned by the Grand Jury include intimidating a victim or witness. It strains credulity to suggest, as defendants appear to, that defendant's alleged false evidence was not made "with malice" and "did not contribute to the determination to arrest plaintiff." (See Matthaus, 148 AD3d at 426 ["Contrary to defendant's contention, plaintiff's allegation that defendant knowingly provided false information to police, in retaliation for a domestic dispute, was sufficient to demonstrate that he initiated the proceeding"].) At this juncture, plaintiff has sufficiently pled a cause of action for malicious prosecution. The Court has considered the parties' remaining contentions and find them unavailing.

Accordingly, for the foregoing reasons, it is hereby

ORDERED that Dick Blick Holdings, Inc. and Sawyer Allen's motion to dismiss pursuant to CPLR 3211 (a) (7) is granted to the extent that plaintiff Dustin Duncan's first cause of action for defamation per se is dismissed against Dick Blick Holdings, plaintiff's second cause of action for negligent supervision and retention is dismissed against Dick Blick Holdings, and plaintiff's third and fourth causes of action for intentional and negligent infliction of emotional distress are dismissed in their entirety; and it is further

ORDERED that the motion to dismiss plaintiff's defamation per se claim against Sawyer Allen is denied; and it is further

ORDERED that plaintiff's motion for leave to file a second amended complaint is granted and shall be deemed served upon defendants upon counsel for plaintiff serving a copy of this order, along within notice of entry; and it is further

ORDERED that counsel for plaintiff shall serve a copy of this order, along with notice of entry, on all parties, within twenty (20) days.

This constitutes the Decision and Order of the Court.