Abitbol v. Rice

2024 NY Slip Op 32305(U)

• Court: New York Supreme Court, New York County
• Decided: July 8, 2024
• Status: Unpublished

Opinion

Abitbol v Rice 2024 NY Slip Op 32305(U) July 8, 2024 Supreme Court, New York County Docket Number: Index No. 158841/2022 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 158841/2022 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 07/08/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ---------------------X INDEX NO. 158841/2022 TAJA FRAN! ABITBOL, MOTION DATE 04/01/2024 Plaintiff, MOTION SEQ. NO. 003 - V -

DANIEL RICE, 10 WEST END AVENUE #148 LLC,THE ANDREWS ORGANIZATION, INC.,THE 10 WEST END AVENUE CONDOMINIUM, AN UNINCORPORATED ASSOCIATION, THE BOARD OF MANAGERS OF THE 10 WEST END AVENUE CONDOMINIUM, AN UNINCORPORATED ASSOCIATION, JOHN OR JANE DECISION + ORDER ON DOE, AS PRESIDENT OF THE BOARD OF MANAGERS MOTION OF THE 10 WEST END AVENUE CONDOMINIUM, AN UNINCORPORATED ASSOCIATION, JOHN OR JANE DOE, AS TREASURER OF THE BOARD OF MANAGERS OF THE 10 WEST END AVENUE CONDOMINIUM, AN UNINCORPORATED ASSOCIATION

Defendant. ----------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 32, 33, 34, 35, 36, 37,49, 50,61,64,65,66,69, 70, 71, 75, 76, 77, 78, 79, 80, 81, 82, 83 were read on this motion to/for DISMISSAL

Upon the foregoing documents, Defendant Daniel Rice's ("Defendant") motion to dismiss

Plaintiff Taja Frani Abitbol's ("Plaintiff') Complaint against him is granted.

I. Background

This action arises out of a fire and ensuing water damage at the condominium at 10 West

End Avenue, New York, NY 10023 (the "Building") (NYSCEF Doc. 25 at,, 11-12). Plaintiff

resided in Apartment #14B in the Building and Defendant lived in Unit 12G (id. at,, 12-13). The

morning of November 6, 2019, Plaintiff lit a candle to "cleanse energy and heal her Chakras" (id.

at , 20). Plaintiff alleges she blew out the candle and took her son to school. Nonetheless, a fire

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somehow ignited, and the fire sprinkler systems were triggered (id. at ,i 27). Defendant's unit

sustained water damage (id. at ,i 48).

Plaintiff alleges that sometime in July of 2022, Defendant told Fire Marshal Anthony

Henry of the FDNY that Plaintiff deliberately started the fire to gain notoriety and be cast on "Real

Housewives of New York" (id. at ,i 53). Plaintiff also alleges that in June of 2022, Defendant

drafted and filed a civil complaint in Rice v. Abitbol, Index No.:155555/2022 (the "Parallel

Action") alleging that Plaintiff deliberately caused the fire and sent the complaint to news media

outlets, including I Love The Upper West Side ("ILTUWS") (id. at ,i 61). Plaintiff claims

Defendant made additional defamatory comments to the New York Post by asserting that the

investigation into the fire was an "open arson investigation from what I have been told." (id. at ,i

73). Plaintiff alleges these statements constitute defamation per se because they accuse her of

committing a criminal act. She also claims intentional infliction of emotional distress and seeks

declaratory judgment. Defendant moved to dismiss pursuant to CPLR 321 l(a)(7) and (g)

(NYSCEF Doc. 32).

II. Discussion

A. IIED and Declaratory Judgment

As a preliminary matter, Plaintiffs intentional infliction of emotional distress ("IIED")

claim is duplicative of her defamation claims and is therefore dismissed (see Reeves v Associated

Newspapers, LTD., 210 NYS3d 25 [1st Dept 2024] citing Fleischer v NYP Holdings, Inc., 104

AD3d 536, 538-559 [1st Dept 2013], lv denied21 NY3d 858 [2013]; see also Schnur v Balestiere,

208 AD3d 1117, 1118-19 [1st Dept 2022]). The same is true of the declaratory judgment cause of

action, which seeks identical relief to the defamation action - namely a declaration that the fire

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was accidental, and Defendant's statements were false. Thus, the declaratory judgment cause of

action is also dismissed.

B. Anti-SLAPP Statute

To prevail on a motion to dismiss based on an anti-SLAPP law defense, the defendant bears

the initial burden of proving the action is a strategic lawsuit against public participation ("SLAPP")

suit (CPLR 2311 [g][l]). Once this showing has been made, a Plaintiff must show the lawsuit has

a substantial basis in law (id.; see also Reeves v Associated Newspapers, LTD., 210 NYS3d 25 [1st

Dept 2024]). The First Department has recently held that a "substantial basis in law" means "such

relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate

fact" (Reeves, supra citing Smartmatic USA Corp. v Fox Corp., 213 AD3d 512 [1st Dept 2023]).

It is less than a 'preponderance of the evidence standard' but more demanding than an ordinary

CPLR 321 l(a)(7) standard (Reeves, supra at 34-35 citing 300 Gramatan Avenue Associates v State

Division of Human Rights, 45 NY2d 176 [1978]). The Court must look beyond the pleadings to

determine whether the claim alleged is supported by substantial evidence (id. citing Castle Village

Owners Corp. v Greater New York Mutual Ins. Co., 58 AD3d 178, 183 [1st Dept 2008]).

A SLAPP suit encompass claims based on any communication in a place open to the public

or a public forum in connection with an issue of public interest, or any other lawful conduct in

furtherance of the exercise of free speech in connection with an issue of public interest (Civil

Rights Laws 76-a[l][a][l]-[2]). Allegations of criminal conduct and statements related to judicial

proceedings constitute an issue of public interest pursuant to the anti-SLAPP law (Reeves, supra

at 33 citing Hayt v Newsday, LLC, 176 AD3d 787 [2d Dept 2019]). Statements made to the media

or a governmental body charged with investigating conduct are considered statements made in

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public forums (see 215 West 84th St. Owner LLC v Bailey, 217 AD3d 488 [1st Dept 2023]; Mora

v Koch, 79 Misc.3d 434 [Sup. Ct., Dutchess Co. 2023]).

The Court finds that Defendant has shown that each of the alleged defamatory statements

fall within the anti-SLAPP law's ambit. Specifically, the allegedly defamatory conduct all pertains

to the circumstances surrounding a fire in a 173-unit condominium building. The allegedly

defamatory conduct also pertains to the potentially criminal act of arson. A fire breaking out in a

large condominium building, and allegations of criminal conduct related to that fire, constitute

matters of public interest (Reeves, supra at 33 citing Hayt v Newsday, LLC, 176 AD3d 787 [2d

Dept 2019]). The statements made to the media publications I Love the Upper West Side and the

New York Post are statements made in a public forum (see 215 West 84th St. Owner LLC v Bailey,

217 AD3d 488 [1st Dept 2023 ]). As are the statements made to an FDNY fire investigator who

was charged with investigating the cause and origin of the fire (Mora v Koch, 79 Misc.3d 434

[Sup. Ct., Dutchess Co. 2023 ]). This means the burden is on Plaintiff to show her defamation claim

has a substantial basis in law, and there must be substantial evidence that Defendant made false

statements with knowledge of their falsity or reckless disregard of their falsity.

C. The FDNY Statements

Defendant's allegedly defamatory statements to the FDNY, made in July of 2022 are

protected under the absolute litigation privilege (Front, Inc. v Khalil, 24 NY3d 713 [2015]). As

noted by the Court of Appeals, absolute immunity from liability for defamation exists for oral or

written statements made by a party in connection with a proceeding before a court when such

words or writings are material and pertinent to the questions involved in the litigation (id.; see also

Lewis v Pierce Bainbridge Beck Price Hecht LLP, 195 AD3d 518 [1st Dept 2021 ]). This privilege

applies to out of court statements made to potential witnesses (Jamal v Weil, 116 AD3d 732 [2d

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Dept 2014]). Indeed, there is a deep-rooted, long-standing public policy in favor of a person's

right to make statements during the course of court proceedings without penalty so long as the

statements are pertinent to litigation (Frechtman v Gutterman, 115 AD3d 102, 106 (1st Dept

2014]).

The statements made to the FDNY, which Plaintiff alleges occurred in July of 2022,

occurred during the pendency of Defendant's lawsuit for property damage from the fire, which

was initiated in July of 2022 (NYSCEF Doc. 34). The statements were pertinent to the ongoing

litigation since they pertain to the cause and origin of the fire which caused the damages Defendant

seeks to recoup in the Parallel Action. As an FDNY fire marshal involved with investigating the

fire, the allegedly defamatory statements were made to a potential witness related to issues

involved in the Parallel Action. Thus, Defendant's July 2022 statements to the FDNY are

absolutely privileged and non-actionable. There is no substantial basis in law to bring a defamation

claim based on these statements.

D. Statements to IL TUWS

The dissemination of Defendant's complaint in the parallel action to IL TUWS is protected

by the fair reporting privilege. Civil Rights Law§ 74 protects speakers from civil liability for the

publication of a fair and true report of a judicial proceeding. The question is whether the reporting

was an accurate description of the claims made in the proceeding (Mulder v Donaldson, 161 Misc

2d 698, 705 (Sup Ct, NY County 1994], affd 208 AD2d 301 [1st Dept 1995]; see also Haart v

Scaglia, 78 Misc3d 1228[A] [Sup. Ct. 2023] [Hoffman, J.]).

Defendant's Complaint in the parallel action has survived a motion to dismiss and has not

been shown to be a sham, and the issue of whether the fire was intentionally caused is being

actively litigated. The article, which was published after Defendant's Complaint was filed,

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contains an accurate description of the allegations and is thus protected by the statutory fair

reporting privilege (see also WA Route 9, LLCv PAFCapital LLC, 136 AD3d 522 [1st Dept 2016]

[dissemination of report on pending litigation protected by fair reporting privilege]). Specifically,

the article notes that there are allegations that the fire either occurred negligently or intentionally,

and that Defendant was seeking monetary compensation as a result of the fire. The article also

documents Plaintiff's four failed attempts at appearing on the Real Housewives of New York, and

the potentially circumstantial evidence that the fire was used as a publicity stunt as it occurred just

one day prior to Plaintiff joining a talk show wherein she talked extensively about the fire.

To the extent Plaintiff argues only a qualified privilege exists, and there is substantial

evidence of actual malice, the Court disagrees. There is ample evidence of Plaintiff attempting to

gain notoriety from the fire by talking about it on talk shows and publicizing the fire on her

Instagram. Plaintiff was also featured in a New York Page Six article just three months prior to the

fire as being someone who was "obsessed" with getting on Real Housewives of New York and

had apparently failed four auditions. Defendant therefore had a good faith basis in alleging in his

complaint and discussing with the press his belief that Plaintiff may have intentionally caused the

fire to gain notoriety and publicity, and the draft complaint was circulated with the good faith

anticipation that litigation would be forthcoming in the following weeks (Tacopina v O 'Keefe, 645

Fed Appx 7 [2d Cir 2016]). The qualified privilege therefore applies, and there is no substantial

basis in law for a defamation suit based on Defendant's circulation of a draft complaint to IL TUWS

shortly prior to filing the complaint.

E. New York Post E-Mail

To the extent Defendant's inquiry via e-mail to the New York Post can even be considered

defamatory, the Court finds Plaintiff has failed to show substantial evidence of actual malice to

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survive Defendant's CPLR 321 l(g) motion to dismiss. The allegedly defamatory statements

merely consist of Defendant inquiring why an arson investigation was not mentioned in the New

York Post article and then stating that based on what he was told that there was an ongoing arson

investigation. Defendant's inquiry, which appears to have been based on information (or

misinformation) he had received from the FDNY, does not show the requisite actual malice needed

to survive a CPLR 3211 (g) motion to dismiss (see, e.g. Gillespie v Kling, 217 AD3d 566 [1st Dept

2023] [once Defendant shows anti-SLAPP law applies, burden is on Plaintiff to show statements

were false and made with knowledge of falsity or reckless disregard of whether statements were

false]; see also Carey v Carey, 220 AD3d 477 [1st Dept 2023] [anti-SLAPP motion to dismiss

granted where Plaintiff failed to show sufficient evidence of actual malice]).

Here, Plaintiff has provided no evidence to show that Defendant's inquiry to the New York

Post was made with knowledge of its falsity or reckless disregard. Nor has Plaintiff requested

limited anti-SLAPP discovery to ascertain further information to oppose the motion (Reeves v

Associated Newspapers Ltd., 210 NYS3d 25 [1st Dept 2024 ["[n]otably, plaintiffs did not request

any of the special discovery made available under the anti-SLAPP law to aid them in showing that

their claim had a "substantial basis"]). Plaintiff has not met her heightened burden under the anti-

SLAPP law, and thus her defamation claims against Defendant are dismissed. Because Defendant

has succeeded on his CPLR 3211 (g) motion to dismiss, he is entitled to an award of attorneys' fees

(Goldman v Abraham Heschel School, 227 AD3d 544 [1st Dept 2024]).

Accordingly, it is hereby,

ORDERED that Defendant Daniel Rice's motion to dismiss Plaintiff Taja Frani Abitbol's

Complaint against him is granted; and it is further

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ORDERED that Plaintiff's Taja Frani Abitbol's Complaint is hereby dismissed as to

Defendant Daniel Rice

ORDERED that pursuant to CRL § 70-a Defendant is entitled to an award of attorneys'

fees and costs; and it is further

ORDERED that within thirty (30) days of entry of this Decision and Order, counsel for

Defendant shall submit a fee application consisting of an affirmation along with detailed

supporting exhibits documenting the attorneys' fees expended in this litigation via NYSCEF and

via e-mail to SFC-Part33-Clerk@nycourts.gov. Within fourteen (14) days of receipt of

Defendant' s fee application, Plaintiff shall serve objections, if any, to the amount of fees Defendant

seeks via NYSCEF and e-mail to SFC-Part33-Clerk@nycourts.gov. Within seven (7) days of

Plaintiff's objections, if any, Defendant shall serve a reply via NYSCEF and via e-mail to SFC-

Part3 3-Clerk@nycourts.gov.

ORDERED that within ten days of entry, counsel for Defendant shall serve a copy of this

Decision and Order, with notice of entry, on all parties via NYSCEF; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

7/8/2024 DATE h:.t V ~ "~ JSC.. HOt>l MARY V. ROSADO, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE : INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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