Buckler v. Temple Court

2024 NY Slip Op 33843(U)

• Court: New York Supreme Court, New York County
• Decided: October 25, 2024
• Docket: Index No. 154940/2023
• Status: Unpublished

Opinion

Buckler v Temple Ct. 2024 NY Slip Op 33843(U) October 25, 2024 Supreme Court, New York County Docket Number: Index No. 154940/2023 Judge: David B. Cohen 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. 154940/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 10/28/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DAVID B. COHEN PART 58 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 154940/2023 RAYMOND BUCKLER, MOTION DATE 07/29/2024 Plaintiff, MOTION SEQ. NO. 001 - V -

TEMPLE COURT, TOM COLICCHIO, DARREN DUNN DECISION + ORDER ON MOTION Defendants. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 17, 18 were read on this motion to/for DISMISS

This is an action for defamation related to the termination of plaintiffs employment.

Pursuant to CPLR 321 l(a)(7), defendants move to dismiss pre-answer. Plaintiff opposes.

FACTUAL BACKGROUND

Plaintiff alleges he was employed at defendant Temple Court restaurant starting on

December 25, 2021 as a "Mai'tre D", although defendants contend that the actual name of the

employing entity was Craft Beekman, LLC. He alleges that he was "illegally terminated" on

March 22, 2023, for having been "accused of being a racist." (NYSCEF 1).

Defendant Dunn, the restaurant's general manager, allegedly made the accusation in the

presence of his assistant, Jorge Molina. Plaintiff alleges that he denied the allegation, and Dunn

told him that "HR has interviewed employees and patrons, and that is what you are being

accused of." Defendant Colicchio allegedly owns and controls the restaurant, and allegedly

controls all the decisions, including having directed Dunn to make the accusation. (id.).

Plaintiff contends that defendants engaged in defamation as they falsely accused him of

being racist, and that "[u]pon information and belief, Defendant Dunn and Defendant Temple 154940/2023 BUCKLER, RAYMOND vs. TEMPLE COURT ET AL Page 1 of4 Motion No. 001

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Court told plaintiffs subsequent prospective employers that his employment ended because he

was a racist." He thus claims that defendants' false statements have harmed his personal and

professional reputation, and he asserts one cause of action for defamation (id.).

LEGAL ANALYSIS

On a motion to dismiss pursuant to CPLR 321 l(a)(7), the court determines whether the

pleading states a cause of action and "[t]he motion must be denied if from the pleadings' four

comers factual allegations are discerned which taken together manifest any cause of action

cognizable at law" (511 W 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152

[2002] [internal quotation marks and citations omitted]). "Whether a [party] can ultimately

establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC 1,

Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).

Defendants contend that calling someone a "racist" is a statement of opinion, not of fact,

that making the statement in the presence of a co-employee fails to meet the publication

requirement of a defamation claim, and that the alleged statements to prospective subsequent

employers fail to meet the specificity requirement for such claims based, among other things, on

CPLR 3016(a).

While a statement of pure opinion is generally not defamatory (Bacon v Nygard, 189

AD3d 530 [1st Dept 2020]), and while distinguishing between fact and opinion is a question of

law to be decided by the Court, the determination may be dependent on the statement's context,

and it can be premature to do so on a pre-answer motion to dismiss (see Davis v Boeheim, 24

NY3d 262 [2014] [even if statement may be pure opinion, "the motion to dismiss must be denied

if the communication at issue, taking the words in their ordinary meaning and context, is also

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susceptible to a defamatory connotation"], quoting Sweeney v Prisoners' Legal Servs. ofNY.,

146 AD2d 1, 4 [3d Dept 1989]).

Here, defendants have not demonstrated that the accusation of being a racist, taken in its

ordinary meaning and context, is not susceptible to a defamatory connotation (see e.g. Herlihy v

Metropolitan Museum ofArt, 214 AD2d 250 [1st Dept 1995] [plaintiff stated claim for slander

based on allegations that she was accused of being anti-semitic and biased]; Sheridan v Carter,

48 AD3d 444 [2d Dept 2008] [statements which depicted plaintiffs as racists was defamatory]).

Defendants' second argument is that plaintiff failed to sufficiently state the publication

requirement of a defamation claim. Plaintiff asserts that he met this requirement by alleging that

Dunn published the statement to his co-worker present at their meeting. (NYSCEF 16)

Publication of the allegedly defamatory statement to a third party is a basic requirement

of a claim for defamation. However, there is a privilege protecting communications between co-

employees on matters of common interest.

Here, the statement was allegedly made by Dunn during a human resources conversation

with plaintiff about his termination, and ostensibly the coworker was there to witness or

participate in the meeting, and thus had a common interest with Dunn. Defendants thus

demonstrate that plaintiff has not sufficiently pleaded the publication element of his claim (see

e.g. Pogil v KPMG LLP, 228 AD3d 469 [1st Dept 2024] [finding that statements involved

communications between individuals who shared common interest in plaintiff's work

performance and were thus privileged]; Richards v Security Resources, 187 AD3d 452 [1st Dept

2020] [statement between defendants' employees regarding plaintiff's conduct at work was

privileged]; Atkins v Flat Rate Movers, Ltd., 134 AD3d 437 [1st Dept 2015] [statements made by

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defendant's employees shielded by common interest privilege as they were made in context of

plaintiffs work, regarding his alleged job-related misconduct]).

To the extent that plaintiff alleges, "[u]pon information and belief," that defendants

published the statement to plaintiffs prospective employees, he does not set forth the alleged

specific words used (see Hammond v Equinox Holdings LLC, 219 AD3d 406 [1st Dept 2023]

[claim that statements were published to police and press was properly dismissed as particular

words of alleged statements not set forth in complaint]).

Finally, plaintiff fails to state a claim for defamation per se as he does not demonstrate

that the allegation that he is racist is incompatible with the proper conduct of plaintiffs

profession and it did not make a reference to plaintiffs ability to work in the restaurant industry

(see Zysk v Fidelity Tit. Ins. Co. ofNY, 14 AD3d 609 [2d Dept 2005] [statements did not "imply

behavior that was incompatible with the proper conduct of the plaintiffs profession and made no

reference to a matter of significance and importance to the plaintiffs ability to practice (his

profession)"]).

For all of these reasons, defendants establish that plaintiff fails to state a defamation

claim.

CONCLUSION

Accordingly, it is hereby

ORDERED that defendants' motion to dismiss is granted, and the complaint is dismissed,

and the clerk is directed to enter judgment accordingly.

10/25/2024 DATE DAVID B. COHEN, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

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

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