Pleading With Particularity: Defamation Causes of Action

As readers of this Blog know, we often write about the pleading requirements under the Civil Practice Law and Rules (“CPLR”). In that regard, many of our articles involve cases in which CPLR 3016(b) is at issue – the provision of the civil practice rules requiring pleading fraud with particularity.

There is another provision of the civil practice rules that requires particularity – CPLR 3016(a). This provision of the CPLR concerns claims for libel and slander (i.e., defamation) and requires the plaintiff to plead “the particular words complained of.” Today, we examine the particularity requirement of CPLR 3016(a).

To plead a claim of defamation, the plaintiff must satisfy the following elements: “a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se.”¹ There are two forms of defamation: libel and slander.² Since only facts can be proven false, statements purporting to assert facts about the plaintiff are the proper subject of a defamation claim.³ 

In deciding whether a statement is defamatory, a court “must consider the content of the communication as a whole, as well as its tone and apparent purpose and in particular should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about the [] plaintiff.”⁴ 

When pleading a claim of defamation, “[t]he complaint … must allege the time, place and manner of the false statement and specify to whom it was made.”⁵ The failure to make such allegations is fatal to a defamation cause of action.⁶

Additionally, pursuant to CPLR 3016(a), the complaint must set forth “the particular words complained of.” The language at issue cannot amount to “expressions of opinion” or ‘“loose, figurative or hyperbolic statements.’”⁷ Nor can the language at issue be paraphrased. Courts will only consider “the particular defamatory words” stated; they will not entertain a claim “based instead on a paraphrased version.”⁸ Indeed, imprecision and paraphrasing “not only opens the complaint to the question of whether the words were ever published, but also renders the complaint defective as a matter of law.”⁹ 

Finally, a plaintiff alleging defamation per quod must plead special damages.¹⁰ Special damages must be “fully and accurately identified ‘with sufficient particularity to identify actual losses.’”¹¹ 

Against this background, we examine Salescare, Inc. v. SEIU 1199 Natl. Benefits Fund, 2023 N.Y. Slip Op. 06340 (1st Dept. Dec. 12, 2023) (here).

Plaintiffs, SalesCare Inc. (“SalesCare”) and Marian Parker (“Parker,” and collectively with SalesCare, the “plaintiffs”) brought action against defendants, SEIU 1199 National Benefit Fund (the “Fund”), 1199 SEIU Funds,¹² and Auburn IT Resources (“Auburn”), claiming breach of contract and defamation.

In August 2019, Auburn contacted Parker about the potential for SalesCare working on an Information Security project with the Fund. Parker, who was SalesCare’s President at the time, met with the Fund’s staff and discussed the project. Thereafter, Parker entered into a Contractors Agreement (the “agreement”) with Auburn. Among other things, the agreement governed the terms of the project. 

Relevant to the order on appeal, the agreement provided that its terms became effective on the date it was signed, and that Parker’s engagement with the Fund would continue “AS REQUIRED, or until the completion of [SalesCare’s] designated work at the client, whichever occur[red] first.” Either SalesCare or Auburn could terminate the agreement on ten days’ written notice. If the Fund elected to terminate SalesCare’s assignment “prior to the time or event as specified in paragraph 1 [of the agreement], such notice as [the Fund] gives to [Auburn] will also be given to [SalesCare].”

On September 3, 2019, Parker began her assignment with the Fund. Shortly before the Fund ended the assignment, the Fund changed Parker’s job responsibilities in a way that Parker claimed went beyond the terms of the agreement. Because of this switch and a lack of administrative guidance with the Fund, Parker alleged that her last two weeks of work with the Fund were unproductive.

On November 7, 2019, Parker reported to work and found that her ID credentials had been canceled. Shortly thereafter, she was dismissed from the assignment. According to Parker, that evening, Auburn’s President contacted her and told her that an unnamed representative of the Fund had told him that the Chief Information Security Officer (“CISO”) had said to them that Parker’s assignment had ended due to her “insubordination.” A few days later, Parker spoke to one of her former colleagues at the Fund, who informed her that the CISO had stated in a meeting on November 7, 2019, that he “had to fire her” and he would fire anyone else who challenged him.

Defendants moved separately to dismiss the complaint based on documentary evidence and for failure to state a cause of action, pursuant to CPLR 3211(a)(1) and (a)(7).

The motion court granted the motion.

Regarding the defamation causes of action, the motion court held that plaintiffs failed to satisfy the particularity requirement of CPLR 3016(a).

First, the motion court held that plaintiffs failed to identify the person to whom the alleged defamatory statement was published. Instead, said the motion court, plaintiffs simply alleged that an unnamed employee of the Fund was told by the CISO that Parker’s assignment was terminated because she was insubordinate.

Second, the motion said that the second statement – that the CISO had to fire Parker – was qualified in the complaint by the statement “or words to that effect.” Such imprecision, held the motion court, rendered the claim inactionable.¹³ 

On appeal, the Appellate Division, First Department affirmed, holding that the motion court “properly dismissed plaintiffs’ defamation claim and related business disparagement claim against [the] Funds.”¹⁴

Like the motion court, the Court found that the first statement – that Parker was “insubordinate” – failed to satisfy CPLR 3016(a) because “plaintiffs failed to identify the employee to whom the supervisor made the alleged statement.”¹⁵ The Court also found the second statement – that Parker was fired – to be inactionable because the statement was true.¹⁶

Finally, the Court held that the claim for defamation per quod was defective because “plaintiffs were required to allege special damages,” which they “failed to do.”¹⁷ 

Takeaway

To satisfy CPLR 3016(b), the plaintiff must state the defamatory statement in haec verba and identify the time, place and person(s) to whom the statement was made. These requirements are strictly enforced. As shown in SalesCare, the failure to comply with CPLR 3016(a) and related interpretations will result is dismissal of a defamation claim.

Footnotes

1. Circulation Assocs., Inc. v. State, 26 A.D.2d 33, 38 (1st Dept. 1966); Salvatore v. Kumar, 45 A.D.3d 560, 563 (2d Dept. 2007).
2. Ava v. NYP Holdings, Inc., 64 A.D.3d 407, 411 (1st Dept. 2009).
3. Davis v. Boeheim, 24 N.Y.3d 262, 268 (2014).
4. Mann v. Abel, 10 N.Y.3d 271, 276 (2008) (internal quotation marks omitted).
5. Dillon v. City of New York, 261 A.D.2d 34, 38 (1st Dept. 1999).
6. E.g., CSI Grp., LLP v. Harper, 153 A.D.3d 1314, 1321 (2d Dept. 2017) (“[f]ailure to state the particular person or persons to whom the allegedly defamatory statements were made … warrants dismissal” of a complaint for defamation); Arvanitakis v. Lester, 145 A.D.3d 650, 652 (2d Dept. 2016) (failure to plead when the false statement was made).
7. Wolberg v. IAI N. Am., Inc., 161 A.D.3d 468, 470 (1st Dept. 2018) (quoting Dillon, 261 A.D.2d at 38).
8. BCRE 230 Riverside LLC v. Fuchs, 59 A.D.3d 282, 283 (1st Dept. 2009).
9. Stephan v. Cawley, 24 Misc. 3d 1204(A), at *2 (Sup. Ct., N.Y. County 2009); Oszustowicz v. Admiral Ins. Brokerage, 25 Misc. 3d 1201(A), at *5 (Sup. Ct., Kings County 2007), aff’d sub nom., Oszustowicz v. Admiral Ins. Brokerage Corp., 49 A.D.3d 515 (2d Dept. 2008); Ramos v. Madison Square Garden Corp., 257 A.D.2d 492, 493 (1st Dept. 1999).
10. See Liberman v. Gelstein, 80 N.Y.2d 429 (1992); L.W.C. Agency, Inc. v. St. Paul Fire & Marine Ins. Co., 125 A.D.2d 371 (2d Dept. 1986).
11. Carter v. Waks, 57 Misc. 3d 1208(A) (Sup. Ct., Queens County 2017) (citing Cammarata v. Cammarata, 61 A.D.3d 912, 915 (2d Dept. 2009)); see also Epifani v. Johnson, 65 A.D.3d 224 (2d Dept. 2009).
12. The SEIU defendants are collectively referred to as the “Funds”.
13. Citing Geddes v. Princess Properties Intern., Ltd., 88 A.D.2d 835 (1st Dept. 1982) (stating, “[a]ny qualification in the pleading thereof by use of the words ‘to the effect’, ‘substantially’, or words of similar import generally renders the complaint defective”); see alsoOffor v. Mercy Med. Ctr., 171 A.D.3d 502, 503 (1st Dept. 2019).
14. Slip Op. at *2.
15. Id. (citing BDCM Fund Adviser, L.L.C. v. Zenni, 98 A.D.3d 915, 917 (1st Dept. 2012); Bell v. Alden Owners, 299 A.D.2d 207, 208 (1st Dept. 2002), lv. denied, 100 N.Y.2d 506 (2003)).
16. Id. (citing Rosenberg v. Metlife, Inc., 8 N.Y.3d 359, 370 (2007)).
17. Id. (citing Franklin v. Daily Holdings, Inc., 135 A.D.3d 87, 93 (1st Dept. 2015); Harris v. Hirsh, 228 A.D.2d 206, 209 (1st Dept. 1996), lv. denied, 89 N.Y.2d 805 (1996)).