In an action, inter alia, to recover damages for defamation, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County, as granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the amended complaint.
A Kings County Criminal lawyer said that the action was commenced to recover damages for defamation and negligent and intentional infliction of emotional distress. The amended complaint alleged that the defendant, who described herself as a community volunteer, “recklessly, maliciously, and with flagrant disregard for the truth” made the “false” and “defamatory” statement that the then 13–year–old plaintiff “had sexual intercourse with her father.” The amended complaint asserted that the defamatory statement was initially made in March 2005 and, “upon information and belief,” the defendant repeated the alleged defamatory statement to others, causing “disgrace, humiliation, [and] disrespect” to the plaintiff within her Orthodox Jewish community. Further, the amended complaint asserted that the defamatory statements allegedly made by the defendant constituted slander per se.
The defendant moved to dismiss the amended complaint for failure to state a cause of action, and the Supreme Court granted that branch of the motion. On a motion to dismiss a complaint for failure to state a cause of action, the court must afford the complaint a liberal construction and 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.
The Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, alleging negligent and intentional infliction of emotional distress. Accepting the allegations in the amended complaint as true, they fail to state a cause of action to recover damages for negligent or intentional infliction of emotional distress.
However, the Supreme Court erred in granting that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action, which sought to recover damages for defamation. “Making a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation”. While “[s]lander as a rule is not actionable unless the plaintiff suffers special damage,” an exception to that rule exists for statements “imputing unchastity to a woman,” which statements would constitute “slander per se”. It is for the court to determine in the first instance whether the particular challenged statements are susceptible of a defamatory meaning. “If the contested statements are reasonably susceptible of a defamatory connotation, then ‘it becomes the jury’s function to say whether that was the sense in which the words were likely to be understood by the ordinary and average listener’ “.
Applying these principles here, and accepting the facts alleged in the amended complaint as true, the plaintiff has alleged a statement made by the defendant that could be reasonably susceptible of a defamatory connotation, specifically, imputing unchastity to the infant plaintiff, so as to state a cause of action for slander per se. Furthermore, as required by CPLR 3016(a), the cause of action to recover damages for defamation set forth the “particular words” alleged to be false and defamatory.
While the dissent further posits that permitting this action to survive past the pleading stage might have a chilling effect on the reporting of suspected cases of child pornography, our holding here is limited to the particular defamatory statement as alleged in the complaint. Again, that statement was that “[the plaintiff] had engaged in sexual intercourse with her father.” The complaint did not allege that the statement was intended as, or constituted, a report that the plaintiff had been the victim of a sex crimes or of child abuse. The Court expressed no opinion as to the potential defamatory meaning of any statement other than that alleged in the complaint. We further note that a qualified privilege protects certain individuals from civil liability arising from reports of child sexual abuse that are based on reasonable cause and made in good faith.
In sum, in the context of this CPLR 3211(a)(7) motion, in which we determine only whether the allegations state a cognizable cause of action, the Court cannot say that the plaintiff’s allegations failed to state a cause of action to recover damages for slander per se.
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