This case is not published in a printed volume and its disposition appears in a table in the reporter.
James P. McCormack, J.
The defendant moves this court under motion sequence number two dated May 23, 2007 for an order pursuant to CPLR 3212(a)(7) granting summary judgment. Defendant also moves this court under motion sequence number three for an order pursuant to CPLR 3211 (a)(1) and CPLR 3211 (a)(7) dismissing the complaint in its entirety and/or pursuant to CPLR 3212 granting summary judgement. The defendants' motion for a summary judgment is granted under motion sequence number two and the motion to dismiss is granted under motion sequence number three.
The defendant Peter Fusco is the brother of the plaintiff Janis Fusco. The parties have been estranged since an event which occurred on Mother's Day in 2003 at a family gathering. There have been numerous Family Court matters involving this family. At least one case under Nassau County Family Court Index Number O-14686/04, involving the plaintiff and one of the defendants was tried and dismissed on the merits by the Hon. Steven M. Jaeger on February 28, 2005.
According to the defendant, on Mother's Day 2003, a sixteen year old nephew of both the plaintiff and the defendant exposed himself and masturbated in front of Peter Fusco's five year old daughter. This event caused a huge schism in the family, with various family members taking sides against each other . At some point after Mother's Day the plaintiff, who was a hall monitor at the five year old's elementary school, confronted the five year old child and, according to the defendant, "cross examined" her about the event. According to the defendant, the five year old became frightened and did not want to see or speak to Janis Fusco.
In the action before the court under the original complaint the plaintiff sought damages for defamatory comments and "tortious interference with employment". On December 20, 2004 defendants filed a motion to dismiss the complaint. On March 18, 2005 this court, (Alpert, J.) issued an order granting defendants' motion to dismiss and dismissing the plaintiff's entire complaint. Plaintiff appealed the court's decision and on January 9, 2007, the Second Department affirmed the decision and modified the Supreme Court's order such that the "allegations concerning the alleged filing of a false police report against defendant Peter Fusco" was allowed to survive. Accordingly, at the time the motion for summary judgement under motion sequence two was filed, the only remaining defamatory comment against the only remaining defendant was:
"On or about September 5, 2004, Mr. Fusco falsely accused Plaintiff of filing a complaint with the Nassau County Police Department's 4th Precinct, against him for "pulling a gun on her ". Upon information and belief, Mr. Fusco repeated this allegation to Plaintiff's aunt, Dorothy Marchetti, and several other members of her family".
A party is entitled to summary judgment when it is apparent that there are no issues in factual dispute which require a trial (CPLR 3212(b); see Sillman v Twentieth Century Fox, N.Y.2d 395, 165 N.Y.S.2d 498 (1957). Courts have held that this remedy should only be granted where there are no triable issues of fact (see Concord Limousine, Inc. v Orezzoli, 7 Misc.3d 1026, 801 N.Y.S.2d 232). Issue-finding, rather than issue-determination is the key to the summary judgment procedure ( Esteve v Abad, 271 A.D. 725, 727).
In order to prevail on a motion for summary judgment, the movant must present a prima facie case demonstrating entitlement to judgment as a matter of law due to an absence of any material issues of fact ( Prince v Di Benedetto, 189 A.D.2d 757, 759; Zarr v Piccio, 180 A.D.2d 734, 735). Once the movant has established its prima facie case entitling it to summary judgment as a matter of law, the party opposing a motion for summary judgment must produce evidentiary proof sufficient to require a trial of material questions of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562; Romano v St. Vincent's Medical Center of Richmond, 178 A.D.2d 467).
Plaintiff's affirmation in opposition, appears to only address the arguments under motion sequence two before the court. The remaining statement supra involves Mr. Fusco allegedly making a statement to Dorothy Marchetti and several other family members. For his part, the defendant has provided the court with an affidavit where he expressly denies making the alleged statements (Defendant's Motion Exhibit "F"). In addition, the defendant has provided an affidavit of a witness, Dorothy Marchetti (Defendant's Motion Exhibit "E"), who denied that the defendant ever made a statement to her about a police report and stated that she was not aware that he made any such statement to any other member of her family.
As the Appellate Division Second Department noted in their decision of January 9, 2007, the affidavit of Dorothy Marchetti which was originally presented as part of a Motion to Dismiss was, "more appropriate for inclusion in a motion for summary judgment under CPLR 3212". The court is satisfied that the Affidavit of the Defendant, coupled with the affidavit of Dorothy Marchetti, resolve any issue of fact regarding whether such a statement was ever made to Dorothy Marchetti by Peter Fusco. Although the plaintiff has provided her own affidavit stating that her aunt, Dorothy Marchetti specifically expressed to her that the defendant had told her the plaintiff had filed a police report accusing the defendant of "pulling a gun" on the plaintiff; the court finds such an affidavit self serving and it is uncorroborated. In light of the affidavit provided by Dorothy Marchetti, that such a statement was never made, the court is satisfied that there is no issue left for trial. The plaintiff has failed to name additional individuals to whom these statements were made either in the original complaint or in the amended complaint. If the plaintiff were in possession of names, at this juncture after nearly four years of litigation the names would have been revealed to the court. Without any indication as to what other "members of the family" these alleged statements regarding the police report were made to, the court finds the complaint and amended complaint do not conform to the particularity requirement of CPLR 3106. "Failure to state the particular person or persons to whom the allegedly defamatory statements were made also warrants dismissal" ( see Simpson v Cook Pony Farm Real Estate, Inc., 12 A.D.3d 496). Accordingly the motion under motion sequence two is granted and the original complaint is dismissed pursuant to CPLR 3212.
The Appellate Division Second Department decision which sent the remaining cause of action against the defendant back the Nassau County Supreme Court, was served on Defendant with Notice of Entry on or about April 18, 2007. On May 23, 2007, after realizing the Appellate Division had suggested the defendant's proof was more appropriate for a summary judgment motion, the defendant did, in fact, file a summary judgment motion. In response, days later, the plaintiff filed an Amended Complaint. The Amended Complaint contained the only allegation which survived the January 9, 2007, decision of the Appellate Division, Second Department, ...