The elements for a cause of action for defamation "are 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." Gaccione v. Plaintiff's first cause of action is for defamation.
Goldman Sachs & Co., 5 N.Y.3d 11, 19 International Oil Field Supply Services Corp. Modernismo Pub., 98 A.D.2d 953, 954 ), and "hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" ( EBC I, Inc. Rye Country Store, Inc., 296 A.D.2d 455 Paulsen v. Notably, on a motion to dismiss, the plaintiff is not obligated to demonstrate evidentiary facts to support the allegations contained in the complaint (see, Stuart Realty Co. Finkelstein & Partners, LLP, 76 A.D.3d 703 ). Better Homes Depot, 97 N.Y.2d 46, 54 Leon v. Conventry First LLC, 13 N.Y.3d 108 Polonetsky v. Harriman Estates Development Corp., 96 N.Y.2d 409, 414 see People ex rel. On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must accept as true, the facts "alleged in the complaint and submissions in opposition to the motion, and accord plaintiffs the benefit of every possible favorable inference," determining only "whether the facts as alleged fit within any cognizable legal theory" ( Sokoloff v. plays no part in the determination of a pre-discovery CPLR 3211 motion to dismiss'" Id. "`Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove claims. The motion will be granted only if the documentary evidence resolves all factual issues and conclusively disposes of the plaintiff's claim. "A motion to dismiss pursuant to CPLR 3211(a)(1) may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law". However, this rule does not apply to legal conclusions lacking factual support, or to factual claims that are contradicted by documentary evidence. In such motions, the facts alleged in the complaint are accepted as true, and the only determination is whether the facts alleged fit within any recognizable legal theory of recovery. (7) the pleading fails to state a cause of action. (1) A defense is founded upon documentary evidence or " party may move for judgment dismissing one or more causes of action asserted against on the ground that: Rule 3211 of the Civil Practice Law and Rules provides, in relevant part that, Maun also argues that Peterson has failed to properly plead a cause of action for defamation.
Maun now moves to dismiss the action arguing that the documentary evidence contained in the board minutes and other documents, conclusively substantiate the truth of most of the statements contained in the emails and that the remaining statements are either non-actionable, constitutionally protected statements of opinion, or statements of fact that lack defamatory meaning. Peterson commenced this action by filing a summons and complaint on Februand served Maun with the commencement documents. Peterson alleges that the contents of the emails were false, defamatory and were published by Maun with the specific intent to damage Peterson's good name and reputation in the community. As part of the election process, Maun created and disseminated email communications to other unit owners of the condominium. She was a candidate in an election of the condominium board, held in Spring 2015, but was defeated by Defendant, Mary Ellen Maun ("Maun"), who also resides at the condominium. Plaintiff, Sandra Peterson ("Peterson"), a unit owner, and resident at Edgemont at Tarrytown Condominium ("the condominium"), is a former president of the board of managers.
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