In Doe v. Vajpayee, No. 155961/2020, 2021 WL 3290843 (N.Y. Sup Ct, New York County Aug. 02, 2021) – a sexual harassment, hostile work environment, and sex/gender discrimination case – the court addressed the scenario in which plaintiff sought to characterize, as retaliatory, counterclaims asserted by defendant.
The court initially denied plaintiff’s motion to dismiss defendant’s counterclaim for defamation:
Plaintiff argues that the Court must dismiss Defendant’s counterclaim for defamation since he has not suffered any damages compensable in law and pleads no special damages (Salomone v MacMillan Pub. Co. 77 AD2d 501, 502 [1st Dept 1980]). However, Defendant has plead compensatory damages not less than $500,000.00 per claim and pleads $1,000,000.00 in punitive damages (NYSCEF Doc 25, ¶176 and 177). It is well settled that if upon a reasonable review of the facts asserted in the counterclaim, Plaintiff on the counterclaim would be entitled to recovery on the theory of defamation, the counterclaim sufficiently states a cause of action and will survive a CPLR § 3211(a)(7) motion to dismiss (Davis v Boeheim, 24 NY3d 262, 268 ). Vajpayee alleges in detail in his Verified Answer with Counterclaims that Plaintiff Jane Doe falsely accused him of rape to the NYPD and his estranged wife, thereby exacerbating his divorce action. The Court finds that these actions meet the requisite defamatory elements and sufficiently state a cause of action. The defamatory statements are memorialized in text messages that Vajpayee includes in his Answer and Counterclaims[.]
Next, the court held that plaintiff would not be permitted to amend their complaint to assert claims for retaliation:
Under the Noerr-Pennington doctrine, parties are not subject to liability for petitioning the government, such as by filing litigation. Pozner v. Fox Broadcasting Co., 2019 N.Y. Misc. LEXIS 6143, 2019 N.Y. Slip Op. 33415 (N.Y. Sup Ct, New York County, Nov. 18, 2019 [dismissing plaintiff’s claim for retaliation under New York Executive Law § 296 and New York City Administrative Code § 8-107 in an employment case where plaintiff alleged defendant filed counterclaims in retaliation] [citations omitted]) The immunity is not absolute and does not apply to litigation that is objectively baseless and brought in bad faith. Id.
As in Pozner, the Court finds that Defendant’s Counterclaims are a petition seeking redress from the Court and Defendant’s Counterclaim for defamation was not brought in bad faith and is not objectively baseless. Accordingly, Plaintiff’s request to amend her Complaint under CPLR § 3025(b) to add claims for retaliation under New York Executive Law § 296 and New York City Administrative Code § 8-107 is denied.
The court did, however, grant plaintiff’s motion to dismiss defendant’s counterclaim for intentional infliction of emotional distress, finding that defendant “failed to demonstrate that Plaintiff’s conduct was extreme and outrageous.”