FILED: PUTNAM COUNTY CLERK 04/19/2024 05:26 PM
`NYSCEF DOC. NO. 20
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`INDEX NO. 501270/2023
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`RECEIVED NYSCEF: 04/19/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF PUTNAM
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`JUSTINE YULA POTENZO
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`-against-
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` Plaintiff,
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`NOTICE OF ENTRY
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`Index No. 501270/2023
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`NEW YORK CITY DEPARTMENT OF EDUCATION
`and THE CITY OF NEW YORK,
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` Defendants.
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`PLEASE TAKE NOTICE that within is a true and correct copy of the Order,
`signed by the HON. GINA C. CAPONE, J.S.C., dated on the 19th day of April, 2024, which was
`duly entered in the Putnam County Clerk’s Office of the Supreme Court of the State of New York on
`April 19, 2024.
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`Dated: New York, NY
` 19th day of April, 2024
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` By:____________________________
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`Brandon Weisman
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`Assistant Corporation Counsel
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`TO: LAW OFFICE OF HARRY I KATZ, PC
`Attorneys for Plaintiff Justine Yula Potenzo
`6125 Utopia Parkway
`Fresh Meadows, New York 11365
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`1 of 8
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`HON. SYLVIA O. HINDS-RADIX
`Corporation Counsel of the
`City of New York
`Attorney for Defendants
`100 Church Street, Rm. 2-109B
`New York, New York 10007
`(212) 356-2286
`bweisman@law.nyc.gov
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`/s/
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`FILED: PUTNAM COUNTY CLERK 04/19/2024 05:26 PM
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`NYSCEF DOC. NO. 19NYSCEF DOC. NO. 20
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`INDEX NO. 501270/2023INDEX NO. 501270/2023
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`RECEIVED NYSCEF: 04/19/2024RECEIVED NYSCEF: 04/19/2024
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`To commence the statutory time period
`for appeals as of right (CPLR 5513[a]), you
`are advised to serve a copy of this order,
`with notice of entry, upon all parties.
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF PUTNAM
`-------------------------------------------------------------------------X
`JUSTINE YULA POTENZO
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`Plaintiff,
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`DECISION AND ORDER
`Index No. 501270/2023
`Motion Seq. No. 1
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`-against-
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`NEW YORK CITY DEPARTMENT OF EDUCATION and
`THE CITY OF NEW YORK
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`Defendant.
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`CAPONE, J.S.C.
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`The following papers, numbered 1-8, were read and considered on the Defendants’
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`motion to dismiss the complaint.
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`PAPERS
`Notice of Motion/ Attorney Affirmation in Support/ Exhibits A-C/
`Memorandum of Law in Support
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`Attorney Affirmation in Opposition
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`Memorandum of Law in Reply
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`NUMBERED
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` 7
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` 8
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`By summons and verified complaint filed August 16, 2023, the Plaintiff commenced
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`this action against the Defendants and seeks to recover damages for defamation,
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`interference with prospective business relations and intentional infliction of emotional
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`distress.
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`The Plaintiff contends that, following her involuntary resignation from teaching with
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`the New York City Department of Education, a “problem code” was allegedly either
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`attached to her fingerprints or placed in her personnel file and, thereafter, she has been
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`unable to obtain employment as a teacher in any other school district.
`1
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`1 of 62 of 8
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`FILED: PUTNAM COUNTY CLERK 04/19/2024 05:26 PM
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`NYSCEF DOC. NO. 19NYSCEF DOC. NO. 20
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`INDEX NO. 501270/2023INDEX NO. 501270/2023
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`RECEIVED NYSCEF: 04/19/2024RECEIVED NYSCEF: 04/19/2024
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`According to the Verified Complaint, the Plaintiff was a math cluster teacher for
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`grades K-5 at PS X014 beginning in September 1999. She alleges that, in or about 2021, the
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`Defendants issued a COVID vaccine mandate and, due to religious reasons, she declined
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`the vaccine and her applications to be exempt from vaccination were denied. Accordingly,
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`on or about December 21, 2021, “plaintiff was forced to resign from her employment with
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`defendant” (NYSCEF Doc 2, p 3). She alleges that, on or about February 10, 2023, she
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`learned that “her fingerprints were tagged by the defendant under “problem code” by the
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`defendant’s Human Resources Office of Personnel Investigations” (NYSCEF Doc 2, p 3).
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`The Plaintiff alleges that, “upon information and belief, the ‘problem code’ was placed on
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`plaintiff’s file solely because she declined the Covid vaccine” (NYSCEF Doc 2, p 3). She
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`alleges, again on information and belief, that “plaintiff’s fingerprints with a ‘problem code’
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`went to the FBI and New York Crime Justice Service” (NYSCEF Doc 2, p 4). She also alleges,
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`upon information and belief, that “non Department of Education schools that want to learn
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`whether a former Department of Education employee has ‘problem code’ in his or her
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`personnel file can readily do so” (NYSCEF Doc 2, p 4). She asserts that she has applied for
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`over 65 teaching position and has not received a single job offer. She further alleges that
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`she has not been hired by prospective employers because of the “problem code” in her
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`personnel file (NYSCEF Doc 2, p 4). As such, she seeks to recover damages under the
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`theories of recovery listed above.
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`Prior to filing an Answer, the Defendants have now moved pursuant to CPLR 3211,
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`to dismiss the complaint.
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`“On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be
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`afforded a liberal construction and the plaintiff's allegations are accepted as true and
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`accorded the benefit of every possible favorable inference” (Granada Condominium III
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`Assn. v Palomino, 78 AD3d 996, 996 [2d Dept 2010]; see Leon v Martinez, 84 NY2d 83, 87
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`2 of 63 of 8
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`FILED: PUTNAM COUNTY CLERK 04/19/2024 05:26 PM
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`NYSCEF DOC. NO. 19NYSCEF DOC. NO. 20
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`INDEX NO. 501270/2023INDEX NO. 501270/2023
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`RECEIVED NYSCEF: 04/19/2024RECEIVED NYSCEF: 04/19/2024
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`[1994]). However, on a motion to dismiss pursuant to CPLR 3211(a)(7), “bare legal
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`conclusions are not presumed to be true” (Khan v MMCA Lease, Ltd., 100 AD3d 833, 833
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`[2d Dept 2012]; see Gillings v New York Post, 166 AD3d 584, 855-856 [2d Dept 2018]). A
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`motion to dismiss pursuant to CPLR 3211(a)(1) may be appropriately granted “only where
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`the documentary evidence utterly refutes plaintiff's factual allegations, conclusively
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`establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d
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`314, 326 [2002]; see Gillings v New York Post, 166 AD3d at 856).
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`Defamation
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`To state a cause of action for defamation, a plaintiff must allege that the defendant
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`published a false statement, without privilege or authorization, to a third party, constituting
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`fault as judged by, at a minimum, a negligence standard, and it must either cause special
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`harm or constitute defamation per se (see Rosner v Amazon.com, 132 AD3d 835 [2d Dept
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`2015]). As a rule, “a cause of action predicated on alleged defamatory statements is
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`subject to dismissal if the statements are insufficiently pleaded, constitute nonactionable
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`opinion, or are subject to a qualified privilege defense” (Gottlieb v Wyne, 159 AD3d 799,
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`800 [2d Dept 2018]).
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`The Plaintiff’s verified complaint fails to state a cause of action for defamation. The
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`allegations contained in the Plaintiff’s complaint do not satisfy the special pleading
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`requirements of CPLR 3016(a), as it does not set forth the actual words complained of, and
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`it failed to specify the particular persons to whom the Defendants allegedly published the
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`alleged defamatory statement(s) (see Golia v Vierira, 162 AD3d 865, 869 [2d Dept 2018]; cf.
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`Wilcox v Newark Valley Cent. School Dist., 74 AD3d 1158 [3d Dept 2010]). The verified
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`complaint alleges that the defendant “via the ‘problem code’ has issued misleading
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`statements and has committed defamation, slander, and libel in derogation of the rights of
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`plaintiff and has been continuing to do so” and that the defendants “made and continues
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`3 of 64 of 8
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`FILED: PUTNAM COUNTY CLERK 04/19/2024 05:26 PM
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`NYSCEF DOC. NO. 19NYSCEF DOC. NO. 20
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`INDEX NO. 501270/2023INDEX NO. 501270/2023
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`RECEIVED NYSCEF: 04/19/2024RECEIVED NYSCEF: 04/19/2024
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`to make false and misleading statements, knowing the same to be false or in reckless
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`disregard of whether they are false or not; for purpose and with the intent of harming and
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`damaging the plaintiff” (NYSCEF Doc 2, p 5). No where in the complaint does the Plaintiff
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`identify the actual content of the alleged defamatory statement. In fact, at one point in the
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`verified complaint, the code is described as “generic” (NYSCEF Doc 2, p 6). Indeed, much
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`of the discussion contained in the motion papers make clear that, other than alleging that
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`a problem code exists in Plaintiff’s personnel file, there is nothing specifically identifying
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`how the presence of that code itself constitutes an actionable defamatory statement.
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`Moreover, while the complaint alleges that the Plaintiff has not been hired by prospective
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`employers because of the “problem code” in her personnel file and asserts, upon
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`information and belief, that other non Department of Education entities may “readily find
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`out” if an employee has a problem code in an employee’s file, there is nothing contained in
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`the complaint that asserts that the alleged presence of a problem code was, in fact,
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`published to any of the prospective employers. Accordingly, having failed to state a claim
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`upon which relief can be granted pursuant to CPLR 3211(a)(7) and CPLR 3016(a), the first
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`cause of action of the Plaintiff’s complaint must be dismissed.
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`Tortious Interference with Prospective Business Relations
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`“To prevail on a claim for tortious interference with business relations, a party must
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`prove: (1) that it had a business relationship with a third party; (2) that the defendant knew
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`of that relationship and intentionally interfered with it; (3) that the defendant acted solely
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`out of malice or used improper or illegal means that amounted to a crime or independent
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`tort; and (4) that the defendant's interference caused injury to the relationship with the
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`third party” (106 N. Broadway, LLC v Lawrence, 189 AD3d 733, 741 [2d Dept 2020]; see
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`Stuart’s, LLC v Edelman, 196 AD3d 711 [2d Dept 2021]; 684 E. 222nd Realty Co., LLC v
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`Sheehan, 185 AD3d 879, 879–880 [2d Dept 2020]). “[C]onduct constituting tortious
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`4 of 65 of 8
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`FILED: PUTNAM COUNTY CLERK 04/19/2024 05:26 PM
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`NYSCEF DOC. NO. 19NYSCEF DOC. NO. 20
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`INDEX NO. 501270/2023INDEX NO. 501270/2023
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`RECEIVED NYSCEF: 04/19/2024RECEIVED NYSCEF: 04/19/2024
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`interference with business relations is, by definition, conduct directed not at the plaintiff
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`itself, but at the party with which the plaintiff has or seeks to have a relationship” (Carvel
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`Corp. v Noonan, 3 NY3d 182, 192 [2004]).
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`The Plaintiff’s verified complaint fails to state a cause of action for tortious
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`interference with prospective business relations. Indeed, there is no allegation that the
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`Plaintiff was in a business relationship with any third party. As explained by the Plaintiff
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`herself, she was seeking employment with various employers. She does not allege that she
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`had any prior relationship with any of the employers or had some kind of relationship that
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`would entitle her to become employed by them. Moreover, to the extent that the Plaintiff
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`alleges that the inclusion of an alleged problem code on the Plaintiff’s personnel file
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`constituted the kind of interference implicated by these kinds of causes of action, there is
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`no allegation that the inclusion of such a code was done out of malice or was otherwise
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`illegal, criminal, or an actionable tort. Accordingly, having failed to sufficiently allege a
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`cause of action for tortious interference with prospective business relations, the Plaintiff’s
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`second cause of action must also be dismissed.
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`Intentional Infliction of Emotional Distress
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`In order to establish intentional infliction of emotional distress, the plaintiff must
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`prove four elements: (1) extreme and outrageous conduct; (2) intent to cause, or disregard
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`of a substantial probability of causing, severe emotional distress; (3) a causal connection
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`between the conduct and injury; and (4) severe emotional distress (see Capellupo v
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`Nassau Health Care Corp., 97 AD3d 619, 623 [2d Dept 2012]). The tort of intentional
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`infliction of emotional distress predicates liability on the basis of conduct which is “so
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`outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
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`decency, and to be regarded as atrocious, and utterly intolerable in a civilized community”
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`(Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983][internal quotation marks
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`5 of 66 of 8
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`FILED: PUTNAM COUNTY CLERK 04/19/2024 05:26 PM
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`NYSCEF DOC. NO. 19NYSCEF DOC. NO. 20
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`INDEX NO. 501270/2023INDEX NO. 501270/2023
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`RECEIVED NYSCEF: 04/19/2024RECEIVED NYSCEF: 04/19/2024
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`omitted]). “[T]he requirements of the rule are rigorous, and difficult to satisfy” (Howell v
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`New York Post Co., 81 NY2d 115, 122 [1993] [internal quotation marks omitted] ). Without
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`“sufficiently outrageous” conduct, no claim for intentional infliction of emotional distress
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`can be established (id.).
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`The Plaintiff’s verified complaint fails to state a cause of action for intentional
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`infliction of emotional distress. The verified complaint fails to allege extreme and
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`outrageous conduct by the Defendants. Taking the allegations of the complaint as true and
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`drawing every favorable inference in the Plaintiff’s favor as we must, the allegations are
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`limited to the claim that the Defendants tagged the Plaintiff’s fingerprints under “problem
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`code,” did not give the plaintiff an opportunity to clear her “problem code” from her
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`personnel file and data base, and acted with the intent to cause, or recklessly disregarded
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`a substantial probability of causing, plaintiff severe emotional distress” (NYSCEF Doc 2, p
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`3, 6). These bare assertions are insufficient to state a claim for intentional infliction of
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`emotional distress as the alleged conduct by the Defendants falls far below the bar of
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`conduct “so outrageous in character and so extreme in degree as to go beyond all possible
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`grounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
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`community” (Murphy v American Home Products, 58 NY2d at 303).
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`In light of this Court’s determination, the remaining contentions raised by the
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`Defendants in support of their motion need not be reached. Accordingly, it is hereby
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`ORDERED that the Defendants’ motion to dismiss the complaint pursuant to CPLR
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`3211 is granted in its entirety; and it is further
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`ORDERED that the action is dismissed.
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`The foregoing constitutes the Decision and Order of the Court.
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`Dated: April 19, 2024
`Carmel, New York
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`___________________________________
`HON. GINA C. CAPONE, J.S.C.
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`6 of 67 of 8
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`FILED: PUTNAM COUNTY CLERK 04/19/2024 05:26 PM
`NYSCEF DOC. NO. 20
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`INDEX NO. 501270/2023
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`RECEIVED NYSCEF: 04/19/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF PUTNAM
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`JUSTINE YULA POTENZO,
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`-against-
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`Plaintiff,
`Index No: 501270/2023
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`AFFIDAVIT OF SERVICE
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`THE CITY OF NEW YORK and the NEW YORK CITY
`DEPARTMENT OF EDUCATION,
`Defendants.
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`STATE OF NEW YORK ) : SS.:
`COUNTY OF NEW YORK )
`MADELINE ABO, being duly sworn deposes and says that:
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`1.The deponent is not a party to the action and is 18 years of age or older.
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`2. On the 19th day of April, 2024, the deponent served the annexed Notice of Entry upon the
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`following person or persons:
`LAW OFFICE OF HARRY I KATZ, PC
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`Attorneys for Plaintiff Justine Yula Potenzo
`6125 Utopia Parkway
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`Fresh Meadows, New York 11365
`by mailing the papers to the person at the address designated by the person for that purpose, by depositing
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`the same in a first class, postpaid, properly addressed wrapper, in a post office or official depository under
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`the exclusive care and custody of the United States Postal Service within the State of New York.
`0(1\ c��
`MADELINE ABO
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`Sworn to before me this
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`19TH day of April, 2024
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`�
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`NOTARYLlC
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`£.
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`8 of 8
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