FILED: NEW YORK COUNTY CLERK 03/04/2021 01:19 PM INDEX NO.

153324/2019
NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 03/04/2021

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY
PRESENT: HON. DAVID BENJAMIN COHEN PART IAS MOTION 58EFM
Justice
---------------------------------------------------------------------------------X INDEX NO. 153324/2019
WOJCIECH CIESZKOWSKI,

Plaintiff,
MOTION SEQ. NO. 004
-v-
ALEXANDER BALDWIN III, DECISION + ORDER ON
MOTION
Defendant.
---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 004) 46, 47, 48, 49, 50,
51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 66, 68, 69, 70, 71, 72, 73, 74
were read on this motion to/for DISMISS .

In this action sounding, inter alia, in assault and battery, plaintiff Wojciech Cieszkowski

moves, pursuant to CPLR 3211(a)(1) and (a)(7), to dismiss the counterclaims for false

imprisonment and defamation asserted by defendant Alexander Baldwin III. After a review of

the parties’ contentions, as well as the relevant statues and case law, the motion is decided as

follows.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are summarized in the order of this Court entered December 26,

2019. Doc. 36. Additional relevant facts are set forth below.

On November 2, 2018, the defendant, an actor known professionally as Alec Baldwin,

got into an altercation with the plaintiff over a parking space. The incident occurred when the

plaintiff pulled into a parking spot for which the defendant maintained he was waiting. The

defendant, who claims that he believed that his wife and child were standing in the spot,

approached the plaintiff, and the men engaged in a physical and verbal confrontation. The
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plaintiff alleges that the defendant shoved him hard and then punched him in the jaw. The

defendant claims that he pushed the plaintiff lightly in the chest twice while they were shouting

in each other’s faces. As a result of the incident, the defendant was charged with attempted

assault in the third degree under Penal Law §§ 110 and 120.00(1), as well as harassment in the

second degree under Penal Law § 240.26(1). On January 23, 2019, the defendant pleaded guilty

to harassment pursuant to Penal Law § 240.26(1). The assault charge has since been dropped.

Once the police arrived, the plaintiff informed them that the defendant had punched him

in the jaw. The defendant was then arrested and detained for several hours while the plaintiff

went to the hospital for treatment. The plaintiff informed the hospital staff that he had been

assaulted and punched in the face during an argument over a parking spot. A physical

examination revealed that the plaintiff had no bruises, cuts, or fractures, and he was told to go

home and take a Tylenol. The plaintiff subsequently spoke to the New York Daily News and New

York Post, telling reporters that he was still sore and recovering from the incident.

The plaintiff commenced the captioned action by filing a summons and complaint on

March 31, 2019, alleging assault, battery, and slander per se. Doc. 1. On May 17, 2019, the

plaintiff amended his complaint to allege that he was entitled to costs, attorneys’ fees, and

punitive damages. Doc. 15.

On November 1, 2019, the defendant commenced an action against the plaintiff in this

Court under Index Number 160689/10, alleging false imprisonment and defamation per se. See

Ind. No. 160689/19, Doc. 1. By so-ordered stipulation entered January 9, 2020, the captioned

action commenced by the plaintiff and the action commenced by the defendant were

consolidated for all purposes under the Index Number of the captioned action. Doc. 40.

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The defendant joined issue by his verified answer filed January 31, 2020. Docs. 42, 44.

By stipulation filed February 3, 2020, the plaintiff’s time to respond to the defendant’s

complaint was extended until February 21, 2020. Doc. 43. In lieu of answering, the plaintiff

moved to dismiss the defendant’s claims for false imprisonment and defamation per se, which

claims had originally been asserted in the defendant’s complaint under Index Number

160689/19. Doc. 46.1

LEGAL CONCLUSIONS

Standard On Motion To Dismiss

When deciding a motion to dismiss pursuant to CPLR 3211, the court should give the

pleading a “liberal construction, accept the facts alleged in the complaint to be true and afford

the plaintiff the benefit of every possible favorable inference” (Landon v Kroll Laboratory

Specialists, Inc., 22 NY3d 1, 5-6 [2013]; Faison v Lewis, 25 NY3d 220 [2015]). However, if a

complaint fails within its four corners to allege the necessary elements of a cause of action, the

claim must be dismissed (Andre Strishak & Associates, P.C. v Hewlett Packard & Co., 300

AD2d 608 [2d Dept 2002]). A motion to dismiss pursuant to CPLR 3211(a)(1) should not be

granted unless the documentary evidence submitted is such that it resolves all factual issues as a

matter of law and conclusively disposes of the claims set forth in the pleading (Art & Fashion

Grp. Corp. v Cyclops Prod., Inc., 120 AD3d 436, 438 [1st Dept 2014]). Under CPLR 3211(a)(7),

the court “accepts as true the facts as alleged in the complaint and affidavits in opposition to the

motion, accords the plaintiff the benefit of every possible favorable inference, and determines

only whether the facts as alleged manifest any cognizable legal theory” (Elmaliach v Bank of

1
The plaintiff refers to the claims asserted by the defendant as counterclaims, and, although not denominated as
such by the stipulation of consolidation, this Court adopts that terminology. (See All Season Awning Corp. v
Hartofelis, 51 Misc3d 132[A] [App Term 2d Dept 2016] [where actions commenced by plaintiff and defendant were
consolidated under plaintiff’s Index Number, defendant’s action was deemed a counterclaim]).
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China Ltd., 110 AD3d 192, 199 [1st Dept 2013] [quoting Sokoloff v Harriman Estates Dev.

Corp., 96 NY2d 409, 414 [2001]).

False Imprisonment

In his first counterclaim, for false imprisonment, the defendant alleges that, by calling the

police and falsely reporting that he “violently assaulted” the plaintiff, leading to his [the

defendant’s] arrest, the plaintiff is liable for false imprisonment. In order to plead a cause of

action for false arrest or false imprisonment, the defendant must show that: “(1) the [plaintiff]

intended to confine the [defendant]; (2) the [defendant] was aware of the resulting confinement;

(3) the [defendant] did not consent to the confinement; and (4) the confinement was not

privileged” (Rivera v County of Nassau, 83 AD3d 1032, 1033 [2d Dept 2011]). However, the

law is more nuanced where, as here, the individual against whom false imprisonment is being

alleged is a civilian, and not a police officer. “In order to hold [the] civilian [plaintiff] liable for

false arrest, the [defendant] must establish that the [plaintiff] did not merely report a crime to the

police or participate in the prosecution, but actively importuned the police to make an arrest

without ‘reasonable cause [to believe] in the [defendant’s] culpability’” (Id.; Defilippo v County

of Nassau, 183 AD2d 695, 696 [2d Dept 1992]). “[I]f the [plaintiff] directed an officer to take the

[defendant] into custody, he [would be] liable for false imprisonment; but if he merely made his

statement, leaving it to the officer to act or not act as he thought proper, he [would] not [be]

liable” (Vernes v Phillips, 266 NY 298, 301 [1935]; see also Du Chateau v Metro-North R.R.

Co., 253 AD2d 128, 131 [1st Dept 1999]).

The defendant fails to state a cause of action for false imprisonment. Even viewing the

defendant’s allegations in their most favorable light, his claim still fails to meet the

aforementioned burden. Assuming, arguendo, that the plaintiff did call the police with the

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malicious intention of having the defendant falsely arrested, the facts assumed are still

insufficient to establish that the plaintiff actively induced the officer to arrest the defendant,

rather than merely reporting the incident. “‘The [plaintiff] must have affirmatively induced the

officer to act, such as [by] taking an active part in the arrest and procuring it to be made sure or

showing active, officious and undue zeal, to the point where the officer is not acting of his own

volition’” (Oszustowicz v Admiral Ins. Brokerage Corp., 49 AD3d 515, 516 [2d Dept 2008];

quoting Mesiti v Wegman, 307 AD2d 339, 340 [2d Dept 2003]). The defendant does not

demonstrate, or even suggest, that the plaintiff in any way harassed him or pushed the police

towards arresting him. Despite the defendant’s claim that the plaintiff lied when he told the

police that the defendant punched him, the defendant does not allege that the police used

anything other than their own judgment in arresting him.

The defendant further alleges that he was falsely imprisoned during his arrest because he

was unable to leave the crime scene, despite the fact that the plaintiff did not physically confine

him to the site of the incident. However, this claim fails as well. In Arrington v Liz Claiborne,

Inc., 260 AD2d 267, 267-268 (1st Dept 1999), the Appellate Division, First Department held that

“[p]laintiffs’ fears that they would be arrested or fired did not constitute detaining force

necessary to establish the tort of false imprisonment.”

Here, the defendant feared that he would be arrested if he left the scene after the police

were notified about the incident. Thus, the factual difference between this case and Arrington, in

which the plaintiffs feared that the police would be called if they did not stay at the scene, is

subtle and inconsequential. In both cases, the parties claiming false imprisonment remained on

the scene because they were afraid of being arrested, and Arrington makes it clear that such a

fear is insufficient to establish a claim for false imprisonment. A core component of a false

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imprisonment claim is evidence that the party against whom the said claim is being alleged

confined the other party (see generally Broughton v State, 37 NY2d 451 [1975]). Since the

plaintiff did not confine the defendant, the plaintiff’s motion to dismiss the defendant’s

counterclaim sounding in false imprisonment is granted.

Slander Per Se

The defendant’s second counterclaim seeks damages for slander per se. Specifically, the

defendant alleges four different instances of defamation by the plaintiff. First, the defendant

alleges that the plaintiff defamed him when he (the plaintiff) told the police at the scene that the

defendant “assaulted” him over a trivial matter by “punching” him in the “face”. The defendant

further alleges that he was defamed when the plaintiff made similar comments to the medical

staff at the hospital. Additionally, the defendant alleges that, on the day after the incident, the

plaintiff defamed him by telling the New York Post and New York Daily News that he was still

“sore” and “recovering” from his injuries. Finally, the defendant alleges that the plaintiff

defamed him in court when he (the plaintiff) stated, under oath, that the defendant punched him

in the face.

Defamation is the making of a false statement about a person that "tends to expose the

plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him [or

her] in the minds of right-thinking persons, and to deprive him [or her] of their friendly

intercourse in society" (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 379 [1977], rearg

denied, 42 NY2d 1015 [1977], cert denied 434 US 969 [1977]). The elements are a (1) false

statement, (2) published without privilege or authorization to a third party, (3) constituting fault

as judged by, at a minimum, a negligence standard, and (4) which cause special harm or

constitute defamation per se (Frechtman v Gutterman, 115 AD3d 102 [1st Dept 2014]).

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The plaintiff argues that none of the four allegedly defamatory statements are actionable.

Initially, he maintains that his statements to reporters do not support a defamation claim. “In

order to establish a prima facie case of defamation, plaintiffs must show that the matter published

is ‘of and concerning them’” (Three Amigos SJL Rest., Inc v CBS News Inc., 28 NY3d 82, 86

[2016], quoting Julian v American Bus. Consultants, 2 NY2d 1, 17 [1956]). “Although it is not

necessary for the plaintiffs to be named in the publication, they must plead and prove that the

statement referred to them and that a person hearing or reading the statement reasonably could

have interpreted it as such” (Id.). Given the context of the parties’ interaction as the basis for the

publications’ interest in the plaintiff’s comments, the defendant has adequately pleaded that a

reasonable person would view the plaintiff’s comments in light of reports that the defendant

punched him in the face.

The plaintiff is not entitled to dismissal of the defamation claim insofar as it arises from

statements he made to the police and medical professionals. “When subject to this form of

[qualified] privilege, statements are protected if they were not made with ‘spite or ill will’ or

‘reckless disregard of whether they were false or not’” (Stega v New York Downtown Hosp., 31

NY3d 661, 670 [1978], quoting Liberman v Gelstein, 80 NY2d 429, 437-438 [1992]). “Only

those who act out of malice, rather than public interest, need hesitate before speaking” (Toker v

Pollak, 44 NY2d 211, 222 [1978]). Taking all facts as true and considering the defendant’s

allegations in a light most favorable to him, this Court finds that he has adequately pleaded this

claim. Specifically, the defendant has alleged that the plaintiff’s statements were deliberately

and falsely made to the police and medical professionals with the intention of injuring the

defendant’s reputation while simultaneously enhancing the chances of success of his own claims.

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However, the plaintiff is entitled to absolute immunity for comments and writings he

made under oath to the New York County District Attorney’s office, in which he represented that

the defendant punched him in the face and caused him pain. “Generally, statements made at all

stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the

court are accorded an absolute privilege, as long as the statements may be considered in some

way ‘pertinent’ to the issue[s] in the proceeding” (Weinstock v Sanders, 144 AD3d 1019, 1020

[2d Dept 2016] [citations omitted]). Since the plaintiff’s statements were clearly pertinent to the

criminal charges brought against the defendant and were made during the course of court

proceedings, the plaintiff’s motion is granted with respect to the same.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court considers only “whether

any reading of the complaint supports the defamation claim . . . the motion to dismiss must be

denied if the communication at issue, taking the words in their ordinary meaning and in context,

is also susceptible to a defamatory connotation” (Davis v Boeheim, 24 NY3d 262, 272 [2014]).

Here, the defendant adequately alleges that the plaintiff made false statements, without

authorization, to the police, medical professionals, and the media indicating that the defendant

deliberately punched him in the face, and was still suffering the effects of those injuries. The

plaintiff was not merely expressing his opinion about the incident, but instead presented his

statements as a factual analysis of the situation (see generally Dillon v City of New York, 261

AD2d 34, 38 [1st Dept 1999]). Additionally, the plaintiff presents his own interpretation of the

surveillance footage of the incident without disproving the allegations in the defendant’s

counterclaims. “If the ‘documentary evidence’ is submitted specifically to establish the truth of

the contents, it must be of such nature and reliability as to be ‘essentially undeniable’

(Fontanetta v Jane Doe 1, 73 AD3d 78, 84-85 [2d Dept 2010]) and must ‘utterly refute’ (Goshen

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v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]) [a] factual allegation that the

defamatory statement is false” (Greenberg v Spitzer, 155 AD3d 27, 45 [2d Dept 2017]). The

plaintiff must meet a high bar of proof on his motion to dismiss (Id. at 46) and, since he fails to

definitively prove the truthfulness of his interpretation of the incident, he does not meet this

burden.

Since the defendant does not allege special harm, this Court must consider whether the

plaintiff’s statements constitute slander per se, as the defendant’s complaint alleges. Slander per

se is a claim in which the alleged false statement (1) charges the plaintiff with a serious crime;

(2) tends to injure the plaintiff in his or her trade, business or profession; (3) imputes to the

plaintiff a "loathsome disease"; or (4) imputes unchastity to a woman (Nolan v State, 158 AD3d

186 [1st Dept 2018]).

The plaintiff maintains that, even if what he said was false, he did not accuse the

defendant of a serious crime. “The law distinguishes between serious and relatively minor

offenses, and only statements regarding the former are actionable without proof of damage”

(Liberman v Gelstein, 80 NY2d 429, 436 [1992]). Thus, this Court must consider what

constitutes a serious crime, and whether the plaintiff’s statements effectively accuse the

defendant of such a crime. Crimes generally considered serious are murder, burglary, larceny,

arson, rape, and kidnapping (Id.). Although one would presumably not consider a punch in the

face to be in the same category as the aforementioned felonies, courts in New York have

recognized accusations of other felonies and serious misdemeanors as giving rise to defamation

claims, especially when such claims involve accusations of physical injury (Sprewell v NYP

Holdings, Inc., 1 Misc 3d 847, 852 [Sup Ct, NY County 2003]; see also DeFillippo v Xerox

Corp., 223 AD2d 846, 849 [3rd Dept 1996]). Although it is unnecessary for the purposes of this

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motion to decide whether the plaintiff’s accusations were for a felony assault or a lesser

misdemeanor charge, it is evident that the plaintiff claims that the defendant committed physical

violence, and this is sufficient to allege a serious crime (Liberman at 436). Thus, the defendant

has adequately pleaded a claim of slander per se.

Accordingly, it is hereby:

ORDERED that the branch of the plaintiff’s motion seeking to dismiss the defendant’s

counterclaim alleging false imprisonment is granted; and it is further

ORDERED that the branch of the plaintiff’s motion seeking to dismiss the defendant’s

counterclaim for defamation per se is granted only to the extent that said counterclaim is

predicated on any written and oral statements made by the plaintiff to the New York County

District Attorney’s Office, and is otherwise denied; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that the parties are to appear for a preliminary conference on May 3, 2021 at

10:30 a.m. unless they complete a bar coded preliminary conference form (to be provided by the

Part 58 Clerk) and email the same to the Part 58 Clerk at [email protected] at

least two business days prior to that date.

3/3/2021
DATE DAVID BENJAMIN COHEN, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED DENIED GRANTED IN PART X OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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