The Volokh Conspiracy
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>$230K #TheyLied Judgment Affirmed in Defamation Case Based on Sexual Assault/Harassment Allegations
Couteller v. Mamakos, decided yesterday by the N.Y. intermediate appellate court, affirmed a default judgment in favor of a defamation plaintiff (for more on the case, see this post about the initial trial decision):
The court providently exercised its discretion by striking defendant's answer based on her "failure to comply with court orders, in the absence of adequate excuses," which permits an inference of willful and contumacious behavior. The record reflects that defendant failed to attend a status conference, did not meet discovery deadlines, and neglected to communicate with counsel, culminating in counsel's application to be relieved. Defendant failed to take any action in this case for over a year, despite the court's instruction to either retain new counsel or notify the court of her intention to proceed pro se. Defendant failed to appear at a scheduled conference notwithstanding the court's warning that a failure to appear would result in sanctions…. Defendant's willingness to permit this case to "linger for years without resolution," caused prejudice to plaintiff and impaired "the efficient functioning of the courts." …
The sole excuse defendant offered was that she did not timely receive the order which directed her to appear because it was sent to the wrong address. However, the record reflects that, about a month before the conference, defendant's former attorney sent the order via certified mail to the same address defendant provided on her motion to vacate. "A demonstrably false excuse will not justify the vacatur of a default."
The court properly concluded that plaintiff established a prima facie case of defamation per se at the inquest…. Defendant's accusations that plaintiff sexually assaulted her charged him with a serious crime, and her statements that plaintiff sexually harassed her and attempted to coerce sexual favors from her in exchange for his assistance with construction work tend to injure him in his trade, business, or profession. Plaintiff, as the resident manager and live-in superintendent of the building where defendant owned a condominium unit, explained that accusations of sexual assault and sexual harassment could "destroy" his reputation, and he would "never be able to get another job in the field."
Although qualified privilege attaches to defendant's statements to the police reporting a crime, and to her comments at a meeting of the board of managers of her building, plaintiff sufficiently demonstrated that defendant published the statements accusing him of sexual assault and sexual harassment with common-law malice. Plaintiff established defendant's "one and only cause for the publication" of the defamatory statements was "spite or ill will."
Plaintiff's credible testimony established that defendant's statements were part of a pattern of retaliation intended to harm his reputation and cause his termination. Plaintiff also proved defendant widely disseminated the defamatory statements to the police, plaintiff's employers, professional colleagues, and every resident of the building, after he called the police to enforce the court order barring her from altering her apartment without permission.
Terence Christian Scheurer represents plaintiff.
