Recitation in accordance with CPLR 2219(a) of the papers considered on Defendant's motion for an order, presumably pursuant to CPLR 2004 and 3212 (a), for leave to move late for summary judgment; and Defendant's motion for an order, pursuant to CPLR 3212, dismissing the Verified Complaint:

-Notice of Motion for Extension of Time to Serve Motion

Affidavit of Jonathan R. Nelson in Support of Motion for Extension of Time to Serve Motion

Exhibits A-B

-Affirmation in Opposition

-Notice of Motion for Summary Judgment

Affidavit of Jonathan R. Nelson in Support of Motion for Summary Judgment

Affidavit of Nizam Khan in Support of Motion for Summary Judgment

Exhibits A-I

Affidavit of Eileen Viera in Support of Motion for Summary Judgment

Affidavit of Aida Badia in Support of Motion for Summary Judgment

Affidavit of Blanche Fanaro in Support of Motion for Summary Judgment

-Amended Memorandum of Law in Support of Motion for Summary Judgment

-Affirmation in Opposition

Exhibits A-D

-Reply Affirmation of Jonathan R. Nelson in Further Support of Motion for Summary Judgment [*2]

Plaintiff was represented by Bruce S. Reznick, Esq. of Bruce Reznick, P.C. Defendant was represented by Jonathan Robert Nelson, Esq. of the Law Offices of Jonathan Robert Nelson, P.C.

In this action for defamation, defendant Nizam Khan moves in the first instance for an order, presumably pursuant to CPLR 2004 and 3212 (a), granting him leave to move for summary dismissal of the Verified Complaint of plaintiff Gloria Kaplan. Defendant moves separately for summary dismissal pursuant to CPLR 3212.

Plaintiff filed her note of issue on November 4, 2010. Pursuant to CPLR 3212 and Part C Rule 6 of the Kings County Supreme Court Uniform Civil Term Rules, any motion for summary judgment was required to be made within 60 days, i.e., no later than January 3, 2011, but the Court might grant an extension of the deadline for good cause. (See Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725,726 [2004]; Kennedy v Bae, 51 AD3d 980, 981 [2d Dept 2008]; see also CPLR 2004].) Defendant served his motion for an extension on January 4, and requested leave to file his motion by February 2. Defendant's motion for summary judgment was served on February 2 and is deemed made on that date (see CPLR 2211.)

Contrary to Plaintiff's initial contention, Defendant's motion for the extension need not be denied solely because the motion was made after the expiration of the 60-day period. (See CPLR 2004.) The dispositive question is whether Defendant has shown good cause for not meeting the 60-day deadline. For this purpose, Defendant submits the affirmation of his physician, who asserts that, at least since his collapse on December 19, 2010, she has been treating Defendant for a "serious, life-threatening stress-related condition," and that she "would consider it beyond [Defendant's] limit to work with his lawyers to draft an affidavit to refute the allegations of the complaint in this lawsuit," "an extremely stressful task that is dangerous to his health." (See medical doctor affirmation in support of motion to dismiss ¶ ¶ 2, 3, 6.)

Defendant's showing establishes good cause prima facie, and is not disputed factually by Plaintiff. Nor does Plaintiff make any claim or showing of any prejudice that would result from granting Defendant the extension requested. Indeed, since the extension requested and complied with still puts the motion within the 120-day period prescribed by CPLR 3212 (a), and no unique circumstance appears in the record, a lack of prejudice is presumed.

Defendant's motion for leave to serve a late motion for summary judgment is, therefore, granted.

As noted above, this action is essentially for defamation. Specifically, the Verified Complaint alleges that Defendant called Plaintiff a "whore" and stated that she "ran a house of prostitution." Defendant's Verified Answer With Affirmative Defenses denies making the alleged statements, but also asserts privilege. With this motion, Defendant moves for an order, pursuant to CPLR 3212, dismissing the Verified Complaint. [*3]

Defendant Nizam Khan is the pastor of the Christian Church of Canarsie, a member of Christian Church of North America, a Pentecostal denomination. The Church currently has between 80 and 100 members. Plaintiff was a member of the Church from approximately February 2005 until approximately September 2007. The statements about which Plaintiff complains were allegedly made at a prayer meeting at the Church on January 2, 2007. According to Plaintiff:

"I had gone to the church on a Tuesday morning for prayer, and I had the word of God with me to present to the other prayers —

...

During that meeting, Pastor Khan, he was my pastor at the time, said sister Kaplan, are Laura and Kevin living in your house? And I replied yes. And he continue and said to me, you are running a house of prostitution and you are a whore, and you have made it just like the house of prostitution that was in the Bible when Hoffney and Phineas took in prostitutes into the temple.

I was shocked. And several of the members came over to me, put their finger in my face and screamed at me, repent, repent, repent, and I answered repent yourself.

I could honestly say it was a devastating moment.

...

There was a man there, brother Mel Choutie, who tried to intervene and bring some sort of peace, and Mr. Khan had some words with him and then Aida Baidia got up and she was very hurt and pointed at Mel, that he was the cause of all this, and then it ended." (Examination Before Trial of Gloria Kaplan at 11-13 [emphasis added].)

In support of his motion, Pastor Khan submits his own affidavit in which he denies Plaintiff's account (see affidavit of Nizam Khan in support of motion for summary judgment ¶ ¶ 46, 53.) Pastor Khan also submits the affidavits of two Church members who attended the January 2, 2007 prayer meeting, and who support his denials. (See affidavit of Eileen Viera in support of motion for summary judgment ¶ ¶ 20, 21; affidavit of Aida Badia in support of motion for summary judgment ¶ ¶ 18, 19.)

Pastor Khan offers his own account of the exchange with Ms. Kaplan, as well as his explanation of the statements he made at the prayer meeting. As background, Pastor Khan's daughter Laura had previously left his house and was living with a married man, Kevin, in an apartment in a house owned by Ms. Kaplan. Also, at the time of the meeting, the Church was in the midst of a governance dispute. According to Pastor Khan:

"After saying individual prayers, the people who were present for the prayer meeting got up and gathered in a circle, holding hands. While we were holding hands and praying, one of the [*4]members of the Church board, Kadmel Choutie, interrupted the prayer meeting and began to say negative things about me, attacking me verbally.

While Mr. Choutie was saying these things, other members who were present began to say things disagreeing with him, and defending me. The conversation became heated. As the pastor and the one being accused, I remained silent at first.

After the exchange had gone on for a while, the Plaintiff began to speak. I stopped her. I said to Ms. Kaplan, "You shouldn't speak you have my daughter living in your house in fornication."

In making this statement, I was intending to make the point that as a Christian, none of us should support a transgressor in engaging in adultery or fornication. I intended it as a rebuke.

...

As the pastor of the Church, I have a clear responsibility to lead the members of the Church to a righteous relationship with the Lord their God. I am required to teach them how to live in accordance with the teachings and commandments that are set forth in Scripture, and to help them to conduct their lives in ways that are pure and holy. When a member of the Church is committing a flagrant sin, I have an obligation to identify the sin and to call upon the transgressor to stop sinning. At times, it is necessary and appropriate to rebuke' the transgressor, which means to call to the transgressor's attention, and to the attention of the church community, the ways in which the transgressor's conduct grieves God. The Bible authorizes and requires Christian believers to rebuke one another.

...

When I spoke to the Plaintiff in the January prayer meeting, I spoke in a spirit of rebuke. In my opinion as her pastor, the Plaintiff was in need of rebuke. When Laura and Kevin came to her seeking to rent a place where they could live together in fornication and adultery, the Plaintiff . . . should have turned them away. . . Instead, she rented a portion of her home to Laura and Kevin to use as a place where they could live together in sin.

...

Unfortunately, the Plaintiff did not accept my rebuke in the spirit in which it was delivered. Instead of admitting her own part in encouraging Laura and Kevin's sin, she joined forces with the people who were seeking to remove me as pastor and, when the effort failed, she left the Church and filed this lawsuit." (See affidavit of Nizam Khan in support of motion for summary judgment ¶ ¶ 18-22, 30-31, 34, 39, 45.)

"A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, providing sufficient evidence to demonstrate the absence of any [*5]material issue of fact." (Guiffrida v Citibank Corp., 100 NY2d 72, 81 [2003].) "Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution." (Id.) "For purposes of summary judgment, the opposing party's version of the facts must be accepted and viewed in the a [sic] light most favorable to them." (Schaffe v SimmsParris, ____ AD3d ___, 2011 NY Slip Op 1824 [2d Dept 2011].)

Since Defendant acknowledges that "there is a dispute in fact as to what, in fact, the Defendant said during the Prayer Meeting" (see amended memorandum of law in support of motion for summary judgment at 10), there is clearly a triable issue as to that, and Defendant's argument that "Defendant's Actual Statement Was Not Defamatory" (see id. at 10-13) is rather beside the point.

Defendant's essential contentions on this motion is that Plaintiff's defamation claim is precluded by the Free Speech Clause and the Religion Clauses of the First Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment (see US Const First Amendment ["Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech"]; Cantwell v Connecticut, 310 US 296, 303 [1940]; Near v Minnesota, 283 US 697, 707 [1931]); and by provisions of the New York Constitution that, in some respects at least, are more protective of speech and religion (see NY Const, art I, §§3, 8; Catholic Charities of Diocese of Albany v Serio, 7 NY3d 510, 524-25 [2006]; Gross v New York Times Co., 82 NY2d 146, 152 [1993].) Defendant characterizes these contentions as his " not defamation' defense" to the extent based on freedom of speech (see reply affirmation of Jonathan R. Nelson in further support of motion for summary judgment at 2), and his " judicial abstention' defense" to the extent based upon freedom of religion (see id. at 8.)

Before addressing Defendant's contentions, it is worth noting that among the Affirmative Defense alleged in his Verified Answer with Affirmative Defenses, Defendant alleges that any statements made by him were privileged either because "they were made to persons with whom the Defendant shared a common interest as Pastor and members of a church" (see verified answer with affirmative defenses ¶ 16); or because "they were made in his capacity as Pastor for the Plaintiff and the church to which she then belonged, as an exercise of Defendant's pastoral responsibility" (see id. ¶ 23), and "were . . . made with Plaintiff's implicit consent" (see id. ¶ 24.) These allegations are clearly intended to raise long-accepted common-law defenses to a defamation action of consent (see Schoepflin v Coffey, 162 NY 12, 16 [1900]) and privilege (see Bingham v Gaynor, 203 NY 27, 30-31 [1911].)

Defendant does not rest his motion on either of these pleaded defenses, and makes no showing on them. They will be discussed by the Court, however, for two reasons: first, constitutional limitations on recovery in defamation should be considered against the background of the common-law principles of the cause of action; and, second, because, as will appear, they have something to add to the constitutional analysis. [*6]

Defamation "is defined as the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society." (Foster v Churchill, 87 NY2d 744, 751 [1996] [internal quotation marks and citations omitted]; see also Geraci v Probst, 15 NY3d 336, 344 [2010].) "[I]mputing unchastity to a woman" has historically been deemed "defamation per se",actionable without proof of special damage. (See Liberman v Gelstein, 80 NY2d 429, 435 [1992]; see also James v Gannett Co., 40 NY2d 415, 419 [1976]; Epifani v Johnson, 65 AD3d 224, 233-24 [2d Dept 2009]; Frederick v Fried, 10 AD3d 444, 445 [1st Dept 2004].)

Beginning with its landmark decision in New York Times Co. v Sullivan (376 US 254 [1964]), the U.S. Supreme Court has identified constitutional limits, based upon First Amendment protections for speech and press, on common-law defamation actions, including limits on recovery without proof of fault and presumed damages for defamation per se, both hallmarks of the common-law action for defamation. This constitutional law of defamation has developed in actions by public persons, i.e., public officials or public figures, or actions against "media" defendants, or involving statements on matters of public concern.

As far as this Court is aware, neither the U.S. Supreme Court nor our Court of Appeals has expressly resolved whether some or all of the identified constitutional limits apply to an action, like this one, by a private person against a "nonmedia" defendant that is not based upon a statement on a matter of public concern. (See Steinhilber v Alphonse, 68 NY2d 283, 289 n1 [1986].) There are, however, Appellate Division decisions that apply one or another of the constitutional limits without addressing the issue. (See, for example, Epifani v Johnson, 65 AD3d at 235 ["constituting fault as judged by, at a minimum, a negligence standard"]; Farrow v O'Connor, Redd, Gollihue & Sklarin, LLP, 51 AD3d 626, 627 [2d Dept 2008] [opinion "constitutionally protected"]; Colon v City of Rochester, 307 AD2d 742, 752 [4th Dept 2003] ["constitutional privilege" applied "to all of the media and nonmedia defendants in this case"]; Gross v New York Times Co., 281 AD2d 299, 300 [1st Dept 2001] [public figure "actual malice" standard applied to nonmedia defendant].)

Defendant's motion does not target either the strict liability or presumed damages features of the common-law defamation action. Rather, Defendant contends that the statements he allegedly made about Plaintiff at the prayer meeting are "constitutionally-protected hyperbole," and, thus, not actionable. (See amended memorandum of law in support of motion for summary judgment at 14, 13-24.) Constitutional defamation law generally treats questions as to defamatory meaning by distinguishing between statements of fact and statements of opinion. As to these issues, the Court of Appeals has articulated an analysis grounded in the New York Constitution, which is directed to the same "dispositive inquiry" as the U.S. Supreme Court's First Amendment analysis, i.e., "whether the challenged statement can reasonably be construed to be stating or implying facts about the defamation plaintiff." (See Flamm v Am. Ass'n of Univ. Women, 201 F3d 144, 147-48 [2d Cir 2000].) [*7]

The Court of Appeals has stated, "Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation." (See Mann v Abel, 10 NY3d 271, 276 [2008].) There, the allegedly defamatory statement was made about a Town Attorney in a newspaper article "during a heated local election for control of the Rye Town Board." (See id. at 274-75.) Similar statements, with articulation of or citation to constitutional principles or caselaw, can be found in other Court of Appeals decisions, but the subject matter of the allegedly defamatory statement(s) was at least arguably a matter of public interest or concern. (See Millus v Newsday, Inc., 89 NY2d 840, 842-43 [1996]; Brian v Richardson, 87 NY2d 46, 51 [1995]; Gross v New York Times, Co., 82 NY2d at 151; 600 W. 113th St. Corp. v Von Gutfeld, 80 NY2d 130, 139 [1992].)

The Second Department has stated, "Expressions of an opinion, false or not, libelous or not, are constitutionally protected and may not be the subject of private defamation actions.' " (See Farrow v O'Connor, Redd, Gollihue & Sklarin, LLP, 51 AD3d at 627].) There, the plaintiff sued her former employer for allegedly defamatory statements made in a letter to her insurance company, which was processing her claim for benefits in connection with a car accident. And the First Department has held that a statement made to church staff and choir members in the context of explaining why the plaintiff, unidentified as to position, had been terminated was "an expression of opinion, not fact," and thus not actionable. (See Hamrick v Perdue, 57 AD3d 317, 317-18 [1st Dept 2008].) Although not expressly addressing the question, other appellate courts considering defamation actions by private persons against nonmedia defendants for statements on matters of only private concern have deemed opinion constitutionally protected. (See Epifani v Johnson, 65 AD3d at 235; Zulawski v Taylor, 63 AD3d 1552, 1553 [4th Dept 2009].)

Based upon this authority, the Court considers it the greater likelihood that, when the question is expressly addressed, the appellate courts will hold that "[a]n expression of pure opinion is not actionable" (see Steinhilber v Alphonse, 68 NY2d at 289), even if the statement is made by a nonmedia defendant about a private person about a matter only of private interest or concern. A "pure opinion" has been defined as "a statement of opinion which is accompanied by a recitation of the facts upon which it is based" or, if not, that "does not imply that it is based upon undisclosed facts." (See id.) "When, however, the statement of opinion implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, it is a mixed opinion' and is actionable." (See id. at 289-90; see also Brian v Richardson, 87 NY2d at 53-54; Gross v New York Times Co., 82 NY2d at 153-54.) In short, would "a reasonable person" view the allegedly defamatory statement(s) "as conveying any facts about the plaintiff." (See Springer v Almontaser, 75 AD3d 539, 540-41 [2d Dept 2010]; see also Mann v Abel, 10 NY3d at 276; Immuno AG v Moor-Jankowski, 77 NY2d 235, 254 [1991].)

For this purpose, non-actionable "opinion" includes "rhetorical hyperbole, vigorous epithets, and lusty and imaginative expression," and "loose, figurative, hyperbolic language." (See Immuno AG v Moor-Jankowski, 77 NY2d at 244-45; see also Brian v Richardson, 87 NY2d at 52 ["epithets, fiery rhetoric or hyperbole"]; Gross v New York Times Co., 82 NY2d at 155 ["rhetorical hyperbole"/"vigorous epithets"]; Springer v Almontaser, 75 AD3d at 541 ["figurative [*8]expression"]; Epifani v Johnson, 65 AD3d at 235 ["hyperbolic expression of opinion"].)

"It is for the court . . . to decide whether a publication is capable of the meaning ascribed to it." (Tracy v Newsday, Inc., 5 NY2d 134, 135 [1959]; see also Mann v Abel, 10 NY3d at 276; Weiner v Doubleday & Co., 74 NY2d 586, 592 [1989]; Springer v Almontaser, 75 AD3d at 541; Farrow v O'Connor, Redd, Gollihue & Sklarin, LLP, 51 AD3d at 627; Gjonlejak v Sot, 308 AD2d 471, 474 [2d Dept 2003].) But "[i]f the contested statements are reasonably susceptible of a defamatory connotation, then it becomes the jury's function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader.' " (See James v Gannett Co., 40 NY2d 415, 419 [1976] [quoting Mencher v Chesley, 297 NY 94, 100 (1947)]; see also November v Time Inc., 13 NY2d 175, 179 [1963] ["it will be for the jurors to determine in which of two possible senses the words were used"]; Flamm v Am. Ass'n of Univ. Women, 201 F3d at 153.)

Since any protection for "opinion" under the U.S. Constitution is limited to matters of public concern (see Flamm v Am. Ass'n of Univ. Women, 201 F3d at 147-50), and the protection given "opinion" by our Court of Appeals is grounded in the New York Constitution (see id. at 147; see also Immuno AG v Moor Jankowski, 77 NY2d at 248-52), the question of defamatory meaning here will be addressed using only the analytic methodology prescribed by the Court of Appeals.

In determining "whether a reasonable person would view" the allegedly defamatory words "as conveying any facts about the plaintiff" (see Springer v Almontaser, 75 AD3d at 541), the court considers "(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true of false; and (3) whether either the full context of the communication in which the communication appears or the broader social context and surrounding circumstances are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact." (Mann v Abel, 10 NY3d at 276 [quoting Brian v Richardson, 87 NY2d at 51, quoting Gross v New York Times Co., 82 NY2d at 153, quoting Steinhilber v Alphonse, 68 NY2d at 292 (internal quotation marks omitted)].) "For a specialized audience, the statement's defamatory meaning is to be judged by the average and ordinary reader [or hearer] acquainted with the parties and the subject-matter." (Gjonlekaj v Sot, 308 AD2d at 473 [internal quotation marks and citation omitted].)

As applied to the allegedly defamatory words here, the first two of the articulated factors do not require extended discussion. "Whore" and "house of prostitution" have sufficiently precise meaning, capable of being proven true or false, to be actionable. (See Matter of Cohen, 25 Misc 3d 945, 950-51 [Sup Ct, NY County 2009].) Like most language, however, the meaning is not so fixed and immutable as to be immune to the influences of context. (See Saunders v Taylor, 6 Misc 2d 1015 [A], 2003 NY Slip Op 51743 [U], * 5 [Sup Ct, NY County 2003]; see also Feche v Viacom International, Inc., 233 AD2d 125 [1st Dept 1996].)

The Court of Appeals "has consistently focused its analysis on the overall context in [*9]which the complained-of assertions were made." (See Flamm v Am. Ass'n of Univ. Women, 201 F3d at 153-54.) The overall context includes both the "immediate context," i.e., the "four corners" of the communication, its "tone and apparent purpose," and the "identity, role and reputation of the [speaker] . . . to the extent that they may provide the reader [or hearer] with clues as to the [communication's] import," together with the "broader context," including the "forum in which a statement has been made, as well as the other surrounding circumstances comprising the broader social setting'." (See Brian v Richardson, 87 NY2d at 51-53; see also Mann v Abel, 10 NY3d at 276.)

Here, the context of the statements "you are running a house of prostitution and you are a whore" followed Plaintiff's affirmative answer to Defendant's question as to whether Laura and Kevin were living in Plaintiff's house, suggesting that fact, and not other undisclosed facts, as the basis for the statements. (See Brian v Richardson, 87 NY2d at 54.) The suggestion is supported by the further fact that Plaintiff was over 80 years old at the time. The exchange between Defendant and Plaintiff followed an exchange among other Church members at the prayer meeting, which Defendant has characterized as "heated" (see affidavit of Nizam Khan in support of motion for summary judgment ¶¶ 19, 23), concerning an on-going dispute about Church leadership. "[E]ven apparent statements of fact may assume the character of statements of opinion, and thus be privileged when made in public debate, heated labor dispute, or other circumstances in which an audience may anticipate the use of epithets, fiery rhetoric or hyperbole." (Steinhilber v Alphonse, 68 NY2d at 294 [internal quotation marks, brackets, and citation omitted].)

Perhaps most significant in terms of context is Defendant's associating his statements about Plaintiff with "the house of prostitution that was in the Bible when Hoffney and Phineas took in prostitutes into the temple." According to Defendant, the reference to "Hoffney and Phineas" "clearly is meant to refer to the Biblical account of the [sic] Hophni and Phineas, the sons of Eli, in the book of 1 Samuel," and Defendant attaches "the relevant Biblical text, as translated in the New International Version Bible translation." (See affidavit of Nizam Khan in support of motion for summary judgment ¶ 26.)

The Biblical reference gives prominence to the broader context in which the allegedly defamatory statements were made, i.e., a prayer meeting in a church. In support of his contention that the allegedly defamatory statements would have been appropriately made and understood as a "rebuke" of Plaintiff, Defendant attaches "scriptural passages which discuss the need for rebuke," and "scriptural passages in which rebukes are delivered by prophets, by Jesus, and by the Apostle Paul." (See id. ¶¶ 31, 32.) Defendant also quotes provisions of the Church Constitution "relevant to the exercise of a pastoral rebuke." (See id. ¶¶ 35-38.)

According to Defendant, "as a Christian, none of us should support a transgressor in engaging in adultery or fornication," Plaintiff "had an obligation, as a member of the Church and as a Christian, to discourage other people — particularly other members of the Church — not to sin," and "the Bible authorizes and requires Christian believers to rebuke one another." (See id. [*10]¶¶ 22, 31, 39.)

Although, as noted above, Defendant does not rely on his alleged defense of consent in pursuing this motion, he does argue that "Plaintiff had agreed to give [him] pastoral authority to rebuke her by becoming a member of the Church," and that "Plaintiff admitted that [he] had authority to conduct spiritual discipline, but . . . that he should have spoken with love with a capital L,' instead of speaking in the way that was alleged to have done." (See amended memorandum of law in support of motion for summary judgment at 2; see also examination before trial of Gloria Kaplan at 45.)

Consent is a recognized defense to an action for defamation. (See Schoepflin v Coffey, 162 NY at 16; Dickson v Slezak, 73 AD3d 1249, 1251 [3d Dept 2010]; Thompson v Maimonedes Med. Ctr., 86 AD2d 867, 867 [2d Dept 1982].) The Court has not found any New York decision recognizing the defense where defamation is alleged in a church or religious context. In Smith v Calvary Christian Church (462 Mich 679 [2000]), the Supreme Court of Michigan upheld dismissal of a defamation claim based upon a statement made during a church service by the pastor to the congregation that the plaintiff had formerly visited prostitutes, holding that "plaintiff consented to the church's practices, and specifically consented to accept discipline" (id. at 688.)

Although the defense of consent is not an issue on this motion, the factors relevant to consent are also relevant to the "broader context" in which the allegedly defamatory statements were made, and, therefore, to how they would reasonably be understood. Indeed, Plaintiff testified at her deposition that, after Defendant made his statements, several Church members "put their finger in [her] face and screamed at — [her], repent, repent, repent, and [she] answered them repent yourself." (See examination before trial of Gloria Kaplan at 12.) This testimony is evidence that the other Church members at the prayer meeting understood the Defendant's statement as a "rebuke."

But even so, accepting Defendant's contention that the allegedly defamatory statements would not reasonably be understood as charging Plaintiff as a "whore" or with "running a house of prostitution," the statements nonetheless, understood as a rebuke, charged her with wrongdoing such that they were still at least arguably susceptible of defamatory meaning. As a consequence, Defendant's further contention that "The Doctrine of Ecclesiastic Abstention Requires the Court to Dismiss the Complaint" (see amended memorandum of law in support of motion for summary judgment at 24, 24-28) cannot be avoided.

Whether considered under the rubric of "abstention" or some other, the contention is that allowing Plaintiff's claim to proceed would necessarily involve the Court in matters of religion in a manner prohibited by the First Amendment.

"The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially [*11]religious controversies or intervene on behalf of groups espousing particular doctrine or beliefs . . . Civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution . . . [J]udicial involvement is permitted when the case can be decided solely upon the application of neutral principles of . . . law, without reference to any religious principle'." (Congregation Yetev Lev D'Satmar, Inc. v Kahana, 9 NY3d 282, 286 [2007] [quoting Avitzur v Avitzur, 52 NY2d 108, 115 (1983)]

There are few New York state court decisions addressing the justiciability of defamation claims in the "broader context" of religious organizations, disputes or subject matter. In the Second Department there are only two, decided only weeks apart, that point in opposite directions. In Berger v Temple Beth-El of Great Neck (303 AD2d 346 [2d Dept 2003]), the plaintiff sued a temple and its executive board for an allegedly defamatory statement published to the temple congregation; the statements are not further described, although a subsequent opinion in the same case describes "statements disclosing and explaining termination of [the plaintiff's] membership from" the temple (see 41 AD3d 626, 627 [2d Dept 2007].) The court held that, "[s]ince the instant defamation action can be settled by the application of neutral principles of law, and does not implicate matters of religious doctrine or practice, the Supreme Court may properly exercise subject matter jurisdiction." (See 303 AD2d at 348.)

In Mandel v Silber (304 AD2d 538 [2d Dept 2003]), without setting out or describing the allegedly defamatory statement, the court reached the opposite conclusion, holding that "this matter cannot be decided by application of neutral principles of law," and that "[r]esolution . . . would necessarily involve an impermissible inquiry into religious doctrine and a determination as to whether the plaintiff violated religious law" (see id.)

Divergent results have likewise been reached in the First Department. Where a Presbyterian minister claimed that other Presbyterian ministers made defamatory statements "reflecting upon his fitness to continue serving as a minister," "[i]nasmuch as the statements concerned plaintiff's ministerial qualifications, . . . adjudication of the dispute would impermissibly involve the court in matters left by constitutional design for ecclesiastic resolution." (See Jackson v Presbytery of Susquehanna Valley, 265 AD2d 253 [1st Dept 1999].)

In Sieger v Union of Orthodox Rabbis of the U.S. & Can., Inc. (1 AD3d 180 [1st Dept 2003]), involving a religious divorce, the court relied on the Second Department's decision in Berger in holding that "[t]o the extent plaintiff has alleged defamatory statements which can be evaluated solely by the application of neutral principles of law and do not implicate matters of religious doctrine or practice, such as whether plaintiff is sane or is a fit mother, they are not barred by the Establishment Clause" (see id. at 182.) But, relying on the Second Department's decision in Mandel, the court held that "[t]he allegedly defamatory statements which would require an examination of religious doctrine or practice or an inquiry into the methodology of how the rabbinical tribunal arrived at its conclusions concerning questions of religious doctrine, . . . are not actionable by virtue of the Establishment Clause of the First Amendment." (See id.; see [*12]also Klagsbrun v Va'ad Harabonim of Greater Monsey, 53 F Supp 2d 732, 739-40 [DNJ 1999] [reviewing cases], aff'd 263 F3d 158 [3d Cir 2001].)

The relatively few decisions in New York may be explained by the availability of the common-law common interest privilege. "Even though a statement is defamatory, there exists a qualified privilege where the communication is made to persons who have some common interest in the subject matter." (Foster v Churchill, 87 NY2d at 751.) "[T]he conditional or qualified privilege is inapplicable where the motivation for making such statements was spite or ill will (common-law malice) or where the statements were made with a high degree of awareness of their probable falsity (constitutional malice)." (Id. at 752 [internal quotation marks, brackets, and citation omitted]; see also Berger v Temple Beth-El of Great Neck, 41 AD3d 626, 627 [2d Dept 2007].) As noted above, Defendant here pleads the privilege as a defense, but does not argue it as a basis for this motion.

The common interest privilege has been applied to allegedly defamatory statements made in religious contexts, apparently without concern about constitutional implications. (See Mihlovan v Grozavu, 72 NY2d 506, 509 [1988]; Moyle v Franz, 267 AD 423, 425-26 [2d Dept], aff'd 293 NY 842 [1944]; Berger v Temple Beth-El of Great Neck, 41 AD3d at 627; Sieger v Union of Orthodox Rabbis of the U.S. & Can., Inc., 1 AD3d at 182; Kamerman v Kolt, 210 AD2d 454, 455 [2d Dept 1994]; Matter of Kantor v Pavelchak, 134 AD2d 352, 353 [2d Dept 1987]; see also Hamrick v Perdue, 57 AD3d 317, 317-18 [1st Dept 2008] [statement to church staff and choir members deemed expression of opinion].)

None of the described New York cases, however, addresses an allegedly defamatory statement made in "rebuke" during a religious service. The few arguably analogous decisions in other states that the Court has been able to find for the most part, but not entirely, hold the claim not to be justiciable. (See Johnson v Carnes, 2009 Tenn App LEXIS 727 [Tenn Ct App 2009]; The House of God Which Is The Church Of The Living God, The Pillar And Ground Of The Truth Without Controversy, Inc. v White, 792 So2d 491 [Fla Ct App 2001]; First United Church, Inc. v Udofia, 223 Ga App 849, 479 SE2d 146 [Ga Ct App 1996]; Glass v First United Pentecostal Church of Deridder, 676 So2d 724 [La Ct App 1996]; Schoenhals v Mains, 504 NW2d 233 [Minn Ct App 1993]; Rasmussen v Bennett, 228 Mont 106, 741 P2d 755 [Mont Sup Ct 1987].) In none of the decisions precluding the defamation claim did the court indicate as determinative, or even particularly material, that the alleged defamation occurred during a religious service.

Returning to this case, it seems reasonably clear that neither the religious practice of "rebuke" itself nor Defendant's determination that it was appropriate in light of Plaintiff's failure to follow Church teachings, as he saw it, can be the subject of inquiry by a civil court. When faced with a claim against two rabbis for disclosure of confidential information, the Court of Appeals stated that "the prospect of conducting a trial to determine whether a cleric's disclosure is in accord with religious tenets has troubling constitutional implications." (See Lightman v Flaum, 97 NY2d 128, 137 [2007].) "To permit a party to introduce evidence or offer experts to [*13]dispute an interpretation or application of religious requirements would place fact-finders in the inappropriate role of deciding whether religious law has been violated." (Id.)

This assumes, of course, acceptance of Defendant's contention that the Church members at the prayer meeting would have reasonably understood his statements about Plaintiff, as she alleges them, to have been rhetorical hyperbole in the context of a "rebuke." Otherwise, since "a church may be held liable for intentional tortuous conduct on behalf of its officers or members, even if that conduct is carried out as part of the church's religious practices" (see Meroni v Holy Spirit Assn. for Unification of World Christianity, 119 AD2d 200, 203 [2d Dept 1986]), so may its pastor.

For the reasons articulated above, Defendant has sufficiently established, at least prima facie, that the statements he allegedly made at the prayer meeting would not have been reasonably understood as conveying the defamatory meaning ascribed to them. In opposition, consisting of quotation from Plaintiff's and Defendant's deposition testimony, Plaintiff makes no showing to the contrary, thereby allowing the Court to avoid the difficult question of how such an issue would then be resolved. On this point, the Court notes that in deciding this motion it has not considered the affidavits of other Church members submitted by Defendant. Moreover, the purported transcript of Defendant's examination before trial is incomplete, not signed by either the deponent or the reporter, and not shown to have been sent to the deponent for review pursuant to CPLR 3116 (a). (See Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902 [2d Dept 2008].)

To the extent that the alleged statements yet convey any defamatory meaning, it is a pronouncement of the moral judgment of a pastor upon the conduct of a church member. Plaintiff acknowledges the religious practice of "rebuke," and, perhaps more importantly, acknowledges the underlying conduct declared by Defendant to be morally wanting, again avoiding a determination as to whether and how such a dispute would be resolved. To allow Plaintiff's claim to proceed under these circumstances "would necessarily involve an impermissible inquiry into religious doctrine and a determination as to whether the plaintiff violated religious law" (see Mandel v Silber, 304 AD2d at 538.)

Defendant's motion for leave to make a late motion for summary judgment and his

motion for summary judgment are granted; the Verified Complaint is dismissed; Defendant may enter judgment accordingly.

May 17, 2011____________________

Jack M. Battaglia

Justice, Supreme Court