Brief a case assignment Please follow requirements below, and use the PDF document “how to brief a case” as an example to finish the assignment. requirement “Briefing a case” means taking notes of the most important parts of a case so that you can later refer to your “case brief” to quickly refresh your memory rather than to have to read the case over again. Refer to the PDF file in this week’s materials for a detailed explanation on how to brief a case. Location of CasesCases are generally found in the law library in reporters, advance sheets, or loose-leaf publications. Cases can also be found through online research services such as Lexis-Nexis, Westlaw Loislaw, and on the web by linking to various sites including the courts themselves. Libraries designated as government depositories may also have cases in slip opinion form. Case CitationA citation is an abbreviation used to refer to a legal authority that allows the reader to find the legal authority in the law library or in electronic form. When you answer a research question or perform legal analysis, it is expected that your answer or analysis be backed up by a citation to your legal authority. It is important that you learn correct citation form, because that form allows legal professionals to speak the same language. More importantly, it allows others reading your work to find the cases or other authority that you used to make a legal argument so that they can read the material themselves. Correctly citing cases and other authority is a sign of careful attention to detail and strengthens your written arguments by validating your work and allowing the reader to quickly find those authorities upon which you relied and see that they say what you claim they say.
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Supreme Court, Queens County, New York.
Timothy ROSEN, Plaintiff,
James P. ROBINSON, Defendant.
Aug. 13, 2010.
Gregory O. Koerner, Esq., New York, for Plaintiff.
Borrelli & Associates, P.L.L.C., by Michael J. Borrelli and Alexander T. Coleman, Esqs., Carle
Place, for Defendant.
CHARLES J. MARKEY, J.
*1 In this defamation action brought by a professor at Queens College of the City University
of New York against a college student, the defendant moves to dismiss.
The complaint consists of one cause of action, but lists several allegedly actionable
statements all regarding whether or not the plaintiff, a respected professor, was having sex with
a 17–year old student. The complaint does not state whether defendant allegedly identified the
student with whom the plaintiff had sex or whether the student was in the plaintiff’s class or
simply attended Queens College.
As Alexander T. Coleman, Esq., of defendant’s law firm, Borrelli & Associates, P.L.L.C.,
thoroughly points out in his affirmation in support of the defendant’s motion, nearly all the
statements alleged to be defamatory fail, in some vital respect, to state a cause of action. Some
of the statements were text messages sent from a cell phone owned by a third party—and not
the defendant—to the plaintiff. Such statements cannot be attributed with certainty as made by
the defendant. Other statements were made directly by the defendant to the plaintiff and thus
lacked the requisite publication to a third-party.
The Court agrees with the analysis of Mr. Coleman in his affirmation, except for the statement
contained in paragraph 3 of the complaint. In that paragraph, made “[u]pon information and
belief” the defendant said of and concerning the plaintiff to one Basil Gavalas that the plaintiff
was “having sex with a seventeen year old Queens College Student” and that such undefined
sexual act occurred on the college campus. Although the language “of and concerning” the
plaintiff was missing from the paragraph and the paragraph is stated not with certainty, but only
“[u]pon information and belief,” that is enough for the statement set forth in paragraph 3 of the
complaint to survive the motion to dismiss. The Court further notes that paragraph 3 does not
state whether the plaintiff was present when the quoted defamatory words were stated. The
plaintiff, elsewhere in the complaint, denies ever having sex with a “seventeen year old student.”
Despite today’s tolerant attitudes on same sex preferences, statements ascribing
homosexuality, in the State of New York, are still considered defamatory. Compare Klepetko v.
Reisman, 41 AD3d 551, 552 [2nd Dept.2007]; Matherson v. Marchello, 100 A.D.2d 233, 241
[2nd Dept.1984] [“Rightly or wrongly, many individuals still view homosexuality as immoral.”],
citing James v. Gannett Co., Inc., 40 N.Y.2d 415, 419  with Hayes v. Smith, 832 P.2d
1022 [Colo. Ct.App.1991] [accusations of homosexuality are no longer slanderous per se]. See
generally, Annot., “Imputation of Homosexuality as Defamation,” 7 ALR 6th 135 .
Certainly, false statements of a teacher having sex with a student can be ruinous to a
member of a college faculty member’s career or his ability later to secure tenure. See, Porter v.
Beaulieu, 282 A.D.2d 980 [3rd Dept.2001]; see, e.g., Manion v. Sarcione, 192 F. Supp 2d 353
[E.D.Pa.2001]; Fox v. Parker, 98 SW3d 713 [Tex App 2003]. There is no indication whether this
alleged student, who is not named in the complaint and is contended to have had some form of
sex with the plaintiff, ever filed a sexual harassment claim with college officials against the
plaintiff. See, Glasser v. Academy School Dist. 20, 2005 WL 2592477, slip op. at 4 [D.
Colo.2005]; Slater v. Marshall, 895 F.Supp. 93 [E .D. Pa.1995].
*2 Thus, the complaint, as limited to the statement contained in paragraph 3, survives the
instant motion to dismiss. Paragraph 3 of the complaint has a quotation of the statement alleged
to have been made by the defendant that the plaintiff allegedly had sex with a student. Since
that statement in paragraph 3 does not state that the student was a male, an allegation made in
other paragraphs of the complaint, the better course is to allow the plaintiff to amend the
complaint to make such an allegation, to the extent that plaintiff would like to maintain a slander
action predicated on the false imputation of homosexual activity with a student. Thus, the
plaintiff, if so advised, is permitted to serve and file an amended complaint by October 1, 2010.
The Court notes, regarding the motion practice, the attempt by defense counsel to have the
Court not consider the opposition papers by plaintiff’s counsel. Specifically, defense counsel
served a “Notice of Rejection,” contending that the plaintiff’s counsel failed to serve opposition
papers in a timely manner. The Court will not consider the Notice of rejection. Defense counsel in
his letter to the Court did not cite any need for more time in which to frame a reply. If more time
were needed, the Court would have provided it. Although plaintiff’s attorney appeared on the
return date of the motion, August 12, defense counsel failed to do so. Although no appearance is
required before the Court on this type of motion, under the undersigned’s Individual Rules of
Practice, available at www.nycourts.gov, the failure of defense counsel to appear shows that
defendant did not need any additional time in which to compose a reply.
Concerning the “Notice of Rejection,” the Court instructs the attorneys in this action,
especially since the motion to dismiss is denied and discovery needs to commence, that civil
litigation should be conducted civilly, that is, with the reciprocal, mutual extension of courtesies
among counsel for more time. The Court will henceforth take a dim view of counsel who do not
give each other needed adjournments that are not abusive.
The motion to dismiss, as the complaint is limited herein, is denied.
The foregoing constitutes the decision, order, and opinion of the Court.
Rosen v. Robinson
Slip Copy, 28 Misc.3d 1221(A), 2010 WL 3210002 (Table) (N.Y.Sup.), 2010 N.Y. Slip Op.
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