Rosen v. Price Chopper: Summary-Judgment Dismissal Permitted Where Defamation Pleading Fails CPLR 3016(a) Particularity & No Protected Activity Exists for Retaliation

Introduction

In Rosen v. Price Chopper, 2025 NY Slip Op 03620 (App Div 3d Dept, June 12 2025), the Third Department clarified two pivotal rules:

1. Defamation Pleading Particularity: A defendant may obtain summary judgment solely on the ground that the plaintiff has failed to plead the allegedly defamatory words with the specificity required by CPLR 3016(a). The court thus endorses using summary judgment as a procedural filter when a plaintiff’s papers show “the absence of any viable claim,” even if discovery is incomplete.
2. Retaliation Claims – Protected Activity Threshold: To state a prima facie case of retaliation, a plaintiff must identify a complaint or other conduct that clearly implicates unlawful discrimination; vague workplace complaints or post-investigation e-mails that do not allege discrimination are insufficient.

Richard Rosen (“plaintiff”), a part-time deli employee, sued his former employer, Price Chopper (“defendant”), alleging defamation and retaliation after an internal investigation into his conduct toward a co-worker ended with what defendant treated as his resignation. When Supreme Court denied defendant’s summary-judgment motion “without prejudice,” defendant appealed. The Appellate Division reversed, dismissed the action outright, and, in doing so, articulated the precedential principles above.

Summary of the Judgment

• Defamation Claim: Dismissed because the second amended complaint and supporting affidavit failed to identify any specific defamatory statement published to a third party, violating CPLR 3016(a). The court held that litigation cannot be used as a fishing expedition to discover defamation.
• Qualified Privilege: Even assuming statements existed, defendant showed they were made within the scope of a workplace misconduct investigation and thus protected by the “common-interest” qualified privilege. Plaintiff supplied no evidence of malice to defeat that privilege.
• Retaliation Claim: Dismissed. Defendant’s evidence showed (i) plaintiff engaged in no protected activity, (ii) the investigation was prompted by a coworker’s complaint, and (iii) plaintiff voluntarily declined a transfer and then stopped reporting to work. Plaintiff’s email, sent after the investigation commenced and containing no discrimination allegations, was not protected activity.
• Discovery Request: Denied because plaintiff offered no concrete basis suggesting additional discovery would uncover material facts within defendant’s exclusive knowledge.
• Disposition: Supreme Court order reversed; defendant’s motion for summary judgment granted; second amended complaint dismissed in its entirety.

Analysis

3.1 Precedents Cited

The panel stitched together a line of Appellate Division decisions to reinforce its holding:

• Jule v. Kiamesha Shores Prop. Owners Assn. (210 AD3d 1330 [3d Dept 2022]) – reiterated strict pleading of defamatory words under CPLR 3016(a); employed here to show plaintiff’s failure.
• CSI Group, LLP v. Harper (153 AD3d 1314 [2d Dept 2017]) – affirmed summary judgment can rest solely on 3016(a) deficiencies; cited to justify dismissal at summary-judgment stage.
• DiCoby v. Syracuse Univ. (191 AD3d 425 [1st Dept 2021]) and Akpinar v. Moran (83 AD3d 458 [1st Dept 2011]) – applied the “common-interest” privilege to internal investigations; relied on to protect defendant’s communications.
• Forrest v. Jewish Guild for the Blind (3 NY3d 295 [2004]) – New York’s ground-zero case for McDonnell-Douglas burden-shifting in discrimination/retaliation. The court leaned on Forrest to place on Rosen the burden of showing pretext once Price Chopper articulated a legitimate reason.
• Cubelo v. City of New York (168 AD3d 637 [1st Dept 2019]) – non-adverse transfers cannot constitute adverse actions; used to defeat plaintiff’s retaliation theory.

3.2 Legal Reasoning

1. CPLR 3016(a) – Pleading with Particularity:

   The rule demands that defamation complaints “set forth the particular words complained of.” The court stressed that strict construction means precisely that: no particular words, no claim. The defendant did more than point out “gaps” in proof; it demonstrated absence of any defamatory statement. Under CSI Group and Starr v. Akdeniz, that failure authorizes summary dismissal.

2. Qualified Common-Interest Privilege:

   Assuming arguendo that statements existed, Price Chopper showed—through its HR partner’s affidavit—that they were made to limited personnel for the sole purpose of investigating workplace conduct. Such communications enjoy conditional privilege. Plaintiff had to raise triable fact questions of malice (knowledge of falsity or reckless disregard). He offered only conclusory assertions, failing to pierce the privilege.

3. Retaliation Framework:

   Adopting the familiar three-step McDonnell Douglas approach (Forrest):

   • Plaintiff failed at step one—he identified no protected activity.
   • Even if step one were met, defendant’s legitimate reason (co-worker complaint; workplace policy) would pass step two.
   • Plaintiff presented no evidence of pretext for discrimination at step three.

   The transfer offer itself was not an “adverse action,” further defeating the claim.

4. Discovery:

   Under Porco v. Lifetime Entertainment Servs. (195 AD3d 1335), a party opposing summary judgment must demonstrate how additional discovery will yield material evidence. Rosen furnished no basis; hence no stay of the motion.

3.3 Impact on Future Litigation

• Gatekeeping Function Strengthened: Trial courts may confidently grant summary judgment where a defamation plaintiff fails CPLR 3016(a), eliminating needless discovery and trial.
• Self-Represented Litigants Held to Same Standard: Rosen underscores that pro se status does not dilute mandatory pleading rules.
• Employer Investigations: The decision fortifies the “common-interest” privilege for internal investigations, encouraging employers to investigate misconduct without fear of defamation liability, provided they act without malice.
• Retaliation Claims Narrowed: Employees must articulate explicit discrimination complaints to trigger statutory protections; generic workplace gripes will not suffice.
• Fishing Expedition Doctrine: The opinion’s statement that “the commencement of litigation may not be used as a mere tool to search for defamatory statements” will likely be quoted to resist speculative lawsuits.

Complex Concepts Simplified

CPLR 3016(a)

A New York procedural rule requiring libel and slander plaintiffs to quote or paraphrase the exact words they claim are defamatory in their initial pleading.

Summary Judgment

A procedural mechanism allowing a court to end a case before trial when no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law.

Qualified “Common-Interest” Privilege

A defense in defamation law shielding statements made among parties who share a legitimate interest (e.g., employer–employee) in the subject matter, unless the plaintiff proves malice.

Protected Activity (Retaliation Law)

Actions—such as filing a discrimination complaint—specifically protected by anti-discrimination statutes. Mere disagreement with workplace decisions does not qualify.

McDonnell-Douglas Burden Shifting

A three-step method to analyze discrimination/retaliation claims: (1) plaintiff’s prima facie case; (2) defendant’s legitimate non-discriminatory reason; (3) plaintiff’s proof of pretext.

Fishing Expedition

Derogatory term for using discovery or litigation to search for a viable claim rather than advancing an already substantiated one.

Conclusion

The Third Department’s decision in Rosen v. Price Chopper erects a sturdy procedural checkpoint for defamation and retaliation suits. By holding that a plaintiff’s failure to plead the exact defamatory words warrants summary dismissal—and by insisting on clear “protected activity” in retaliation contexts—the court tightens pleading and proof requirements in employment litigation. Employers now have reinforced authority to invoke the common-interest privilege when communicating during internal investigations, while plaintiffs are reminded that pro se status neither exempts them from CPLR 3016(a) nor loosens the foundational elements of retaliation claims. The ruling will likely curtail speculative suits and streamline case dockets, all while preserving meaningful claims rooted in concrete facts and articulated legal theories.