SUPREME COURT OF THE STATE OF NEW YORK -

NEW YORK COUNTY

PRESENT: JENNIFERG. SCHECTER PART 57

Justice

ZERVOS, SUMMER INDEX NO. 150522/2017

MOTION DATE
- v-
TRUMP, DONALD J. MOTION SEQ. NO. 003

The following papers, numbered 1 to 4 ,were read on this motion to/for dismiss

Notice of Motion/Order to Show Cause - Affidavits - Exhibits ............................................ No(s) -------

1

Answering Affidavits - Exhibits No(s) 2,3

.........................................................................................................
No(s) 4
Replying Affidavits ............... _........................................................................................................ -------
No
Cross Motion ........................................................................................................................ - _------
Upon the foregoing papers, it is ordered that this motion is

DECIDED IN ACCORDANCE WITH THE ACCOMPANYING DECISION

DATED: 3/20/2018

1. CHECK ONE o CASE DISPOSED [Xl NON-FINAL I POSITION

2. CHECK AS MOTION IS: D GRANTED [!] DENIED 0 GRANTED IN ART 0 OTHER

3. CHECK IF D SETTLE ORDER D SUBMIT ORDER

D DO NOT POST D FIDUCIARY APPOINTMENT D REFERENCE

150522/2017 Motion No. 003
ZERVOS, SUMMER VS. TRUMP, DONALD J.
SUPREME COURT OF THE STATE OF NEW yORK
COUNTY OF NEW YORK: PART 57
------------------------------~---------x
SUMMER ZERVOS,
DECISION AND ORDER
Plaintiff,
Index No. 150522/17

-against-

DONALD J. TRUMP,

Defendant.
---------------------~------------------x
JENNIFER G. SCHECTER, J.:

In Clinton v Jones, 520 US 681 (1997), the United States

Supreme Court held that a sitting president is not immune from

being sued in federal court for unofficial acts. It left open

the question of whether concerns of federalism and comity

compel a different conclusion for suits brought in state

court. Because they do not, defendant's motion to dismiss

this case or hold it in abeyance is denied.

Background

On this motion to dismiss the complaint, the court must

accept the facts alleged by plaintiff to be true (Davis v

Boeheim, 24 NY3d 262, 268 [2014]).

In 2005, plaintiff Summer Zervos, a California resident,

was a contestant on The Apprentice, a reality show starring

and produced by defendant Donald J. Trump (Affirmation in

Support [Supp], Ex 19 [Complaint] at ~ 19). After defendant

Zervos v Trump Index No 150522/17
Page 2

"fired" her on the program, plaintiff continued to seek him

out for advice and to pursue job opportunities (id. at ~ 21) .

In 2007, plaintiff met with defendant at his New York

office. He allegedly kissed her twice on the lips, making her

"uncomfortable, nervous and embarrassed" (id. at ~ 26). The

next time she saw defendant was after he called her and asked

her to meet him at the Beverly Hills Hotel for dinner at a

restaurant (id. at ~ 27). When-plaintiff arrived, she was

escorted to defendant's bungalow and waited for him in the

living-room area (id. at ~ 28). After 15 minutes, defendant

emerged from his bedroom, kissed Ms. Zervos "open mouthed" and

pulled her toward him (id. at ~ 29) He asked her to sit next

to him, "grabbed her shoulder, again kissing her very

aggressively, and placed his hand on her breast" (id. at ~

29). After plaintiff pulled back and walked away, defendant

took her hand and led her into the bedroom (id. at ~ 30).

When plaintiff walked out, he turned her around and suggested

that they "lay down and watch some telly telly" (id.). He

embraced her and plaintiff pushed him away, telling him to

"get real" (id. at ~ 30). He then repeated plaintiff's words

Zervos v Trump Index No 150522/17
Page 3

back to her lasciviously and "began to press his genitals

against her, trying to kiss her again" (id. at ~ 30).

After plaintiff told defendant that she had come to see

him for dinner, defendant "paced around the room and seemed

angry" (id. at ~ 31). The two had dinner, which abruptly

ended when defendant stated that he needed to go to bed and

told plaintiff to meet him the next day at his golf course

(id. at ~ 34). Plaintiff immediately went to discuss what had

happened with her father and to get his advice (id. at ~ 35) .

She decided to go ahead with the meeting (id.)

The following day, plaintiff had limited interaction with

defendant who introduced her to the general manager of the

golf course (id. at ~ 36). Later that week, the manager

offered plaintiff a job at half the salary that she had been

seeking (id. at ~ 38). Plaintiff called defendant and told

him that she "was upset, because it felt like she was being

penalized for not sleeping with him" (id. at ~ 39).

In 2009 and 2010, plaintiff continued seeking emploYment

within the Trump organization to no avail (id. at ~ 40). She

believed that defendant's "sexually inappropriate misconduct

at the Beverly Hills Hotel was either a test or an

Zervos v Trump Index No 150522/17
Page 4

isolated incident" (id. at ~ 42). In 2016, plaintiff emailed

defendant "that their past encounter had been hurtful and

embarrassing" (id. at ~ 43). She never received a response

(id. ) .

In July 2016, defendant was selected as the presidential

nominee for the Republican party (id. at ~ 44) .

On October 7, 2016, footage from the television show

Access Hollywood was made public that depicted defendant

telling the program's host: "'I just start kissing [women]

. Just kiss. I don't even wait . And when you're a

star, they let you do it. You can do anything. . Grab

them by the pussy. You can do anything'" (id. at ~~ 1, 4).

During a presidential debate two days later, defendant denied

engaging in the behavior that he had discussed on tape and

characterized his words as "locker-room talk" (id. at ~ 48) .

Plaintiff subsequently "chose to come forward and to

speak publicly She felt that telling the world of her

specific experiences . was ethically the right thing to

do, so that the public could evaluate Mr. Trump fully as a

candidate for president" (id. at ~ 50). On the afternoon of

October 14, 2016, plaintiff along with her counsel held a

Zervos v Trump Index No 150522/17
Page 5

press conference at which she "publicly described her

interactions with Mr. Trump in detail, including his unwanted

sexual misconduct" (id. at • 53).

That very day, defendant responded in a statement that

was widely reported and appeared on his campaign website:

" 'To be clear, I never met her at a hotel or greeted her

inappropriately a decade ago. That is not who I am as a

person and it .is not how I've conducted my life'" (id. at •

55). Later on, at a North Carolina campaign rally, defendant

stated "'these allegations are 100% false. . They are made

up, they never happened . It's not hard to find a small

handful of people willing to make false smears for personal

fame, who knows maybe for financial reasons, political

purposes, or for the simple reason they want to stop our

movement. They want to stop our campaign. Very simple.

These claims defy reason, truth, logic, common sense. They're

made without supporting witnesses. No witnesses. Hey you

know, 28 years ago, 10 years ago, 14 years ago, 12 years ago.

Not me. Believe me. Not me. Not me" (id. at • 59; Supp, Ex

3 at 2-3) .
Zervos v Trump Index No 150522/17
Page 6

At a rally in New Hampshire on October 15, 2016,

defendant reported that plaintiff's cousin "wrote a letter

that what she said is a lie" (Supp, Ex 8 at 2). He stated

that many of the allegations against him had already been

"proven so false," referred to another story in the media

about him and insisted: "we can't let them get away with this

Total lies. [You've] been seeing total lies"

(id.). He said "you have phony people coming up with phony

allegations, with no witnesses whatsoever" (id. at 3).

He tweeted about "100% fabricated and made up charges"

and that nothing "ever happened with, any of these women.

Totally made up nonsense to steal the election" (Complaint at

~~ 60, 63) He lamented over Twitter about losing large

numbers of women voters "based on made-up events that never

happened" (id. at ~ 66).

On October 17, 2016, defendant tweeted: "Can't believe

these totally phony stories, 100% made up by women (many

already proven false) and pushed big time by press, have

impact!" (Supp, Ex 12) He also re-tweeted a statement by

someone else about plaintiff, which included a picture of her

and set forth "this is all yet another hoax," adding his own
Zervos v Trump Index No 150522/17
Page 7

comment: "Terrible" (Complaint at ~ 69; Supp, Ex 13). At 4:31

that afternoon, defendant tweeted: "New polls are good because

the media has deceived the public by putting women front and

center with made-up stories and lies, and got caught" (Supp,

Ex 14) .

At the next presidential debate, on October 19, 2016,

defendant answered a question about reports by nine women of

nonconsensual kissing or groping (Complaint at ~ 73; Supp, Ex

17 at 19/37) He stated: "those stories are all totally

false. I didn't know any of these women. I didn't see

these women. These women, the woman on the plane, the woman

on the--I think they want either fame or [the Clinton]

campaign did it. I believe .. [Hillary Clinton] got

these people to step forward. If it wasn't, they get their

ten minutes of fame, but they were all totally--it was all

fiction. It was lies and it was fiction" (Complaint at ~ 73;

Supp, Ex 17 at 20/37).

Finally, on October 22, 2016, at a Pennsylvania rally,

defendant declared: "Every woman lied when they came forward

to hurt my campaign, total fabrication. The events never

Zervos v Trump Index No 150522/17
Page 8

happened. Never. All of these liars will be sued after the

election is over" (Complaint at ~ 74)

On January 17, 2017, plaintiff commenced this action,

alleging that defendant made defamatory statements about her

"knowing they were false and/or with reckless disregard for

their truth or falsity" (id. at ~ 78). She asserts that as a

direct result of the false statements and being "branded a

liar who came forward only for fame or at the manipulation of

the Clinton campaign," she suffered emotionally and

financially (id. at ~~ 80-82). She pleads that defendant's

statements contained numerous false representations about her,

"including that [her] description of being subjected to

unwanted sexual touching by defendant was a lie, phony, a hoax

and 'made up,' and that [she] was motivated by fame and/or

directed by Clinton or the Democrats" (id. at ~ 85) She

contends that she "suffered at least $2,914" in financial

losses because her restaurant lost business (id. at ~ 81).

Three days after this action was filed, defendant became

the 45th President of the United States. He now moves for

dismissal or for a continuance of this case until he leaves

office. Because there is no authority for delaying

Zervos v Trump Index No 150522/17
Page 9

adjudication and because plaintiff has stated a cause of

action, defendant's motion is denied.

Analysis

No one is above the law. It is settled that the

President of the United States has no immunity and is "subject

to the laws" for purely private acts (Clinton, 520 US at 696) .

In Clinton v Jones, the United States Supreme Court made clear

that "immunities are grounded in 'the nature of the function

performed, not the identity of the actor who performed it'"

(id. at 695 [citation omitted]) . There, the Court required

then-President William Jefferson Clinton to defend against a

civil-rights action that included a state-law defamation claim

in federal court. The Court concluded that the President was'

subject to suit because regardless of the outcome there was no

"possibility that the decision [would] curtail the scope of

the official powers of the Executive Branch" (id. at 701).

It explained that the "litigation of questions that relate

entirely to the unofficial conduct of the individual who

happens to be the President poses no perceptible risk of

misallocation of either judicial power or executive power"

Zervos v Trump Index No 150522/17
Page 10

(id. ) . In holding that the doctrine of separation of powers

did not mandate a stay of all private act~ons against the

President, the Court flatly rejected that "interactions

between the Judicial Branch and the Executive, even quite

burdensome interactions, necessarily rise to the level of

constitutionally forbidden impairment of the Executive's

ability to perform its constitutionally mandated functions"

(id. at 702) .

The rule is no different for suits commenced in state

court related to the President's unofficial conduct. Nothing

in the Supremacy Clause of the United States Constitution even

suggests that the President cannot be called to account before

a state court for wrongful conduct that bears no relationship

to any federal executive responsibility. Significantly, when

unofficial conduct is at issue, there is no risk that a state

will improperly encroach on powers given to the federal

government by interfering with the manner in which the

President performs federal functions. There is no possibility

that a state court will compel the President to take any

official action or that it will compel the President to

refrain from taking any official action.

Zervos v Trump Index No 150522/17
Page 11

To be sure, in pointing out that proceedings in state

court may warrant a different analysis from those in federal

court, each and everyone of the concerns that the United

States Supreme Court raised implicates unlawful state

intrusion into federal government operations (id. at 691 n 13,

citing Hancock v Train, 426 US 167 [1976] [federal agencies'

operations could not be conditioned on obtaining state

permits] i Mayo v United States, 319 US 441, 445, 447 [1943] [a

state cannot lay fees or exact money on a united States

instrumentality as "the federal function must be left free"] i

see also Matter of Armand Schmoll, Inc. v Federal Reserve Bank

of N. Y., 286 NY 503, 509 [194 1] [a state court may not

"control the manner in which a federal agency performs or

attempts to perform its functions and duties .. Assumption

of such power would hamper orderly government and ignore the

division of fields of government of state and nation created

by the Constitution"]cert denied 315 US 818 [1942]).1 Those

The cases defendant relies on are no different (see

I

Tennessee v Davis, 100 US 257, 267 [1879] [statute

authorizing removal of actions against federal officers
engaged in official duties is "no invasion of state
domain"] i Tarble's Case, 80 US 397 [1871] [state judge could
not intrude with operations of federal government by
discharging a prisoner held under the authority of the
Zervos v Trump Index No 150522/17
Page 12

concerns are nonexistent when only unofficial conduct is in

question.

Nor is there any legitimate fear of local prejudice in

state court when the actions under review bear no relationship

to federal duties (Clinton, 5"20 US at 691, citing 28 USC ~

1442 [a] [authorizing removal from state to federal court of

actions against officials "for or relating to any act under

color of such office"]; Mesa v California, 489 US 121, 139

[1989] [explaining that in cases where "true state hostility

may have existed, it was specifically directed against federal

officers' efforts to carry out their federally mandated

duties"]; see also Watson v Philip Morris Cos., Inc., 551 US

142, 150 [2007] [purpose of removal statute is to "protect the

federal government from the interference with its

'operations''']) .

There is no reason, moreover, that state courts like

their federal counterparts will be "either unable to

accommodate the President's needs or unfaithful to the

United States]; McClung v Silliman, 19 US 598, 605 [1821]

[state court cannot issue writ of mandamus compelling
federal officer to take governmental action]) .
Zervos v Trump Index No 150522/17
Page 13

tradition of giving 'the utmost deference to

Presidential responsibilities'" (Clinton, 520 US at 709).

State courts can manage lawsuits against the President based

on private unofficial conduct just as well as federal courts

and can be just as mindful of the "'unique position in the

constitutional scheme' that the office occupies" (id. at 698) .

Additionally, and for the very same reasons articulated

in Clinton v Jones, a stay for the duration of the Trump

presidency must be denied. A lengthy and categorical stay is

not justified based on the possibility that, at a moment's

notice, the President may have to attend to a governmental or

international crisis. If and when he does, of course,

important federal responsibilities will take precedence.

In the end, there is absolutely no authority for

dismissing or staying a civil action related purely to

unofficial conduct because defendant is the President of the

United States. Resolution of an action unrelated to the

President's official conduct is the responsibility of a state

court and is not impermissible "direct control . . over the

President" (Clinton, 520 US, 691 n 13) Congress, moreover,

has enacted legislation deferring civil litigation under

Zervos v Trump Index No 150522/17
Page 14

circumstances it felt appropriate (see 11 USC ~ 362

[bankruptcy stay]; 50 USC ~ 3901 et seq. [staying proceedings

against servicemembers during military service]) Even after

Clinton v Jones, decided more than 20 years ago, Congress has

not suspended proceedings against the President of the United

States and there are no compelling reasons for delaying

plaintiff's day in court here.

Dismissal of the complaint for failure to state a cause

of action is also denied as the "pleading meets the minimal

standard necessary" to proceed (see Davis, 24 NY3d at 268).2

Plaintiff's complaint is based on assertions made by

defendant, that if proven false, form the predicate for a

2 New York law applies. Defendant has not established

that there is a conflict between substantive New York and
California defamation law (K.T. v Dash, 37 AD3d 107, 111
[1st Dept 2006]). The only difference defendant points out
is California's anti-SLAPP provision, which is a procedural
statute enacted as part of California's code of civil
procedure and has no applicability here (see Cal Civ Proc
Code ~ 425.16 [j] [1] [requiring transmission of papers to
California's Judicial Council]; see also Liberty
Synergistics Inc. v Microflo Ltd., 718 F3d 138, 154 [2d Cir
2013] [explaining that "California courts have repeatedly
held. . that California's anti-SLAPP rule is 'procedural'
in nature" and applies in California courts regardless of
which source of law governs a plaintiff's substantive
claim]; Kibler v Northern Inyo County Hosp. Dist., 39 Cal
4th 192, 202, 46 Cal Rptr 3d 41, 47, 138 P3d 193, 198 [2006]
[anti-SLAPP statute is a "procedural device"]).
Zervos v Trump Index No 150522/17
Page 15

maintainable defamation action (Gross v New York Times Co., 82

NY2d 146, 154 [1993]).

A false statement tending "to expose a person to public

contempt, hatred, ridicule, aversion or disgrace constitutes

defamation" (Davis, 24 NY3d at 268). In Davis v Boeheim, the

Court of Appeals determined that a defamation action could be

maintained against a defendant who called individuals claiming

to have been victims of sexual abuse liars and stated that he

believed that they were motivated by money to go public

(Davis, 24 NY3d 262 [reinstating defamation action against

someone who may have known undisclosed facts about alleged

sexual abuse] ). The Court concluded that the statements were

susceptible to a defamatory connotation because they

communicated that defendant had information unknown to others

that justified his statements that the individuals were

neither credible nor victims of abuse (id. at 272). Defendant

in Davis "appeared well placed to have information about the

charges" and the context of the statements suggested that he

"spoke with authority and that his statements were based on

facts" (id. at 273) .

Zervos v Trump Index No 150522/17
Page 16

The statements here weigh even more heavily against

dismissal of the complaint. Defendant--the only person other

than plaintiff who knows what happened between the two of

them--repeatedly accused plaintiff of dishonesty not just in

his opinion but as a matter of fact. He not only averred that

plaintiff told "phony stories" and issued statements that were

"totally false" and "fiction," he insisted that the events

"never happened" and that the allegations were "100% false

[and] made Up."3 A reader or listener, cognizant that

defendant knows exactly what transpired, could reasonably

believe what defendant's statements convey: that plaintiff is

contemptible because she "fabricated" events for personal gain

(see Divet v Reinisch, 169 AD2d 416 [1st Dept 1991] [libelous

character of statement "derives from the fact that it charges

3Accepting the allegations in the complaint as true,

the challenged statements were "of and concerning"
plaintiff. Some of the statements referred to "every woman"
who came f~rward--"a particular, specifically-defined group
of individuals" that a jury could find included plaintiff
(see Three Amigos SJL Rest., Inc. v CBS News Inc., 28 NY3d
82, 86-87 [2016]; see also Gross v Cantor, 270 NY 93, 96
[1936]). The context of other statements--some of which
were made days after plaintiff's press conference, related
to allegations raised at her press conference or mentioned
plaintiff and her family--similarly raise jury questions as
to whether they pertained to her.
Zervos v Trump Index No 150522/17
Page 17

(individuals) in writing with being liars and is thus

actionable on its face"]).

Defendant used "specific, easily understood language to

communicate" that plaintiff lied to further her interests

(Davis, 24 NY3d at 271). His statements can be proven true or

false, as they pertain to whether plaintiff made up

allegations to pursue her own agenda (id.). Most importantly,

in their context, defendant's repeated statements--which were

not made through op-ed pieces or letters to the editor but

rather were delivered in speeches, debates and through

Twitter, a preferred means of communication often used by

defendant- -cannot be characteri'zed simply as opinion, heated

rhetoric or hyperbole. 4 That defendant's statements about

plaintiff's veracity were made while he was campaigning to

become President of the United States, does not make them any

less actionable (see Silsdorf v Levine, 59 NY2d 8, 16 [1983]

[explaining that "concern over undue limitations upon

4Contrast Jacobus v Trump, 156 AD3d 452, 453 (1st Dept

2017) (holding that the statement that plaintiff, a
political strategist, "begged" for a job, was "too vague,
subjective and lacking in precise meaning. . to be
actionable [and that its] immediate context would signal to
a reasonable reader or listener" that it was an opinion and
not fact).
Zervos v Trump Index No 150522/17
Page 18

expression in the course of political campaigns" by allowing

a defamation action to proceed was "misplaced"], cert denied

464 US 831 [1983]).5

Because there is a reasonable view of the claim upon

which plaintiff would be entitled to recover for defamation,

the complaint sufficiently states a cause of action (Davis, 24

NY3d at 274) .

Accordingly, it is

ORDERED that defendant's motion is denied; it is further

ORDERED that defendant is to answer within 10 days of

notice of entry of this order (see CPLR 3211[f]).

This is the decision and order of the court.

Dated: March 20, 2018

G. SCHECTER

5 Plaintiff's complaint, like the one in Silsdorf,

sufficiently alleges actual malice (Silsdorf, 59 NY2d at
17) .