by: Peter J. Gallagher (@pjsgallagher)
Young Frankenstein is a classic movie and one of my all time favorites. One of the running jokes in the movie involves Frau Blucher, the housekeeper at Dr. Frankenstein's castle. Every time her name is uttered, horses neigh and react violently, even when her name is uttered in part's of the castle where there are no horses around. Check out the clip below for a sample:
Other than the fact that Frau Blucher is a German housekeeper, there is almost no connection to the recent Appellate Division decision in Von Wilke v. Pastorius Home Association, Inc. But I really like Young Frankenstein so I thought that was connection enough to reference it here.
In Von Wilke (cue the horses), defendant was a German social club located, where else, in Germansville, Pennsylvania. Plaintiff was a member of the club. The club owned a "bed-and-breakfast style home" in Germany. When the housekeeper at the home resigned unexpectedly, plaintiff and another club member volunteered to become temporary housekeepers. Plaintiff's travel was paid for by the club, but when she returned, the club asked her to pay for her airline tickets. She refused. At subsequent board meetings, she claims that the president of the club called her a "deadbeat," and other board members appeared to nod their heads in agreement. As a result of this insult, plaintiff stopped attending club meetings and feared that she would not be able to find employment in the German community because of the negative comments from the president.
Plaintiff sued, alleging that plaintiff breached its contract with her, violated the Consumer Fraud Act, and defamed her. After discovery, defendant moved for summary judgment on the defamation claim and plaintiff cross-moved for summary judgment on all three counts. Defendant admitted that the president of the club called plaintiff a "deadbeat," but argued that defendant could not set forth a prima facie claim for defamation because she had no proof that her reputation had been damaged. Plaintiff countered that the nodding of the heads by the other board members was enough to show that her reputation had been damaged. The trial court agreed with defendant and, in a "thorough written opinion," dismissed the defamation claim.
What happened next is a little confusing. It appears that the Court entered an Order allowing plaintiff to amend her complaint. But, a few weeks later, the Court entered an "amended order" that vacated the prior order, denied plaintiff leave to amend her complaint, and stated that the original complaint was dismissed when the court granted defendant's summary judgment motion. Plaintiff appealed, arguing that plaintiff was only granted summary judgment on the defamation claim and that the order memorializing this decision did not dismiss the rest of the complaint.
The Appellate Division agreed, observing that there was nothing in the record demonstrating that anything more than the defamation count had been dismissed. Notably, the entire focus of oral argument on the competing summary judgment motions was on the defamation claim. Accordingly, the Appellate Division remanded the case to the trial court. It did so without opining on whether plaintiff should be allowed to amend her complaint, but it did note that it "doubt[ed] the viability of plaintiff's breach of contract, Consumer Fraud Act, and additional claims" (the additional claims were part of a proposed amended complaint). Specifically, the Appellate Division noted that plaintiff never paid for the airline tickets so it did not appear that she suffered any "ascertainable loss" sufficient to maintain a claim under the Consumer Fraud Act.
NOTE: One of the often repeated explanations for why the horses in Young Frankenstein react every time they hear the name Frau Blucher is that Blucher is German for "glue" (or is close to the German word for "glue"). Some people apparently attribute this explanation to Mel Brooks. It does not really matter who first provided this explanation, however, because it is not true. The word "blucher" apparently is not German for "glue" and is not even close to the German word for "glue." Click here for a more thorough explanation.
Pete's Take 