The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined a defamation suit was properly dismissed because the alleged defamatory remarks were not “of and concerning” the plaintiffs. Television news broadcasts claimed that the Cheetah Club, a strip club, was involved in human trafficking orchestrated by the mafia. The story claimed women from Russia and Eastern Europe were brought into this country, set up with sham marriages to American citizens, and then forced to dance at the club. The plaintiffs, Times Square Restaurant Group, Times Square Restaurant No. 1 and individual plaintiffs associated with the Times Square plaintiffs, O’Neill, Callahan and Stein, provided management and talent services to the Cheetah Club. Only the individual plaintiffs, O’Neill, Callahan and Stein, appealed the dismissal of the defamation complaint:
In order to establish a prima facie case of defamation, plaintiffs must show that the matter published is “of and concerning” them … . Although it is not necessary for the plaintiffs to be named in the publication, they must plead and prove that the statement referred to them and that a person hearing or reading the statement reasonably could have interpreted it as such … . This burden is not a light one, and the question of whether an allegedly defamatory statement could reasonably be interpreted to be “of and concerning” a particular plaintiff is a question of law for the courts to decide … .
Accepting as true each and every allegation in the complaint, the challenged statements were not of and concerning plaintiffs O’Neill, Callahan and Stein. The news broadcast stated that Cheetah’s was purportedly used by the mafia to carry out a larger trafficking scheme. It did not mention any employees of the club or of the management and talent agencies that facilitate its daily operations, let alone the individual plaintiffs in these appeals, who were not identified or pictured in the report. In context, the statement that Cheetah’s was “run by the mafia” could not reasonably have been understood to mean that certain unnamed individuals who do not work for Cheetah’s but oversee its food, beverage and talent services are members of organized crime … . Nor did the challenged statements describe a particular, specifically-defined group of individuals who “run” the Cheetah Club, such that the small group libel doctrine would apply … . Contrary to the dissent’s assertion, defendants’ broadcast referred only to the club and failed to include sufficient particulars of identification in order to be actionable by an individual … . Three Amigos SJL Rest., Inc. v CBS News Inc., 2016 NY Slip Op 06941, CtApp 10-25-16
DEFAMATION (STATEMENTS ALLEGING MAFIA INVOLVEMENT IN A STRIP CLUB WERE NOT “OF AND CONCERNING” INDIVIDUAL PLAINTIFFS WHO PROVIDED FOOD, BEVERAGE AND TALENT SERVICES TO THE CLUB)