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THE ANTI-SLAPP STATUTES IN THE CIVIL RIGHTS LAW PROTECTED DEFENDANT AGAINST A DEFAMATION ACTION BY THE PLASTIC SURGEON ABOUT WHOM DEFENDANT POSTED NEGATIVE ONLINE REVIEWS; THE COMPLAINT WAS PROPERLY DISMISSED AND DEFENDANT WAS ENTITLED TO ATTORNEY’S FEES AND DAMAGES (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Rodriguez, in a matter of first impression, determined the Civil Rights Law anti-SLAPP statutes protected defendant’s negative online reviews of plaintiff Aristocrat Plastic Surgery and Dr. Kevin Tehrani. Supreme Court dismissed the complaint but did not award defendant attorney’s fees or damages because the anti-SLAPP statutes were deemed not to apply. The First Department held that the anti-SLAPP statutes applied and defendant was entitled to attorney’s fees and damages:

… [D]efendant posted her reviews on two public internet forums, one of which has a stated purpose of being a key advisor for people considering plastic surgery, and the purpose of defendant’s reviews was to provide information to potential patients, including reasons not to book an appointment with Dr. Tehrani. Defendant’s posts concerning the plastic surgery performed upon her by Dr. Tehrani qualify as an exercise of her constitutional right of free speech and a comment on a matter of legitimate public concern and public interest—namely, medical treatment rendered by a physician’s professional corporation and the physician performing surgery under its auspices … . We therefore find that defendant’s negative website reviews of plaintiffs’ services constitute a matter of “public interest” as set forth in Civil Rights Law § 76-a(1)(d).

Since defendant’s posts fall under the ambit of the amended anti-SLAPP law, defendant is entitled to seek damages and attorneys’ fees under Civil Rights Law §§ 70-a and 76-a(1)(a)(1). Aristocrat Plastic Surgery, P.C. v Silva, 2022 NY Slip Op 03311, First Dept 5-19-22

Practice Point: The anti-SLAPP statutes in the Civil Rights Law protected defendant from a defamation action by the plastic surgeon about whom defendant posted negative online reviews. The doctor’s complaint was dismissed and defendant was entitled to attorney’s fees and damages. Business reviews are matters of public interest and concern.

 

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EVEN CRIMINAL SLURS ARE NOT ACTIONABLE AS DEFAMATION IF THEY ARE PURE OPINION; HERE DEFENDANT’S TWEET ACCUSING PLAINTIFF OF MAKING “THREATS” WAS NOT ACTIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined even communications which could be considered “criminal slurs” are not actionable as defamation if they are “pure opinion.” The defendant was a member of the NYC council representing Queens. When defendant opposed the construction of an Amazon corporate headquarters in Queens, plaintiff, a local restaurant owner, in text messages, indicated defendant’s career would be ended if defendant did not withdraw his opposition to the Amazon project: Defendant then put out a tweet accusing plaintiff of making “threats.” Plaintiff brought this defamation action based on that tweet.. Supreme Court denied defendant’s motion to dismiss and the Second Department reversed:

The defendant’s characterization of the plaintiff’s text as containing “several threats rolled into one” is not a statement which can be proved true or false but was, instead, an opinion … . Moreover, “there is simply no special rule of law making criminal slurs actionable regardless of whether they are asserted as opinion or fact” … . Instead, “accusations of criminality [can] be regarded as mere hypothesis and therefore not actionable if the facts on which they are based are fully and accurately set forth” … . Here, the defendant’s statement amounts to no more than “nonactionable opinion or rhetorical hyperbole” … . Bowen v Van Bramer, 2022 NY Slip Op 02975, Second Dept 5-4-22

Practice Point: A tweet accusing plaintiff of making “threats” against defendant city council member (representing Queens) was not actionable as defamation. Plaintiff, a restaurant owner, had texted defendant saying that people would work to end defendant’s political career if he didn’t retract his opposition to Amazon’s building a corporate headquarters in Queens. Defendant then posted plaintiff’s comments in a tweet and accused plaintiff of making “threats.” Plaintiff sued for defamation based on that tweet. In dismissing the complaint, the Second Department noted that even “criminal slurs” are not actionable where, as here, they are “pure opinion.”

 

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DEFENDANT’S COMPLAINTS TO THE UNITED STATES TENNIS ASSOCIATION (USTA) ABOUT PLAINTIFF’S BULLYING OF HER SON AT JUNIOR TOURNAMENTS WERE PROTECTED BY QUALIFIED PRIVILEGE; ANY STATEMENTS ALLEGED TO HAVE BEEN FALSE WERE NOT MOTIVATED BY MALICE; THE DEFAMATION ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Zayas, determined that the defamation action should have been dismissed. Defendant’s son was a tennis player who participated in United State Tennis Association (USTA) junior tournaments. Defendant communicated with the USTA alleging that plaintiff, another tennis player, was bullying defendant’s son. The only statements attributed to defendant alleged to have been defamatory were allegations plaintiff had been “kicked out” of tennis programs because of his behavior. The Second Department held that the complaints about bullying were privileged and the statements alleged to have been defamatory were not demonstrated to have been made with malice:

… [T]he defendant established … that her email to [the USTA] was protected by a qualified privilege. The defendant unquestionably had an interest, as a parent, in complying with [USTA’s] request that she put her concerns in writing and thus reporting, in a more formal way, serious allegations of bullying—none of which, it bears emphasizing, were alleged to be defamatory—that, in her view, put her son’s physical and emotional well-being at risk … .* * *

[Re: malice:]The extensive submissions … make clear that no factfinder could reasonably conclude that the defendant was not motivated, at least in substantial part, by legitimate concerns for her son’s emotional well-being and physical safety. Porges v Weitz, 2022 NY Slip Op 01823, Second Dept 3-16-22

Practice Point: Defendant’s complaints to the United State Tennis Association about plaintiff’s bullying her son at junior tournaments were protected by qualified privilege. Any statements alleged to have been false were not motivated by malice. Therefore the defamation action should have been dismissed.

 

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THE PRIVILEGE AFFORDED ATTORNEYS UNDER THE CIVIL RIGHTS LAW RE: ALLEGEDLY DEFAMATORY CLAIMS INCLUDED IN A COMPLAINT (WITH ONE EXCEPTION NOT APPLICABLE HERE) IS ABSOLUTE, EVEN IN THE FACE OF ALLEGATIONS OF MALICE AND BAD FAITH (FIRST DEPT).

The First Department determined the allegedly defamatory claims included in a complaint against plaintiff were absolutely privileged with respect to the attorneys who drafted the complaint.

… [T]here is no evidence to support a claim that defendant attorneys acted with malice against plaintiff, either in the commencement of this case or in the preparation of the papers as well as any dissemination of the papers, which are for public consumption to a reporter. … [T]here are no … issues of fact as to whether defendant attorneys instituted and sought to publicize a “sham” action containing defamatory allegations against plaintiff for the sole or primary purpose of disseminating those defamatory allegations while cloaking them in the privilege that attends certain statements made in connection with proceedings before a court (see Williams v Williams, 23 NY2d 592, 599 [1969]). …

In the absence of alleged facts supporting the Williams exception, the privilege under Civil Rights Law § 74 is absolute and applies even where the plaintiff alleges malice or bad faith … . Weeden v Lukezic, 2022 NY Slip Op 00026, First Dept 1-4-22

 

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PLAINTIFF WAS CONVICTED OF THE MURDER OF HIS FATHER AND THE ATTEMPTED MURDER OF HIS MOTHER; THE FILM ABOUT THE CRIMES DOES NOT VIOLATE PLAINTIFF’S RIGHT TO PRIVACY UNDER CIVIL RIGHTS LAW 50 AND 51 (THIRD DEPT).

The Third Department, reversing Supreme Court, in a comprehensive decision well-worth reading, determined defendant, the creator of a docudrama about Christopher Porco’s murder and attempted murder convictions, did not violate Porco’s right to privacy under Civil Rights Law sections 50 and 51. The statutes allow the depiction of newsworthy events, but the statutes could be violated by fictional material. The Third Department determined the “dramatized” or “fictional” aspects of the film did not violate the statutes, in part because the audience is notified that the film is “based on a true story” and includes dramatized and fictionalized material:

… [T]he film is a dramatization that at times departed from actual events, including by recreating dialogue and scenes, using techniques such as flashbacks and staged interviews, giving fictional names to some individuals and replacing others altogether with composite characters. The film nevertheless presents a broadly accurate depiction of the crime, the ensuing criminal investigation and the trial that are matters of public interest. More importantly, the film makes no effort to present itself as unalloyed truth or claim that its depiction of plaintiffs was entirely accurate, instead alerting the viewer at the outset that it is only “[b]ased on a true story” and reiterating at the end that it is “a dramatization” in which “some names have been changed, some characters are composites and certain other characters and events have been fictionalized.” In our view, the foregoing satisfied defendant’s initial burden of showing that the film addressed matters of public interest through a blend of fact and fiction that was readily acknowledged, did not mislead viewers into believing that its related depictions of plaintiffs was true and was not, as a result, “so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception” … . Porco v Lifetime Entertainment Servs., LLC, 2021 NY Slip Op 04072, Third Dept 6-24-21

 

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FORMER STUDENT’S ALLEGATIONS DEFENDANT COLLEGE BREACHED ITS AGREEMENT THAT IT WOULD NOT DISCLOSE ITS DISCIPLINARY PROCEEDINGS AGAINST THE STUDENT TO SCHOOLS TO WHICH THE STUDENT APPLIED FOR ADMISSION PROPERLY SURVIVED THE COLLEGE’S MOTION TO DISMISS; ADOPTING AND APPLYING THE HEIGHTENED STANDARD FOR DEFAMATION BY IMPLICATION, THE DEFAMATION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined defendant college breached its agreement with plaintiff-student regarding the disclosure of information about the school’s disciplinary proceedings alleging sexual misconduct. After finding the student had violated the code of student conduct the student was expelled. The student was then acquitted of criminal charges stemming from the same allegations. The student and the school entered an agreement prohibiting the school from disclosing information about the disciplinary proceedings to schools to which the student applied for admission. The complaint alleged the school breached that agreement and included a cause of action for defamation by implication. The breach of contract causes of action properly survived the motion to dismiss, but the defamation cause of action should have been dismissed:

” ‘Defamation by implication’ is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements” (id. at 380-381). We now join the other Departments in adopting the heightened legal standard for a claim of defamation by implication … . Under that standard, “[t]o survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference” … . …

The disclosure that plaintiff was found responsible in a student disciplinary proceeding for sexual misconduct and assault as defined in a student code of conduct does not imply that there was a criminal proceeding … . …

 … [A]lthough plaintiff may wish that additional information from the College would have provided further context for the truthful information that was conveyed, the disclosure to Buffalo State did not imply anything false about plaintiff … . Bisimwa v St. John Fisher Coll., 2021 NY Slip Op 02962, Fourth Dept 5-7-21

 

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KESHA, A RECORDING ARTIST, MADE PUBLIC STATEMENTS THAT HER MUSIC PRODUCER, GOTTWALD, HAD DRUGGED AND SEXUALLY ABUSED HER; GOTTWALD WAS PROPERLY AWARDED SUMMARY JUDGMENT IN HIS DEFAMATION ACTION; GOTTWALD DID NOT HAVE TO PROVE MALICE BECAUSE HE WAS NOT A GENERAL-PURPOSE OR LIMITED-PURPOSE PUBLIC FIGURE; TWO DISSENTERS DISAGREED (FIRST DEPT).

The Second Department, over a two-justice dissent, determined plaintiff music producer, Gottwald, was entitled to summary judgment on his defamation action against Kesha, a recording artist with whom Gottwald had entered a contract. Gottwald alleged Kesha falsely claimed Gottwald had drugged and sexually abused her in an effort to force Gattwald to release her from the recording contract. The allegations were published in text messages to Lady Gaga and others. The Second Department found that Gottwald was not a general-purpose or a limited-purpose public figure and provided detailed definitions of both. Therefore Gottwald did not have to prove malice on Kesha’s part. The dissent disagreed with the majority’s conclusion Gottwald was not a public figure:

A person can only be a general-purpose public figure if “he [or she] is a ‘celebrity’; his [or her] name a ‘household word’ whose ideas and actions the public in fact follows with great interest “and ‘invite[s] attention and comment'” … . * * *

To be considered a limited purpose public figure Gottwald must have: (1) successfully invited public attention to his views in an effort to influence others prior to the incident in question, (2) voluntarily injected himself into a public controversy related to the subject of the current litigation, (3) assumed a position of prominence in the public controversy, and (4) maintained a regular and continuing access to the media to influence the outcome of the public controversy.

Gottwald cannot be found to be a limited-purpose public figure because he has not done any of these things. Gottwald v Sebert, 2021 NY Slip Op 02456, First Dept 4-22-21

 

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THE FAILURE TO ALLEGE SPECIAL DAMAGES WITH PARTICULARITY REQUIRED THE DISMISSAL OF THE PRIMA FACIE TORT AND DEFAMATION CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s motion to dismiss the prima facie tort and slander causes of action should have been dismissed because the allegations of special damages were not stated with particularity:

… [I]n a cause of action to recover damages for slander, where the defamation alleged does not fall into one of the per se categories, a plaintiff suing in slander must plead special damages … . Similarly, a plaintiff seeking to recover damages for prima facie tort must allege special damages … . Here, as to both causes of action, the plaintiff’s nonspecific conclusory allegations failed to allege special damages with specific particularity … . Mable Assets, LLC v Rachmanov, 2021 NY Slip Op 01759, Second Dept 3-24-21

 

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REPORTING AN ALLEGED SEXUAL ASSAULT TO THE POLICE DOES NOT EVINCE MALICE SUFFICIENT TO OVERCOME THE QUALIFIED IMMUNITY ASSOCIATED WITH MAKING THE REPORT; THE DEFAMATION ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Manzanet-Daniels, determined the defamation action based upon defendant’s filing a sexual assault complaint with the police was protected by qualified immunity and the nature of the complaint did not evince the malice required to overcome the qualified immunity. The sexual assault trial ended in a hung jury and defendant agreed to an adjournment in contemplation of dismissal as the disposition of her charges against plaintiff. Plaintiff was formerly an assistant district attorney and defendant was a reporter for the Daily News:

The doctrine of qualified immunity shields individuals who, like defendant, act “in the discharge of some public or private duty, legal or moral, or in the conduct of [her] own affairs, in a matter where h[er] interest is concerned” … . To overcome the qualified privilege protecting defendant’s statements to the police, plaintiff was required to sufficiently allege that she published the statements with actual malice, i.e., that defendant “acted out of personal spite or ill will, with reckless disregard for the statement’s truth or falsity, or with a high degree belief that [her] statements were probably false” … . * * *

Plaintiff’s allegations fall short of alleging actual malice sufficient to overcome the qualified privilege attaching to defendant’s statements to the police. Even as alleged in the complaint, the statements are a straightforward rendition of the incident that defendant claims occurred during a car ride with plaintiff. There was nothing excessive or “vituperative” in the character of the reported statements that would support an inference of actual malice … . Indeed, it is difficult to see how defendant could have been more succinct or restrained in her description of the events while accomplishing her purpose: to report to the police that she had been the victim of sexual assault. Sagaille v Carrega, 2021 NY Slip Op 01369, First Dept 3-9-21

 

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A FALSE IMPUTATION OF HOMOSEXUALITY IS NOT DEFAMATION PER SE; THEREFORE SPECIAL DAMAGES MUST BE ALLEGED; THE FAILURE TO ALLEGE SPECIAL DAMAGES REQUIRED DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department, in a full-fledged, comprehensive opinion by Justice Roman which cannot be fully summarized here, reversing Supreme Court, determined a false imputation of homosexuality is not defamation per se. Therefore the defamation cause of action, which did not allege special damages, should have been dismissed (defamation per se does not require special damages):

As set forth in the complaint, Pastor Maurice stated before approximately 300 members of the church that “the [p]laintiff was a homosexual,” and that “the [p]laintiff disrespected the church by viewing gay pornography on the church’s computer.” * * *

We agree with our colleagues in the Third Department that the earlier cases, including this Court’s decision in Matherson [100 AD2d 233], which held that the false imputation of homosexuality constitutes a category of defamation per se, are inconsistent with current public policy. * * *

… [W]e conclude that the false imputation of homosexuality does not constitute defamation per se. Matherson’s holding to the contrary should no longer be followed. Furthermore, the additional allegation that the plaintiff viewed gay pornography on the church’s computer likewise does not fit within any of the categories of defamation per se. Therefore, the plaintiff was required to allege special damages. Laguerre v Maurice, 2020 NY Slip Op 07877, Second Dept 12-23-20

 

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