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TO STATE A CAUSE OF ACTION FOR DEFAMATION THE COMPLAINT MUST ALLEGE THE ACTUAL WORDS, WHEN THE STATEMENTS WERE MADE AND TO WHOM THE STATEMENTS WERE MADE; ALLEGING THE “GENERAL CONTENT” OF THE STATEMENTS WITHOUT SPECIFYING WHEN AND TO WHOM THEY WERE MADE IS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint in this defamation action was deficient in that the actual words alleged to have been defamatory, the dates the statements were made, and the persons to whom the statements were made were not described.

…[T]he complaint fails to state a viable defamation claim, since it does not set forth, inter alia, the actual words complained of, the dates of the alleged statements, or the persons to whom the statements were allegedly made. Rather, the complaint sets forth only the general content of the alleged defamatory statements, which were made at unspecified times to unnamed members of the community and unnamed persons at a business entity. Under such circumstances, the allegations failed to satisfy the pleading requirements of CPLR 3016(a) … . Sternberg v Wiederman, 2024 NY Slip Op 01576, Second Dept 3-20-24

Practice Point: A complaint sounding in defamation must allege the actual words, when the statements were made and to whom they were made. A description of the “general content” of the statements is not enough.

 

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THE 2020 AMENDMENTS BROADENING THE REACH OF THE ANTI-SLAPP STATUTE DO NOT APPLY RETROACTIVELY; THEREFORE DEFENDANT’S COUNTERCLAIM BASED UPON THE AMENDED STATUTE SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s counterclaim under the anti-SLAPP statute should have been dismissed. Plaintiff, an attorney, brought this action for libel and intentional infliction of emotional distress based on letters and emails written by defendant which allegedly were intended to damage plaintiff’s reputation in the legal profession. The counterclaim alleged the defendant’s letters and emails were protected by the anti-SLAPP statute in the Civil Rights Law. The Second Department determined the 2020 amendments to that statute, which expanded its reach, do not apply retroactively and defendant, therefore, could not take advantage of those amendments: The counterclaim should have been dismissed:

The first counterclaim alleged that this action was a strategic lawsuit against public participation (hereinafter SLAPP) and sought, among other things, attorney’s fees, costs, and damages pursuant to Civil Rights Law § 70-a. * * *

Contrary to the defendant’s contention, the broadened definition of public petition and participation in the amended section 76-a does not apply retroactively to this action … . The complaint, therefore, is governed by the prior statutory definition of an action involving public petition and participation … . Burton v Porcelain, 2024 NY Slip Op 00291, Second Dept 1-24-24

Practice Point: The 2020 amendments to the anti-SLAPP statute do not apply retroactively. Lawsuits started before the amendments cannot take advantage of the broader reach of the amendments.

 

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THE 2020 AMENDMENTS TO THE ANTI-SLAPP STATUTE DO NOT APPLY AS A DEFENSE TO THIS DEFAMATION ACTION BASED UPON DEFENDANTS’ CRITICISM OF PLAINTIFF DOG-GROOMER POSTED ON SOCIAL MEDIA (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, in a matter of first impression in the Second Department, determined the 2020 anti-SLAPP amendments, which expanded the scope of the statute to some defamatory statements made on social media, did not apply retroactively. Therefore the defendants in the defamation action (the Sproules) were not entitled to dismissal of the defamation complaint pursuant to the anti-SLAPP statute. The Sproules had left their puppy at plaintiff VIP’s dog-grooming facility. The dog allegedly had trouble breathing when the Sproules picked him up. They took him to a veterinarian who concluded the dog had water in his lungs. When the dog failed to improve on a ventilator he was put to sleep. Robert Sproule posted a description of the incident on Yelp and Google urging readers to avoid using VIP:

The 2020 amendments to the Civil Rights Law expanded the pool of parties that may raise anti-SLAPP defenses, counterclaims, and cross-claims in their actions, now including journalists, consumer advocates, survivors of sexual abuse, and others. The expansion will naturally lead to an increase in the occasions where anti-SLAPP statutes shall be litigated in the courts. In fact, some upswing is already noted in this developing area of law. * * *

… [T]he Sproules did not establish that this action constitutes an action involving public petition and participation under the anti-SLAPP statute in the form that existed when this action was commenced … . Thus, to decide whether the standards under CPLR 3211(g) and Civil Rights Law § 76-a(2) apply, we must address whether the 2020 amendments to the anti-SLAPP statute apply retroactively or prospectively…. * * *

We hold that the presumption of prospective application has not been overcome here. Indeed, the remedial nature of a statutory amendment, which is generally at play with many amendments, is not a basis, in and of itself, for ignoring the long-standing legal presumption that new enactments be prospective, particularly where there is no expressed provision that a new law be given retroactive effect … . VIP Pet Grooming Studio, Inc. v Sproule, 2024 NY Slip Op 00205, Second Dept 1-17-24

Practice Point: The 2020 amendments to the anti-SLAPP statute, which expanded the scope of the statute to include some critical social media posts, do not apply retroactively. Here defendants in a defamation action based on their social media posts alleging plaintiff dog-groomer’s incompetence and negligence could not take advantage of the 2020 amendments as a defense to the action.

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THE COMPLAINT SUFFICIENTLY ALLEGED A DEFAMATION CAUSE OF ACTION; THE DEFENDANT ALLEGEDLY TOLD PLAINTIFF’S PHYSICIAN THAT PLAINTIFF WAS BANNED FROM DEFENDANT’S PHARMACY FOR STEALING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had alleged a defamation cause of action and the motion to dismiss should not have been granted. Plaintiff alleged defendant falsely accused him of stealing newspapers from a pharmacy:

The plaintiff alleged, among other things, that in November 2020, he was a customer at a CVS store in Jericho, where the defendant Martin was employed as a pharmacist. The plaintiff further alleged that, on December 3, 2020, Martin informed his physician, inter alia, that the plaintiff was banned from the pharmacy for stealing newspapers on multiple occasions and that she had reported the plaintiff to the police. * * *

… [T]he complaint alleged that the statement that the plaintiff was banned from the pharmacy in question for stealing was made on December 3, 2020. The complaint also set forth the statement allegedly made and to whom the statement was made … . Contrary to the defendants’ contention, “the words need not be set in quotation marks” to state a cause of action to recover damages for defamation … . Moreover, the allegation that the plaintiff “was stealing” “constitutes an allegation of a ‘serious crime’ so as to qualify as slander per se” … . Jesberger v CVS Health Solutions, LLC, 2023 NY Slip Op 06515, Second Dept 12-20-23

Practice Point: The allegation that defendant told plaintiff’s physician that plaintiff was banned from defendant’s pharmacy for stealing sufficiently stated a cause of action for defamation.

 

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DEFENDANT SCHOOL SUPERINTENDENT’S DISCUSSION OF PLAINTIFF CROSS-COUNTY COACH’S TERMINATION WITH STUDENTS WAS ABSOLUTELY PRIVILEGED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant school superintendent’s (Brantner’s) statements to students about plaintiff cross-country coach (who was terminated) were absolutely privileged:

“The absolute privilege defense affords complete immunity from liability for defamation to an official [who] is a principal executive of State or local government . . . with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties” … . Here, plaintiff does not dispute that Brantner, as superintendent, is a government official to whom the absolute privilege would apply … . The question presented is whether Brantner was acting within the scope of her duties as superintendent when she met with members of the cross-country team in a classroom before school to discuss plaintiff’s termination.

We conclude that … Brantner’s statements were made during the course of the performance of her duties as a school superintendent and were about matters within the ambit of those responsibilities.  Brantner testified at her deposition that the school board asked her to speak with the students, who had appeared at school board meetings demanding to know why plaintiff had been fired …  In any event, even assuming, arguendo, that Brantner decided on her own to meet with the students, we conclude that she was acting within the scope of her duties when making the statements. Although Education Law § 1711 … does not specifically authorize superintendents to meet with students, the statute is not an exhaustive list delineating every action that a school superintendent is permitted to engage in, and the absence from the statute of a reference to a particular category of action does not mean that it is unauthorized. In our view, a school superintendent does not act ultra vires when speaking to students in a school setting about a matter related to their education or extracurricular activities. Panek v Brantner, 2023 NY Slip Op 03636, Fourth Dept 6-30-23

Practice Point: Because the defendant school superintendent was acting within the scope of her duties when she discussed plaintiff cross-country coach’s termination with students, her statements were absolutely privileged and will not support a defamation action.

 

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AN ATTORNEY’S REFERENCE IN AN EMAIL TO A NONPARTY AS A “WIFE BEATER” WAS ABSOLUTELY PRIVILEGED AS PERTINENT TO THE DIVORCE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a statement in an email written by an attorney in a divorce action, referring to plaintiff as a wife beater, was pertinent to the divorce action and was absolutely privileged:

The defendant Dina S. Kaplan is an attorney who represented the defendant Eric Dorfman in a divorce action (hereinafter the divorce action). Kaplan allegedly represented to the court in the divorce action, including court personnel, that the plaintiff, an attorney and a nonparty to the divorce action, was the boyfriend of Dorfman’s wife. In an email exchange between Kaplan and Herbert Adler, an attorney representing Dorfman’s wife in the divorce action, Kaplan allegedly made a defamatory statement about the plaintiff, referring to him as a “wife beater . . . who is in criminal prosecution.” In addition to Adler, the email was sent to court personnel and other attorneys. * * *

… [U]nder the extremely liberal test of pertinency, Kaplan’s statement allegedly referring to the plaintiff as a “wife beater . . . who is in criminal prosecution” was pertinent to the divorce action and, thus, is absolutely privileged. The email exchange between Kaplan and Adler was initially focused on a dispute over Dorfman’s financial ability to pay his wife maintenance and child support. The conversation turned, however, to the behavior of the parties to the divorce action while caring for their children, and Kaplan’s statement that the plaintiff is a “wife beater . . . who is in criminal prosecution” was responsive and therefore relevant to the issue of the parties’ behavior … . Under the circumstances, it cannot be said that the statement was “so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame” the plaintiff, who was not among the participants in the conversation, was not otherwise mentioned in the email exchange, and was not even directly identified in the statement … . Davidoff v Kaplan, 2023 NY Slip Op 03450, Second Dept 6-28-23

Practice Point: If a defamatory statement made by a divorce attorney is pertinent to the divorce action, the statement is absolutely privileged.

 

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IN THIS DEFAMATION ACTION (1) PLAINTIFF WAS DEEMED A LIMITED PUBLIC FIGURE REQUIRING PROOF OF MALICE; (2) SOME STATEMENTS PROTECTED BY LITIGATION PRIVILEGE, QUESTIONS OF FACT WHETHER OTHER STATEMENTS PROTECTED BY PRE-LITIGATION AND FAIR REPORT PRIVILEGES; (3) AMENDMENTS TO THE ANTI-SLAPP STATUTE APPLY ONLY TO CONDUCT AFTER THE AMENDMENTS WENT INTO EFFECT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a dissent, reversing the appellate division in this defamation action, determined: (1) plaintiff music producer (Gottwald) is a limited public figure who must prove defendant singer-songwriter (Sebert) was motivated by malice when claiming Gottwald raped her; (2) whether 20 alleged statements are subject to the pre-litigation privilege must be determined by the jury; and (3) the amendments to the anti-SLAPP statute which went into effect during the course of the lawsuit apply only to conduct after the amendments went into effect (the amendments allow certain damages and attorney’s fees). The opinion is far to comprehensive to fairly summarize here:

[Re: plaintiff’s public-figure status:] By 2014, when Gottwald initiated this defamation action, he was, by his own account, a celebrity—an acclaimed music producer who had achieved enormous success in a high-profile career. As self-described in the complaint, he “has written the most Number One songs of any songwriter ever” and “was named by Billboard as one of the top ten producers of the decade in 2009.” … . * * *

[Re: privilege:] Sebert identifies 25 allegedly defamatory statements that she contends cannot serve as the basis for liability because they are protected by one or more of three privileges: the litigation privilege, the pre-litigation privilege, and the statutory fair report privilege under Civil Rights Law § 74.  * * * We agree that questions of fact exist as to the application of the pre-litigation and fair report privileges—those issues must go to a jury—but disagree as to application of the absolute litigation privilege. * * * Because … five statements fall squarely within the purview of the absolute litigation privilege, they ” ‘cannot serve as the basis for the imposition of liability in a defamation action’ ” … . * * *

[Re: anti-SLAPP statute:] Because Gottwald’s liability attached, if at all, when he chose to continue the defamation suit after the effective date of the statute, any potential calculation of attorney’s fees or other damages begins at the statute’s effective date …”. Gottwald v Sebert, 2023 NY Slip Op 03183, CtApp 6-13-23

​Practice Point: In this defamation opinion, the concepts of “limited public figure,” “litigation, pre-litigation and fair report privilege.” and the application of the amendments to the anti-SLAPP statute are discussed in great detail.

 

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THE CAUSES OF ACTION FOR A STIGMA-PLUS 43 USC 1983 VIOLATION AND DEFAMATION SHOULD HAVE BEEN DISMISSED; THE CAUSES OF ACTION WERE BASED UPON A STATEMENT BY THE SCHOOL DISTRICT ACCUSING PLAINTIFF OF DISREGARDING COVID POLICY AND ENDANGERING STUDENTS; PLAINTIFF DID NOT SUFFER ECONOMIC HARM AND THE STATEMENT WAS PRIVILEGED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the stigma-plus 42 USC 1983 cause of action and the defamation cause of action should have been dismissed. The action was brought by plaintiff, a school football coach, based upon a letter circulated by the school district accusing plaintiff of disregarding COVID precautions and recklessly exposing students to the virus. Initially the district was not going to renew plaintiff’s contract but ultimately plaintiff was not terminated:

A stigma-plus cause of action requires a plaintiff to establish “(1) the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiff’s status or rights” … . Because a defamatory statement, standing alone, does not amount to a constitutional deprivation, “the ‘plus’ imposed by the defendant[s] must be  specific and adverse action clearly restricting the plaintiff’s liberty—for example, the loss of employment” … . * * *

… [T]he complaint alleges that the District superintendent, whose role included termination of employees like plaintiff, circulated the allegedly defamatory letter. A school superintendent is a principal executive whose statements may be protected by absolute privilege … . Further, based on the allegations in the complaint, we conclude that “the [superintendent] was acting wholly within the scope of his duties” when making the relevant statements  … . Sindoni v Board of Educ. of Skaneateles Cent. Sch. Dist., 2023 NY Slip Op 03102, Fourth Dept 6-9-23

Practice Point: Here a statement that plaintiff school football coach disregarded COVID policy and endangered students did not support the stigma-plus 42 USC 1983 cause of action because plaintiff did not suffer economic harm and did not support the defamation cause of action because the statement was privileged.

 

PLAINTIFF, AN EDITORIAL DIRECTOR AT GAWKER, DID NOT SUFFICIENTLY ALLEGE THE DAILY BEAST REPORTERS WHO WROTE AN ARTICLE ABOUT GAWKER VIOLATED THE “GROSS IRRESPONSIBILITY STANDARD” IN MAKING STATEMENTS ABOUT PLAINTIFF; THE DEFAMATION COMPLAINT WAS DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff, an editor, did not sufficiently allege the reporters who wrote a story about the company where plaintiff worked acted in a “grossly irresponsible manner,” the standard for defamation in this context:

Plaintiff, who at the time of the article was employed by BDG Media as the editorial director of the digital media website Gawker, alleges that the article contained misleading excerpts of her communications with her colleagues at Gawker, omitting relevant context in order to inaccurately portray her as racist, homophobic, xenophobic, and transphobic. Plaintiff further alleges that the statements published in the article were false, misleading, or, to the extent they contained literal truth, taken out of context to place her in a defamatory light. Plaintiff maintains that … BDG Media terminated her employment as a result of the article.

… [P]laintiff’s defamation cause of action withstands dismissal only if she adequately alleges that defendants, all of whom are members of the media, “‘acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties'” in writing and publishing the article … The “gross irresponsibility standard demands no more than that a publisher utilize methods of verification that are reasonably calculated to produce accurate copy” and does not require “exhaustive research [or] painstaking judgments” … . Furthermore, the alleged falsity or defamatory meaning of certain statements is not probative of whether defendants acted with gross irresponsibility … . Griffith v Daily Beast, 2023 NY Slip Op 02614, First Dept 5-16-23

Practice Point: Where matters of legitimate public concern are implicated, a plaintiff alleging defamation by reporters must allege the reporters violated the “gross irresponsibility standard;” the complaint here failed to do so.

 

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THE AMENDMENTS TO THE ANTI-SLAPP STATUTES SHOULD NOT HAVE BEEN APPLIED RETROACTIVELY TO DISMISS PLAINTIFF’S DEFAMATION COMPLAINT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the amendments to the anti-SLAPP statutes (Civil Rights Law §§ 70-a, 76-a) do not apply retroactively and therefore should not have been the basis for dismissal of plaintiff’s defamation complaint:

… [T]the presumption against retroactivity is not overcome because “[n]othing in the text ‘expressly or by necessary implication’ requires retroactive application of the [anti-SLAPP] statute as amended . . . Nor does the legislative history support such an interpretation” … . First, the text of the legislation does not contain an express statement requiring retroactive application … . Second, while the anti-SLAPP amendments took effect “immediately” (id.), that term “is equivocal in an analysis of retroactivity” … . Third, although the legislation is remedial in nature and such legislation is generally applied retroactively “to better achieve its beneficial purpose” … , simply classifying a statute as remedial “does not automatically overcome the strong presumption of prospectivity” … . Finally, the legislative history establishes that the rationale for the amendments was to better advance the purposes of speech protection for which the anti-SLAPP law was initially enacted and to remedy the courts’ failure to use their discretionary powers to award costs and fees in such cases. However, the legislative history does not offer any explicit or implicit support for retroactive application … . Therefore, we conclude that “the presumption of prospective application of the [anti-SLAPP] amendments has not been defeated” … . Hoi Trinh v Nguyen, 2022 NY Slip Op 07387, Fourth Dept 12-23-22

Practice Point: The recent amendments to the anti-SLAPP statutes (Civil Rights Law 70-a, 76-a) do not apply retroactively.

 

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