Defamation – Page 7 – New York Appellate Digest

TWO STATEMENTS FOUND TO BE NONACTIONABLE EXPRESSIONS OF OPINION IN THIS DEFAMATION ACTION, PLAINTIFFS HAVE NO PROOF BURDEN ON A MOTION TO DISMISS, DEFENDANTS NOT SHIELDED BY THE COMMUNICATIONS DECENCY ACT (SECOND DEPT).

The Second Department, modifying Supreme Court, determined two statements alleged by the plaintiffs to have been defamatory were nonactionable opinion (other defamatory statements alleged in the complaint properly survived the motion to dismiss). The court noted that plaintiffs have no burden to prove the allegations in a complaint in response to a motion to dismiss, and further found that the Communications Decency Act did not shield the defendants from liability:

Here, the allegedly defamatory statements set forth in paragraphs 53 and 55 of the complaint—which asserted, among other things, that [the defendant president of the cooperative] was “attempting insult of American laws & freedom” and was attempting to “destroy Trump Village 4 and sell our buildings to the highest bidder after we are bankrupt”—constituted nonactionable expressions of opinion. The statements … were not easily understandable, were largely incapable of being proven true or false, and, in context, signaled to the average reader that the statements were opinion, not fact. …

We reject the defendants’ contention that the allegations of defamation fail to state a cause of action because their statements were protected by qualified privileges, and insufficient facts were alleged to show that they spoke with malice necessary to defeat those privileges … . Since “the burden does not shift to the nonmoving party on a motion made pursuant to CPLR 3211(a)(7), a plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on [such] a motion'” … . Here, to the extent that the defendants’ statements may be shielded by any qualified privileges, the allegations of malice that were set forth in the complaint and in an affidavit submitted by [the cooperative president] preclude dismissal of the complaint insofar as asserted against the defendants for failure to state a cause of action ,,, ,

We agree with the Supreme Court that the Communications Decency Act (47 USC § 230) did not warrant dismissal of the complaint at this juncture. A defendant is “immune from state law liability if (1) it is a provider or user of an interactive computer service’; (2) the complaint seeks to hold the defendant liable as a publisher or speaker’; and (3) the action is based on information provided by another information content provider'” … . “[I]f a defendant service provider is itself the content provider,’ it is not shielded from liability” … . Here, the plaintiffs alleged that the defendants authored the defamatory statements, which would mean that the defendants were content providers within the meaning of the statute … . Trump Vil. Section 4, Inc. v Bezvoleva, 2018 NY Slip Op 03389, Second Dept 5-9-18

DEFAMATION (TWO STATEMENTS FOUND TO BE NONACTIONABLE EXPRESSIONS OF OPINION IN THIS DEFAMATION ACTION, PLAINTIFFS HAVE NO PROOF BURDEN ON A MOTION TO DISMISS, DEFENDANTS NOT SHIELDED BY THE COMMUNICATIONS DECENCY ACT (SECOND DEPT))/OPINION (DEFAMATION, TWO STATEMENTS FOUND TO BE NONACTIONABLE EXPRESSIONS OF OPINION IN THIS DEFAMATION ACTION, PLAINTIFFS HAVE NO PROOF BURDEN ON A MOTION TO DISMISS, DEFENDANTS NOT SHIELDED BY THE COMMUNICATIONS DECENCY ACT (SECOND DEPT))/COMMUNICATIONS DECENCY ACT (DEFAMATION, TWO STATEMENTS FOUND TO BE NONACTIONABLE EXPRESSIONS OF OPINION IN THIS DEFAMATION ACTION, PLAINTIFFS HAVE NO PROOF BURDEN ON A MOTION TO DISMISS, DEFENDANTS NOT SHIELDED BY THE COMMUNICATIONS DECENCY ACT (SECOND DEPT))

May 9, 2018

Civil Procedure, Contract Law, Corporation Law, Defamation

ALTHOUGH THE DEFENDANT NEW YORK COMPANY IS A WHOLLY OWNED SUBSIDIARY OF AN ISRAELI COMPANY, THE TWO ENTITIES OPERATED INDEPENDENTLY SUCH THAT NEW YORK COULD NOT EXERCISE JURISDICTION OVER THE ISRAELI COMPANY, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT).

The First Department found that a defendant company, IAI, which operates in Israel, was not subject to personal jurisdiction in New York under the theory that defendant IAINA, which operates in New York, was a department of IAI. The court explained the relevant criteria. The court further held that a common interest privilege (with respect to alleged defamatory remarks regarding the plaintiff, defendant IAINA’s employee) does not insulate defendant from the alleged breach of a contractual non-disparagement clause:

Defendants established that IAI North America, Inc. (IAINA), which does business in the State of New York, is not a mere department of IAI, which operates primarily in Israel, and therefore that jurisdiction over IAINA is not jurisdiction over IAI … . The key executive personnel of the subsidiary were not assigned to their positions by the foreign parent, the subsidiary trained its own personnel, the parent did not write and publish all of the sales literature used by the subsidiary, and the subsidiary prepared its own financial statements … . … While IAINA is a wholly owned subsidiary of IAI, common ownership is “intrinsic to the parent-subsidiary relationship and, by [itself], not determinative”… . IAINA showed that it observed corporate formalities. Nothing in plaintiff’s affirmation indicates that IAI interferes in the selection and assignment of IAINA’s executive personnel, and the CEO of IAINA denied this. He also denied that IAI controlled IAINA’s marketing and operational policies. Plaintiff claimed that IAI had control over the approval of IAINA’s annual budget during the 11 years he worked at IAINA. However, this does not suffice … . …

IAINA … contends that the cause of action for breach of a non-disparagement clause should be dismissed because, even if it made disparaging remarks about plaintiff (its former employee), the remarks were privileged. However, the common interest privilege it relies on — which is part of the law of defamation — does not apply to a claim for breach of a non-disparagement clause … . Wolberg v IAI N. Am., Inc., 2018 NY Slip Op 03321, First Dept 5-8-18

CIVIL PROCEDURE (ALTHOUGH THE DEFENDANT NEW YORK COMPANY IS A WHOLLY OWNED SUBSIDIARY OF AN ISRAELI COMPANY, THE TWO ENTITIES OPERATED INDEPENDENTLY SUCH THAT NEW YORK COULD NOT EXERCISE JURISDICTION OVER THE ISRAELI COMPANY, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/JURISDICTION (CIVIL PROCEDURE, CORPORATIONS, ALTHOUGH THE DEFENDANT NEW YORK COMPANY IS A WHOLLY OWNED SUBSIDIARY OF AN ISRAELI COMPANY, THE TWO ENTITIES OPERATED INDEPENDENTLY SUCH THAT NEW YORK COULD NOT EXERCISE JURISDICTION OVER THE ISRAELI COMPANY, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/CORPORATIONS (JURISDICTION, ALTHOUGH THE DEFENDANT NEW YORK COMPANY IS A WHOLLY OWNED SUBSIDIARY OF AN ISRAELI COMPANY, THE TWO ENTITIES OPERATED INDEPENDENTLY SUCH THAT NEW YORK COULD NOT EXERCISE JURISDICTION OVER THE ISRAELI COMPANY, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/DEFAMATION (NON-DISPARAGEMENT CLAUSE, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/QUALIFIED PRIVILEGE (DEFAMATION, NON-DISPARAGEMENT CLAUSE, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/NON-DISPARAGEMENT CLAUSE (DEFAMATION, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/CONTRACT LAW (DEFAMATION, NON-DISPARAGEMENT CLAUSE, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/PRIVILEGE (DEFAMATION, COMMON INTEREST, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))/COMMON INTEREST PRIVILEGE (DEFAMATION, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT))

May 8, 2018

Defamation

CHARACTER IN A MOVIE BASED UPON A SHORT STORY WAS IDENTIFIABLE AS PLAINTIFF, THE COMPLAINT STATED CAUSES OF ACTION FOR DEFAMATION AGAINST THE MAKERS OF THE MOVIE (FIRST DEPT).

The First Department determined the complaint by plaintiff, the ex-husband of the writer, Katha Pollitt, stated causes of action for defamation and the movie defendants’ motion to dismiss was properly granted. The short story, written by Katha Pollitt, on which defendants’ movie was based, referred to Pollitt’s lover as a philanderer and womanizer, but described Pollitt’s ex-husband (plaintiff) as someone with whom Pollitt got on very well and an excellent father. Plaintiff alleged the references in the movie to the main character’s ex-husband as an adulterer and philanderer were defamatory because the main character was identifiable as Katha Pollitt and plaintiff was Pollitt’s only ex-husband:

Plaintiff sufficiently pleads that defamatory statements made about Wendy’s ex-husband, in the trailer, are “of and concerning” him … . The trailer, which proclaims itself to be “Based on a True Story,” is based upon, and shares a title with the article, linking the main character, Wendy, to Ms. Pollitt, and by extension, Wendy’s ex-husband Ted to plaintiff. Wendy and Pollitt are middle-aged, female writers learning to drive in Manhattan, who formerly relied on an ex-husband to drive them and have a daughter. As relates to the story, plaintiff’s salient characteristic is that he is the only ex-husband of the article’s author, which distinctive trait links him indelibly to Ted, the only former spouse depicted in the trailer … .

At this early stage of the litigation, defendants failed to establish that plaintiff was a public figure or that this was a matter of public concern, to which the “actual malice” standard applies… , or that the subject matter of the trailer is within the sphere of legitimate public concern … . Cohen v Broad Green Pictures LLC, 2018 NY Slip Op 02757, First Dept 4-24-18

DEFAMATION (CHARACTER IN A MOVIE BASED UPON A SHORT STORY WAS IDENTIFIABLE AS PLAINTIFF, THE COMPLAINT STATED CAUSES OF ACTION FOR DEFAMATION AGAINST THE MAKERS OF THE MOVIE (FIRST DEPT))/MOVIES (DEFAMATION, CHARACTER IN A MOVIE BASED UPON A SHORT STORY WAS IDENTIFIABLE AS PLAINTIFF, THE COMPLAINT STATED CAUSES OF ACTION FOR DEFAMATION AGAINST THE MAKERS OF THE MOVIE (FIRST DEPT))

April 24, 2018

Contract Law, Corporation Law, Defamation

DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined a defamation action against an unincorporated association (the Grand Lodge of Free & Accepted Masons of the State of New York) was properly dismissed, but the defamation action against individuals acting in individual capacities should not have been dismissed. The court further held that the breach of contract action against the association should not have been dismissed. The action was brought against a lodge after plaintiff was accused of fraud and was expelled:

Actions against unincorporated associations, whether for breaches of agreements or for tortious wrongs, are limited to cases where the individual liability of every single member can be alleged and proven … . The Martin rule “bars all actions against an unincorporated voluntary membership association, and bars claims against the officers of such an association in their representative capacities where there is no allegation that the members of the association authorized or ratified the wrongful conduct complained of” … .

Here, the plaintiff made no factual allegations in the complaint or in opposition to the motion to dismiss to indicate that all members of the Grand Lodge did in fact ratify the allegedly defamatory statements. …

… [T]he Martin rule does not purport to immunize individual members of an unincorporated association, acting in their individual capacities, from the consequences of their own tortious conduct… . …

Moreover, the Martin rule does not preclude breach of contract causes of action against unincorporated associations and their officers acting in their representative capacities based on an allegedly wrongful expulsion from the association … . Bidnick v Grand Lodge of Free & Accepted Masons of the State of N.Y., 2018 NY Slip Op 01591, Second Dept 3-14-18

CORPORATION LAW (UNINCORPORATED ASSOCIATIONS, MARTIN RULE, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/UNINCORPORATED ASSOCIATIONS (MARTIN RULE, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/MARTIN RULE (UNINCORPORATED ASSOCIATIONS, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/DEFAMATION (UNINCORPORATED ASSOCIATIONS, MARTIN RULE, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/CONTRACT LAW (UNINCORPORATED ASSOCIATIONS, MARTIN RULE, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/MASONS (UNINCORPORATED ASSOCIATIONS, MARTIN RULE, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))

March 14, 2018

Civil Rights Law, Defamation, Environmental Law

ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENTS MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined that defendants demonstrated the suit against them was a strategic lawsuit against public participation (SLAPP). Therefore plaintiff’s motion to dismiss the defendants’ anti-SLAPP counterclaim was properly denied. Plaintiff operated a yard-waste-related business. Defendants lived on neighboring properties and had made statements about odors and contamination related to the yard waste. Because the court determined this was a SLAPP suit, the complaint against a defendant based upon statements made by the defendant about plaintiff’s yard waste business (alleging defamation, interference with a a business relationship, inter alia) should have been dismissed:

It is undisputed that, in 2007, plaintiffs registered with the Department of Environmental Conservation (hereinafter DEC) as a yard waste composting facility that accepts between 3,000 to 10,000 cubic yards of waste per year … . Lawful operation of plaintiffs’ composting facility requires DEC permission and ongoing compliance with all applicable regulations and is subject to oversight by DEC … . … In light of the fact that operations pursuant to a registration require DEC permission and are subject to continuing DEC oversight, Supreme Court properly concluded that plaintiffs are public permittees, as defined by Civil Rights Law § 76-a (1) (b) … .

We also conclude that the relevant conduct challenged in this action — defendants’ statements about plaintiffs and the operations conducted at their property — establishes that the action is materially related to plaintiffs’ registered yard composting facility. …

Inasmuch as we have determined that this action involves public petition and participation, to avoid dismissal of the complaint against [defendant] Merced, plaintiffs must demonstrate that any statement they allege she made “was made with knowledge of its falsity or with reckless disregard of whether it was false” (Civil Rights Law § 76-a [2]…) . Plaintiffs failed to meet this burden. Edwards v Martin, 2018 NY Slip Op 01238, Third Dept 2-22-18

CIVIL RIGHTS LAW (SLAPP SUITS, ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/ENVIRONMENTAL LAW (SLAPP SUITS, ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/DEFAMATION (SLAPP SUITS, ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/SLAPP SUITS (ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))

February 22, 2018

Defamation, Privilege

COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a report written by defendant concerning plaintiff-doctor’s competence was protected by the common interest qualified privilege and was the expression of pure opinion. The competence assessment was done after one of plaintiff’s patients died during surgery:

Plaintiff, a doctor employed by defendant Kaleida Health (Kaleida), performed a surgery in which the patient died. As a result of this incident, and pursuant to Kaleida policy, plaintiff underwent a neuropsychological competence assessment by Ralph Benedict, M.D. (defendant). Defendant thereafter submitted a written report detailing his findings and opinions to both Kaleida’s internal review body and plaintiff’s personal physician. …

“It is well settled that summary judgment is properly granted [dismissing a defamation cause of action] where a qualified privilege obtains and the plaintiff[] offer[s] an insufficient showing of actual malice” … . Here, defendant established as a matter of law that his written report and associated oral commentary were protected both by the ” common interest’ ” qualified privilege … . In opposition, plaintiff failed to raise a triable issue of fact on the issue of actual malice … .

We further agree with defendant that the court erred in denying that part of his motion with respect to the defamation causes of action on the alternative ground that the allegedly defamatory statements are expressions of pure opinion … . “Expressions of opinion . . . are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” … . Shenoy v Kaleida Health, 2018 NY Slip Op 01008, Fourth Dept 2-9-18

DEFAMATION (COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT))/COMMON INTEREST PRIVILEGE (DEFAMATION, COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT))/OPINION (DEFAMATION, COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT))/PRIVILEGE (DEFAMATION, COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT))/QUALIFIED PRIVILEGE (DEFAMATION, COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT))

February 9, 2018

Civil Rights Law, Defamation

PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT).

The First Department, modifying Supreme Court, in a full-fledged opinion by Justice Mazzarelli, determined that the state’s use of claimant’s image in a public service ad informing HIV positive people of their rights constituted defamation per se, but not standard defamation. The First Department further determined the Civil Rights Law (privacy violation) causes of action did not apply to the state, which did not use the image for commercial purposes. Claimant alleged she suffered “mental anguish” as a result of the publication of her image and argued HIV constitutes a “loathsome disease” because of the way the condition is perceived by portions of the public:

… [P]laintiff must prove damage to (his, her) reputation or standing in the community, or damages such as personal humiliation, mental anguish and suffering” (PJI 3:29B). The use of the word “or” clearly indicates that the state of the law in New York is such that mental anguish is an alternative to reputational injury in establishing damages in a defamation case. * * *

… [B]ecause claimant alleges that she was the victim of defamation per se, we must decide whether she is indeed entitled to recover under that theory. A defamation plaintiff must plead special damages unless the defamation falls into any one of four per se categories: (1) statements charging the plaintiff with a serious crime; (2) statements that tend to injure the plaintiff in her trade, business or profession; (3) statements that impute to the plaintiff a “loathsome disease”; and (4) statements that impute unchastity to a woman… . Claimant purports to qualify under the “loathsome disease” category. … Claimant, … while taking issue with the archaic term “loathsome,” argues that it is legally operative and historically applicable in the case of medical conditions such as HIV that are communicable and can still, in claimant’s opinion, result in societal ostracism. Nolan v State of New York, 2018 NY Slip Op 00269, First Dept 1-16-18

DEFAMATION (PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE (FIRST DEPT))/HIV (DEFAMATION, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE (FIRST DEPT))/IMAGES (DEFAMATION, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE (FIRST DEPT))/CIVIL RIGHTS LAW (PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT))/PRIVACY RIGHTS (CIVIL RIGHTS LAW, PHOTOGRAPHS, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT))/PHOTOGRAPHS (CIVIL RIGHTS LAW, PHOTOGRAPHS, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT))

January 16, 2018

Defamation, Privilege

DEFENDANT’S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT).

The First Department determined that defendant's statement to the Wall Street Journal was within the judicial privilege:

Defendant['s] … statement to the Wall Street Journal, that plaintiff investment advisor “just took our money,” fell within the statutory privilege against libel claims for the publication of a fair and true report of a judicial proceeding… . The statement, in the context of the article, which was about lawsuits filed against plaintiff, would be understood by an ordinary reader to refer to defendant Muirfield Capital Management LLC's claim that plaintiff improperly withdrew money from an investment fund plaintiff managed, in which Muirfield invested … . Highland Capital Mgt., L.P. v Stern, 2018 NY Slip Op 00230, First Dept 1-10-18

DEFAMATION (JUDICIAL PRIVILEGE. DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))/LIBEL (JUDICIAL PRIVILEGE. DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))/PRIVILEGE (DEFAMATION, JUDICIAL PRIVILEGE, DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))/JUDICIAL PRIVILEGE (DEFAMATION, DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))

January 10, 2018

Defamation, Education-School Law, Employment Law

NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined the Department of Education’s (DOE’s) motion for summary judgment in this negligent hiring and retention action was properly denied. The complaint alleged that a school janitor called plaintiff’s daughter “retarded” and “bitch” in front of other students. The DOE argued the janitor was an independent contractor, not an employee, and therefore the DOE could not be liable under the doctrine of respondeat superior. However, the proof of the janitor’s independent contractor status was deemed insufficient to support summary judgment. The Second Department went on to find that the intentional infliction of emotional distress, prima facie tort, and slander causes of action against the DOE should have been dismissed:

As to the cause of action to recover damages for intentional infliction of emotional distress, the defendants established, prima facie, as a matter of law, that the isolated incident of name calling by the janitor, while unquestionably objectionable, did not rise to the level of extreme and outrageous conduct required to sustain such a cause of action … . As to the cause of action to recover damages for slander, the defendants established, prima facie, as a matter of law, that the janitor’s statements were nonactionable expressions of opinion, and not facts, about the plaintiff’s daughter… . Finally, as to the cause of action to recover damages for prima facie tort, the defendants established, prima facie, that the plaintiff did not incur special damages, a necessary element of the prima facie tort cause of action … . Gadson v City of New York, 2017 NY Slip Op 08657, Second Dept 12-13-17

EDUCATION-SCHOOL LAW (NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/EMPLOYMENT LAW (EDUCATION-SCHOOL LAW, NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/DEFAMATION (EDUCATION-SCHOOL LAW, NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/NEGLIGENT HIRING AND RETENTION (EDUCATION-SCHOOL LAW, NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

December 13, 2017

Defamation

SIGN ON PLAINTIFF’S PROPERTY SAYING THE DEFENDANT “SCREWED US BEWARE” WAS ACTIONABLE DEFAMATION, MOTION TO DISMISS THE DEFAMATION COUNTERCLAIM IN THIS CONTRACT ACTION PROPERLY DENIED (FOURTH DEPT).

The Fourth Department, over a dissent, determined a sign on plaintiff’s property saying “R. KESSLER [the defendant] SCREWED US BEWARE” was actionable defamation. Therefore the defendant’s defamation counterclaim survived a motion to dismiss:

… Supreme Court properly denied that part of plaintiffs’ motion pursuant to CPLR 3211 (a) (7) seeking to dismiss the defamation counterclaim. Contrary to plaintiffs’ contention, the statement is “reasonably susceptible of a defamatory connotation” … . Furthermore, it is a mixed statement of opinion and fact and thus is actionable inasmuch as it is “an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it’ “… . The answer thus sufficiently states a counterclaim for defamation … . Sallustio v R. Kessler & Assoc., Inc., 2017 NY Slip Op 07792, Fourth Dept 11-9-17

DEFAMATION (SIGN ON PLAINTIFF’S PROPERTY SAYING THE DEFENDANT “SCREWED US BEWARE” WAS ACTIONABLE DEFAMATION, MOTION TO DISMISS THE DEFAMATION COUNTERCLAIM IN THIS CONTRACT ACTION PROPERLY DENIED (FOURTH DEPT))

November 9, 2017