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NEWS REPORTS CONNECTING PLAINTIFF TO AN ATTEMPTED RAPE ABSOLUTELY PRIVILEGED UNDER CIVIL RIGHTS LAW, REPORTS ACCURATELY REFLECTED INFORMATION PROVIDED BY THE POLICE.

The Second Department determined the media-defendant (WPIX) in a defamation action was entitled to absolute immunity under the Civil Rights Law. The action stemmed from news reports which included the plaintiff’s photograph and stated the police were looking for the plaintiff in connection with an attempted rape. The final report stated that another had been arrested but plaintiff’s photograph was included in that report as well:

… [T]he Supreme Court properly determined that the plaintiff’s allegation that the subject news reports were published without privilege was not a fact at all, because WPIX’s evidentiary submissions established that the news reports were absolutely privileged pursuant to Civil Rights Law § 74. That statute provides, in pertinent part, that “[a] civil action cannot be maintained . . . for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding” (Civil Rights Law § 74). Contrary to the plaintiff’s contention, the police investigation of the attempted rape constituted an “official proceeding” under the statute … . Further, the subject news reports were substantially accurate reports of the information provided by the NYPD in its press releases … .

The privilege is not defeated by the NYPD’s error in identifying the plaintiff by his photograph as the assailant. The statute “was designed precisely to protect the publisher of a fair and true report from liability for just such an error and to relieve it of any duty to expose the error through its own investigation” … . Rodriguez v Daily News, L.P., 2016 NY Slip Op 06071, 2nd Dept 9-21-16

 

DEFAMATION (NEWS REPORTS CONNECTING PLAINTIFF TO AN ATTEMPTED RAPE ABSOLUTELY PRIVILEGED UNDER CIVIL RIGHTS LAW, REPORTS ACCURATELY REFLECTED INFORMATION PROVIDED BY THE POLICE)/PRIVILEGE (DEFAMATIION, NEWS REPORTS CONNECTING PLAINTIFF TO AN ATTEMPTED RAPE ABSOLUTELY PRIVILEGED UNDER CIVIL RIGHTS LAW, REPORTS ACCURATELY REFLECTED INFORMATION PROVIDED BY THE POLICE)/CIVIL RIGHTS LAW(NEWS REPORTS CONNECTING PLAINTIFF TO AN ATTEMPTED RAPE ABSOLUTELY PRIVILEGED UNDER CIVIL RIGHTS LAW, REPORTS ACCURATELY REFLECTED INFORMATION PROVIDED BY THE POLICE) 

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PUBLICITY AGENT FOR A BROADWAY SHOW BREACHED THE COVENENT OF GOOD FAITH AND FAIR DEALING BY SENDING EMAILS TO AN INVESTOR DESIGNED TO SINK THE PRODUCTION.

The First Department, in a full-fledged opinion by Justice Friedman, determined a publicity agent for a broadway show breached the covenant of good faith and fair dealing implicit in the agent’s contract with the show’s producer. The agent, Thibodeau, sent emails to an investor which were intended to sink the project, and the investor pulled out. The defamation and tortious interference causes of action will go to trial. But the breach of contract cause of action was demonstrated as a matter of law. The plaintiff is a limited partnership formed to put on the show, RBLP:

The record establishes that Thibodeau, without RBLP’s authorization, and using confidential information he had obtained as a result of his employment as RBLP’s press representative, sent an email directly to Runsdorf, a key potential investor who had desired to remain anonymous, causing Runsdorf to withdraw his financial commitment, all of which resulted in the cancellation of rehearsals and the play’s failure to open. Even assuming that his conduct did not violate the express terms of his agreement to act as the play’s press representative, Thibodeau breached the implied duty of good faith and fair dealing by essentially defeating the purpose of the agreement by his actions … . Thibodeau was hired by RBLP to use his public relations skills to facilitate the production of a play; his actions, in which he made use of confidential information that RBLP had entrusted to him in the course of his employment, made it impossible for RBLP to produce the play as planned. It is difficult to imagine a plainer case of a party to a contract utterly defeating the purpose for which the other party had entered into that contract, or a more blatant example of an agent’s disloyalty to his principal .. . Rebecca Broadway L.P. v Hotton, 2016 NY Slip Op 05839, 1st Dept 8-18-16

CONTRACT LAW (PUBLICITY AGENT FOR A BROADWAY SHOW BREACHED THE COVENENT OF GOOD FAITH AND FAIR DEALING BY SENDING EMAILS TO AN INVESTOR DESIGNED TO SINK THE PRODUCTION)/COVENANT OF GOOD FAITH AND FAIR DEALING (PUBLICITY AGENT FOR A BROADWAY SHOW BREACHED THE COVENENT OF GOOD FAITH AND FAIR DEALING BY SENDING EMAILS TO AN INVESTOR DESIGNED TO SINK THE PRODUCTION)/DEFAMATION (PUBLICITY AGENT FOR A BROADWAY SHOW BREACHED THE COVENENT OF GOOD FAITH AND FAIR DEALING BY SENDING EMAILS TO AN INVESTOR DESIGNED TO SINK THE PRODUCTION)/TORTIOUS INTERFERENCE WITH CONTRACT (PUBLICITY AGENT FOR A BROADWAY SHOW BREACHED THE COVENENT OF GOOD FAITH AND FAIR DEALING BY SENDING EMAILS TO AN INVESTOR DESIGNED TO SINK THE PRODUCTION)

E-MAILS CONSTITUTED NONACTIONABLE OPINION AND POSTED FLYERS PROTECTED BY COMMON INTEREST PRIVILEGE.

The Second Department, reversing Supreme Court, determined the defendant residential cooperative members and board were entitled to summary judgment in this defamation action. E-mails concerning plaintiff’s behavior and performance on the board were nonactionable expressions of opinion. A flyer indicating which shareholders were alleged to be in arrears was protected by the “common interest” qualified privilege:

“Expressions of an opinion, false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions'” … . “The issue of distinguishing between actionable fact and non-actionable opinion is a question of law for the court” … . Here, the statements contained in the two emails alleged to be defamatory amounted to subjective characterizations of the plaintiff’s behavior and an evaluation of her performance as a member of the Board, and thus constituted non-actionable expressions of opinion … . Accordingly, the email statements cannot serve as a basis for the imposition of liability.

The defendants further demonstrated that the challenged statements set forth in the “Shareholders In Arrears” flyers posted in the building lobby, which listed the apartment numbers of shareholders who allegedly owed arrears and the amount of those arrears, were protected by the qualified common-interest privilege … . Although a qualified privilege may be lost by proof that the defendant acted out of malice …, in opposition to the defendants’ motion, the plaintiff failed to raise a triable issue of fact as to whether the challenged statements in the flyers were motivated solely by malice … . Galanova v Safir, 2016 NY Slip Op 02617, 2nd Dept 4-6-16

DEFAMATION (E-MAILS CONSTITUTED NONACTIONABLE OPINION AND POSTED FLYERS PROTECTED BY COMMON INTEREST PRIVILEGE)/PRIVILEGE (DEFAMATION, POSTED FLYERS PROTECTED BY COMMON INTEREST PRIVILEGE)/COMMON INTEREST PRIVILEGE (DEFAMATION, POSTED FLYERS PROTECTED BY COMMON INTEREST PRIVILEGE)

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STATEMENTS MADE BY ATTORNEY IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED, DEFAMATION ACTION PROPERLY DISMISSED.

The Second Department determined the defendant-attorney's motion to dismiss the defamation complaint was properly dismissed for failure to state a cause of action. The allegedly defamatory statements were made in an affidavit submitted to the court and concerned the will at the center of the proceedings. The statements, therefore, were absolutely privileged:

An otherwise defamatory statement may be “privileged” and thus not actionable … . Insofar as is relevant herein, an absolute privilege is accorded statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court, provided that the statements may be considered in some way “pertinent” to the issue in the proceeding … . “The test of pertinency [to the litigation] is extremely liberal so as to embrace [ ] anything that may possibly or plausibly be relevant or pertinent'” … . This privilege applies to all statements made in or out of court and regardless of the motive for which they were made … .

Here, the complaint alleges that the defendant, who was counsel for the executor in a probate proceeding, made allegedly defamatory statements in an affirmation in support of a motion in that proceeding to compel a continued examination pursuant to Surrogate's Court Procedure Act § 1404. The statements concerned the very subject of the probate proceeding, the contested last Will and Testament of the decedent. Therefore, the subject statements were absolutely privileged as a matter of law and cannot be the basis for a defamation action … . Brady v Gaudelli, 2016 NY Slip Op 01793, 2nd Dept 3-16-16

ATTORNEYS (DEFAMATION, STATEMENTS MADE IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED)/DEFAMATION (STATEMENTS MADE IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED)/PRIVILEGE (ATTORNEYS, STATEMENTS MADE IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED)

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COMMUNICATION BETWEEN SPOUSES DOES NOT CONSTITUTE PUBLICATION IN A DEFAMATIOIN ACTION; MOTION TO SET ASIDE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED.

The Second Department determined defendants' oral motion to set aside the verdict in a defamation case should have been granted. Plaintiff alleged statements made by defendants (husband and wife) caused specified pecuniary loss. Because the defendants are spouses, communication between them did not constitute publication. The plaintiff was unable to demonstrate any statements made to third parties caused special harm:

“A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party” … . “In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” … .

Applying this standard here, we conclude that there was no valid line of reasoning and permissible inferences which could have led the jury to find that the plaintiff established his cause of action alleging defamation. “The elements of a cause of action [to recover damages] for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se” … . Here, because it is undisputed that the defendants are spouses, the communications between the defendants do not constitute publication … . … [T]o the extent that the plaintiff's defamation claim alleged that [defendants] communicated the [statement] to third parties, the plaintiff failed to prove that he suffered special harm, i.e., the loss of something having economic or pecuniary value, as a result of those statements .. . Gaccione v Scarpinato, 2016 NY Slip Op 01640, 2nd Dept 3-9-16

DEFAMATION (COMMUNICATION BETWEEN SPOUSES DOES NOT CONSTITUTE PUBLICATION)/CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT IN DEFAMATION ACTION SHOULD HAVE BEEN GRANTED)/VERDICT, MOTION TO SET ASIDE (DEFAMATION ACTION, MOTION TO SET ASIDE PLAINTIFF'S VERDICT SHOULD HAVE BEEN GRANTED)

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MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE.

The Third Department determined plaintiff’s libel complaint was properly dismissed. The defendant newspaper published an article about plaintiff’s conviction in a mortgage fraud prosecution which was based upon a press release from the Department of Justice (DOJ). Civil Rights Law 74 prohibits a civil action against the publisher of a fair and true report of a judicial proceeding. The Third Department explained that minor inaccuracies will not prevent the characterization of an article as fair and true:

 

Civil Rights Law § 74 provides, in relevant part, that “[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding” and, as such, “cloaks those publishing fair and true reports of judicial proceedings with immunity from civil liability” … . “[A]n article may be characterized as ‘fair and true’ if it is substantially accurate” … . Moreover, “[a] fair and true report admits of some liberality; the exact words of every proceeding need not be given if the substance be substantially stated” … and “there is ‘no requirement that a publication report the plaintiff’s side of the controversy'” … . Minor inaccuracies are “‘not serious enough to remove [a party’s] reportage from the protection of Civil Rights Law § 74′” … .

In light of the foregoing standard, we agree with Supreme Court that defendants’ published statements were a fair and true representation of the DOJ press release, thus falling within the statutory privilege afforded by Civil Rights Law § 74. Although defendants used language that differed slightly from the DOJ press release in their article, given plaintiff’s criminal charges and convictions detailed in the press release, the language used “does not suggest more serious conduct than that actually suggested in the official proceeding” … . A liberal reading of defendants’ statements in the context of the article demonstrates that the statements are substantially accurate and, thus, a fair and true report of the DOJ press release … . Bouchard v Daily Gazette Co., 2016 NY Slip Op 01364, 3rd Dept 2-25-16

 

DEFAMATION (MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE)/LIBEL (MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE)/CIVIL RIGHTS LAW  (LIBEL, MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE)

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DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE FOR PRESS RELEASE ABOUT TATOO-RELATED INFECTIONS, PLAINTIFF UNABLE TO DEMONSTRATE MALICE.

The Fourth Department determined the defendant county Department of Health was entitled to summary judgment on plaintiff’s defamation cause of action. The Department of Health had linked eight cases of infection to a particular tatoo artist. The tatoo artist told the Department he worked for plaintiff Tatoos by Design, Inc., doing business as Hardcore Tatoo. The Department issued a press release warning of the infections and noted that the tatoo artist in question reported to them he had worked for Hardcore. The Fourth Department held the Department of Health had a qualified privilege to issue the health warning and plaintiff was unable to demonstrate the press release was motivated solely by malice:

 

Generally, a statement is subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned’ ” … . Defendants, as public health officials, had a public duty to inform the public about the hazards of potential exposure to the subject tattoo artist’s work (see Public Health Law § 2100…), and it was within the scope of that duty that the press release containing the allegedly defamatory statements was issued … .

Once defendants established that the statements in the press release were protected by a qualified privilege, the burden shifted to plaintiffs to raise a triable issue of fact “whether the statements were motivated solely by malice” … , meaning “spite or a knowing or reckless disregard of a statement’s falsity”… . Tattoos By Design, Inc. v Kowalski, 2016 NY Slip Op 01091, 4th Dept 2-11-16

 

DEFAMATION (QUALIFIED PRIVILEGE FOR PRESS RELEASE ISSUED BY DEPARTMENT OF HEALTH)/PRIVILEGE (DEFAMATION, DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE RE: PRESS RELEASE)/PUBLIC HEALTH LAW (DEFAMATION, DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE RE: PRESS RELEASE)/MUNICIPAL LAW (DEFAMATION, COUNTY DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE RE: PRESS RELEASE)

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DEFAMATION CRITERIA FOR A PUBLIC FIGURE DESCRIBED; APPELLATE REVIEW POWERS IN PUBLIC FIGURE DEFAMATION ACTIONS EXPLAINED.

In affirming Supreme Court’s denial of a motion to set aside the verdict in a defamation action, the Second Department explained the law as it relates to public figures (here plaintiff was a school superintendent) and the unique powers of the appellate courts in this context. The defamation verdict related to a remark on a website stating plaintiff had procured enhanced grades for his daughter:

 

The Constitution, as interpreted in the New York Times case, bars the plaintiff “from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not” … . Actual malice must be proved by “clear and convincing evidence” … . The Court of Appeals has recognized that “[t]he usual deference paid by courts to jury verdicts is inapplicable in cases subject to the New York Times Co. v Sullivan rule” … . “[T]he appellate court must make a de novo review of the entire record, and determine whether the proof before the trial court supports the finding of actual malice with convincing clarity” … . Eastwood v Hoefer, 2016 NY Slip Op 00674, 2nd Dept 2-3-16

 

DEFAMATION (CRITERIA FOR PUBLIC FIGURES EXPLAINED)/DEFAMATION (APPELLATE REVIEW POWERS IN PUBLIC-FIGURE DEFAMATION CASES)/APPEALS (APPELLATE REVIEW POWERS IN PUBLIC-FIGURE DEFAMATION CASES)

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HOSPITAL DEFENDANTS ENTITLED TO MEDICAL-PEER-REVIEW AND COMMON-INTEREST QUALIFIED PRIVILEGE RE: COMMENTS MADE IN CONNECTION WITH THE TERMINATION OF PLAINITFF-PHYSICIAN’S HOSPITAL PRIVILEGES.

The Second Department, reversing Supreme Court, determined defendant hospital and administrators were entitled to summary judgment dismissing plaintiff’s defamation complaint. Plaintiff was a physician with privileges at defendant hospital. Based upon complaints about plaintiff’s behavior, the hospital terminated plaintiff’s hospital privileges pursuant to a recommendation of the hospital’s credentials committee. The statements at issue were made before, during and after the administrative proceedings at the hospital. The Second Department determined the defendants were not entitled to absolute privilege for comments made during the meeting of the credentials committee because those proceedings were not judicial or quasi-judicial in nature. However, the defendants were entitled to qualified privilege for medical peer review proceedings pursuant to 42 USC 1111. With respect to comments made both prior to and during the meeting of the credentials committee, the Second Department found that a “qualified privilege of common interest” applied. The Second Department rejected Supreme Court’s finding that plaintiff had raised a question of fact whether the defendants acted with malice (which would have removed the qualified privilege). With respect to comments made after the termination of plaintiff’s hospital privileges, the Second Department found, based upon plaintiff’s public comments, plaintiff was a limited-purpose public figure and there was no showing defendants’ post-termination comments were made with actual malice.  Concerning the two types of qualified privilege which were found applicable, the court explained:

 

The defendants established, prima facie, that they were entitled to a qualified privilege under 42 USC § 11111(a), part of the Health Care Quality Improvement Act, which creates a qualified privilege for information provided in medical peer review proceedings concerning the competence or professional conduct of a physician, “unless such information is false and the person providing it knew that such information was false” (42 USC § 11111[a][2]…)

* * * With respect to [the] causes of action … predicated upon allegedly defamatory statements made both during and prior to the Credentials Committee meeting, the defendants established, prima facie, that they were entitled to a qualified privilege of common interest … , under state statutory law (see Public Health Law §§ 2805-j[2]; 2805-m[3]; Education Law § 6527[3], [5]), and under [the hospital’s] bylaws … . Colantonio v Mercy Med. Ctr., 2016 NY Slip Op 00147, 2nd Dept 1-13-16

 

DEFAMATION (MEDICAL PEER REVIEW AND COMMON INTEREST QUALIFIED PRIVILEGE APPLIED TO COMMENTS MADE IN CONNECTION OF TERMINATION OF PLAINTIFF’S HOSPITAL PRVILEGES)/QUALIFIED PRIVILEGE (DEFAMATION, MEDICAL PEER REVIEW AND COMMON INTEREST QUALIFIED PRIVILEGE APPLIED TO COMMENTS MADE IN CONNECTION OF TERMINATION OF PLAINTIFF’S HOSPITAL PRVILEGES)/MEDICAL PEER REVIEW QUALIFIED PRIVILEGE (DEFAMATION)/COMMON INTEREST QUALIFIED PRIVILEGE (DEFAMATION)

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Libel Action Based Upon Allegedly False Impressions Created by an Article in an Online News Publication, Including the Allegedly False Context of a Quotation of Plaintiff’s Own Words, Allowed to Go Forward; Pleading Requirements for Piercing the Corporate Veil Not Met.

The First Department, in a full-fledged opinion by Justice Kapnick, determined: (1) the complaint did not state a cause of action for libel per se (because extrinsic facts were necessary for a defamatory interpretation of the statement); (2) the libel cause action failed to sufficiently plead special damages (leave to replead granted); (3) the fact that one of the allegedly defamatory statements was in plaintiff’s “own words” did not warrant dismissal; and (4) the complaint did not adequately allege that the publisher of the statements (Daily Holdings) was the alter ego of Rupert Murdoch’s News Corporation. The opinion includes substantive discussions (which cannot be fairly summarized here) of defamation, falsity, libel per se, libel, special damages, the so-called “own words” defense, and the requirements for piercing the corporate veil. With respect to the plaintiff’s twitter post which allegedly was used in a false context, the court discussed the so-called “own words defense:”

It is true that courts across the country have extended the “truth defense” to include an “own words” defense (see e.g., Thomas v Pearl, 998 F2d 447, 452 [7th Cir 1993] [holding that “(a) party’s accurate quoting of another’s statement cannot defame the speaker’s reputation since the speaker is himself responsible for whatever harm the words might cause. . . . The fact that a statement is true, or in this case accurately quoted, is an absolute defense to a defamation action.”]; Van Buskirk v Cable News Network, Inc., 284 F3d 977, 981-982 [9th Cir 2002] [applying the “own words” defense despite “contextual discrepancies” between the plaintiff’s own words and the defendants’ quotation of those words]; Johnson v Overnite Transp. Co., 19 F3d 392, 392 n1 [8th Cir 1994] [recognizing the “general rule that a defamation claim arises only from a communication by someone other than the person defamed”]; Smith v School Dist. of Philadelphia, 112 F Supp 2d 417, 429 [ED Pa 2000] [noting that “(g)enerally, a plaintiff can not (sic) be defamed by the use of his own words”]). Although defendants cite to Thomas v Pearl (998 F2d 447) in their brief, the parties failed to specifically address whether the “own words” defense should be adopted by this Court; and we are aware of no authority, in either New York State jurisprudence or in the Second Circuit, which either expressly accepts or rejects the “own words” defense. We are aware of only one case in the State, albeit a federal district court case, that even mentions the defense: Fine v ESPN (11 F Supp 3d 209, 224 [ND NY 2014]), in a section titled ” Own Words’ Defense,” states that it cannot reach the issue because the records needed to compare the plaintiff’s and the defendant’s words were not properly before the court on a motion to dismiss. This highlights, however, the importance of a court’s need to compare the two statements as they appear in the actual writings before applying the “own words” defense to dismiss a defamation claim. This is also evident from the fact that the “own words” defense derives from the “truth defense.” Even if we were to adopt the “own words” defense, we find that it would not apply here where a comparison of the two statements reveals the potential for them to have different effects on the mind of the reader. Franklin v Daily Holdings, Inc., 2015 NY Slip Op 08139, 1st Dept 11-12-15

 

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