Opinion
Index E2019010892
03-16-2020
JEREMY KAPPELL, Plaintiff, v. THE CITY OF ROCHESTER and MAYOR LOVELY WARREN (individually and in her official capacities, Defendants.
Thomas Ricotta, Esq. for Plaintiff Patrick Beath, Esq. for Defendants
Unpublished Opinion
Thomas Ricotta, Esq. for Plaintiff
Patrick Beath, Esq. for Defendants
DECISION AND ORDER
Taylor, J.
Jeremy Kappell ("Plaintiff") was hired by Defendant WHEC-TV as its Chief Meteorologist. See Doc. No. 2, Complaint at ¶6. During the evening broadcast on January 4, 2019 Plaintiff allegedly "suffered a linguistic error causing him to momentarily bridge two words together, before immediately correcting himself." See Doc. No. 2, Complaint at ¶11. It is further alleged that on January 6, 2019 City of Rochester Mayor Lovely Warren ("Defendant") stated that Plaintiff's linguistic error was a racial slur thereby "seemingly impugning, without basis in fact, intent on [Plaintiff] to have actually uttered such a slur." See Doc. No. 2, Complaint at ¶12. That same day Plaintiff's employment was terminated. See Doc. No. 2, Complaint at ¶13.
Plaintiff commenced the instant action against Defendants seeking damages for alleged defamation per se, tortious interference with a business relationship, intentional infliction of emotional distress, and negligent infliction of emotional distress. Defendants now move to dismiss the complaint pursuant to CPLR 3211(a)(7). Plaintiff opposes the motion and cross-moves pursuant to CPLR 3025(b) for an order granting Plaintiff leave to file an amended complaint. For the reasons that follow Plaintiff's motion to file an amended complaint is DENIED as it would be futile and Defendants' motion to dismiss the complaint is GRANTED in its entirety.
Turning first to the settled standards "in the context of a motion to dismiss the complaint, [this Court] must 'accept the facts as alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory[.] '" Murnane Building Contractors, LLC v Cameron Hill Construction, LLC, 159 A.D.3d 1602, 1603 (4th Dept 2018). The Court now applies those standards here.
Plaintiff s defamation per se cause of action must be dismissed. "It is well established that Mt]he elements of a cause of action 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.'" Conklin v. Laxen, __A.D.3d__, 2020 NY Slip Op 00957 (4th Dept decided on February 7, 2020). As relevant here, Plaintiff attempts to cast the alleged defamatory statements under the per se exception of statements tending to injure another in his trade, business or profession. See generally Spring v County of Monroe, 151 A.D.3d 1694, 1696-97 (4th Dept 2017).
Turning to the original complaint, under CPLR 3016(a) where a complaint alleges defamation "the particular words complained of shall be set forth..." Failure to include such particulars warrants dismissal of the complaint. See e.g., Wegner v Town of Cheektowaaa, 159 A.D.3d 1348, 1349 (4ch Dept 2018); Keeler v Galaxy Communications, LP. 39 A.D.3d 1202, 1203 (4th Dept 2007). Here, Plaintiff's original complaint fails to include any specificity concerning the content, time, place, or manner of Defendants' alleged defamatory utterances.
However, following Defendants' motion, Plaintiff responded by filing a cross-motion to amend his complaint to cure this pleading defect. Generally, leave to amend pleadings under CPLR 3025 is to be liberally granted. But such "[1]iberality does not... require courts to permit futile amendments.." Twitchell v Town of Pittsford, 78 A.D.2d 586 (4Ul Dept 1980) . Indeed, the proposed amended complaint here would be futile because the proposed amendments do not cure the defamation pleading defects.
For instance, the proposed amended complaint alleges Defendant made a defamatory statement on January 6, 2019 in a Facebook post and again during a press conference on January 10, 2019. As to Defendant's January 6, 2019 Facebook post, the proposed amended complaint alleges it stated the following:
"It is wrong, hurtful and infuriating that WHEC Channel 10 broadcast a racial slur in reference to Dr. Martin Luther King, Jr. during its Friday News broadcast. It is beyond unacceptable that this occurred. There must be real consequences for the news personality involved and also for the management team that failed to immediately apologize and address the slur. The individual responsible for the slur should no longer be employed at Channel 10." See Doc. No. 16, Proposed Amended Complaint at S113.
Plaintiff conceded at oral argument that the entire post contained opinion but for the latter part of the first sentence.
Defendants' motion to dismiss with respect to this allegedly defamatory statement argues that it is a true statement, and that substantial truth is an absolute defense to a defamation claim. See e.g., Smith v United Church Ministry, Inc., 212 A.D.2d 1038, 1039 (4tfl Dept 1995) . Defendants also argue dismissal is warranted upon the ground that the statement constitutes non-actionable opinion. See e.g., Silverman v Daily News, L.P., 129 A.D.3d 1054 (2d Dept 2015). Finally, Defendants argue dismissal is warranted because Plaintiff, as a news broadcaster, was a public figure and thus the proposed amended complaint failed to sufficiently plead that the alleged defamatory statement was made with actual malice. See e.g., Dattner v Pokoik. 81 A.D.2d 572, 574 (2d Dept 1981). Actual malice is established by showing the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. See Freeman v Johnston, 84 N.Y.2d 52, 56 (1994) .
In response Plaintiff counters that the proposed amendment to the defamation cause of action is meritorious. Plaintiff argues that, as amplified by the proposed amended complaint, ''Defendants published specific statements to third parties regarding Plaintiff wherein Plaintiff was inaccurately portrayed as an individual who knowingly and/or willingly uttered a racial slur when, in fact, Plaintiff simply jumbled two words...While Plaintiff's jumbling of words...may have sounded like a racial slur to some, there is and was no basis upon which anyone, including someone in as high and revered a position as the Mayor, could have reasonably reached the conclusions the Mayor reached, and voiced the statements about [Plaintiff] that were voiced." See Doc. No. 17, Plaintiff's Memorandum of Law at 5-6.
Taking the allegations in Plaintiff's original complaint and proposed amended complaint as true, he uttered what is understood to be a racially derogatory term. Defendants here offered Plaintiff's 50-h testimony on the instant motion. And as both parties agreed during oral argument at Special Term, plaintiff s testimony at a General Municipal Law 50-h hearing is properly considered on a CPLR 3211(a)(7) motion. See e.g. Kraut v City of Hew York, 85 A.D.3d 979, 979-80 (2d Dept 2011); Tilford v Greenburgh Housing Authority, 170 A.D.3d 1233, 1234-1236 (2d Dept 2019).
Plaintiff admitted in the 50-h hearing that his jumbling of words could be heard by people as the word coon. See Doc. No 8, Jeremy Kappell 50-h Examination Transcript at 85:3-7. And Plaintiff further acknowledged that he knew that use of the word coon could carry derogatory and racial implications. See Doc. No 8, Jeremy Kappell 50-h Examination Transcript at 77:5-7, Thus, affording the original complaint and proposed amended complaint every favorable inference, and coupled with Plaintiff's own testimony during his 50-h examination, such evidence conclusively establishes the substantial truth of Defendants' allegedly defamatory statements. Consequently, Defendants have established their defense as a matter of law and any proposed amendment would be futile. See e.g.. Goldberg v Levine, 97 A.D.3d 725, 726 (2d Dept 2012)(evidence submitted on CPLR 3211 motion established that defendant's statements were substantially true and dismissal warranted).
Assuming no ill intent on Plaintiff's part does not change this result.
Additionally, there is no dispute that both Plaintiff and Defendant are public figures and on the instant motion the Court so finds. Thus Plaintiff was required to allege actual malice; neither the original complaint nor the proposed amended complaint does so. And to the extent the original complaint and proposed amended complaint could be construed to allege malice insofar as requiring Defendants to conduct an investigation prior to making alleged defamatory statements - as Plaintiff has alleged here' -"the mere failure to investigate [before making statements] is not sufficient to demonstrate actual malice." Curry v Roman, 217 A.D.2d 314, 320 (4th Dept 1995) .
See James v Gannett Co., 40 N.Y.2d 415, 422(1976)("The category of 'public figures' is of necessity quite broad. Included, without doubt, are many types of public performers such as professional athletes, nightclub and concert singers, television and movie actors, and recoding artists."); see also e.g. Muggins v Moore, 94 N.Y.2d 296, 301 (1999)("In defamation actions against a 'public official' or 'public figure,' a plaintiff must prove the statement was made with 'actual malice,' i.e., with either knowledge that it was false or reckless disregard for the truth.").
Compare Doc. No. 2, Complaint at ¶15 with Doc. No. 16, Proposed Amended Complaint at 115.
Furthermore, "[b]efore knowing falsity or reckless disregard for truth can be established, the plaintiff must establish that the statement was, in fact, false." Rinaldi v Holt, Rinehart & Winston, 42 N.Y.2d 369, 380 (1977). Here, the original complaint and proposed amended complaint attribute defamatory import to Defendant's implication that Plaintiff had voiced or uttered a racially derogatory term. But Plaintiff's 50-h testimony confirms that this was not a false statement. Plaintiff thus is not absolved of his pleading burden that "as a public figure, [he] would have had to allege facts that the defendant[s] acted with actual malice." Gear Up, Inc. V City of New York, 140 A.D.3d 515, 516 (1st Dept 2016); see e.g., Jimenez v United Federation of Teachers, 239 A.D.2d 265 (1st Dept 2017). And again, neither the original nor proposed amended complaint does so.
Finally, Defendants argue that the alleged defamatory statements constitute non-actionable opinion. First, the complained of statements were based upon the disclosed fact of Plaintiff's utterance that he admits sounded to some like a word that carries derogatory and racial implications. And second, the statements at issue "do[] not imply the existence of undisclosed underlying facts." Gross v New York Times Co., 82 N.Y.2d 146, 153 (1993); see e.g., Guarneri v Korea Hews, Inc., 214 A.D.2d 649, 650 (2d Dept 1995) . The Court agrees with Defendants that the alleged defamatory statements constitute pure, non-actionable opinion.
For all of the above reasons Plaintiff's original and proposed amended complaint fail to state a cause of action for defamation. Thus, Defendants' motion to dismiss the defamation cause of action for failure to state a claim is granted and, as Plaintiff's proposed amendment would not cure the defect, his cross motion for leave to amend is denied as such amendment is futile.
In light of this ruling, Defendants' remaining arguments for dismissal of the defamation cause of action are rendered academic.
The Court now turns to Defendants' motion as it relates to Plaintiff's cause of action alleging tortious interference with a business relationship. Where a plaintiff's tortious interference with business relations cause of action derives from a properly dismissed defamation claim, the tortious interference claim must likewise fall. See e.g. Alteration Group of NY, LLC v Magic Fitters of NY, 2019 NY Slip Op 31654[U] at *8 (Sup Ct, NY County, decided June 7, 2019). Such is the case here. Because Plaintiff's defamation cause of action fails to state a cause of action, so too does the tortious interference claim from which it derives.
Finally, Defendants move to dismiss Plaintiff's intentional infliction and negligent infliction of emotional distress causes of action. Both causes of action are predicated on the defamation cause of action and therefore "are redundant of the causes of action for defamation." Rozanski v Fitch, 113 A.D.2d 1010(4th Dept 1985). "If the words spoken by the defendant[s] are true, the defendant had a right to say them, and that right cannot be subverted by allowing an action for... infliction of emotional distress." Id. Again, Plaintiff's defamation claim fails to state a cause of action. And as his emotional distress causes of action are derivative and duplicative of said defamation claim, they must likewise be dismissed.
Accordingly, it is hereby ORDERED that Defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint is hereby GRANTED in its entirety and the complaint is DISMISSED; and it is further ORDERED that as Plaintiff s proposed amended complaint would be futile his motion for leave to amend pursuant to CPLR 3025(b) is DENIED. Any prayers for relief not specifically addressed herein are DENIED.
This constitutes the Decision and Order of the Court.