Opinion
Index 2019003470
03-16-2020
JEREMY KAPPELL, Plaintiff, v. WHEC-TV, LLC, HUBBARD BROADCASTING, INC., and RICHARD REINGOLD, Defendants.
Thomas Ricotta, Esq. for Plaintiff Andrew C. Rose and Christopher D. Thomas, Esqs. for Defendants
Unpublished Opinion
Special Term January 23, 2020
Thomas Ricotta, Esq. for Plaintiff
Andrew C. Rose and Christopher D. Thomas, Esqs. for Defendants
DECISION AND ORDER
WILLIAM K. TAYLOR, JUDGE
Jeremy Kappell ("Plaintiff") was hired by Defendant WHEC-TV, LLC ("WHEC") as its Chief Meteorologist. See Doc. No. 6, Affidavit of R. Reingold, at Exhibit A ¶1.1. The employment contract provided the following as to grounds for termination: "[Plaintiff] recognize[s] that [his] personal and professional life intertwine, and [he] will therefore act at all times with due regard for public morals and conventions. WHEC may, by written notice, terminate [his] employment immediately for cause. Cause shall include...conduct detrimental to WHEC, its businesses, its employees or the public, or a material breach of the provisions of this Agreement..." See Doc. No. 6, Affidavit of R. Reingold, at Exhibit A ¶10.1.
According to the amended complaint, during the evening broadcast on January 4, 2019, Plaintiff "suffered from linguistic error...[and o]n or about January 6, 2019, it was alleged by members of the public and the Mayor of Rochester, Lovely A. Warren, that Kappell's linguistic error was, in fact a racial slur..." See Doc. No. 2, Amended Complaint at ¶¶ 17-18. While Plaintiff's amended complaint does not specify the linguistic error, Defendants on the instant motion provided a transcript of the relevant portion of the broadcast. According to the transcript Plaintiff uttered the following on the broadcast: "[t]his is the way it looked out at Martin Luther Coon King Jr. Park at the ice rink..." See Doc. No. 6, Affidavit of R. Reingold, at Exhibit B. Plaintiff has not challenged the accuracy of the transcript reflecting what a listener would have heard him say during this portion of the broadcast. On January 6, 2019 Plaintiff's employment was terminated. See Doc. No. 2, Amended Complaint at ¶ 22.
Plaintiff then commenced the instant action against Defendants seeking damages for alleged breach of contract, defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. Defendants now move to dismiss the amended complaint pursuant to CPLR 3211(a)(1) and (7). Plaintiff opposes the motion and cross-moves pursuant to CPLR 3025(b) for an order granting Plaintiff leave to file a second amended complaint. For the reasons that follow Plaintiff's motion to file a second amended complaint is DENIED as it would be futile, and Defendants' motion to dismiss the amended complaint is GRANTED in its entirety.
Defendants have moved for dismissal of the amended complaint under both CPLR 3211(a)(1) and (7). They have submitted the employment contract with their motion. See e.g., Mehrhof v Monroe-Woodbury Central School District, 168 A.D.3d 713, 715 (2d Dept 2019). Defendants, without objection by Plaintiff, have also offered a transcript of the precipitant television broadcast. These evidentiary submissions are both appropriately considered by this Court under CPLR 3211 (a) (7). See e.g., Liberty Affordable Housing, Inc. v Maple Court Apartments, 125 A.D.3d 85 (4tri Dept 2015). And "[w]hen documentary evidence is submitted by a defendant the standard morphs from whether the plaintiff has stated a cause of action to whether [he] has one.' [I]f the defendant's evidence establishes that the plaintiff has no cause of action (i.e., that a well-pleaded cognizable claim is flatly rejected by the documentary evidence), dismissal would be appropriate." Basis Yield Aloha Fund (Master) v Goldman Sachs Group. Inc., 115 A.D.3d 128, 135 (1st Dept 2014). Affidavits submitted by a defendant generally would not warrant dismissal under CPLR 3211(a)(7). See e.g., Phillips v Taco Bell Corp., 152 A.D.3d 806, 808 (2d Dept 2017). But where an affidavit and other evidentiary submissions conclusively establish that a plaintiff has no cause of action, such submissions warrant dismissal. Id. The Court now applies those standards here.
Plaintiffs breach of contract cause of action must be dismissed for failure to state a cause of action under CPLR 3211(a)(7). The employment contract's grounds for termination are clear and unambiguous; it specifically provides that WHEC could terminate Plaintiff's employment immediately for cause. Cause is defined to include Plaintiff engaging in "conduct detrimental to WHEC" or failing to "act at all times with due regard for public morals and conventions." See Doc. No. 6, Affidavit of R. Reingold, at Exhibit A ¶10.1.
Accepting the facts as alleged in the amended complaint as true, during the evening broadcast Plaintiff uttered what members of the public perceived to be a racial slur. See Doc. No. 2, Amended Complaint at ¶¶ 17-18. Defendants have submitted a transcript of that broadcast - without challenge as to its accuracy by Plaintiff - wherein Plaintiff states that "[t]his is the way it looked out at Martin Luther Coon King Jr. Park at the ice rink..." See Doc. No. 6, Affidavit of R. Reingold, at Exhibit B. This documentary evidence utterly refutes Plaintiff's breach of contract cause of action. Put plainly, Plaintiff's utterance of the word "coon" while stating the name of Martin Luther King Jr. during a broadcast was "detrimental" to his employer and contrary to "public morals and conventions" as a matter of law.
Assuming no ill intent on Plaintiff's part does not change this result.
This then triggered the employer's choice whether to enforce its rights under the contract. See Doc. No. 6, Affidavit of R. Reingold, at Exhibit A ¶10.1 and ¶10.2. As to the soundness of WHEC's election of remedies under the contract, "this Court should "not sit as a super-personnel department that reexamines an entity's business decisions.'" Baldwin v Cablevision Svs. Corp., 65 A.D.3d 961, 965 (1st Dept 2009). Plaintiff's arguments to the contrary are unavailing. Both the documentary evidence and the facts as alleged in the complaint - viewed in the light most favorable to Plaintiff - utterly refute his breach of contract cause of action. Therefore that portion of the motion to dismiss is hereby granted. See 3211(a)(1) and (7).
Turning to Plaintiff's defamation cause of action, it must likewise be dismissed. Under CPLR 3016(a) where a complaint alleges defamation "the particular words complained of shall be set forth..." Failure to include these particulars warrants dismissal of the complaint. See e.g., Weaner v Town of Cheektowaaa, 159 A.D.3d 1348, 1349 (4th Dept 2018); Keeler v Galaxy Communications, LP., 39 A.D.3d 1202, 1203 (4th Dept 2007). Here, Plaintiff's amended complaint fails to include any specificity concerning content, time, place, or manner of Defendants' alleged defamatory conduct. See Doc. No. 2, Amended Complaint at ¶¶ 21, 29-31.
Following Defendants' motion Plaintiff responded by filing a motion to amend the complaint to cure his defamation pleading defect. Although generally leave to amend pleadings under CPLR 3025 is to be liberally granted, such "[1]iberality does not require courts to permit futile amendments.." Twitchell v Town of Pittsford, 78 A.D.2d 586 (4ch Dept 1980). Here, the proposed second amended complaint would be futile as the proposed amendments do not cure the defamation pleading defects.
For instance, the proposed second amended complaint contains a general recitation alleging that during a January 6, 2019 broadcast WHEC defamed Plaintiff by attributing to him that he intentionally uttered a racial slur. See Doc. No. 15, Exhibit A to Ricotta Affirmation, Second Amended Complaint at ¶ 21. This paragraph goes on to include a link to portions of WHECs broadcasted statement. The same link also included written statements from Defendant Reingold on behalf of WHEC, Mayor Lovely Warren, Council President Loretta Scott, and the Rochester City Council, as well as Plaintiff himself. But merely attaching an entire article to the complaint is not sufficient to overcome a CPLR 3016 defect. See e.g., Hausch v Clarke, 298 A.D.2d 429, 430 (2d Dept 2002). Plaintiff has failed to set forth the alleged defamatory words in haec verba, as he was required to do under CPLR 3016(a). See e.g., Conley v Gravitt, 133 A.D.2d 966, 968 (3d Dept 1987). Thus, the proposed amendment to ¶ 21 still fails to cure the CPLR 3016 defect and thus to permit amendment would be futile.
Paragraph 23 of the proposed second amended complaint meets a similar fate for additional reasons. That paragraph attributes the following alleged defamatory statement to Defendant Reingold:
During the previous Friday night broadcast, Mr. Kappell clearly voiced a racially derogatory term. An utterance such as this, with no immediate apology, regardless of intent, is unacceptable and inexcusable. There can be no confusion by anyone who works at Hubbard Broadcasting or by anyone in the communities we serve, that this is unacceptable. See Doc. No. 15, Exhibit A to Ricotta Affirmation, Second Amended Complaint at ¶ 23.
Defendants' motion to dismiss with respect to this allegedly defamatory statement is that it is either a true statement or non-actionable opinion. 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 (4th Dept 1995). Defendants also argue dismissal is warranted because Plaintiff, as a news broadcaster, was a public figure and thus the proposed second 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). Finally, Defendants move to dismiss 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).
In response Plaintiff counters that the proposed amendment to the defamation cause of action is meritorious. This argument centers upon a claim of Defendants' alleged improper attribution of intent to Plaintiff's utterance coupled with Defendants' purported failure to conduct a more thorough investigation. Taken together, according to Plaintiff, Defendants' statements allowed for an impression that following a purported investigation Plaintiff's utterance was either intentional or inappropriate and warranted termination.
Taking the allegations in Plaintiff's amended complaint and proposed amended complaint as true, he uttered what is understood to be a racially derogatory term. Thus the documentary evidence and Plaintiff's own allegations conclusively establishes the 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)(documentary evidence submitted on CPLR 3211 motion established that defendant's statements were substantially true and dismissal warranted).
Additionally, there is no dispute that Plaintiff was a public figure and on the instant motion the Court so finds. As such, Plaintiff was required to allege actual malice. Neither the amended complaint nor the proposed second amended complaint does so. Failure to conduct an investigation prior to making alleged defamatory statements - as Plaintiff has alleged here - is insufficient to establish actual malice. See e.g., Curry v Roman, 217 A.D.2d 314, 320 (4th Dept 1995). 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 proposed second amended complaint attributes defamatory import to Defendant Reingold's statement that Plaintiff had voiced or uttered a racially derogatory term. But this was not a false statement. And Plaintiff correctly notes there is no burden shifting to establish malice in the context of a CPLR 3211(a) (7) motion. See e.g., Kamchi v Weissman, 125 A.D.3d 142, 159 (2d Dept 2014). However, this does not alleviate Plaintiff of his initial 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 Hew 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). Again, neither the amended complaint nor the proposed second amended complaint does so.
Defendants also argue that WHEC and Defendant Reingold's statements constitute non-actionable opinion. This Court agrees. First, the complained of statements were based upon the disclosed fact of Plaintiff's utterance, regardless of intent. 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). For all of the above reasons Plaintiff's amended complaint fails to state a cause of action for defamation and the proposed second amended complaint suffers the same infirmity. 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.
Defendants further 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. While Plaintiff opposes dismissal, his memorandum of law acknowledges that the "claims for negligent infliction of emotional distress and intentional infliction of emotional distress as a byproduct of the conduct undertaken against him by Defendants which has tarnished his name and reputation and created an environment where [Plaintiff] cannot escape the aspersions cast upon him by Defendants that have been regurgitated and multiplied through the internet and social media." See Doc. No. 16, Memorandum in Opposition to Motion and in Support of Cross-Motion at 6.
Here, the emotional distress causes of action "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. Plaintiff's defamation cause of action failed to state a claim. And because his emotional distress causes of action are derivative and duplicative of his defamation claim, they must likewise be dismissed.
Finally Defendants move to dismiss the amended complaint as against Hubbard Broadcasting, Inc. ("HBI"). As a threshold matter, nowhere in Plaintiff's amended complaint does it state a cause of action against HBI. And in addition to the grounds for dismissal of the amended complaint as against Defendants WHEC and Reingold, HBI argues that dismissal is further warranted because it was not a party to the underlying employment contract and that this Court does not have personal jurisdiction over it.
Here, to the extent the amended complaint as against Defendant HBI sounds in breach of contract, it has established that it is "not part[y] to th[e] contract, and thus they 'indisputably demonstrated through evidentiary material that the plaintiff's allegation that [they were] part[ies] to the [contract at issue] was not a fact at all.'" Omar v Moore, 171 A.D.3d 1533 (4th Dept 2019). As HBI was not a party to the contract, it may not be held liable thereunder. Assuming to the contrary for the sake of argument, HBI would be entitled to dismissal for the same reasons articulated herein as to the other Defendants.
In light of this, Defendant HBI's personal jurisdiction ground for dismissal is rendered academic.
Accordingly, it is hereby ORDERED that Defendants' motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint is hereby GRANTED in its entirety and the amended complaint is DISMISSED; and it is further ORDERED that as Plaintiff's proposed second amended complaint would be futile his motion for leave to amend pursuant to CPLR 3025(b) is DENIED; and it is further ORDERED that Defendants' request for sanctions, costs, or attorneys' fees is DENIED. Any prayers for relief not specifically addressed herein are DENIED.
This constitutes the Decision and Order of the Court.