Opinion
13179 Index No. 157902/19 Case No. 2020-03854
02-23-2021
CAYUGA NATION, et al., Plaintiffs–Appellants, v. SHOWTIME NETWORKS INC., et al., Defendants–Respondents.
Barclay Damon LLP, Syracuse (Lee Alcott of counsel), for appellants. Davis Wright Tremaine LLP, New York (Elizabeth A. McNamara of counsel), for respondents.
Barclay Damon LLP, Syracuse (Lee Alcott of counsel), for appellants.
Davis Wright Tremaine LLP, New York (Elizabeth A. McNamara of counsel), for respondents.
Kapnick, J.P., Webber, Mazzarelli, Oing, JJ.
Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered July 17, 2020, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the causes of action for defamation and defamation per se, unanimously affirmed, without costs.
Plaintiffs allege that in an episode of the television series Billions they were falsely portrayed as having been involved in an illegal casino land deal, bribery of a public official, and blackmail. To the extent asserted by plaintiff Cayuga Nation, their claims were correctly dismissed on the ground that a governmental entity cannot maintain a libel claim (see New York Times Co. v. Sullivan, 376 U.S. 254, 291–292, 84 S.Ct. 710, 11 L.Ed.2d 686 [1964] ; see e.g. Lazore v. NYP Holdings, Inc., 61 A.D.3d 440, 876 N.Y.S.2d 59 [1st Dept. 2009] ). Contrary to Cayuga Nation's contention, First Amendment principles are applicable to cases involving libel claims arising from fictional works of entertainment (see e.g. Gravano v. Take–Two Interactive Software, Inc., 142 A.D.3d 776, 37 N.Y.S.3d 20 [1st Dept. 2016], affd 31 N.Y.3d 988, 73 N.Y.S.3d 787, 97 N.E.3d 396 [2018] ; Batra v. Wolf, 2008 N.Y. Slip Op. 30821[U], 2008 WL 827906 [Sup. Ct., N.Y. County, Mar. 14, 2008] ). Supreme Court reasonably rejected plaintiffs' conclusory contention that the episode referred to plaintiff Halftown individually, and the episode can reasonably be said to concern how the Cayuga Nation "governs," as it depicts the Nation's involvement in a land deal and its decision to support a particular character in connection with a mobile voting program that he seeks to implement. While plaintiffs argue that Native American tribes are a unique kind of government entity, they do not explain how that uniqueness bears on the libel analysis at issue.
The claims asserted by plaintiff Halftown were also correctly dismissed. Supreme Court correctly found that the allegedly defamatory matter in the episode was not "of and concerning" Halftown, that is, the fictional character Jane Halftown was not "so closely akin" to plaintiff that a viewer "would have no difficulty linking the two" (see Carter–Clark v. Random House, Inc., 17 A.D.3d 241, 241–242, 793 N.Y.S.2d 394 [1st Dept. 2005] ; Springer v. Viking Press, 90 A.D.2d 315, 457 N.Y.S.2d 246 [1st Dept. 1982], affd 60 N.Y.2d 916, 470 N.Y.S.2d 579, 458 N.E.2d 1256 [1983] ; see also Welch v. Penguin Books USA, Inc., 1991 N.Y. Misc. LEXIS 225 at *7–10 [Sup. Ct., Kings County 1991]). The facts that the fictional character Jane Halftown and plaintiff Halftown are both Cayuga, have the same surname, and hold the same or similar positions within the Cayuga tribe do not alter that conclusion (see e.g. Frank v. National Broadcasting Co., 119 A.D.2d 252, 506 N.Y.S.2d 869 [2d Dept. 1986], appeal withdrawn 70 N.Y.2d 641, 518 N.Y.S.2d 1032, 512 N.E.2d 558 [1987] ; Allen v. Gordon, 86 A.D.2d 514, 446 N.Y.S.2d 48 [1st Dept. 1982], affd 56 N.Y.2d 780, 452 N.Y.S.2d 25, 437 N.E.2d 284 [1982] ). As noted by Supreme Court, the requisite connection could also not be drawn between the fictional character Jane Halftown and plaintiff Halftown, given plaintiffs' failure to allege that plaintiff Halftown was involved in negotiating real estate deals or in electoral issues.
We have considered plaintiffs' remaining arguments and find them unavailing.