Opinion
504 Index No. 154855/20 Case No. 2021-03446
06-20-2023
Karl REEVES, C.E.I.N.Y. Corp. et al., Plaintiffs-Appellants-Respondents, v. ASSOCIATED NEWSPAPERS, LTD., Defendant-Respondent-Appellant, Mail Media Inc., et al., Defendants.
Law Offices of John V. Golaszewski, P.C., New York (John V. Golaszewski of counsel), for appellants-respondents. Davis Wright Tremaine LLP, New York (Robert D. Balin and Kelli L. Sager of the bar of the State of California, admitted pro hac vice, of counsel), for respondent-appellant.
Law Offices of John V. Golaszewski, P.C., New York (John V. Golaszewski of counsel), for appellants-respondents.
Davis Wright Tremaine LLP, New York (Robert D. Balin and Kelli L. Sager of the bar of the State of California, admitted pro hac vice, of counsel), for respondent-appellant.
Webber, J.P., Oing, Gesmer, Gonza´lez, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Phillip Hom, J.), entered on or about August 5, 2021, which granted defendants Associated Newspapers Ltd. and Anneta Konstantinides's motion to dismiss the complaint to the extent of dismissing the complaint pursuant to CPLR 3211(a)(1) and (7), denied the motion to the extent it sought dismissal of the complaint pursuant to CPLR 3211(g), and denied defendants’ request for costs and attorneys’ fees pursuant to Civil Rights Law § 70–a, unanimously affirmed, with costs.
The court correctly determined that the alleged defamatory statements published by defendants in an online news article reporting on the contentious divorce and child custody battle between plaintiff Karl Reeves — the CEO of plaintiffs C.E.I.N.Y. Corp., Consolidated Elevator Industries, Inc., and Consolidated Elevator Service Corp. (collectively, Consolidated) — and actress Julianne Michelle were privileged under Civil Rights Law § 74. The statute provides 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, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published."
Here, defendants’ article provided a substantially accurate reporting of Reeves's arrests for domestic violence and related criminal proceedings, and the defamation action brought by Reeves against Michelle and others, during the divorce and custody proceedings (see Alf v. Buffalo News, Inc., 21 N.Y.3d 988, 990, 972 N.Y.S.2d 206, 995 N.E.2d 168 [2013] ; Holy Spirit Assn. for Unification of World Christianity v. New York Times Co., 49 N.Y.2d 63, 67, 424 N.Y.S.2d 165, 399 N.E.2d 1185 [1979] ). The minor inaccuracies in the article did not deprive it of the protection of the fair reporting privilege (see Misek–Falkoff v. American Lawyer Media, Inc., 300 A.D.2d 215, 216, 752 N.Y.S.2d 647 [1st Dept. 2002], lv denied 100 N.Y.2d 508, 764 N.Y.S.2d 385, 796 N.E.2d 477 [2003], cert denied 541 U.S. 939, 124 S.Ct. 1693, 158 L.Ed.2d 360 [2004] ). Additionally, the statements based on defendants’ review of texts messages and audio and video recordings were not actionable, as they were substantially true (see Gondal v. New York City Dept. of Educ., 19 A.D.3d 141, 142, 796 N.Y.S.2d 594 [1st Dept. 2005] ; Chinese Consol. Benevolent Assn. v. Tsang, 254 A.D.2d 222, 223, 679 N.Y.S.2d 54 [1st Dept. 1998] ). Although, as Reeves contends, the bare bones affidavits submitted by Michelle in the divorce and custody proceedings were insufficient to authenticate the texts and recordings (cf. Muhlhahn v. Goldman, 93 A.D.3d 418, 419, 939 N.Y.S.2d 420 [1st Dept. 2012] ), Reeves did not deny their authenticity in his affidavit submitted in opposition to defendants’ motion to dismiss in this action (see Chinese Consol. Benevolent Assn, 254 A.D.2d at 223, 679 N.Y.S.2d 54 ). Moreover, the headline was a fair index of the substantially accurate contents of the article (see Gunduz v. New York Post Co., 188 A.D.2d 294, 590 N.Y.S.2d 494 [1st Dept. 1992] ; Cole Fischer Rogow, Inc. v. Carl Ally, Inc., 29 A.D.2d 423, 426, 288 N.Y.S.2d 556 [1st Dept. 1968], affd 25 N.Y.2d 943, 305 N.Y.S.2d 154, 252 N.E.2d 633 [1969] ).
As to the tort claims, Reeves's claims for negligent and intentional infliction of emotional distress were correctly dismissed as duplicative of his defamation claims (see Fleischer v. NYP Holdings, Inc., 104 A.D.3d 536, 538–539, 961 N.Y.S.2d 393 [1st Dept. 2013], lv denied 21 N.Y.3d 858, 2013 WL 2476498 [2013] ; Akpinar v. Moran, 83 A.D.3d 458, 459, 922 N.Y.S.2d 8 [1st Dept. 2011], lv denied 17 N.Y.3d 707, 2011 WL 3925035 [2011] ). Further, defendants’ alleged conduct did not amount to extreme and outrageous conduct (see Seymour v. Hovnanian, 211 A.D.3d 549, 557, 180 N.Y.S.3d 33 [1st Dept. 2022] ; Parker v. Trustees of the Spence Sch., Inc., 205 A.D.3d 459, 460, 168 N.Y.S.3d 56 [1st Dept. 2022] ).
Reeves’ cause of action for prima facie tort was also duplicative of the defamation claim ( Fleischer, 104 A.D.3d at 538–539, 961 N.Y.S.2d 393 ; Matthaus v. Hadjedj, 148 A.D.3d 425, 426, 49 N.Y.S.3d 393 [1st Dept. 2017] ). The prima facie tort claim, insofar as asserted by Consolidated, fails because the basis of the tort, the alleged defamatory statements made about its CEO, were not "of and concerning" Consolidated ( Three Amigos SJL Rest., Inc. v. CBS News Inc., 28 N.Y.3d 82, 86–87, 42 N.Y.S.3d 64, 65 N.E.3d 35 [2016] ; see also Cohn v. National Broadcasting Co., 67 A.D.2d 140, 146, 414 N.Y.S.2d 906 [1st Dept. 1979], affd 50 N.Y.2d 885, 430 N.Y.S.2d 265, 408 N.E.2d 672 [1980], cert denied 449 U.S. 1022, 101 S.Ct. 590, 66 L.Ed.2d 484 [1980] ). Consolidated's claims for tortious interference with contract and prospective economic advantage fail on their face as it did not plead the requisite elements, including defendants’ knowledge of its business relationships and/or contracts with third parties (see Lama Holding Co. v. Smith Barney, Inc. , 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370 [1996] ; Amaranth LLC v. J.P. Morgan Chase & Co., 71 A.D.3d 40, 47, 888 N.Y.S.2d 489 [1st Dept. 2009], lv dismissed 14 N.Y.3d 736, 898 N.Y.S.2d 74, 925 N.E.2d 73 [2010] ).
Defendants were not entitled to costs and attorneys’ fees pursuant to New York's anti-SLAPP law (see Civil Rights Law § 70–a ), as plaintiff's action was commenced before the 2020 amendments to the law, and the amendments are not retroactive (see Kurland & Assoc., P.C. v. Glassdoor, Inc., 205 A.D.3d 545, 545, 166 N.Y.S.3d 847 [1st Dept. 2022] ; Robbins v. 315 W. 103 Enters. LLC, 204 A.D.3d 551, 552, 164 N.Y.S.3d 823 [1st Dept. 2022], lv denied 38 N.Y.3d 914, 2022 WL 4240918 [2022] ; Gottwald v. Sebert, 203 A.D.3d 488, 165 N.Y.S.3d 38 [1st Dept. 2022] ).
We have considered the remaining contentions and find them unavailing.