Opinion
Index 907245-20
01-25-2022
SAMANTHA SHADER, Plaintiff, v. MICAH OVERBY, a/k/a “Ceo SID", Defendant RJI No. 01-21-137427
Elefterakis Elefterakis & Panek Attorneys for Defendant By: Gabriel P. Harvis, Esq. David Gordon Attorney & Counselor at Law Attorney for Plaintiff By: David Gordon Esq.
Unpublished Opinion
(Supreme Court, Albany County All Purpose Term).
Elefterakis Elefterakis & Panek Attorneys for Defendant By: Gabriel P. Harvis, Esq.
David Gordon Attorney & Counselor at Law Attorney for Plaintiff By: David Gordon Esq.
DECISION AND ORDER
DAVID A. WEINSTEIN JUSTICE
Plaintiff Samantha Shader Commenced this action on November 16, 2020 by filing a summons arid verified, complaint asserting causes of action for defamation per se and negligent infliction of emotional distress against defendant. Micah Overby, who identifies himself as "Ceo Sid" on his personal Facebook page. Defendant has now submitted a motion to dismiss the complaint, pursuant to CPLR 3211 (a)(7), for failure to state a cause of action.
Plaintiffs causes of action have their genesis in the May 29, 2020 public protests in Brooklyn, New York in response to the May 25, 2020 death of George Floyd in Minneapolis, Minnesota while in police custody (Complaint ¶ 3). The complaint, paints the following portrait of the events that followed, as they concern plaintiff:
During one of the May 29 protests, a 27 year-old woman named Samantha Shader was arrested by the New York Police Department ("NYPD") for throwing, what is described as a firebomb, commonly referred to as "Molotov Cocktail," into an NYPD van in which there were several police officers - although it did not ignite (Complaint ¶ 4), . This incident gained wide notoriety through various news, and social media outlets (id. ¶ 7).
The Samantha Slider that was arrested in connection with the incident is a resident of the Town of Catskill, located in Greene County, New York (id. ¶ 5). The plaintiff In this case, Samantha Shader from Ravena, New York, had no connection to the Molotov Cocktail incident except in that she shared the name of the woman arrested (id, ¶¶ 8-9). Nevertheless, she was wrongfully implicated in these events when, on May 30, 2020. defendant Overby was participating in a conversation on Facebook with several other people concerning the protests in Brooklyn and the Shader arrest (id. ¶ 11). In the course of the on-line exchange, at 156 p.m. defendant posted a photograph of plaintiff taken from her Facebook profile and asserted the following:
"For all of the people that make posts criticizing people for burning down their neighborhoods, this is Samantha Shader from upstate New York. A woman named Samantha Shader was arrested for throwing a Molotov Cocktail, at a police vehicle in Brooklyn during a peaceful protest over the death of George Floyd, Samantha Shader is not from Brooklyn. Read the story below:
https://readsector.com/two-sister-could-face attempted mu.../
A woman from upstate New York who allegedly threw a Molotov cocktail at an occupied police cruiser during protests in Brooklyn on Friday night has been charged with four counts of attempted murder.
Samantha Shader, 27, is accused of throwing the cocktail at the NYPD vehicle, which had four officers inside, shortly, after 10:30 pm as it was stationed near the Brooklyn Museum,
The lit bottle did not explode, and no officers were injured.
According to a statement provided to DailyMail.com Saturday; the NYPD officers subsequently exited the cruiser and attempted to arrest-Shader, who allegedly bit one. of them on the leg" (Complaint ¶ 14).
The public conversation on defendant's Facebook page continued:
"Ceo Sid: I could be wrong but. If I'm not mistaken this woman doesn't have many Black friends or any mixed[-]race children. If that's correct, then my question is what was her real reason for traveling to Brooklyn for the protest? It's one thing to show up to support the people that are rallying but showing up to start chaos is [a] separate agenda.
Latricia A. Dailey: Ceo Sid so more of us could get killed.
O.L. Weaver: Trying to ignite a face wan
Wendy R. Austin: Are you sure this is the right Samantha? I looked at her profile and she doesn't seem like a leftist freak.
Ceo Sid: This is Samantha Shader from Ravena, New York.
Ceo Sid: The question I ask still remains to be answered: Why travel from upstate New York to Brooklyn to start chaos? What agenda does that serve?
Wendy R. Austin: Ceo Sid how about this chick? [here Wendy R. Austin actually posts a Facebook page address for Samantha Shader of Catskill, New York...]
Ceo Sid: Wendy R. Austin It's possible. But again, the question is what was she invested in that ma[d]e her travel from upstate to Brooklyn to cause chaos?
Wendy R. Austin: Ceo Sid it's what leftist revolutionaries do.
Ceo Sid: You're right, the sad thing about it is that the peaceful protestors that live in Brooklyn (many of which are 'African American') will get blamed in the eyes of society, especially, since the news outlets that are reporting it aren't posting her picture.
Katie O'Reilly: Ceo Sid wrong girl.
Ceo Sid: Katie O'Reilly Thank you for that Please post a pic[ture] of the right girl" (Complaint ¶¶ 15-27).
A printout of the Facebookpage, included with plaintiffs submission, indicates that the last two posts had both been up for two days at the time of printing, meaning that O'Reilly's post and Sid's response were both posted on the day of the original post. This was true of all the comments, except those of Dailey and Weaver, which had been up for one day.
Plaintiff contends that defendant's misidentification of her as the person ultimately charged with attempted murder, of the, four NYPD officers has damaged her personal reputation, and caused her severe emotional pain and anguish (id. ¶¶ 28-58). In response to defendant's false identification, plaintiff alleges that she has been publicly attacked through Facebook with multiple degrading, vulgar, and threatening messages from readers of defendant's Facebook page, who believed as a result of defendant's posting that plaintiff was the perpetrator: of the Molotov Cocktail incident (id.). Such attacks included her being sent a recruitment letter from the Ku Klux Klan and haying several subscription applications submitted falsely in her name, resulting in plaintiff being billed hundreds of dollars (id.). Plaintiff states that she has been forced to seek help from her local Police Department due to the numerous threatening messages she has received, and is afraid to leave her residence (id.).
Such damages, according to plaintiff s allegations, were caused by the. false and defamatory "words and images" that defendant placed on his Facebook page "willfully and with reckless disregard for the truth" (id. ¶ 59). Plaintiff further claims that defendant, "knew or should have known that the allegations he directed and published against Plaintiff SAMANTHA SHADER were entirely false from their inception and could have been avoided had [defendant] exercised the minimal standard of care before publishing the blatantly false and injurious defamatory statements and pictures of add concerning plaintiff" (id. ¶ 60).
Defendant supports his motion to dismiss with an affirmation of counsel which does not dispute the material facts of the complaint, to wit: plaintiff and the person arrested in the Molotov Cocktail incident share the same name and have personal social media pages on Facebook, and defendant posted plaintiff's Facebook picture during his discussion of the incident (Affirmation in Support of Gabriel Harvis, Esq., dated August 31, 2021 ["Harvis Aff '] ¶ 3[a]-[i]).
Defendant argues nonetheless that he never directly asserted that plaintiff committed a serious crime, but did nothing more than incorrectly identify plaintiff as the "Samantha Shader" in the news article - an error he says he soon acknowledged (id. ¶ 3. [h]-[k]). He contends that his statements were truthful- i.e. — that a Samantha Shader from upstate New York committed the acts at issue, and plaintiff was named Samantha Shader and was from upstate New York (id. ¶ 3[g]). Further, he contends that his statements on-line did not constitute defamation per se, and plaintiff failed to properly plead negligent infliction of emotion distress, as there is no allegation in the complaint that defendant owed plaintiff any duty of care (id. ¶¶3[m]- 4).
Defendant also seeks to invoke the "common interest privilege" to shield his Facebook conversation from a claim of defamation (id; ¶ 9), According to defendant he and his Facebook friends are 'like-minded citizens" that share a common political interest and were engaging in an open debate on Facebook concerning public policy (id.). Thus, according to defendant, he is immune from a:defamation suit (id). He further argues that plaintiff has also failed to allege that he acted with malice; which provides another basis for dismissing the defamation cause of action (id. ¶ 12).
Finally, defendant argues that various statements made by Overby were opinion, and thus, cannot be the basis for a defamation claim (see id. ¶ 6[iii] &[vi]).
By opposing affirmation from counsel, plaintiff contends that she has properly pled a cause of action for defamation per Se and, therefore, special damages need not be alleged (Affirmation in Opposition of David Gordon, Esq., dated October 1, 2021 ["Gordon Aff'] ¶¶ 34]). She also asserts that defendant is not entitled to any qualified privilege that, would relieve him from liability for his defamatory statements.(id. ¶ 5),
Plaintiff also submits her own affidavit in opposition to the motion. Through her affidavit she identifies and provides copies of defendant's Facebook page that, contained the alleged offending conversation, with her photograph (Affidavit of Samantha Shader, sworn to on September 29, 2021).
In a reply submission, defendant specifically takes issue with plaintiffs allegation that Overby "failed to exercise diligence" before, posting her photograph, as it did not explain how Overby could have ascertained that he identified the wrong Samantha Shader (Reply Affirmation in Further Support of Defendant's Motion to Dismiss of Gabriel Harris, Esq., dated October 15, 2021 ["Reply Aff] ¶ 6). Plaintiff responded via sur-reply, arguing that defendant's argument, that he was unable to confirm the identity of the correct Samantha Shader provides additional evidence that he "acted in a grossly irresponsible manner'' (Affirmation in Sur-Reply of David Gordon, Esq, dated October 15, 2021 ("Stir-Reply Aff] ¶ 4). According to plaintiff, "[a] person is grossly irresponsible in this regard when he or she fails to verify, the accuracy or veracity of information before disseminating it" (id).
DISCUSSION
On a motion to dismiss pursuant to CPLR 3211 (a)(7), I "must afford the complaint a liberal construction [and] 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" (Knutt v Metro Intl., S.A., 91 A.D.3d 915, 916 [2d Dept 2012]). I proceed to analyze the two causes of action pled by plaintiff, for defamation and negligent infliction of emotional distress, under this standard.
Defamation
Generally, "[a] claim for defamation requires proof that the defendant made a false, statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages, or constituted defamation per se" (Partidge v State of New York, 173 A.D.3d 86, 90 [3d Dept 2019] [internal quotation and citation omitted]). A reviewing court shall find a statement to be "defamatory" where such “statement is one which tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community" (Knutt, 91 A.D.3d at 916). Whether a particular publication, considered as a whole, is susceptible to a. defamatory meaning, arid whether such publication is about or concerns the plaintiff, are questions addressed to the sound discretion of the court (see id.). Accordingly, "[i]f the statements are reasonably susceptible of a defamatory connotation, then it becomes the jury's function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader" (id. [internal quotation and citation omitted]).
Defendant contends that the statements at issue cannot be defamatory because, when parsed one by one, they are all literally true, (i.e., the Molotov cocktail was hurled by a Samantha Shader from upstate New' York, and plaintiff is named Samantha Shader and is from upstate). The falsity element of a defamation claim, however, may be proved under a theory of "defamation by implication." Such a theory' "does not require that a direct statement is, in arid of itself, false; rather it is premised on false suggestions, impressions and implications" (Partridge, 173 A.D.3d at 90 [internal quotation arid citation omitted]). Thus, a defamation cause of action "can include statements whose falsity is based not on what was said, but rather by emitting or strategically juxtaposing key facts" (id. at 91 [internal quotation and citation omitted]; see also Knutt, 91 A.D.3d at 916 [photograph of plaintiff looking at a crime scene juxtaposed with article "Call to Get Tougher on Gang Activities" was reasonably susceptible to a defamatory connotation concerning plaintiff being involved in illegal gang, activities]).
In The Third Department, whether plaintiff has sufficiently alleged defendant made false statement under a theory of defamation by implication is determined by a two-part test: "(1) the language of the communication as a whole reasonably conveys a defamatory inference, and (2) such language affirmatively and contextually suggests that the declarant either intended of endorsed the inference" (id.', see also Bisimwa v St. John Fisher College, 194 A.D.3d 1467, 1472 [4th Dept. 2021] [same]).
A reader of the statements made by defendant on Facebook could clearly infer from them that they were intended to convey the view that the woman whose picture, he posted (i.e., plaintiff) was the individual who threw the Molotov cocktail in Brooklyn; and the mere fact, that the individual parcels of information conveyed were correct does not provide a basis for dismissal. Defendant identified the pictured Samantha Shader as being from upstate, and immediately followed that language by stating that a "woman named Samantha Shader was arrested for throwing a Molotov Cocktail at a police vehicle in Brooklyn during a peaceful protest over the death of George Floyd" and “Samantha Shader is not from Brooklyn," He then posted a section of a news article about a Samantha Shader from upstate New York who attacked the four police officers. When read in this context, it is clearly a permissible understanding of this passage that Overby has expressed the view that the woman in the photograph is the same upstate New York resident who was arrested for the Molotov Cocktail incident detailed in the news article. For this reason I decline to dismiss the defamation claim on the ground that the statements at issue were "literally true" (see Partridge 173 A.D.3d at 94 [defamatory inference conveyed, where police used plaintiffs photograph: among, other photos on "Wall of shame" during press conference regarding persons arrested during child sex offense sting operation, falsely implying that claimant had engaged in sex crime against, a child]).
That conclusion alone, however, does not mean the statements made by defendant constituted defamation. The key question before me in that regard is whether the. statements which give rise to this implication may be judged to be fact or opinion. If the latter is the case, then they are "deemed privileged and, no matter haw offensive, cannot be the subject of an action, for defamation" (see Mann v Abel 10 N.Y.3d 271, 276 [2008]). This determination presents a question of law for the Court (id.).
The question of whether a statement may be deemed fact or opinion does not turn solely on a parsing of the words used, but also on such factors as whether the language employed has a precise, readily understood meaning; whether the statements at issue may be proven true of false; and whether readers would understand the assertions at issue to be fact or opinion given its broader social context and circumstances (see Steinhilber v Alphonso, 68 N.Y.2d 283, 292. [1986] [citations omitted]).
In regard to the first two of these factors it would appear at first blush that the assertion by implication that plaintiff threw a Molotov cocktail at NYPD officers has a precise meaning and one that may be proven true or false. But under the law of defamation "even apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in public debate .. or other circumstances in which an audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole" (id. at 294 [citation and internal quotation marks omitted]).
Most importantly for present purposes, the caselaw distinguishes between "[a] statement, of opinion that implies a basis in facts which are not disclosed, to the reader" and an assertion "that is accompanied by a recitation of the facts, on which it is based or.... that does not imply the existence of undisclosed underlying facts" (Gross v New York Times Co., 82 N.Y.2d 146 [1993]). While the former may be actionable defamation, the latter are tantamount to a "proffered hypothesis that is offered after a full recitation of the facts on which it is based," and thus is "readily understood by the audience as conjecture" (id). By way of example, a newspaper, article that makes allegations that purport to be based on its own investigation is representing to the reader that its contents are based on its research, and thus constitute factual claims. In contrast, a posting by an individual that states the conclusions he. or she has drawn on the basis of a third party's publication identified to the readers, and from which those readers may draw their own, different conclusions, constitutes opinion for defamation purposes.
The Facebook statements made by defendant in this instance fall squarely within this second category. In his postings, Overby made clear the source of information on which he relied for his erroneous statement that Ms. Shader from Ravenna was the woman who threw the firebomb; the article to which he linked on the one hand that identified the culprit, as Samantha Shader from upstate and plaintiff Shader's Facebook page on the other, which indicated that she shared the name of the individual referenced in the article, and was .front upstate (see Complaint ¶¶ 12, 14). Indeed, after making his argument, he specifically told his audience: "Read the story below" (Complaint ¶ 14, see Sandals Resort Intern. Ltd v Google. Inc, 86 A.D.3d 32, 43 [1st Dept 2011] [email not based on undisclosed facts when ''each remark is prompted by or responsive to a hyperlink," and thereby followed by a recitation of the facts on which it is based; "[f]ar from suggesting that the writer knows certain facts that his or her audience does not know, the e-mail is supported by links to the writer's sources"]).
There is no implication in the initial post that, defendant has some. Other, hidden information on which this conclusion, was premised, and the follow-up discussion only reinforces this conclusion. Thus, defendant prefaces his assertion regarding Shaders purported lack of black friends, by stating. "I could be wrong" (id ¶ 16). When poster Wendy Austin, points out that there was a Facebook page for a Samantha Shader in Catskill, who she says "actually" threw the Molotov cocktail, defendant responded: "it's possible" (id.¶ 23). When Katie O'Reilly told him he had the "wrong girl he thanked her and asked that she post a picture of the "right girl" (id ¶¶ 26-27). Nowhere in these exchanges does he assert - or even imply - that he has some other source for his claim beyond his own reading of the sources noted, above, and which he subsequently makes clear could be in error. This context makes clear the conjectural nature of his statements (see Solstein v Mirra, 488 F.Supp 3d 86, 97 [SD NY 2020] [argument that allegedly defamatory statement on Facebook was opinion bolstered by movant's reaction of "Wow. Really?!" to a poster's assertion of such]).
These conclusions are further buttressed by the other crucial factor! must consider in determining whether a statement constitutes fact or opinion: "the larger context in which the statements were, published, including the nature of the particular forum" (Brian v Richardson. 87 N.Y.2d 46, 51 [1995]).
In the pre-Internet era, the Court of Appeals opined that statements made "at a public hearing, where the listeners presumably expect to hear vigorous expressions of personal opinion," that "might otherwise be viewed as assertions of fact may take on an entirely different character" (id at 52, citing Steinhilber, 68 N.Y.2d at 294). Today, such an open and contentious airing of opinion often takes place on-line, via social media (see Sandals Resort Intern. Ltd. 86 A.D.3d at 43, citing Jennifer O'Brien, Note, Putting a Face to a [Screen] Name: The First Amendment Implications of Compelling ISPS to Reveal, the Identities of Anonymous Internet Speakers in Online Defamation Cases, 70 Fordham L. Rev; 2745 [2002] ["O'Brien"]["The culture of Internet communications... has been characterized as encouraging a freewheeling, anything-goes writing style" and "it is necessary to view allegedly defamatory statements published on the Internet within the broader framework on which they appear, ....]). Given this backdrop, courts have found that “readers give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts" (id., at 84, citing O'Brien; see also Torati v Hodak, 147A.D.3d 502, 503 [1st Dept 2017]).
Facebook pages are replete, with "vigorous expressions of personal opinion." Indeed, Overby's accusations against Ms, Shader were, part and parcel of statements in which he presented his broader opinions on the matter - specifically that the bomb thrower's purpose was to sow chaos and pursue her own "agenda." In short, in tone and content, these posts clearly set forth the author's own view's (see Sandals Resort Intern Ltd, 86 A.D.3d at 43 [email was found to be opinion when its "tone... indicates that the writer is expressing his or her personal views'']).
This is not to say that everything published on Facebook must be presumed to be opinion. Social media postings have frequently been found actionable in defamation suits (See Solstein, 488 F.Supp at 100-101 [although courts have found that “statements made online in blogs or forum boards are more likely to be interpreted as opinion, courts have also found that such, statements may qualify as defamation"] [citation and internal quotation marks omitted]). This has been the case, for example, when official accounts post libelous materials (see Krusen v Moss, 174 A.D.3d 1180 [3d Dept 2019]), and even Facebook postings by private individuals have been held defamatory when they present assertions of fact as defined above (see Torati, 147 A.D.3d at 504; Goldman v Reddington, 417 F.Supp 3d 163, 175-176 [ED NY 2019]). The point here is not that the forum where the statement. is made is always outcome determinative, but rather it provides context, and thus is a "useful gauge" in determining "whether a reasonable reader or listener would understand the complained-of assertions as opinion or statements of fact" (Brian, 87 N.Y.2d at 52-53 [placement of article accusing corporation of criminal behavior on the op-ed page would be understood by readers to mean that it would be-amongst articles "represent[ing] viewpoints of their authors [which] contain considerable hyperbole, speculation, diversified forms of expression and opinion"]).
Here, defendant's statements were placed on his own Facebook account, included assertions of personal opinion, and were part of a free-wheeling discussion with other posters. He made clear that his contentions were conjecture based on an article to which he linked, and nowhere implied that he had some other, undisclosed source for his conclusions. This was followed by an exchange in which others disagreed with him, and he expressed a willingness to accept their corrections. Given these circumstances, his statements were in the nature of opinion, and therefore cannot be found defamatory.
None of the above refutes plaintiffs assertions regarding the careless manner in which Overby expressed his views, nor does it diminish the impact that this had on her life. But the law of defamation provides room for individuals to express themselves via opinion and conjecture, even erroneously, and the nature of the postings at issue and their context makes clear that this is, what took place in this instance.
As a result, I grant defendant's motion to dismiss plaintiff's cause of action for defamation.
Negligent Infliction of Emotional Distress
In order to establish a cause of action for negligent infliction of emotional distress, plaintiff must plead that defendant owed her a special duty and that she was directly injured by defendant's breach of that duty (see Rainnie v Community Memorial Hosp, 87 A.D.2d 707, 707 [3d Dept 1982]; see also Taggart v Costabile, 131 A.D.3d 243, 252 [2d Dept 2015] [elements of claim for negligent infliction of emotion distress are (1) breach of duty of care that(2) results in direct emotional harm to plaintiff]).
Here, plaintiff has not alleged that defendant owed her any special duty of care, or pled any facts that would give rise to such a duty. Moreover, since the allegations supporting this, cause of action are entirely the same as those underlying the defamation claim, it is duplicative arid cannot proceed on that basis (see Sweeney v Prisoners' Legal Services of NY, Inc., 146 A.D.2d 1, 7 [3d Dept. 1989] [cause, of action for intentional infliction of emotional distress dismissed as "totally duplicative'' of defamation claim; this cause of action "should not be entertained where the. conduct complained of falls well within the ambit of other traditional tort liability"] [citation and internal quotation marks omitted]).
Based on the foregoing, it is hereby
ORDERED that defendant's motion to. dismiss is granted, and the action is dismissed.
The original Order is being electronically filed with the County Clerk, with copies e-mailed to counsel. Counsel are, not relieved from foe applicable, provisions of the CPLR respecting to service and filing of notice of entry.
Papers Considered:
1. Notice of Motion and Affirmation in Support of Gabriel P. Harvis, Esq., dated August 31, 2021 and Verified Complaint, dated October 30, 2020.
2. Affirmation in Opposition of David Gordon, Esq., dated October 1, 2021. with Exhibits annexed thereto, including Affidavit of Samantha Shader, sworn to on September 29, 2021, along with Memorandum of Law, dated October 1, 2021.
3. Reply Affirmation in Further Support of Defendant's Motion to Dismiss of Gabriel P. Harvis, Esq., dated October 15, 2021.
4. Affirmation in Sur-Reply of David Gordon, Esq., dated October 16, 2021.