Opinion
07-13-2015
Donnell BAINES, Plaintiff, v. DAILY NEWS L.P., John Doe No. 1, John Doe # 2, John Doe # 3, John Doe # 4, Janon Fisher, Tracey Connor, Shayna Jacobs, and Jane Doe a/k/a "Barbara," Defendants.
Donnell Baines, pro se. Daily News L.P, John Does, Fisher, Connor, and Jacobs Yonaton Berkovits Esq., Carolyn Foley Esq., and Laura Handman Esq., Davis Wright Tremaine LLP, Matthew Leish, Assistant General Counsel, Daily News, L.P., New York, for Defendants.
Donnell Baines, pro se.
Daily News L.P, John Does, Fisher, Connor, and Jacobs Yonaton Berkovits Esq., Carolyn Foley Esq., and Laura Handman Esq., Davis Wright Tremaine LLP, Matthew Leish, Assistant General Counsel, Daily News, L.P., New York, for Defendants.
LUCY BILLINGS, J. I. BACKGROUND
Plaintiff sues to recover damages for defamatory statements about him by defendant Jane Doe, identified as "Barbara" and for a defamatory article based on those statements published by defendant Daily News L.P. October 25, 2012, and written by defendants Fisher and Connor. Plaintiff alleges that the John Doe defendants are Daily News editors who participated in publication of the articles.
Plaintiff's first claim is against defendant Jane Doe for giving a false account to Daily News reporters, defendants Fisher and Connor, of plaintiff luring her to his apartment, holding her captive, and assaulting, sexually abusing, and threatening her and her family. Plaintiff bases his second claim on the publication by Daily News L.P., Fisher, Connor, Jacobs, and John Does 1–4 (Daily News defendants) of an article October 25, 2012, reporting plaintiff's convictions and Jane Doe's allegedly false account of crimes plaintiff committed against her, which were not part of the criminal prosecution leading to his convictions.
The Daily News defendants move to dismiss the complaint based on its failure to state a claim and based on documentary evidence. C.P.L.R. § 3211(a)(1) and (7). Plaintiff moves to compel disclosure of the Doe defendants' identities. C.P.L.R. § 3124. For the reasons explained below, the court grants defendants' motion in part and denies plaintiff's motion.
II. PLAINTIFF'S MOTION TO COMPEL DISCLOSURE
As set forth above, plaintiff moves to compel disclosure of the names and contact information of John Does 1 through 4 and Jane Doe. C.P.L.R. § 3124. Plaintiff proceeded against the Doe defendants without naming them as is permitted as long as he is unaware of their identities, C.P.L.R. § 1024, and demonstrates due diligence in ascertaining their identities. Henderson–Jones v. City of New York, 87 A.D.3d 498, 506, 928 N.Y.S.2d 536 (1st Dep't 2011) ; Goldberg v. Boatmax://, Inc., 41 A.D.3d 255, 256, 840 N.Y.S.2d 570 (1st Dep't 2007) ; Opiela v. May Indus. Corp., 10 A.D.3d 340, 341, 781 N.Y.S.2d 353 (1st Dep't 2004) ; Tucker v. Lorieo, 291 A.D.2d 261, 738 N.Y.S.2d 33 (1st Dep't 2002). Plaintiff demonstrates that, before commencing this action October 21, 2013, via correspondence to the Daily News March 5, 2013, he requested the disclosure he now seeks and, after receiving no response, via follow-up correspondence June 4 and October 12, 2013. In opposition to plaintiff's motion, a Daily News employee responsible for overseeing its mail distribution attests, and its vice president and assistant general counsel Matthew Leish affirms, that the Daily News never received any of that correspondence from plaintiff. Approximately seven months after commencing the action, on June 1, 2014, plaintiff moved to compel disclosure of the Doe defendants' identities. His motion, prefaced by his correspondence, whether or not received, demonstrates diligent attempts to discover the Doe defendants' identity, particularly considering his incarceration. Although Leish insists these efforts were entirely unnecessary regarding the John Doe defendants' identities, as the editorial page's masthead in the Daily News printed edition would have shown plaintiff this information, the Daily News defendants present no such page. Leish's description of the editorial page's contents without presenting and authenticating the page is sheer hearsay. E.g., People v. Joseph, 86 N.Y.2d 565, 570, 635 N.Y.S.2d 123, 658 N.E.2d 996 (1995) ; Mastroddi v. WDG Dutchess Assoc. Ltd. Partnership, 52 A.D.3d 341, 342, 861 N.Y.S.2d 11 (1st Dep't 2008) ; Lapin v. Atlantic Realty Apts. Co., LLC, 48 A.D.3d 337, 338, 851 N.Y.S.2d 543 (1st Dep't 2008) ; Chubb Natl. Ins. Co. v. Platinum Customcraft Corp., 38 A.D.3d 244, 245, 831 N.Y.S.2d 382 (1st Dep't 2007). Nevertheless, plaintiff has served no demands for a bill of particulars or disclosure, e.g., C.P.L.R. §§ 3042(a), 3102(a), 3107, 3109(a), 3120(1)(i), 3130(1), rendering his motion to compel disclosure of the Doe defendants' identities premature. See C.P.L.R. § 3102(b) ; Oak Beach Inn Corp. v. Babylon Beacon, 62 N.Y.2d 158, 167, 476 N.Y.S.2d 269, 464 N.E.2d 967 (1984).
Regarding plaintiff's request for disclosure of Jane Doe's identity, the Daily News defendants claim this information is privileged under New York's Shield Law. N.Y. Civ. Rights Law § 79–h. That statute prohibits holding news professionals in contempt or otherwise penalizing them for nondisclosure of news or its source obtained in confidence through gathering news for publication. N.Y. Civ. Rights Law § 79–h(b) ; Holmes v. Winter, 22 N.Y.3d 300, 308, 980 N.Y.S.2d 357, 3 N.E.3d 694 (2013). See Oak Beach Inn Corp. v. Babylon Beacon, 62 N.Y.2d at 168, 476 N.Y.S.2d 269, 464 N.E.2d 967 ; New GPC Inc. v. Kaieteur Newspaper Inc., 127 A.D.3d 601, 602, 8 N.Y.S.3d 123 (1st Dep't 2015). If the news professionals did not obtain information in confidence, they still may not be held in contempt for:
refusing or failing to disclose any unpublished news obtained or prepared by a journalist or newscaster in the course of gathering or obtaining news as provided in subdivision (b) of this section, or the source of any such news, where such news was not obtained or received in confidence, unless the party seeking such news has made a clear and specific showing that the news: (i) is highly material
and relevant; (ii) is critical or necessary to the maintenance of a party's claim ...; and (iii) is not obtainable from any alternative source.
N.Y. Civ. Rights Law § 79–h(c). See Holmes v. Winter, 22 N.Y.3d at 308, 980 N.Y.S.2d 357, 3 N.E.3d 694 ; Gilson v. Coburn, 106 A.D.3d 424, 964 N.Y.S.2d 149 (1st Dep't 2013) ; Emerson v. Port, 303 A.D.2d 229, 230, 757 N.Y.S.2d 18 (1st Dep't 2003) ; Matter of CBS Inc., 232 A.D.2d 291, 292, 648 N.Y.S.2d 443 (1st Dep't 1996). Penalties as prescribed by C.P.L.R. § 3126 against the Daily News defendants for nondisclosure also are restricted, Oak Beach Inn Corp. v. Babylon Beacon, 62 N.Y.2d at 168, 476 N.Y.S.2d 269, 464 N.E.2d 967, as long as defendants do not exploit or benefit from the unavailability of the undisclosed evidence. Id. at 166, 476 N.Y.S.2d 269, 464 N.E.2d 967 ; Sands v. New Am. Publ., 161 A.D.2d 30, 37, 42, 560 N.Y.S.2d 416 (1st Dep't 1990) ; Collins v. Troy Publ. Co., 213 A.D.2d 879, 881, 623 N.Y.S.2d 663 (3d Dep't 1995).
Even assuming plaintiff established that Jane Doe's identity was material, relevant, and necessary to his claim, he fails to meet Civil Rights Law § 79–h(c)'s further requirement that the information be unavailable from another source, as he shows no efforts to determine her identity other than asking the Daily News. Gilson v. Coburn, 106 A.D.3d 424, 964 N.Y.S.2d 149 ; Emerson v. Port, 303 A.D.2d at 230, 757 N.Y.S.2d 18 ; Matter of CBS Inc., 232 A.D.2d at 292, 648 N.Y.S.2d 443. See Scott v. Cooper, 227 A.D.2d 463, 464, 642 N.Y.S.2d 935 (2d Dep't 1996). Absent satisfaction of the statutory requirements, her identity would "be inadmissible in any action or proceeding." N.Y. Civ. Rights Law § 79–h(d). See Holmes v. Winter, 22 N.Y.3d at 308, 980 N.Y.S.2d 357, 3 N.E.3d 694.
III. STANDARDS APPLICABLE TO DEFENDANTS' MOTION TO DISMISS THE COMPLAINT
Upon defendants' motion to dismiss the complaint pursuant to C.P.L.R. § 3211(a)(1) or (7), the court accepts the complaint's allegations as true and draws all inferences in plaintiff's favor. Art & Fashion Group Corp. v. Cyclops Prod., Inc., 120 A.D.3d 436, 437, 992 N.Y.S.2d 7 (1st Dep't 2014) ; Amsterdam Hospitality Group, LLC v. Marshall–Alan Assoc., Inc., 120 A.D.3d 431, 432, 992 N.Y.S.2d 2 (1st Dep't 2014) ; Cabrera v. Collazo, 115 A.D.3d 147, 150, 979 N.Y.S.2d 326 (1st Dep't 2014) ; Devash LLC v. German Am. Capital Corp., 104 A.D.3d 71, 76–77, 959 N.Y.S.2d 10 (1st Dep't 2013). Dismissal is warranted under C.P.L.R. § 3211(a)(7) only if the complaint fails to allege facts that fit within any cognizable legal theory. Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 (2007) ; Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561, 570–71, 807 N.Y.S.2d 583, 841 N.E.2d 742 (2005) ; Mill Financial, LLC v. Gillett, 122 A.D.3d 98, 103, 992 N.Y.S.2d 20 (1st Dep't 2014) ; Cabrera v. Collazo, 115 A.D.3d at 151, 979 N.Y.S.2d 326.
Dismissal of the complaint's claims pursuant to C.P.L.R. § 3211(a)(1) requires documentary evidence in admissible form that conclusively resolves all factual issues and establishes a defense as a matter of law. Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (2002) ; Mill Financial, LLC v. Gillett, 122 A.D.3d at 103, 992 N.Y.S.2d 20 ; Art & Fashion Group Corp. v. Cyclops Prod., Inc., 120 A.D.3d at 438, 992 N.Y.S.2d 7 ; Amsterdam Hospitality Group, LLC v. Marshall–Alan Assoc., Inc., 120 A.D.3d at 433, 992 N.Y.S.2d 2. The documentary evidence must plainly and flatly contradict the complaint's claims. Maas v. Cornell Univ., 94 N.Y.2d 87, 91, 699 N.Y.S.2d 716, 721 N.E.2d 966 (1999) ; Xi Mei Jia v. Intelli–Tec Sec. Servs., Inc., 114 A.D.3d 607, 608, 981 N.Y.S.2d 79 (1st Dep't 2014) ; Cathy Daniels, Ltd. v. Weingast, 91 A.D.3d 431, 433, 936 N.Y.S.2d 44 (1st Dep't 2012) ; KSW Mech. Servs., Inc. v. Willis of N.Y., Inc., 63 A.D.3d 411, 879 N.Y.S.2d 328 (1st Dep't 2009). See Lopez v. Fenn, 90 A.D.3d 569, 572, 937 N.Y.S.2d 1 (1st Dep't 2011). The court may dismiss claims based on such evidence only if plaintiff fails to rebut it. Hicksville Dry Cleaners, Inc. v. Stanley Fastening Sys., L.P., 37 A.D.3d 218, 830 N.Y.S.2d 530 (1st Dep't 2007).
Plaintiff's claims against the moving defendants are for libel, an injury to a person's reputation through a written publication of facts, rather than opinion. Thomas H. v. Paul B., 18 N.Y.3d 580, 584, 942 N.Y.S.2d 437, 965 N.E.2d 939 (2012) ; St. David's School v. Hume, 101 A.D.3d 582, 583, 957 N.Y.S.2d 52 (1st Dep't 2012) ; Konrad v. Brown, 91 A.D.3d 545, 546, 937 N.Y.S.2d 190 (1st Dep't 2012). To sustain claims for libel, plaintiff must establish that defendants made (1) an unprivileged statement of fact, Martin v. Daily News L.P., 121 A.D.3d 90, 100, 990 N.Y.S.2d 473 (1st Dep't 2014) ; O'Neill v. New York Univ., 97 A.D.3d 199, 212, 944 N.Y.S.2d 503 (1st Dep't 2012) ; GS Plasticos Limitada v. Bureau Veritas, 84 A.D.3d 518, 519, 922 N.Y.S.2d 365 (1st Dep't 2011), (2) concerning him, Smith v. Catsimatidis, 95 A.D.3d 737, 944 N.Y.S.2d 878 (1st Dep't 2012) ; Prince v. Fox Tel. Stas., Inc., 93 A.D.3d 614, 941 N.Y.S.2d 488 (1st Dep't 2012), (3) with the requisite degree of fault, (4) that is false and defamatory, Brian v. Richardson, 87 N.Y.2d 46, 51, 637 N.Y.S.2d 347, 660 N.E.2d 1126 (1995) ; Omansky v. Penning, 101 A.D.3d 514, 515, 955 N.Y.S.2d 596 (1st Dep't 2012) ; Amaranth LLC v. J.P. Morgan Chase & Co., 100 A.D.3d 573, 574, 954 N.Y.S.2d 531 (1st Dep't 2012) ; Konrad v. Brown, 91 A.D.3d at 546, 937 N.Y.S.2d 190, and (5) that damaged him. E.g., Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 379, 397 N.Y.S.2d 943, 366 N.E.2d 1299 (1977) ; Sandals Resorts Intl. Ltd. v. Google, Inc., 86 A.D.3d 32, 38, 925 N.Y.S.2d 407 (1st Dep't 2011). A statement is defamatory only if it (a) is false and (b) exposes plaintiff "to public contempt, ridicule, aversion or disgrace, or ... an evil opinion" of him and deprives him of "friendly intercourse in society." Dillon v. City of New York, 261 A.D.2d 34, 37–38, 704 N.Y.S.2d 1 (1st Dep't 1999) (citations omitted). See Thomas H. v. Paul B., 18 N.Y.3d at 584, 942 N.Y.S.2d 437, 965 N.E.2d 939 ; Martin v. Daily News L.P., 121 A.D.3d at 100, 990 N.Y.S.2d 473 ; Sandals Resorts Intl. Ltd. v. Google, Inc., 86 A.D.3d at 38, 925 N.Y.S.2d 407 ;
Bement v. N.Y.P. Holdings, 307 A.D.2d 86, 92, 760 N.Y.S.2d 133 (1st Dep't 2003). Whether the statements are susceptible of a defamatory connotation is a legal determination for the court. Alf v. Buffalo News, Inc., 21 N.Y.3d 988, 990, 972 N.Y.S.2d 206, 995 N.E.2d 168 (2013) ; Armstrong v. Simon & Schuster, 85 N.Y.2d 373, 380, 625 N.Y.S.2d 477, 649 N.E.2d 825 (1995) ; Weiner v. Doubleday & Co., 74 N.Y.2d 586, 592, 550 N.Y.S.2d 251, 549 N.E.2d 453 (1989) ; Ava v. NYP Holdings, Inc., 64 A.D.3d 407, 412, 885 N.Y.S.2d 247 (1st Dep't 2009).
IV. DEFENDANTS' MOTION TO DISMISS THE COMPLAINT
The Daily News defendants rely primarily on the absolute privilege applicable to "the publication of a fair and true report of any judicial proceeding," established by New York Civil Rights Law § 74.
A. The Procedural Posture
As plaintiff points out, the court may not dismiss his complaint under C.P.L.R. § 3211(a)(7) based on the alleged defamatory articles' truth or the Daily News defendants' privilege before the moving defendants have raised the articles' truth or defendants' privilege as an affirmative defense in an answer. Fletcher v. Dakota, Inc., 99 A.D.3d 43, 55–56, 948 N.Y.S.2d 263 (1st Dep't 2012) ; Garcia v. Puccio, 17 A.D.3d 199, 201, 793 N.Y.S.2d 382 (1st Dep't 2005) ; Acosta v. Vataj, 170 A.D.2d 348, 566 N.Y.S.2d 49 (1st Dep't 1991) ; Wilcox v. Newark Val. Cent. School Dist., 74 A.D.3d 1558, 1562, 904 N.Y.S.2d 523 (3d Dep't 2010). See Aguinaga v. 342 E. 72nd St. Corp., 14 A.D.3d 304, 787 N.Y.S.2d 283 (1st Dep't 2005) ; Clark v. Schuylerville Cent. School Dist., 24 A.D.3d 1162, 1163, 807 N.Y.S.2d 175 (3d Dep't 2005). To allow defendants to raise truth or privilege in a pre-answer motion to dismiss the complaint based on its failure to state a claim would necessitate that the complaint, contrary to C.P.L.R. § 3018(b), anticipate and address an affirmative defense before it has been pleaded. Garcia v. Puccio, 17 A.D.3d at 201, 793 N.Y.S.2d 382. Instead, defendants must raise these affirmative defenses in an answer and move for summary judgment, Garcia v. Puccio, 62 A.D.3d 598, 879 N.Y.S.2d 435 (1st Dep't 2009) ; Garcia v. Puccio, 17 A.D.3d at 201, 793 N.Y.S.2d 382 ; Wilcox v. Newark Val. Cent. School Dist., 74 A.D.3d at 1562, 904 N.Y.S.2d 523, or, as here, move to dismiss the complaint pursuant to C.P.L.R. § 3211(a)(1) and present documentary evidence establishing the defense of truth or privilege as a matter of law. See O'Neill v. New York Univ., 97 A.D.3d at 209, 213, 944 N.Y.S.2d 503 ; Muhlhahn v. Goldman, 93 A.D.3d 418, 419, 939 N.Y.S.2d 420 (1st Dep't 2012) ; Saleh v. New York Post, 78 A.D.3d 1149, 1152, 915 N.Y.S.2d 571 (2d Dep't 2010).
B. The Documentary Evidence
To support their motion, the Daily News defendants rely on the transcripts of the trial against plaintiff and on the New York County District Attorney's press release issued October 24, 2012, to demonstrate the truth of defendants' publications and their absolute privilege. The transcripts are certified by the court reporter and therefore admissible. American States Ins. Co. v. Huff, 119 A.D.3d 478, 479, 990 N.Y.S.2d 489 (1st Dep't 2014) ; Franco v. Rolling Frito–Lay Sales, Ltd., 103 A.D.3d 543, 962 N.Y.S.2d 54 (1st Dep't 2013) ; Singh v. Actors Equity Holding Corp., 89 A.D.3d 488, 932 N.Y.S.2d 341 (1st Dep't 2011).
The press release, however, offered for the truth of its contents, see Ableco Fin. LLC v. Hilson, 109 A.D.3d 438, 439, 970 N.Y.S.2d 775 (1st Dep't 2013), is unsworn hearsay, Banco Popular N. Am. v. Victory Taxi Mgt., Inc., 1 N.Y.3d 381, 384, 774 N.Y.S.2d 480, 806 N.E.2d 488 (2004) ; Rodriguez v. City of New York, 105 A.D.3d 623, 624, 963 N.Y.S.2d 640 (1st Dep't 2013) ; Rodriguez v. 3251 Third Ave. LLC, 80 A.D.3d 434, 914 N.Y.S.2d 142 (1st Dep't 2011) ; Babikian v. Nikki Midtown, LLC, 60 A.D.3d 470, 471, 875 N.Y.S.2d 20 (1st Dep't 2009), that is neither an admission, see People v. Greenberg, 95 A.D.3d 474, 477, 484, 946 N.Y.S.2d 1 (1st Dep't 2012), aff'd, 21 N.Y.3d 439, 447, 971 N.Y.S.2d 747, 994 N.E.2d 838 (2013), nor any other exception to the rule against hearsay and is no more admissible for the press release's truth than a newspaper article based on a press release. E.g., People v. Samandarov, 13 N.Y.3d 433, 437, 892 N.Y.S.2d 823, 920 N.E.2d 930 (2009) ; Rodriguez v. City of New York, 105 A.D.3d at 624, 963 N.Y.S.2d 640 ; Peckman v. Mutual Life Ins. Co. of N.Y., 125 A.D.2d 244, 247, 509 N.Y.S.2d 336 (1st Dep't 1986). While a newspaper article may report the contents of an affidavit or other allegations of a pleading in a judicial proceeding and still qualify for Civil Rights Law § 74's protection, the press release was not a document in the criminal action against plaintiff.
Nor do the Daily News defendants present the press release to show what they relied on in reporting plaintiff's convictions. See Weiner v. Doubleday & Co., 74 N.Y.2d at 596, 550 N.Y.S.2d 251, 549 N.E.2d 453 ; Cholowsky v. Civiletti, 69 A.D.3d 110, 115, 887 N.Y.S.2d 592 (2d Dep't 2009). They present the release to establish the truth of what they reported.
Even were the press release actually sworn by the New York County District Attorney, such an affidavit would not fall within the scope of the limited admissible documentary evidence the court might rely on to dismiss the complaint under C.P.L.R. § 3211(a)(1). United States Fire Ins. Co. v. North Shore Risk Mgt., 114 A.D.3d 408, 409, 980 N.Y.S.2d 35 (1st Dep't 2014) ; Regini v. Board of Mgrs. of Loft Space Condominium, 107 A.D.3d 496, 497, 968 N.Y.S.2d 18 (1st Dep't 2013) ; Flowers v. 73rd Townhouse LLC, 99 A.D.3d 431, 951 N.Y.S.2d 393 (1st Dep't 2012) ; Correa v. Orient–Express Hotels, Inc., 84 A.D.3d 651, 924 N.Y.S.2d 336 (1st Dep't 2011). Nor would an affidavit support dismissal under C.P.L.R. § 3211(a)(7). Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595, 873 N.Y.S.2d 517, 901 N.E.2d 1268 (2008) ; Asmar v. 20th & Seventh Assoc., LLC, 125 A.D.3d 563, 564, 4 N.Y.S.3d 198 (1st Dep't 2015) ; Art & Fashion Group Corp. v. Cyclops Prod., Inc., 120 A.D.3d at 438, 992 N.Y.S.2d 7. See Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271, 780 N.Y.S.2d 593 (1st Dep't 2004).
The transcripts nonetheless establish that plaintiff was convicted of rape in the first degree, a criminal sexual act in the first degree, three counts of sex trafficking, promoting prostitution in the second and third degree, coercion in the first degree, three counts of assault in the second degree, sexual abuse in the first degree, and unlawful imprisonment in the second degree. Thus, insofar as the Daily News defendants published a true report of these convictions, Civil Rights Law § 74 protects their articles. Alf v. Buffalo News, Inc., 21 N.Y.3d at 989, 972 N.Y.S.2d 206, 995 N.E.2d 168 ; Martin v. Daily News L.P., 121 A.D.3d at 100, 990 N.Y.S.2d 473 ; Misek–Falkoff v. American Lawyer Media, 300 A.D.2d 215, 216, 752 N.Y.S.2d 647 (1st Dep't 2002). Comparing the transcripts' account with the Daily News defendants' October 2012 article demonstrates that so much of their article as pertained to plaintiff's convictions fairly and truthfully reported his convictions and sentencing, Muhlhahn v. Goldman, 93 A.D.3d at 419, 939 N.Y.S.2d 420 ; Pitcock
v. Kasowitz, Benson, Torres & Friedman LLP, 74 A.D.3d 613, 614, 903 N.Y.S.2d 43 (1st Dep't 2010), and thus is absolutely privileged. N.Y. Civ. Rights Law § 74 ; Alf v. Buffalo News, Inc., 21 N.Y.3d at 990, 972 N.Y.S.2d 206, 995 N.E.2d 168 ; Russian Am. Found., Inc. v. Daily News, L.P., 109 A.D.3d 410, 413, 970 N.Y.S.2d 216 (1st Dep't 2013) ; GS Plasticos Limitada v. Bureau Veritas, 84 A.D.3d 518, 922 N.Y.S.2d 365 ; Saleh v. New York Post, 78 A.D.3d at 1152, 915 N.Y.S.2d 571.
C. Reporting of Subjects Outside the Trial
Regarding the Daily News defendants' liability for reporting other, albeit related subjects, their requisite fault to support liability may depend on those subjects of their publication. Plaintiff concedes in opposition to their motion that their articles reported on issues of legitimate public concern, so that, even to be liable for an untrue report, defendants must be grossly irresponsible in their reporting. Crime, the legal process, and the penalties imposed on crimes through that process legitimately concern the public and warrant public exposition. E.g., Weiner v. Doubleday & Co., 74 N.Y.2d at 595, 550 N.Y.S.2d 251, 549 N.E.2d 453 ; Karaduman v. Newsday, Inc., 51 N.Y.2d 531, 539, 435 N.Y.S.2d 556, 416 N.E.2d 557 (1980) ; Sarwer v. Conde Nast Publs., 237 A.D.2d 191, 192, 654 N.Y.S.2d 768 (1st Dep't 1997) ; Sheridan v. Carter, 48 A.D.3d 447, 448, 851 N.Y.S.2d 252 (2d Dep't 2008). Newspaper editors' determination of a subject's newsworthiness is evidence in itself of the public's interest in the subject. Huggins v. Moore, 94 N.Y.2d 296, 305, 704 N.Y.S.2d 904, 726 N.E.2d 456 (1999) ; Weiner v. Doubleday & Co., 74 N.Y.2d at 595, 550 N.Y.S.2d 251, 549 N.E.2d 453. To show that the newsworthiness of plaintiff's criminal trial was not the determination of just the Daily News defendants themselves, they present other newspaper articles that reported plaintiff's trial. Sheridan v. Carter, 48 A.D.3d at 448, 851 N.Y.S.2d 252. See Huggins v. Moore, 94 N.Y.2d at 305, 704 N.Y.S.2d 904, 726 N.E.2d 456.
The conceded fact that the subject of the Daily News defendants' articles was of legitimate public concern, warranting public exposition, required plaintiff plead their gross irresponsibility in investigating the accuracy of their reporting. Ramos v. Madison Sq. Garden Corp., 257 A.D.2d 492, 493, 684 N.Y.S.2d 212 (1st Dep't 1999) ; Sarwer v. Conde Nast Publs., 237 A.D.2d at 191–92, 654 N.Y.S.2d 768 ; Love v. Morrow & Co., 193 A.D.2d 586, 588, 597 N.Y.S.2d 424 (2d Dep't 1993). See Weiner v. Doubleday & Co., 74 N.Y.2d at 595, 550 N.Y.S.2d 251, 549 N.E.2d 453 ; Farber v. Jefferys, 103 A.D.3d 514, 515, 959 N.Y.S.2d 486 (1st Dep't 2013). The complaint specifies how the Daily News defendants were grossly irresponsible in publishing Jane Doe's account in their October 2012 article. Contrary to the article, no statute of limitations applies to rape to bar prosecution of plaintiff for alleged crimes of rape against Jane Doe, C.P.L. § 30.10(2)(a) ; People v. Quinto, 18 N.Y.3d 409, 412, 941 N.Y.S.2d 8, 964 N.E.2d 379 (2012), yet prosecutors declined to prosecute any such crime because they did not find her credible.
The Daily News defendants claim their reporters interviewed her directly and that, as laypersons, they are not expected to know the statute of limitations for rape. Moreover, the October 2012 article merely reported that "sources said prosecutors found her credible," rather than that prosecutors in fact found her credible, the fact that plaintiff disputes. Aff. of Carolyn Foley Ex. 9.
Even if the Daily News defendants found no reason to doubt the veracity of Jane Doe's account, Gaeta v. New York News, 62 N.Y.2d 340, 351, 477 N.Y.S.2d 82, 465 N.E.2d 802 (1984) ; Ramos v. Madison Sq. Garden Corp., 257 A.D.2d at 493, 684 N.Y.S.2d 212, they have failed to present documentary evidence either establishing that prosecutors found Jane Doe credible or detailing the measures defendants took to ensure responsible information gathering or independent confirmation of her account. See Weiner v. Doubleday & Co., 74 N.Y.2d at 596, 550 N.Y.S.2d 251, 549 N.E.2d 453 ; Kruesi v. Money Mgt. Letter, 228 A.D.2d 307, 308, 644 N.Y.S.2d 49 (1st Dep't 1996) ; Freeze Right Refrig. & A.C. Servs. v. City of New York, 101 A.D.2d 175, 184, 475 N.Y.S.2d 383 (1st Dep't 1984) ; Cottrell v. Berkshire Hathaway, Inc., 26 A.D.3d 786, 787, 809 N.Y.S.2d 714 (4th Dep't 2006). They thus fail to demonstrate that they were not grossly irresponsible in publishing her account. Nor do the Daily News defendants present evidence establishing any other defenses to their publication of that part of the October 2012 article reporting Jane Doe's account. The transcripts do not demonstrate either the truth of her account or that it was privileged. Since plaintiff denies ever meeting Jane Doe and alleges her account is false, the court may not dismiss either plaintiff's first claim or his second claim insofar as it alleges that publication of Jane Doe's account was defamatory.
Finally, the Daily News defendants nonetheless maintain that these remaining defamation claims fail because any defamatory parts of the accounts would cause minimal harm to his reputation in light of the true parts. Jones v. Plaza Hotel, 249 A.D.2d 31, 671 N.Y.S.2d 231 (1st Dep't 1998) ; Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 303–304 (2d Cir.1986). See Friedman v. Rice, 47 Misc.3d 944, 955 n. 7, 5 N.Y.S.3d 816 (Sup.Ct. Nassau Co.2015) ; Lee v. City of Rochester, 174 Misc.2d 763, 778 n. 1, 788, 663 N.Y.S.2d 738 (Sup.Ct. Monroe Co.1997), aff'd, 254 A.D.2d 790, 677 N.Y.S.2d 848 (4th Dep't 1998). Because of the reported evidence resulting in his convictions, defendants contend plaintiff's reputation is insusceptible of further damage. See Friedman v. Rice, 47 Misc.3d at 955 n. 7, 5 N.Y.S.3d 816 ; Lee v. City of Rochester, 174 Misc.2d at 778 n. 1, 788, 663 N.Y.S.2d 738, aff'd, 254 A.D.2d 790, 677 N.Y.S.2d 848.
Application of this further defense to plaintiff's second claim concerning Jane Doe's account reported by the Daily News defendants focusses on those parts of their October 2012 article recounting plaintiff's sale of cocaine and possession of a firearm that he used in raping and sodomizing Jane Doe: serious crimes unrelated to the crimes of which plaintiff was convicted. Truthful reporting of plaintiff's convictions does not negate the compounding harmful effect of Jane Doe's account regarding the separate crimes that he committed against her, but that the criminal prosecution of plaintiff did not include. As set forth above, the Daily News defendants present no documentary evidence corroborating Jane Doe's account to show that any parts of it were true and thus reduce its damaging effect to the remaining parts alleged to be false. See Lee v. City of Rochester, 174 Misc.2d at 778 n. 1, 788, 663 N.Y.S.2d 738 ; Guccione v. Hustler Magazine, Inc., 800 F.2d at 303–304. Therefore the court may not conclude, as a matter of law, that plaintiff's reputation is insusceptible of further damage from implicating him in these further serious crimes. See Jones v. Plaza Hotel, 249 A.D.2d 31, 671 N.Y.S.2d 231 ; Guccione v. Hustler Magazine, Inc., 800 F.2d at 303–304.
V. CONCLUSION
For the reasons delineated above, the court grants the motion of defendants Daily News L.P., John Doe # 1, John Doe # 2, John Doe # 3, John Doe # 4, Fisher, Connor, and Jacobs, based on documentary evidence, to the extent of dismissing so much of plaintiff's second claim as relates to reports of his convictions, but otherwise denies the motion. C.P.L.R. § 3211(a)(1) and (7). The court denies plaintiff's motion to compel disclosure of the identity of defendants John Doe # 1, John Doe # 2, John Doe # 3, John Doe # 4, and Jane Doe. C.P.L.R. § 3124.