Opinion
783 Index No. 152192/21 Case No. 2022–01053
10-12-2023
Morgan CAREY, Plaintiff–Appellant, v. Mariah CAREY et al., Defendants–Respondents.
Law Office of Richard A. Altman, New York (Richard A. Altman of counsel), for appellant. Rosenberg, Giger and Perala P.C., New York (John J. Rosenberg of counsel), for Mariah Carey, respondent. Davis Wright Tremaine LLP, New York (Alison Schary of counsel), for Macmillan Publishing Group, LLC, Michaela Angela Davis and Andy Cohen, respondents.
Law Office of Richard A. Altman, New York (Richard A. Altman of counsel), for appellant.
Rosenberg, Giger and Perala P.C., New York (John J. Rosenberg of counsel), for Mariah Carey, respondent.
Davis Wright Tremaine LLP, New York (Alison Schary of counsel), for Macmillan Publishing Group, LLC, Michaela Angela Davis and Andy Cohen, respondents.
Kapnick, J.P., Oing, Moulton, Higgitt, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about February 15, 2022, which, to the extent appealed from, granted the motion of defendants MacMillan Publishing Group LLC doing business as Henry Holt and Company, Michaela Angela Davis and Andy Cohen doing business as Andy Cohen Books (publisher defendants) to dismiss the first amended complaint in its entirety as against them, granted defendant Mariah Carey's motion to dismiss 14 of the 16 causes of action as against her (only the fifth and seventh causes of action remain), and denied plaintiff's discovery motion pursuant to CPLR 3211(g)(3), unanimously affirmed, without costs.
In this case alleging claims for defamation, defamation per se, and injurious falsehood based on nine passages in the memoir "The Meaning of Mariah Carey," plaintiff argues the court failed to read the passages in context, as is required (e.g. Davis v. Boeheim, 24 N.Y.3d 262, 270, 998 N.Y.S.2d 131, 22 N.E.3d 999 [2014] ; Thomas H. v. Paul B., 18 N.Y.3d 580, 584–585, 942 N.Y.S.2d 437, 965 N.E.2d 939 [2012] ), but offers no support for his assertion. Beyond asserting that had the court read the statements in context most of his claims would not have been dismissed, he neither identifies the relevant context, that, in his view, the court overlooked, nor explains how or why consideration of such context would have yielded a contrary result in any particular instance. Moreover, his argument is undermined by the court's recognition that "context is key," and its citations to relevant case law, both in its discussion of the general applicable standards and in its specific analyses of the challenged passages. He also overlooks that the court, at times, invoked context in his favor.
Plaintiff shows no reason to revisit the court's determination that his special damages allegations were inadequate, as his briefs do not address any aspect of the court's analysis. Nor do we disturb the dismissal of his claims for injurious falsehood, which he does not substantively address in his briefs to this Court.
Plaintiff's contentions challenging the constitutionality of the anti-SLAPP statute are raised for the first time on appeal, and we decline to address them (see Golan v. Daily News, L.P., 214 A.D.3d 558, 559, 183 N.Y.S.3d 854 [1st Dept. 2023] ; Kelsey v. Lenore R., 211 A.D.3d 1361, 180 N.Y.S.3d 658 [3d Dept. 2022], appeal dismissed 39 N.Y.3d 1091, 186 N.Y.S.3d 603, 207 N.E.3d 569 [2023] ; Teachers’ Retirement Sys. of La. v. Welch, 244 A.D.2d 231, 664 N.Y.S.2d 38 [1st Dept. 1997] ; Roberts v. Gross, 100 A.D.2d 540, 473 N.Y.S.2d 234 [2d Dept. 1984] ).
The court's denial of his CPLR 3211(g)(3) discovery motion was a provident exercise of its discretion (e.g. Matter of 425 Park Ave. Co. v. Finance Adm'r of City of N.Y., 69 N.Y.2d 645, 648, 511 N.Y.S.2d 589, 503 N.E.2d 1020 [1986] ). Plaintiff cites no authority – construing CPLR 3211(g)(3) or otherwise – to support his assertions that he was, by definition, entitled to discovery because the court found certain of the statements potentially defamatory, or because of the "enormous burden" the anti-SLAPP amendments place on defamation plaintiffs. CPLR 3211(g)(3) allows for discovery in connection with a motion to dismiss only if, "for specified reasons," the nonmovant states, under oath, that "it cannot present facts essential to justify its opposition," in which case the court "may order that specified discovery be conducted" notwithstanding the general stay of discovery otherwise effected by CPLR 3211(g). His statements that facts relevant to actual malice are, as a general matter, typically in the sole possession of a publisher defendant, fall short (see, e.g. Isaly v. Garde, 2022 WL 17475676 *5 n. 5, 2022 N.Y. Misc. LEXIS 7538 *22 n. 5 [Sup. Ct. New York County, Dec. 6, 2022], affd 216 A.D.3d 594, 190 N.Y.S.3d 321 [1st Dept. 2023] [noting "heightened burden to lift a discovery stay in a SLAPP action pursuant to CPLR 3211(g)(3)"]).
Plaintiff also shows no reason to revisit the court's determination as to the inadequacy of his actual malice allegations against the publisher defendants. He reverts to the arguments the court rejected, summarily faulting the publisher defendants for inadequate investigation, without offering facts to show that they entertained serious doubts about the statements’ veracity, and failing to address the court's point that they had no independent duty to contact him (see, e.g. Suozzi v. Parente, 202 A.D.2d 94, 102, 616 N.Y.S.2d 355 [1st Dept. 1994], lv denied 85 N.Y.2d 923, 627 N.Y.S.2d 321, 650 N.E.2d 1323 [1995] ; Sackler v. American Broadcasting Cos., Inc., 71 Misc.3d 693, 700–701, 144 N.Y.S.3d 529 [Sup. Ct., New York County 2021] ). He contends that Mariah's alleged personal animus towards him is "circumstantial evidence of actual malice," but cites no cases to show this suffices. Indeed, the case he does cite, Zuckerbrot v. Lande, 75 Misc.3d 269, 297, 167 N.Y.S.3d 313 [Sup. Ct., N.Y. County 2022], held "evidence of ill will combined with other circumstantial evidence that defendant acted with reckless disregard of the truth or falsity of a defamatory statement may support a finding of actual malice" ( id. [internal quotation marks omitted]). Nor do we agree, as plaintiff contends, that a motion to dismiss cannot be granted on the ground of actual malice because it is an issue of fact (see e.g. Rivera v. Time Warner Inc., 56 A.D.3d 298, 867 N.Y.S.2d 405 [1st Dept. 2008] ; Dykstra v. St. Martin's Press LLC, 2020 WL 2789913 *9–11, 2020 N.Y. Misc. LEXIS 2659 *24-28 [Sup. Ct., New York County, May 29, 2020] ).
We decline to entertain his contentions as to why the order appealed yields a "logically impossible" result, raised for the first time in his reply brief to this Court ( JPMorgan Chase Bank, N.A. v. Luxor Capital, LLC, 101 A.D.3d 575, 957 N.Y.S.2d 45 [1st Dept. 2012] ).
We have considered plaintiff's remaining arguments and find them unavailing.