Opinion
123283
11-08-2018
Avril Nolan, Claimant, State of New York, Defendant.
Claimant's attorney: LLOYD PATEL, LLP BY: ERIN E. LLOYD, ESQ. Defendant's attorney: BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: CHERYL M. RAMEAU, ASSISTANT ATTORNEY GENERAL
Claimant's attorney: LLOYD PATEL, LLP BY: ERIN E. LLOYD, ESQ. Defendant's attorney: BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: CHERYL M. RAMEAU, ASSISTANT ATTORNEY GENERAL Thomas H. Scuccimarra, J.
On April 3, 2013, Avril Nolan, the claimant herein, learned that the State, through the New York State Division of Human Rights [DHR], was running a quarter-page advertisement in a free daily newspaper, AM New York, featuring a color photograph of claimant. Across the photograph, in all capital letters, were the words " I AM POSITIVE (+)" and "I HAVE RIGHTS." The public is then advised that those who are HIV positive have rights protected by the New York State Human Rights Law, and information on how to contact the agency is provided. Ms. Nolan was not HIV positive, and no disclaimer to the effect that the person depicted is a model appears in the advertisement. Ms. Nolan did not give permission for the use of her photograph, taken in an entirely different context, and apparently thereafter sold.
In its decision affirming, as modified, this Court's decision and order on claimant's motion for summary judgment and defendant's cross-motion for summary judgment, the Appellate Division sustained the claimant's cause of action for defamation per se, and clarified what measure of damages claimant would need to establish on the trial on damages. See Nolan v State of New York, 158 AD3d 186 (1st Dept 2018). As noted therein, a preferable "formulation [would] make [] clear that an imputation of a particular disease is actionable as defamation per se not because the disease is objectively shameful, but because a significant segment of society has been too slow in understanding that those who have the disease are entitled to equal treatment under the law and the full embrace of society." Nolan v State of New York, 158 AD3d at 197.
This Court found that the claimant sustained her burden of showing that the false attribution that she was an individual diagnosed as HIV positive constituted defamation per se in the arcanely described category of being falsely declared to have a "loathsome disease." See Nolan v State of New York, 2015 WL 7017223, 2015 NY Slip Op 32023 (U) (NY Ct Cl, Scuccimarra, J., Oct. 8, 2015).
This Court's decision addresses only the issue of damages, after a two day trial of the matter, and submission of post-trial memoranda of law.
In support of her claim, Ms. Nolan presented the testimony of Maeve Nolan, claimant's mother, Rachel Stout, a close friend, and Melissa Tate, a former coworker, in addition to her own testimony, as well as documentary exhibits. [Exhibits 1 - 9, 11 - 15]. The defendant cross-examined the witnesses.
As an initial matter, the parties stipulated to the instances of publication of the advertisement. It ran in AM New York, a print publication, once on April 3, 2013, and it ran in Newsday, a print publication distributed only in Nassau County, once on April 2, 2013. The advertisement also ran twice in Metro New York, another print publication, on April 1, 2013 and April 3, 2013. Website banner ads - not containing the full printed page found in the newspaper versions - ran continuously on metro.us from April 1, 2013 to April 3, 2013, on lohud.com (the website for the Journal News) from March 31, 2013 to April 4, 2013, and on timesunion.com (the website for the Albany Times Union) from April 1, 2013 to April 4, 2013.
By way of current information, Avril Nolan testified that she was married in August, 2017 and, at the time of trial, still lived in Brooklyn as she had since she moved to New York City from Ireland in 2010. Together with her husband, she said that she currently owns and "run[s] a vintage and antiques company . . . and also [does] some freelance consulting work" doing "content creation for a marketing team."
Quotations are to pages of the trial transcript, here [T-78], unless otherwise indicated.
Ms. Nolan described herself as "pretty anxious" as a child, "always nervous of change and of new things." [T-79]. She was not one to "put up [her] hand in class" or otherwise "draw attention to [herself]" and lacked self-confidence due to being overweight. [T-79]. Fashion was a strong hobby, and she collected and wore vintage clothes made from the 1920s through the 1980s, gaining confidence in the process.
As children, her mother would take Ms. Nolan and her sister to visit her Aunt Clare, who lived in New York City, "every three years maybe." [T-81]. She was a "big role model" for claimant. [T-81]. Aunt Clare was "very glamorous" and she helped "plant [] that seed pretty early" to move to New York City and "be just like Clare." [T-81-82].
Studying communications at Dublin City University, Ms. Nolan and a friend made plans to move to New York when they graduated in 2009. While her friend's plans changed, Ms. Nolan nonetheless moved to New York on her own at 21 years old, first staying with her Aunt Clare, and then moving in to a shared apartment with a college friend. She found unpaid internships in fashion, and worked other paid, part-time jobs, pursuing her dream of working in the fashion industry.
In 2010 she "got a full-time job at a very small . . . fashion and travel PR agency called L.E.R. PR" where she worked until 2012. [T-95]. In September 2012, she started another job as a senior account coordinator at a larger public relations firm called Bollare Communications. The work environment was not as friendly at Bollare as it had been at L.E.R., but they worked with more "widely well known clients." [T-100]. She said that "[i]t was very competitive, not only outside of the agency in terms of competing with other brands and other PR agencies, but it was competitive inside of the agency" with a culture of "bragging." [T-100]. This was where she was working when the events of April 2013 occurred.
Before the Christmas holidays of 2012, Ms. Nolan was reprimanded by her immediate boss at Bollare, in the presence of her boss' superior, for not getting enough results for the clients she had been assigned, shaking her confidence as a good worker, who had always received praise for her work. She was given "measurable goals that [she] had to meet," broken down by brands and how many placements she needed to achieve within a given time period. [T-107]. She thought that the goals were "unrealistic" and did not take into account that some placements were more beneficial than others, as it is "quality over quantity" in public relations. [T-107]. She was to be subject to further review at the end of a three-month period. If she did not "up her game," her employers said it could result in problems with her "position at the company." [T-108]. If she lost her job, there would also be complications over her visa to work in the United States.
She spent the Christmas holiday of 2012 in Ireland, visiting family and friends. There was no such thing as being out of the office, however, because this was a "client-facing industry" where it is expected that you be available at all times. [T-108]. Client emails had to be responded to within 24 hours, for example. Accordingly, she worked through the holiday.
When she returned to New York, she "worked harder", but said "it was hard, because I didn't know how to work harder, because I had already been working so hard." [T-110]. From this experience, she "learned the concept of PR'ing [herself]." [T-110]. She said one had to present an "outward personality" of confidence and control, and self-promotion, and to frame difficult clients, for example as welcome challenges. [T-110]. "It was all very much a show." [T-110]. This was completely at variance with her experience of growing up in Ireland, where humility and modesty were esteemed attributes, and self-promotion was frowned upon.
Nonetheless, during that three-month review period, she was assigned another client, Manhattan Vintage Show, and was very successful in obtaining good media coverage. By the beginning of April, 2013, her job performance and relationship with her bosses had improved, however she remained subject to the requirements and pressure of the performance improvement plan.
On the morning of April 3, 2013, on her way to work, Ms. Nolan received an email from the Internal Revenue Service advising that she owed $1,100.00 in taxes; money she did not have, adding to her accumulated worries about her job, and her work status in the United States. She said that although "[i]t sucked", it was not, however, "life changingly devastating." [T-148].
When she arrived at work, an acquaintance had posted a message on her Facebook page asking whether she had been in that morning's AM New York newspaper. Responding "no", claimant later received a private message from the same acquaintance with an image of the advertisement. [See Exhibit 3]. When she saw the image, she "was completely shocked" and "confused," seeing the "words, I am positive, beside my face, I was devastated." [T-152]. She said she felt her "world was just falling down around [her]." [T-153]. She said that AM New York was a "big target" for at least two of her clients, including the important new one, Manhattan Vintage Show. [T-155].
She obtained a copy of the newspaper. [Exhibit 4]. Seeing the prominence of the ad, after "hop[ing]" that it was "smaller" based upon the image the acquaintance had sent earlier, she was even more upset. [T-157]. She felt "sick to the bottom of [her] stomach" as she thought of who might have seen this image, in a publication read by "[a]nybody in New York who had taken the subway that day . . . my friends, my employer; past, present, future, my exes, people I dated, people I might date, everybody." [T-157-158]. After spending so much energy in "get[ting] to a position . . . in [her] career . . . [that] was heading toward something," to lose control in this manner "was devastating at the time." [T-158]. Reviewing the newspaper at work as she did, where all the desks were laid out in an open plan, was difficult. She went to the bathroom and kept crying, trying to compose herself.
When Ms. Nolan returned to her desk she could not concentrate and was trying to keep her reactions "under wraps." [T-160]. She spoke to Melissa Tate, a friend and coworker, seeking her advice. She was afraid that her employers would find out about this on their own, and knew she would have to advise them of the situation. Ms. Tate suggested she contact the photographer, and advised that she needed to tell her boss as well as the president of the company who was in the New York office at the time.
Claimant told her bosses that morning, showing them the newspaper. She was "very, very emotional" and "couldn't stop crying" as she spoke to them. Her bosses expressed shock, but "calmly went into crisis PR mode", assessing how this could have happened, and whether any clients, including Manhattan Vintage, could have seen this. [T-163]. They did not offer any legal counsel or offer to connect her with the firm's legal counsel. They did not terminate her employment as she had feared.
Ms. Nolan contacted Jena Cumbo, the photographer, Maeve Nolan, her mother, her friends Rachel Stout, and Karen, as well as her Aunt Clare that morning.
Jena Cumbo, the photographer, had taken the photograph as part of a "street-style" photography piece for Soma magazine, briefly profiling those photographed about their music interests. [T-172; Exhibits 6, 7]. After hearing from Ms. Nolan via Facebook, Ms. Cumbo told Ms. Nolan that she contacted AM New York and was told that the advertisement had been removed from their website and would not be used again. [Exhibit 8].
Claimant said she "needed a grownup" [T-168], which was why she emailed her Aunt Clare as well as her mother later that morning. [Exhibits 1, 5]. Both telephoned her in response. She thought she spoke to her aunt first, who, in addition to being shocked, was very angry for her, and said she would see if there was a lawyer she could connect claimant with. Ms. Nolan and her mother spoke while Ms. Nolan was in the bathroom, as it was not appropriate to take personal calls at work. Ms. Nolan was distressed and crying as she thought of who else might see this advertisement.
After contacting AM New York, Getty Images and DHR [Exhibit 8], Ms. Cumbo also put Ms. Nolan in touch with Leticia Greene, a DHR employee. Ms. Nolan was copied on email correspondence between Ms. Cumbo and Ms. Greene. [Exhibit 9]. In an email from Ms. Greene to Ms. Cumbo dated April 3, 2013 at 1:22 p.m. Ms. Greene writes:
"We need to hear directly from the model via email that she will not hold DHR liable for any usage of her image in this campaign. Upon receipt of that email from Ms. Nolan we will pull the image from all future ads related to this campaign.
After speaking with a Getty representative we have been told we are not liable. We are acting in good faith to remove the image based on the model's request. We need the email sooner rather than later as a number of publications are on deadline and are scheduled to move forward with the campaign with Ms. Nolan's image." [Exhibit 9].
Ms. Nolan wrote the following to Ms. Greene, in an email dated April 3, 2013 at 2:23 p.m.:
"Discussing this matter to get further advice but please remove my image from the advertisements. this has already caused enough problems and embarrassment." [Exhibit 9].
Ms. Nolan perceived Ms. Greene's email regarding requiring a release prior to removal of the advertisement as "being held hostage" and "threatening" (although it is unclear if Ms. Greene was aware that the specific email was being copied to Ms. Nolan, the release requirement is threaded through the exchange of emails between Ms. Cumbo and Ms. Greene, which Ms. Cumbo indicated to Ms. Greene were being copied to Ms. Nolan). [T-189-190]. After her responsive email to Ms. Greene, claimant never heard from anyone from the State to directly discuss the ad.
The day continued with anxiety and distress, as well as her uncertainty as to where the ad was appearing. She remained at work all day, speaking to her mother on and off throughout the day, and then asked her friend Karen to join her for dinner at a restaurant near her apartment. She told Karen about how she was feeling at dinner. Although she had a roommate, she did not talk to her roommate about it.
In the weeks that followed, claimant said she was "very paranoid." [T-195]. She feared that strangers, such as tourists, were "taking [her] picture", and felt "really on edge" without control over her image or privacy. [T-195]. If strangers looked at her, she would wonder if they had seen the ad. She was "terrified of . . . running into someone or seeing someone and them thinking, oh, my - - that's Avril, she has HIV . . . Everything that was slightly off or slightly weird I attributed to the ad or wondered was it to do with the ad." [T-196]. She "lost a lot of weight." [T-197]. She estimated that these feelings of a loss of control and tension lasted "about a month or so." [T-197]. The "extreme paranoia sort of subsided, and [she] was just left with no confidence and no self-esteem . . . [Her] body image issues . . . that sort of persisted for much longer." [T-197]. Rebuilding her confidence "took a couple years." [T-198].
Claimant said that after the initial impact of the ad, she avoided the topic and "tried to keep it private" in part because "[she] found it hard to talk about it without crying" and did not want to relive the emotions. [T-202].
During the discovery process surrounding this lawsuit, she found out that the ad had been used elsewhere, namely "in four print publications and three online publications." [T-203]. The concerns returned, "multiplied." [T-202]. She feared that "thousands more people . . . could have seen it." [T-202].
With regard to work, other than the few people who were aware of the ad, at some unspecified time she was working on a television segment with a client, and accompanied her to a taping, where one of the producers on the show came up and gave claimant a hug, and then remarked "oh, will I catch something" in her client's presence. [T-204]. Claimant then had to explain about the ad and then in turn tell her employers that she had discussed it with the client. The same producer sent an email wishing her "happy World AIDS Day . . . and . . . cc'd [her] client on the email. It was . . . really embarrassing." [T-204].
Other than the acquaintance who had initially alerted her to the advertisement, and it coming up a "couple of times" with romantic partners, claimant's Pilates teacher was the only other person who tried to say something to her about it after having seen the ad in the newspaper. [T-205].
Finally, asked to explain what this particular association with HIV meant to her, Ms. Nolan said that while unfortunate, there is "so much stigma around it . . . [I]t's not like [she] was in an ad for cancer treatment" where sympathy would be elicited. [T-206]. She said:
"[T]here's a lot of negativity around it, and there's a lot of associations that people jump to incorrectly about your lifestyle . . . people think . . . you're easy, or you're promiscuous . . . there's a lot of just questions around your sexual behavior and your sexual activity . . . [it] makes people really think about something so personal to you . . . [I]t also brings up . . . drug use and just all of these things that I did not want to be associated with and was very embarrassed to be associated with . . . This goes much deeper, and it really calls into question you as a person and your lifestyle." [T-206-207].
On cross-examination, claimant confirmed that she did not lose her job nor did she miss any time from work when the advertisement came out. She did not lose any friends. No one other than the acquaintance who first told her about the ad, her Pilates teacher and the outside producer ever informed her that they recognized her as the person depicted in the ad. Indeed, when claimant conducted an online search that day she was unable to see a copy of the advertisement.
Maeve Nolan, claimant's mother - also a clinical psychologist and psychotherapist in Ireland - testified only as a mother describing her daughter as a youngster, and as a young woman, and the emotional discussions she had with her daughter from the day she learned of the use of the photo on April 3, 2013, until she calmed down. Dr. Nolan repeated some of Ms. Nolan's descriptions of her younger self, but expressed herself as confident in Ms. Nolan's ability to handle the new job at Bollare, saying she "was really not worried" about her daughter. [T-28].
Dr. Nolan also repeated that Avril reacted with fear and distress, and an overarching concern that all that she had built would fall apart. In terms of "super duper distress," it "was probably the first few weeks in a very intense way." [T-42]. By the "end of May [2013], she was probably calmed down." [T-42].
In July, 2013, claimant took a trip to Bogotá, Colombia, where her sister was living. Dr. Nolan said claimant's employer "was very kind", and allowed Avril some days off to make the visit. [T-42]. Dr. Nolan said claimant was able to talk about the advertisement "more calmly" within 6 weeks of its publication. [T-43].
It was confirmed on cross-examination that later conversations were a "mixture" of discussions of the lawsuit, and musings as to how the event happened in the first place. [T-46].
Rachel Stout met Ms. Nolan in 2010, and they became fast friends. She said claimant was always "very adventurous" and "up for anything" and "very cheerful . . . [and] interested in other people." [T-55]. In terms of career, claimant always appeared focused. She was able to work well at a job she did not care for particularly, while able to plan a different move in her career. "She would always be very calm and very able to . . . see a way out of it." [T-56].
Ms. Stout learned of the advertisement from Ms. Nolan on the day that claimant saw it, April 3, 2013. Claimant expressed her confusion and fear in the Gchat conversation they had at the time, while they were both at their respective jobs.
Within a day or two of the ad coming out, Ms. Stout saw claimant in person for the first time. She found claimant to be very tense and nervous. Claimant was engaging in a lot of speculation about the worst case scenario with regard to how many people may have seen this ad, and how a potential date might google her name and discover it, and the like. Ms. Stout was very worried about her friend, because she appeared to be stumped on how to go forward, and did not apply her usual planning skills or humor to the situation, and bore a "hopeless countenance." [T-61].
In the weeks that followed, Ms. Stout would not bring up the topic unless Ms. Nolan mentioned it, and she thought that "[i]t wasn't really something she liked to talk about." [T-63]. Ms. Nolan appeared quieter, and was less likely to propose going to a new venture or event and tended to socialize in small groups in people's homes for coffee or tea, rather than at outside venues. Ms. Stout estimated that this "lack of enthusiasm" lasted from 6 months to a year. [T-64].
On cross-examination Ms. Stout conceded that although prior to Ms. Nolan's knowledge of the ad, claimant spoke of how stressful her job was, she had never mentioned any fear of losing it.
Melissa Tate, an account manager at Bollare when Ms. Nolan worked there in April , 2013, also testified briefly. Ms. Tate characterized herself as "one level above" claimant in title at the firm, but as "generally colleagues." [T-124]. She described claimant as "very professional in her demeanor, generally, happy go lucky, and, overall, very, very quiet." [T-125].
On April 3, 2013, Ms. Nolan tapped Ms. Tate on the shoulder - they shared a cubicle area - and opened the AM New York paper "very secretly, so no one else could see what was going on, and showed [Ms. Tate] the ad." [T-126]. Claimant "seemed nervous" had "bloodshot eyes" as if she had been crying. [T-126 ]. She was holding back more tears, and was clearly incredibly upset as she asked Ms. Tate for advice.
Among other things, Ms. Tate suggested it might be in her best interest to "tell our bosses", in case it was something that would affect her work, and also because Bollare had legal counsel to whom they might refer claimant. [T-129]. Ms. Tate confirmed that AM New York was well read at the time. She herself had seen the ad that morning during her subway ride, thought it looked like claimant at the time, but "just sort of flipped over it." [T-131].
Ms. Tate spoke with claimant off and on throughout the following days and weeks, finding her generally disturbed about the topic, but trying to control an outward exhibition of her emotions. Claimant seemed to be losing weight - she was already quite slender - was not following what had been an observable routine of eating her breakfast at the desk, and spoke only of work matters with the rest of her colleagues.
Ms. Nolan's work performance was affected day-to-day, in that she seemed to be "continuously getting behind, so much so that [Ms. Tate] stepped in to try to help on some of her accounts." [T-134]. These "mannerisms", of "not eating, the being upset about it, the being embarrassed," lasted for "at least a month" after the ad came out. [T-136]. Ms. Nolan was functioning in the day-to-day work performance, but did not, in Ms. Tate's view, return to the lighter hearted way she had behaved at work prior to the running of the advertisement during the remaining 1 ½ years claimant worked at Bollare.
On cross-examination, Ms. Tate confirmed that she only began working at Bollare in March 2013, and was not aware of any job stress issues for Ms. Nolan in December 2012 or thereafter. She said she was not aware that claimant was not happy at Bollare prior to the ad coming out, and said that claimant appeared to be closer to employees at Bollare than she was, in terms of associating with colleagues.
After the month of altered behavior, Ms. Tate repeated that claimant's work performance returned to normal. She agreed that no one in the office other than claimant and herself knew about the ad until there was media coverage of the lawsuit. She did not know if claimant ever spoke with her bosses prior to the matter having become public through media coverage of the lawsuit.
Documents submitted by claimant without any foundational or explanatory testimony include what appear to be copies of information subpoenaed from various publications, including advertising contracts between the publication and the DHR, newspaper circulation reports, email correspondence, objections by the publications, as well as indications by the publications of an inability to gather the information sought, such as the number of hits a website banner might have over a given period. [See Exhibits 11, 12, 13, 14, 15]. In arguments presented in her post-trial memoranda of law, claimant posits that even at a conservative estimate, the advertisement was published to more than one million people.
No other witnesses testified.
A claimant who has been defamed by a defendant's publication of a false statement that she suffers from a "loathsome disease" - or other category of defamation per se - is entitled to recover all damages that flow from such statement, including but not limited to harm to reputation or to standing in the community, as well as damages in the nature of " 'personal humiliation, mental anguish and suffering' (PJI 3:29B . . .)." Nolan v State of New York, 158 AD3d 186, 194 (1st Dept 2018); see also Hogan v Herald Co., 58 NY2d 630 (1982) affg 84 AD2d 470 (4th Dept 1982). She need not establish an economic injury, in that the law presumes injury has occurred in proven actions for defamation per se, yet she must still show causally related harm. See Gatz v Otis Ford, 274 AD2d 449, 450 (2d Dept 2000). It is axiomatic that punitive damages may not be assessed against the State of New York. Sharapata v Town of Islip., 56 NY2d 332 (1982); see e.g. Firth v State of New York, 184 Misc 2d 105 (Ct Cl 2000) affd 287 AD2d 771 (3d Dept 2001), affd 98 NY2d 365 (2002).
"In cases involving defamation per se, the law presumes that damages will result, and special damages need not be alleged or proven . . . (citations omitted). However, although the existence of compensatory damages is presumed, the quantum of such damages is not . . . (citations omitted)." Gatz v Otis Ford, 274 AD2d 449, 450 (2d Dept 2000).
The Court of Appeals held that the waiver of sovereign immunity provided for in Court of Claims Act §8 does not permit punitive damages to be assessed against the state or its political subdivisions.
Among other things, the trial court repeated that punitive damages are not authorized against the State of New York with regard to claimant's ultimately untimely defamation claim.
As with any trier of fact, it is this Court's province to assess the credibility of the various witnesses and evaluate the extent of claimant's causally related injury. While case law helps to assess what circumstances warrant a particular type of monetary award, every claim is different and is driven by its own particular facts.
Claimant argues that the Court should consider the extent of her damages up until trial, as well as whatever humiliation and anguish she may likely suffer in the future [see e.g., Calhoun v Cooper, 206 AD2d 497 (2d Dept 1994)], and argues that substantial damages are warranted, premised upon the highly stigmatized nature of the false statement, placing the most personal aspects of Ms. Nolan's life on view to a very large audience. Analogies to those cases where defamatory material is dispersed to a wide audience, versus those where the defamatory statement is made to only a limited group of individuals, are stressed in claimant's arguments. See e.g., Bouveng v NYG Capital LLC, 2015 WL 4119352 (SDNY 2015); Osorio v Source Enterprises, 2006 WL 3490510 (SDNY 2006). It is urged that the egregiousness of the State's defamation - and that the State, an entity of authority, was making the statement [see Yammine v DeVita, 43 AD3d 520, 522 (3d Dept 2007) ] - the large scope of the publication of the defamatory material, the immediate embarrassment, humiliation and fear she experienced, and continued to experience for at least six months to more than a year, and the emotional distress she continues to suffer when the topic comes up, warrants substantial damages in the amount of $1,000,000.00.
$1,500,000.00 compensatory damages jury verdict for defamatory statements alleging plaintiff was a prostitute, an alcoholic, affiliated with drug dealers, all posted on social media and in online magazine.
$3,500,000.00 compensatory damages where defamatory statements published in online magazine, asserting that plaintiff, the first female executive editor at a hip hop magazine, engaged in criminal activity and attempted to extort money from her employers (defendants) prior to her termination.
$200,000.00 to each plaintiff not excessive, and defendant's false statements that the plaintiff restaurant owners, who were naturalized citizens of Lebanese descent, were terrorists, drug dealers and drug runners associated with Osama Bin Laden, more consequential because the defendant police chief was "draped in the authority of his police uniform."
The defendant argues that claimant is entitled to reasonable compensation, but not a windfall. As argued, monetary awards for emotional distress vary widely, and are based on the particular facts of particular cases. Defendant notes that reported awards for emotional distress for cases containing similar fact patterns to those presented here have ranged from $3,000.00 to $350,000.00, with those establishing the limited emotional distress shown here tending toward the lower figures. See e.g., Xiaokang Xu v Xiaoling Shirley He, 147 AD3d 1223 (3d Dept 2017); Dobies v Brefka, 45 AD3d 999, 1000 (3d Dept 2007); Morsette v The Final Call, 309 AD2d 249 (1st Dept 2003); Partridge v State of New York, UID No. 2017-032-006 (Ct Cl, Hard, J., June 9, 2017). Defendant argues that no medical evidence was presented to show that Ms. Nolan suffered any psychiatric injury, nor is there any evidence of a causally related permanent injury. As established at trial, defendant argues that claimant's damages are limited to the emotional distress she experienced in the immediate aftermath of the initial publication of the advertisement, warranting damages that do not exceed $25,000.00.
$5,000.00 was reasonable compensation for libel per se where defendant-wife made several online postings and also wrote to her ex-husband's employer accusing him of spousal abuse and fraud. The Court found that the plaintiff ex-husband had suffered damage to his professional reputation as well as public humiliation and embarrassment.
$225,000.00 verdict upheld when plaintiff doctor left his job, moved to another community and had to undergo supervised visitation with his daughter after the maternal grandmother wrongfully accused him of sexually abusing his daughter. The "harm to his emotional well-being and professional reputation" was sufficiently established on the record made.
$100,000.00 for past emotional distress upheld by Appellate Division, but award for future emotional distress reduced from $500,000.00 to $300,000.00 based on medical evidence, in case where the defendant newspaper randomly selected the plaintiff's photograph and altered it to depict her as a convicted criminal, for an article concerning the growing female prisoner population.
$300,000.00 award for claimant's humiliation, shame, despair and the exacerbation of a pre-existing brain injury, where his photograph was used to identify him as an online sexual predator at a news conference covered on television, as well as on streaming platforms. Proof included claimant's testimony that his girlfriend ended their relationship, lost several friendships, his home and car were vandalized, and there was medical evidence and testimony linking the exacerbation of his brain injury.
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, and after applying the foregoing principles, and after considering the submissions by both counsel of cases involving individuals who have suffered somewhat analogous injuries, the Court finds that indeed, Ms. Nolan suffered emotional distress and humiliation during the immediate aftermath of the publication, and for some time thereafter, however there is no basis for an award of future damages.
Claimant did not seek counseling other than that offered by her family and a few close friends, never suffered any penalties at her job - indeed her bosses gave her time to visit her sister within a few months of the ad - and she appears to now be thriving in the field of vintage goods she indicated was her special interest.
Nonetheless, the Court credits Ms. Nolan's assessment of a culture of competition at her job at Bollare, and in the public relations field generally, that left her particularly vulnerable as a young woman to the extreme anxiety and distress she suffered upon publication of the defamatory material. The Court also credits the increased anxiety she experienced when imagining how many people could potentially see the ad and make judgments about her that she feared. By all accounts, Ms. Nolan was sensitive, but had learned to hide her feelings somewhat in her two years in the competitive world of New York fashion public relations. This event credibly triggered a setback for her in her confidence and outward demeanor - Ms. Tate certainly noted that claimant's job performance suffered for a period - but she appears to have come out of the experience. She did not lose friends or beaux, and ultimately moved on from her job and succeeded in a new venture.
Based on the humiliation, mental suffering, anxiety and loss of confidence suffered by this young woman at the beginning of her career, and at the beginning of her growing independence, the vast extent to which the defamatory material was circulated - albeit for the laudatory purpose of getting public service information out to as many people as possible - and all the circumstances herein, the Court hereby finds reasonable compensation to claimant is in the amount of $125,000.000, with appropriate interest from the date of the determination of liability on June 18, 2015.
To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.