Opinion
155458/2016
10-19-2017
Randy COHEN, Plaintiff, v. BROAD GREEN PICTURES LLC and Learning to Drive Movie, LLC, Defendants.
Richard A. Altman Esq., 285 West 4th Street, New York, NY 10014, David Feige Esq., Giskan Solostar & Anderson LLP, 217 Centre Street, New York, NY 10013, For Plaintiff Katherine M. Bolger Esq., Levine Sullivan Koch & Schulz, LLP, 321 West 44th Street, New York, NY 10036, For Defendants
Richard A. Altman Esq., 285 West 4th Street, New York, NY 10014, David Feige Esq., Giskan Solostar & Anderson LLP, 217 Centre Street, New York, NY 10013, For Plaintiff
Katherine M. Bolger Esq., Levine Sullivan Koch & Schulz, LLP, 321 West 44th Street, New York, NY 10036, For Defendants
Lucy Billings, J.
I. BACKGROUND
Plaintiff sues defendants to recover damages for slander from the trailer of a film that defendants produced, based on a New Yorker article by plaintiff's former wife, nonparty Katha Pollitt, an author and a book editor. Defendants move to dismiss the complaint on the grounds of documentary evidence and the complaint's failure to state a claim. C.P.L.R. § 3211(a)(1) and (7). At oral argument, the parties stipulated that the trailer and the article presented by defendants were authenticated and admissible for the purpose determining this motion. For the reasons explained below, the court denies defendants' motion.
II. THE CLAIM OF SLANDER
Defamation or slander, if by spoken words, must be a statement that is not pure opinion and that tends to expose a person to public contempt, hatred, aversion, ridicule, or disgrace. Thomas H. v. Paul B. , 18 NY3d 580, 584 (2012) ; Galasso v. Saltzman , 42 AD3d 310, 311 (1st Dep't 2007). See Martin v. Daily News L.P. , 121 AD3d 90, 100 (1st Dep't 2014) ; Sandals Resort Intl. Ltd. v. Google, Inc. , 86 AD3d 32, 38 (1st Dep't 2011). The court must accord the complaint alleging slander its most liberal construction. See JF Capital Advisors, LLC v. Lightstone Group, LLC , 25 NY3d 759, 764 (2015) ; Miglino v. Bally Total Fitness of Greater NY, Inc. , 20 NY3d 342, 351 (2013) ; Walton v. New York State Dept. of Correctional Servs. , 13 NY3d 475, 484 (2009) ; Mill Financial, LLC v. Gillett , 122 AD3d 98, 103 (1st Dep't 2014). Defendants seek dismissal of plaintiff's claim of slander because the allegedly defamatory statements are not of or concerning plaintiff, and he failed to plead the malice required to sustain his claim.
III. OF OR CONCERNING PLAINTIFF
A defamatory statement is of and concerning plaintiff if a reasonable person would believe, considering the context, that the statement recounts facts about plaintiff. See Springer v. Viking Press , 60 NY2d 916, 917 (1983) ; Feche v. Viacom Intl. , 233 AD2d 125, 125 (1st Dep't 1996). Plaintiff must plead that the statement refers to him and that a reasonable person would so interpret it. Three Amigos SJL Rest., Inc. v. CBS News Inc. , 28 NY3d 82, 86 (2016).
Defendants based the film for which they produced the trailer on the article. The trailer and the film itself indicate the film is based on a true story. Both the film and the article are entitled "Learning to Drive" and take place in New York City. The article gives an account of the author Katha Pollitt's life and describes as a philanderer, womanizer, and cheat the man with whom the author was romantically involved. The author expressly describes her relationship with plaintiff, her former husband and not her more recent lover, as positive and friendly, even after their divorce, and describes plaintiff as an excellent father to their daughter.
The complaint alleges two defamatory statements in the trailer. The first is in a scene where the main character, a book critic allegedly based on the author of the article, states to her daughter: "Instead of buying a motorcycle, Daddy decided to give adultery a spin." Aff. of Richard A. Altman Ex. A ¶ 16. The second is in a scene where the main character in conversation states that she used to have a husband who drove, which her friend then identifies by the former husband's fictional name, to which the main character replies: "Where does he find these skanks?" Id. ¶ 18. Defendants agree with plaintiff that "skanks" may be used as a noun, which according to the complaint means sleazy and sexually promiscuous women, and concede that this reply, depicting the former husband in the company of such women, is defamatory of the former husband.
The film, as viewed in its trailer, effectively merges the two men depicted in the article, plaintiff and the author's lover, into one person, identified as the former husband, and attributes all the lover's negative characteristics to the former husband. Therefore plaintiff sufficiently pleads that the defamatory statements that he is an adulterer or a philanderer and is a womanizer keeping company with sleazy and sexually promiscuous women were of and concerning him. See Springer v. Viking Press , 60 NY2d at 917 ; Carter–Clark v. Random House, Inc. , 17 AD3d 241, 241 (1st Dep't 2005).
Although defendants point to factual differences between the accounts given in the film versus in the article, these differences are irrelevant in light of the film's specific identification of the author's former husband as the adulterer and womanizer. The trailer's attribution of adultery and womanizing to the author's former husband makes it reasonably susceptible of interpretation by persons who know plaintiff, the author's former husband, that he is an adulterer and womanizer. See Springer v. Viking Press , 60 NY2d at 917 ; Carter–Clark v. Random House, Inc. , 17 AD3d at 241. Persons who know plaintiff are reasonably likely to know that he and Katha Pollitt formerly were married and have a daughter and thus reasonably likely to identify him on these bases if they view the trailer without having read the article, especially when the trailer announces that it is based on a true story. Persons who know plaintiff are not reasonably likely to know whether he carried on affairs with other women during his romantic relationship with and marriage to his former wife. Moreover, even if persons who know plaintiff read the article and view the film trailer, no allegation or documentary evidence establishes that persons who know plaintiff would find the article more believable than the trailer.
IV. MALICE
A. Defendants Do Not Establish That Plaintiff Is a Public Figure .
Defendants maintain that plaintiff fails to plead malice as required for a public figure to sustain a defamation claim. If plaintiff has acted to acquire public attention or acclaim, those acts establish his status as a public figure. Maule v. NYM Corp. , 54 NY2d 880, 882 (1981) ; Farber v. Jefferys , 103 AD3d 514, 515 (1st Dep't 2013) ; Krauss v. Globe Intl. , 251 AD2d 191, 192 (1st Dep't 1998). Since plaintiff did not allege in his complaint that he was or was not a public figure, defendants counter that omission with evidence of his status as a public figure. Their single document, an unsworn biography of plaintiff by an unidentified author, that defendants present to establish plaintiff as a public figure, however, is inadmissible. Chong Min Mun v. Soung Eun Hong , 109 AD3d 732, 733 (1st Dep't 2013) ; Rosado v. Phipps Houses Servs., Inc. , 93 AD3d 597, 598 (1st Dep't 2012) ; Ainetchi v. 500 W. End LLC , 51 AD3d 513, 515 (1st Dep't 2008). Even were the biography admissible, it falls far short of demonstrating plaintiff's actions to achieve notoriety. Krauss v. Globe Intl. , 251 AD2d at 192. See Maule v. NYM Corp. , 54 NY2d at 882 ; Farber v. Jefferys , 103 AD3d at 515.
B. Plaintiff's Pleading of Malice
Upon a motion to dismiss the complaint, plaintiff need not support his allegations of defendants' malice as long as the alleged malice is not merely surmise. Weiss v. Lowenberg , 95 AD3d 405, 406 (1st Dep't 2012). Malice may be inferred from false statements about plaintiff. Id. Here, the complaint alleges that defendants acquired the rights to produce a film based on the article, raising the inference that defendants were aware of the article's contents, which their film and trailer themselves admit are true, and thus knew that the film and trailer departed from the truth. Therefore the film's portrayal of the adulterer and womanizer as the author's husband, which could be only her one husband, plaintiff, instead of as a lover with whom she was romantically involved, demonstrates defendants' reckless disregard of the truth that a public figure must show to establish defamation. See Maule v. NYM Corp. , 54 NY2d at 883.
Moreover, the complaint explicitly alleges that defendants deliberately changed the philanderer and womanizer from the lover to the former husband. Plaintiff pleads that defendants optioned the article on which they based their film and then deliberately changed specific true contents of the article to a specific false rendition, when persons who know plaintiff are reasonably likely to identify him in the trailer, but not know that the changed facts are false. These facts are more than mere conclusions regarding defendants' malice. See Jimenez v. United Federation of Teachers , 239 AD2d 265, 266 (1st Dep't 1997) ; Red Cap Valet v. Hotel Nikko (USA) , 273 AD2d 289, 290 (2d Dep't 2000).
C. Public Concern
If plaintiff is not a public figure, he still must plead defendants' gross irresponsibility in gathering information where the subject is of public concern. Huggins v. Moore , 94 NY2d 296, 302 (1999) ; Weiner v. Doubleday & Co. , 74 NY2d 586, 595–96 (1989) ; Sarwer v. Conde Nast Publs. , 237 AD2d 191, 192 (1st Dep't 1997) ; McGill v. Parker , 179 AD2d 98, 107–08 (1st Dep't 1992). In determining whether a published account is of public concern, the court must evaluate the publication as a whole, considering its contents, form, and context. Huggins v. Moore , 94 NY2d at 302. The publication is not of public concern if the text relates to gossip or a subject of prurient interest or is directed to a limited private audience. Huggins v. Moore , 94 NY2d at 302–303 ; Weiner v. Doubleday & Co. , 74 NY2d at 595 ; Krauss v. Globe Intl. , 251 AD2d at 193. Portrayal of a private person's life may be of public concern if a theme of public concern may be drawn from the portrayal. Huggins v. Moore , 94 NY2d at 303.
The film trailer does not portray a subject of public concern, as the trailer presents only portions of a film about the main character's personal life, her driving lessons in which she occasionally describes her former husband, without touching on any discernable issues of public interest. Krauss v. Globe Intl. , 251 AD2d at 194. See Farber v. Jefferys , 103 AD3d at 515 ; Lewis v. Newsday, Inc. , 246 AD2d 434, 435 (1st Dep't 1996) ; Cruz v. Latin News Impacto Newspaper , 216 AD2d 50, 52 (1st Dep't 1995). Even if her personal life did raise issues of public concern, plaintiff pleads that defendants were at least grossly irresponsible because, as discussed above, the film is based on the article, which indisputably distinguishes plaintiff from the author's lover, but the film portrays plaintiff with all the lover's negative characteristics. See Farber v. Jefferys , 103 AD3d at 515 ; Cruz v. Latin News Impacto Newspaper , 216 AD2d at 52.
V. CONCLUSION
For all these reasons, the court denies defendants' motion to dismiss the complaint. C.P.L.R. § 3211(a)(1) and (7). This decision constitutes the court's order.