Opinion
109122/06.
October 9, 2007.
OPINION
This is an action for damages for defamation, intentional infliction of emotional distress, and fraud. There are three separate motions to dismiss the complaint in this action: one by defendants Rayner Ramirez, NBC Universal Inc., John Hockenberry, and Stone Phillips (the NBC defendants), pursuant to CPLR 3211 (a) (7); one by defendant Leslie Linthicum (Linthicum), pursuant to CPLR 3211 (a) (7) and (8); and one by defendants John Grace (Grace) and Mike Miller (Miller), pursuant to CPLR 3211 (a) (7) and (8).
Plaintiffs specify in their opposition papers to the motions what statements in the complaint are allegedly defamatory. None of the specified statements are. In deciding a motion to dismiss a defamation cause of action, the court must determine as a matter of law whether the alleged defamatory statements are "reasonably susceptible of a defamatory connotation (citation omitted). In making this determination, the court must give the disputed language a fair reading in the context of the publication as a whole (citation omitted)" ( Armstrong v Simon Schuster, 85 NY2d 373, 380). Statements of opinion are not actionable ( Gross v New York Times Co., 82 NY2d 146, 150 ; Locke v Asian, 1 AD3d 160 [1st Dept 2003]). The determination of whether a statement is opinion must be made by the court as a question of law ( Rinaldi v Hull, Rinehart Winston, 42 NY2d 369, 381). The press does not have to report all sides to a story, and unbalanced reporting is a matter of editorial judgment, not actionable defamation ( Sprecher v Dow Jones Co., 88 AD2d 550, 551 [1st Dept 1982], affd for reasons stated below, 58 NY2d 862). The burden is on the plaintiff to demonstrate that factual assertions upon which defamation is based are false ( [ILLEGIBLE TEXT] AG. v Moor-Jankowski, 77 NY2d 235, 245). Plaintiffs have not sustained their burden of proof on the first cause of action.
The second and third causes of action are largely duplicative of the first ( cf. Themed Rests., Inc. v Zagat Survey, LLC, 21 AD3d 826, 827 [1st Dept 2005] [the plaintiff's negligence cause of action was dismissed as duplicative of the defamation claim]). Furthermore, the intentional infliction of emotional distress cause of action does not come close to sufficiently pleading the elements of such a claim ( see Howell v New York Post Co., 81 NY2d 115, 121). The fraud cause of action is not pled with the specificity required by CPLR 3016 (b) ( see LaSalle Nat. Bank v Ernst Young, 285 AD2d 101, 109 [1st Dept 2001]). Finally, the second and third causes of action improperly only seek punitive damages ( All-Boro Air Conditioning Corp. v Dunham-Bush, Inc., 92 AD2d 486, 487 [1st Dept 1983]),
Jurisdiction over defendants Linthicum, Grace, and Miller for the defamation cause of action cannot be based on CPLR 302 (a) (2) or (3) under their own terms ( Findlay v Duthuit, 86 AD2d 789, 790 [1st Dept 1982]; Strelsin v Barrett [Strelsin], 36 AD2d 923 [1st Dept 1971]). Although those defendants came to New York State right after September 11, 2001, the events relied upon against those defendants for the alleged defamation occurred outside of New York State. Thus, this court has no basis for personal jurisdiction over any of those defendants under CPLR 301 (a) (1) ( see Johnson v Ward, 4 NY3d 516, 519; [ILLEGIBLE TEXT] v. Variety, Inc., 48 NY2d 803 [1st Dept 1975]; Strelsin, 36 AD2d at 923).
Thus, the causes of action cannot stand. Therefore, by this court's decisions and orders, dated October 2 and 5, 2007, the motions have been granted to the extent of dismissing the complaint against all of the moving defendants.