Opinion
No. 101874/12.
2013-02-5
Jak DARAGJATI, Plaintiff, v. NYP HOLDINGS, INC. a/k/a New York Post, John Doe, a fictitious name, Jane Doe, a fictitious name, and XYZ Corporation, a fictitious name, Defendants.
PHILIP G. MINARDO, J.
Upon the foregoing papers, the motion to dismiss the Amended Complaint by defendants NYP Holdings, Inc. a/k/a New York Post (hereinafter the “Post”) is denied.
This action was commenced to recover damages for defamation, negligence and gross negligence. To the extent relevant, it is alleged that commencing on or about October 17, 2011, the Post began publishing a series of articles reporting on the arrest, arraignment and detention of a New York City Police Officer, Michael Daragjati, on charges that he falsely arrested an African–American male. Following a court appearance on October 17, 2011, plaintiff Jak Daragjati and his family were apparently photographed leaving the courthouse after his brother's arraignment. On the following day, October 18, 2011, the Post published an article in print and online entitled Racist' cop in civil-rights rap: Nailed for bogus bust' on black man ( see Plaintiff's Exhibits “1”, “2”). It is undisputed that the story was accompanied by a courtroom drawing of Michael Daragjati, as well as a photograph of plaintiff and his sister, who is holding a jacket over her head. The photograph is captioned: “Coverup: A relative of alleged rogue cop Michael Daragjati tries to hide her face from photographers yesterday as she leaves his arraignment hearing in Brooklyn federal court” ( id.). In the article, Michael Daragjati is quoted as having said “Another [racial epithet] fried, no big deal” ( id.). On October 19, 2011, a subsequent article was published on the Post's online website entitled Racist cop being held in protective custody ( see Plaintiff's Exhibit “4”). This time the article was accompanied by a photograph of plaintiff alone ( id.). Thereafter, other news outlets republished the article using the same image, thereby allegedly identifying plaintiff as the “racist cop”. These included News One For Black America, News Hub Today, Racism Daily and Police Thugs ( see Plaintiff's Exhibits “5”, “6”, “7”, “8”). It has been effectively conceded that in the “comments” section of these websites, threats were made against the “racist cop” ( see Plaintiff's Exhibit “9”) and, according to plaintiff, a “Google” search of the general term “racist cop” now results in numerous links to this image ( see Plaintiff's Exhibits “10”).
In addition to the above, plaintiff alleges in his Amended Verified Complaint that even after his attorney notified the Post of the alleged misattribution in a letter dated November 7, 2011, the latter continued to publish his photograph in series of subsequent articles without correction ( see Amended Verified Complaint, para 18). As a result of the Post's unceasing dissemination of this photograph along with its implied false characterization of “racism”, plaintiff claims to have suffered, inter alia, financial loss, mental anxiety and emotional suffering ( see Amended Verified Complaint, para 26), including the claim that several of his business clients have expressed concern over his characterization as “racist” ( see Affidavit of Plaintiff, para 14). In light of, inter alia, the November letter, plaintiff further alleges that defendant's continued malfeasance has been willful, malicious and reckless, as well as being motivated by the promotion of defendant's business interests ( id. at 26, 29).
In its motion to dismiss, the Post maintains, inter alia, that the photograph of plaintiff in the online article was replaced by a photograph of plaintiff and his sister approximately 84 minutes after it was initially published, and denies that it ever identified plaintiff as the “racist cop” by this or any other means. In addition, the Post argues that since the courtroom sketch of Michael Daragjati and the photograph of plaintiff and his sister were both published in its print edition on the same day, the depiction therein of two different men conclusively refutes plaintiff's claim of, e.g., wilful misidentification. Lastly, the Post argues that since plaintiff is not a police officer, his cause of action for defamation per se must be dismissed.
On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see G.L. v. Markowitz, ––– AD3d ––––, 2012 N.Y. Slip Op 8493 at 2 [2nd Dept] ). Hence, the only issue before the Court is whether plaintiff's Amended Verified Complaint states a viable cause of action for, inter alia, defamation.
As applicable to the case at bar, the making of a false statement that tends to expose a person to public contempt, ridicule, aversion or disgrace constitutes defamation ( id.). So, too, does a statement that, although imputing no moral turpitude to a person, (1) induces an evil opinion of him or her in the minds of right-thinking persons, (2) causes him or her to be shunned or avoided by a significant part of the community, or (3) operates to deprive him or her of their friendly intercourse ( id.; see Ava v. NYP Holdings, Inc., 64 AD3d 407, 411 [1st Dept 2009] ). It is familiar law that the tort of defamation has been divided into two major categories, with “slander” generally reserved for defamatory matter addressed to the ear, while the term “libel” is used to refer to defamatory matter addressed to the eye ( id.). The case at bar being one of purported libel, it is important to note that this category of defamation has been further broken down into two discrete forms—libel per se, where the defamatory content appears on the face of the communication—and libel per quod, where no defamatory content is present on the face of the communication, but a defamatory import is projected through the reference to facts extrinsic to the communication ( id. at 412). In the latter instance, the alleged defamation is said to be non-actionable unless plaintiff can allege special damages ( see Ava v. NYP Holdings, Inc ., 64 AD3d at 412 n3). Here, plaintiff alleges both general and special damages, as well as actual, nominal, and punitive damages, but fails to attach a specific dollar figure to any of them. Nevertheless, the law is clear that a complaint which pleads actual injury will not be dismissed for this reason alone ( see LeBlanc v. Skinner, 103 AD3d 202, 955 N.Y.S.2d 391 at 23 [2nd Dept]; Blumstein v. Chase, 100 A.D.2d 243, 245–246 [2nd Dept 1984] ).
It is well settled that where, as here, a motion to dismiss an action for libel is grounded on the claim that the offending “statement” is not defamatory, the court must determine in the first instance whether the contested matter is reasonably susceptible of a defamatory connotation, i.e., whether the particular words are reasonably susceptible to a defamatory connotation in the context of the entire communication in which those words appear ( id. at 413). Thus, the court is enjoined to read the alleged defamatory words against the background of their issuance, giving due consideration to the circumstances underlying the publication of the communication in which they are used ( id.). If the words used in the communication, tested by their effect upon the average reader, are not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction ( id.). However, if the contested statements are reasonably susceptible of a defamatory connotation, then it becomes the jury's function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader ( see G.L. v. Markowitz, ––– AD3d ––––, 2012 N.Y. Slip Op 8493 at 4).
In this case, it is the opinion of the Court that the Post's news articles taken as a whole are reasonably susceptible of the defamatory connotation alleged by plaintiff and, thus, a jury question is presented as to whether the ordinary and average reader would understand the statements to be libelous ( see Knutt v. Metro Intl, SA, 91 AD3d 915, 916 [2nd Dept 2012] ). Moreover, contrary to defendant's contentions, the mere fact that plaintiff is not a police officer is not ipso facto determinative of whether the alleged defamatory statements constituted libel per se, i.e., tended to disparage him in his trade or profession. In light of plaintiff's allegations, the question remains whether the words in the context in which they were used, should or can be readily interpreted as injuring plaintiff in his electronics business ( see Perez v. Lopez, 97 AD3d 558, 559 [2nd Dept 2012]; Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 261 [1st Dept 1995] ).
Furthermore, where, as here, a private rather than public figure or individual is allegedly defamed by a publication in a matter of public interest, a plaintiff need not show actual malice, but rather that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties ( see Gertz v. Robert Welch, Inc, 418 U.S. 323, 348 [1974];Knutt v. Metro Intl, SA, 91 AD3d at 916;Porcari v. Gannett Satellite Info Network, Inc, 50 AD3d 993, 994 [2nd Dept 2008] ). Naturally, at the pleading stage and prior to discovery, a plaintiff will have little knowledge of and, therefore, cannot possibly plead all of the relevant facts concerning the Post's methods for information gathering, research, writing and editing the subject article (Knutt v. Metro Intl, SA, 91 AD3d at 917). Hence, any failure in this regard would not be fatal ( id.). Here, however, plaintiff has alleged that the Post was put on notice of the purported defamatory content of its articles in his attorney's letter of November 7, 2011, and that defendant failed to take any meaningful corrective action. Thus, affording the amended complaint a liberal construction, accepting all of the facts alleged therein as true, and according plaintiff the benefit of every possible favorable inference to be drawn therefrom, it is the opinion of this Court that the element of gross irresponsibility has been adequately pleaded to avoid dismissal at this stage of the proceedings ( id. at 916).
Accordingly, it is
ORDERED that the motion to dismiss of defendant NYP Holdings, Inc. a/k/a New York Post is denied.