Opinion
Index No. 151135/2022 Motion Seq. No. 001
10-03-2022
YUVAL GOLAN, Plaintiff, v. DAILY NEWS, L.P., NOAH GOLDBERG Defendant.
Unpublished Opinion
MOTION DATE 07/01/2022
DECISION + ORDER ON MOTION
LORI SATTLER, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32 were read on this motion to/for DISMISSAL.
In this defamation action, Defendants Daily News, L.P. ("Daily News") and Noah Goldberg ("Goldberg") (collectively "Defendants") move for an order dismissing the Verified Complaint with prejudice pursuant to CPLR 3211(a)(1), (7) and (g)(1) and for sanctions and/or costs pursuant to CPLR § 8303-a and 22 NYCRR § 130-1.1. Plaintiff Yuval Golan ("Plaintiff or "Golan") opposes the motion.
Background
Plaintiff commenced this action for defamation after he was named in online and print articles of the Daily News published on October 17, 2021 (collectively "articles"). The online version was entitled "Brooklyn developer accused of swindling vulnerable homeowners" (NYSCEF Doc. No. 8). The front-page print version of the article had the headline "B'KLYN LAND SHARK! Real Estate baron ripped by families and courts, subject of several suits" (NYSCEF Doc. No. 9). The print article included a photograph of Plaintiff which he characterizes as retouched to give him a "sinister appearance." The article continues on pages four and five with the headline "OWNERS BEWARE OF THIS BUYER" with the sub-headline "Slam real-estate mogul as wolf preying on sellers in newly upscale B'klyn nabes" (NYSCEF Doc. No. 10). The articles go on to report that Plaintiff participated in several purchases of real property which were later the subject of litigation.
Plaintiff states that the articles are false and defamatory. He contends that the articles contain several discrepancies including, inter alia, implying he is a criminal who has committed fraud and theft or stolen the land of others by fraud or artifice. In the complaint, he states that he has never been convicted of a crime, was successful in certain suits discussed in the articles, and that the articles are a deliberate and malicious attempt to destroy his reputation (NYSCEF Doc. No. 1 at 2-3).
Plaintiff further indicates that he is not a "shark" or "baron" as described in the articles but rather that he has made long-term investments that have proven to be successful. He further takes issue with the characterization of the litigation in which he has been involved. In the complaint he points to the articles' line "Golan, owner of pricey homes across Kings County, was sued at least five times since 2005 for allegedly taking advantage of sellers." He claims that this statement is incorrect because, he says, he has been sued only two times, not five, and that in two other lawsuits he or a company he represents was the plaintiff. He further claims that in one action he "won" in the lower court and at the Appellate Division, Second Department. He states that a second suit was subsequently dismissed.
Plaintiff further asserts that while the articles state that he paid less than fair market values for properties, appraisals at the time of the transactions show that the properties were valued at "approximately" what he paid for them. He claims the articles omit the fact that in some of the purchases, he purchased only partial ownership of the property. The articles are allegedly also misleading because, he states, it is common knowledge that property values have risen sharply but only in the past few years. He further points to the mention of a website in his name that he contends is not his.
Finally, Plaintiff asserts that the article was reposted in its entirety on a separate website, lipstickalley.com, where Plaintiff claims he became the subject of "numerous ugly and threatening comments."
In support of their motion to dismiss the complaint, Defendants include papers from six court cases involving Plaintiff in some form. Goldberg submits an affidavit stating that to the best of his knowledge the photograph of the Plaintiff contained in both the print and online articles are the same and were not "retouched." He further states that while Plaintiff mentions that the article was published on Lipstick Alley, that website is not affiliated with the Daily News and neither he nor the Daily News authorized the republishing of the articles.
Defendants state that notwithstanding Plaintiffs claims, their statement in the articles that he was sued at least five times was accurate, as were the details provided of the lawsuits. They assert that his complaint must be dismissed as a matter of law because the articles are a fair and true report of judicial proceedings and are therefore privileged under Section 74 of the Civil Rights Law. They further contend that the alleged defamatory statements are not actionable because they are substantially true and that the headlines are not actionable as they are fair indices of the articles. They claim that the headlines are not defamatory as they are nonactionable hyperbole. Lastly, they assert that Plaintiff has not pled and cannot prove that the statements were published with actual malice, that is, with a knowledge of falsity or subjective awareness of falsity.
Although Defendants contend that dismissal is appropriate under CPLR 3211(a) for the reasons set forth above, they assert that dismissal is more appropriately found under New York's recently revised anti-SLAPP statute because the instant action is a "lawsuit against public participation," thus requiring Plaintiff to satisfy a heightened burden of proof under CPLR 3211(g). They further seek sanctions and costs for purported false allegations. They assert that an award of counsel fees is mandated under the anti-SLAPP statute.
Plaintiff opposes the motion. He appears to contend that the anti-SLAPP statute does not apply because under Section 76-a(1)(a)(1) of the Civil Rights Law the terms "public petition and participation" including "any communication in a . . . public forum in connection with an issue of public interest" is vague. He further argues that Section 74 of the Civil Rights Law does not apply because the articles are not a "fair and accurate report" of the court cases and contain defamatory statements that were not in the court papers. He also argues that these issues cannot be addressed in a pre-answer motion to dismiss but rather must asserted as an affirmative defense in an answer.
Plaintiff states that contrary to Defendants' position, the headlines of an article can be defamatory. He points to the headlines in question and notes that the term "Land Shark" has a long-established and historical defamatory meaning as someone who cheats people out of their land by force or fraud. Lastly, Plaintiff contends that even if the motion is granted counsel fees are not appropriate, asserting that the counsel fee portion of the anti-SLAPP statute does not apply to a motion to dismiss.
Anti-SLAPP Application
The standard for motions to dismiss in cases involving public petition and participation is set forth in CPLR 3211(g). It provides that a motion to dismiss interposed pursuant to 3211(a) should be granted where "the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action involving public petition and participation as defined in [Civil Rights Law § 76-a(1)(a)] . . . unless the party responding to the motion demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law" (id).
Section 76-a(1)(a) of the Civil Rights Law defines "an action involving public petition and participation" as:
1) any communication in a place open to the public or public forum in connection with an issue of public interest; or
2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.
The statute further directs: '"Public interest' shall be construed broadly and shall mean any subject other than a purely private matter" (Civil Rights Law § 76-a[l][d]).
The Court finds that, in addressing real estate transactions and issues of fraud and deceptive practices that could affect the public, the articles fall within the expanded definition of public interest. They are not matters related to a purely private matter. Indeed, there are multiple court actions discussed which are public record. Accordingly, the anti-SLAPP statute, as amended, does apply to this defamation action.
Where an action involves public petition and participation, a plaintiff must demonstrate with "clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action" (Civil Rights Law § 76-a[2])
Privileged Reports of Judicial Proceedings
Defendants contend that the articles were a privileged report of judicial proceedings. Under Section 74 of the Civil Rights Law, civil actions "cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding ... or for any heading of the report, which is a fair and true headnote of the statement published." "For a report to be characterized as 'fair and true' within the meaning of the statute, thus immunizing its publisher from a civil suit... it is enough that the substance of the article be substantially accurate" (¶oly Spirit Asso. for Unification of World Christianity v New York Times Co., 49 N.Y.2d 63, 67 [1979]). There must be a degree of liberality accorded to newspaper accounts of proceedings and "the language used therein should not be dissected and analyzed with a lexicographer's precision" (id. at 68). "Comments that essentially summarize or restate the allegations of a pleading filed in an action are the type of statements that fall within section 74's privilege" (Lacher v Engel, 33 A.D.3d 10, 17 [1st Dept 2006], citing Ford v Levinson, 90 A.D.2d 464 [1st Dept 1982]).
The articles mention the following court proceedings in which Plaintiff is or was a party:
Matter of Vaughan, Supreme Court, Richmond County
Plaintiff indicates that the articles' discussion of Ms. Vaughan and the related lawsuit was inaccurate because the case was not about Ms. Vaughan but about her court-appointed guardian. While Plaintiff did prevail in that the transfer of property to him was not set aside, the court, in a decision dated January 6, 2010, noted that Ms. Vaughan, an elderly woman later diagnosed with dementia, made a bad deal (Matter of Vaughan, 26 Misc.3d 1211[A] [Sup Ct, Richmond County 2010] [Aliotta, J.]). Although the court did not make a fraud finding, it found that there was "no doubt" that Ms. Vaughan had been taken advantage of by selling her home for $250,000. The Court found that the home had a value of $450,000 at the time of the sale.
As it relates to Matter of Vaughan, the articles are substantially correct in its reporting that Ms. Vaughan was elderly, as the Richmond County Supreme Court so stated in its decision, and in its acknowledgement that there was no finding of fraud against Plaintiff. Similarly, the print article accurately characterizes the portion of the Court's decision stating that Ms. Vaughan was found to have dementia less than a year later.
Harris et al v Golan et ah Supreme Court, Kings County
Plaintiff asserts that it was deceptive of Defendants to include a picture of Ms. Harris walking with a walker in the article because it was her 49-year-old brother who sold his share of the property to Plaintiff. Plaintiff further claims that the articles' estimation of the value of their home at $3,000,000 was unsupported.
The articles state that the sales price was $700,000 for Mr. Harris's share and that Plaintiff still owes $400,000 on the property. This statement in the article is substantially true and, if anything, overstates the amount Plaintiff allegedly paid to Mr. Harris (see Harris v Golan, 2022 NY Slip Op 30558[U] [Sup Ct, Kings County 2022] [Wan, J.] ["plaintiffs state . . . that defendant Kew Gardens fraudulently acquired title to Anthony Harris' entire interest in the subject property for $150,000.00 without paying the balance of $550,000.00"]). The Court's published decision dismissing the case states that Plaintiff (defendant in that action) contended that he completed the sale with a payment of $150,000 with Mr. Harris lending the balance to Mr. Golan's company (see Harris at *2). The article further notes that Plaintiffs attorney stated that he had taken a purchase money mortgage allowing him to pay Mr. Harris over time. The decision to dismiss the action was made on February 17, 2022, after the articles were published.
Matter of Gray, Surrogate's Court, Kings County
Plaintiff contends that although the article stated that he had paid $50,000 for a property valued at approximately $3,600,000, the article did not mention that the seller was to get a condominium unit as part of the deal. He further notes that the seller was in her 40s.
Defendants submit the decision of Surrogate Lopez Torres dated October 15, 2019, which declared null and void a second deed transferring the property located at 591 Carlton Avenue, Brooklyn, New York (NYSCEF Doc. No. 14, Matter of Gray, 2003-4544/B [Sur Ct, Kings County 2019] [Lopez Torres, S.]). As detailed in the decision, the deed was executed by L., an individual in her capacity as sole intestate heir of the decedent and Plaintiff and his corporation for $50,000. The public administrator represented that at the time the deed was executed, the real property value was $3,645,000 and that L. had not demonstrated that she was a distributee. Plaintiffs corporation, 591 Carlton Avenue Corp., submitted objections to the relief requested, arguing that L. was the sole distributee and that there were no other relatives. The Surrogate found that that these claims were not substantiated. The 2018 deed was vacated and expunged from the record. Thus, the Court finds that the statements in the articles related to this judicial proceeding were substantially accurate.
72634552 Corp. v Okon, Surrogate's Court, Kings County
The article states that Surrogate Lopez Torres revoked a deed to a Crown Heights home in 2018 after the buyer purchased one-third of the $2,000,000 property from a terminally ill woman suffering from an oxycontin addiction for the sum of $10,000.
Plaintiff states that the articles were wrong in reporting that the home was in Crown Heights, as it was in Lefferts Gardens. He further contends that it was an error to state that the seller was elderly, although the articles make no such contention. Plaintiff further points to the fact that she held a one-third interest, which was also addressed in the article. He claims that the value of that share was only worth $10,000 and that the appellate court agreed with him. These statements therefore make the articles "erroneous and misleading" according to Plaintiff.
The articles were substantially correct in that the facts were taken directly from the decision of the Surrogate (see 72634552 Corp. v Okon, 63 Misc.3d 1222[A] [Sur Ct, Kings County 2018] [Lopez Torres, S.]). In addition, the articles disclose that the decision to revoke the deed was reversed. Notably, in that decision, the court found that the record supported that the seller was "seriously ill and had been prescribed medication for her pain" (72634552 Corp. v Okon, 189 A.D.3d 1317, 1319 [2d Dept 2020]). The report that the home was in Crown Heights as opposed to the neighboring Lefferts Gardens area is immaterial and does not affect the finding that the reporting in the articles was substantially correct.
After a review of the court proceedings submitted, the Court finds that the statements in the articles regarding these proceedings are a fair and true report and that these statements are a privileged report of judicial proceedings under Section 74 of the Civil Rights Law.
Allegations relating to other purported defamatory statements
Having found that certain statements contained in the articles are privileged reports of judicial proceedings, the Court now turns to Plaintiffs claims of defamation for statements not related to court proceedings.
Plaintiff contends that the articles contain "numerous" statements that are actionable because they are "false and misleading." According to Plaintiff, these statements are defamatory in nature and show that Defendants acted in an irresponsible manner in publishing a story containing "lies, distortions, omissions, and half-truths." In addition, Plaintiff asserts that the headlines are defamatory.
Defamation has been defined as "the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society" (Foster v Churchill, 87 N.Y.2d 744, 751 [1996] [internal quotation marks omitted]). To succeed on a defamation claim, a plaintiff must show "(1) a false statement that is (2) published to a third party (3) without privilege or authorization and that (4) causes harm, unless the statement is one of the types of publications actionable regardless of harm" (Stepanovv Dow Jones & Co., Inc., 120 A.D.3d 28, 34 [1st Dept 2014]).
In a case of express defamation, a complaint must be dismissed where the statements in question are substantially true (id. at 37; see also Birkenfeldv UBS AG, 172 A.D.3d 566 [1st Dept 2019]). "If an allegedly defamatory statement is substantially true a claim of libel is legally sufficient and . . . should [be] dismissed" (Franklin v Daily Holdings Inc., 135 A.D.3d 87, 94 [1st Dept 2015] [internal quotation marks and citations omitted]).
Plaintiff asserts that the statement "Golan, owner of pricey homes across Kings County, was sued at least five times since 2005 for allegedly taking advantage of sellers" is false. Plaintiff specifically notes that he was sued two times and not five and he further claims that in two additional suits, Plaintiff or his company was the plaintiff and not the defendant. He further asserts that he prevailed in the two lawsuits where he was the defendant. Lastly, he claims that he is not an owner of "pricey homes" but rather is a businessman and that he is not wealthy.
The article is substantially true in stating that Plaintiff was sued at least five times since 2005. Plaintiff does not submit evidence to support his claim that he was only a defendant in two cases and was a plaintiff in two because he cannot do so. That statement is false, as can be evidenced by the various court pleadings and decisions cited in or annexed to the moving papers. Plaintiff was named as a defendant in Harris v Golan, as well as in Griffin v 72634552 Corp. et al., Index No. 502779/2016 (Sup Ct, Kings County); Kapase LLC v Hester et al, Index No. 6613/2013 (Sup Ct, Kings County); and Popalardo v Bapaz Aderet Properties Corp., Index No. 10453/2010 (Sup Ct, Kings County), and was named as a respondent in Matter of Vaughan. These cases are annexed as exhibits to the present motion. Plaintiffs companies also filed objections in two estate administration proceedings, Matter of Gray and Matter of Matthews, 2013-1693/D (Sur Ct, Kings County). Thus, Plaintiffs claim that he was only named as a defendant in two cases is untrue and Defendants' statements regarding at least five suits are substantially true.
Although Plaintiff disputes that he is the owner of "pricey homes," more than one decision indicated that he had obtained property of significant value. In addition, the reports in the article of allegations that Plaintiff had taken advantage of sellers is substantially accurate given the facts contained in the various court documents as well as by the findings of fact contained in certain decisions.
Plaintiff further points to the statement "[b]ut the judge has rescinded two other deals made by the businessman." Although this Court finds that the reports of the judicial proceedings are privileged under the Civil Rights Law, with respect to this specific statement, the documentary evidence demonstrates that there were two decisions declaring null and void certain deeds where Plaintiff purchased property. While the Matter of Gray decision rescinded the deed and declared it null and void, the article states that two other deeds were rescinded and that one of those actions was subsequently reversed. This report is accurate.
The Complaint asserts that although the articles state that Plaintiff targeted "vulnerable elderly" individuals, the sellers were "neither unwell nor of advanced age." He lists four specific individuals. As to the first, Pamela McKenzie, it does not appear to be disputed that she suffered from chronic and terminal illnesses and addiction to pain medication (Okon, 63 Misc.3d 1222[A], at *8-*9). As to Ms. Vaughan, the Richmond County Supreme Court decision specifically states that she was "elderly and in poor health" (Matter of Vaughan, 26 Misc.3d 1211 [A]). The complaints in the Griffin (NYSCEF Doc. No. 16), Kapase (NYSCEF Doc. No. 20), and Popalardo (NYSCEF Doc. No. 18) cases all allege that owners were elderly, sick, or both.
Plaintiff further asserts that although the articles state that "[o]n his website, Golan writes 'Unlike other buyers we will pay you top dollars that your property is worthy of. We offer a buying price that meets prevailing rates,'" he does not operate such a website (NYSCEF Doc. No. 1 ¶ 64). Although the website quoted by the article bears Plaintiffs name, Plaintiff contends that it was made by an imposter (id. ¶¶ 65-66). The Court finds this one statement, when read in context, does not contain any language that would create a false or negative impression of Plaintiff and therefore does not rise to the level of defamation. After reviewing the totality of the statements contained in the articles, the Court finds the articles to be substantially true.
Defamation by Implication
Most of the remaining arguments in the Complaint relate to claims that the articles were defamatory because certain implications arose from the words in the article. For example, Plaintiff contends that Ms. Vaughan was only 64 years old and not elderly but that the article implies that she was older. He further contends that by printing a picture of Ellen Harris with a walker, it was a "deliberate act intended to make plaintiff look bad." In addition, he claims that his photo was touched up to give him a sinister appearance.
"Defamation by implication is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements" (Armstrong v Simon andShuster, 85 N.Y.2d 373, 380-381 [1995]). The court has found that where there is a claim for defamation by implication and the factual statements are found to be substantially true, "the plaintiff must make a rigorous showing that the language of the communications as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference" (Stepanov, 120 A.D.3d at 37-38).
After a review of the articles and Plaintiffs contentions, the Court finds that Plaintiff has not met the rigorous showing that the communication as a whole can be read to be defamatory by implication. Additionally, Plaintiffs bare allegations do not demonstrate that Defendants intended to endorse such an inference. Although Plaintiff takes issue with the characterizations of some of the court cases, his own characterizations are sometimes misleading and untrue especially given the record of litigation in which he was involved.
With respect to the allegations that the photo was retouched to make his appearance more sinister, Goldberg submits an affidavit indicating that to his knowledge no such touch-ups were made. After a review of the two photos, the Court finds that they are identical in both print and online versions. Plaintiff offers no evidence to support his claims of touch-ups. Plaintiff fails to demonstrate that Defendants intended to endorse the implication that the photo implied he was sinister. Similarly, there can be no such finding based on the photograph showing Ms. Harris using a walker. As Plaintiff does not demonstrate Defendants intended or endorsed any purported inferences, the Court finds that there can be no finding of defamation by inference based on the photos contained in the article.
Headlines
Plaintiff contends that the headline "B'KLYN LAND SHARK!" is false and defamatory because the term implies that he is a criminal who has committed fraud and theft or stolen people's land and real property by fraud. He states that he has been convicted of no crimes and claims to have been successful in some of the litigations. He further points to the headlines "OWNERS BEWARE OF THIS BUYER" and the sub-headline "Slam real-estate mogul or wolf preying on sellers in newly upscale B'klyn nabes" as well as "Brooklyn developer accused of swindling vulnerable homeowners out of valuable properties." He claims that these headlines are false and misleading (NYSCEF Doc. No. 1).
Defendant contends that the headlines are not actionable because they are fair indices of the articles and, when considered along with the articles as a whole, accurately summarize the matters on which Defendants have reported. They further claim that the term "B'KLYN LAND SHARK" is not reasonably susceptible to the meaning Plaintiff ascribes to it, namely, that he is a criminal. Last, they assert that the headlines are nonactionable opinion and/or rhetorical hyperbole.
Where a headline is a "fair index of the truthful matter contained in the related news article," it is not actionable (Gunduz v New York Post Co. Inc., 188 A.D.2d 294 [1st Dept 1992]). When looking at a headline "[t]he rule is general that both the headline and the item to which it is attached are to be considered as one document in determining the effect of an article" Cole Fischer Rogow, Inc. v Carl Ally, Inc., 29 A.D.2d 423, 426 [1st Dept 1968], qffd 25 N.Y.2d 943 [1969] [internal quotation marks omitted]).
There is no doubt that the sub-headlines "Brooklyn developer accused of swindling vulnerable homeowners out of valuable properties"; "Real estate baron ripped by families and courts, subject of several suits"; and "slam real-estate mogul as wolf preying on sellers in newly upscale B'klyn nabes" when considered together with the underlying articles are fair indices of the matters to which they refer. The articles are primarily reports of land purchases made by Plaintiff which subsequently resulted in court proceedings in which there were findings that he had obtained interests in certain properties for below the market value of the property. Thus, these sub-headlines are not actionable.
Although Plaintiff contends that the headline "B'KLYN LAND SHARK!" implies that he is a criminal or that he engaged in fraudulent activities, there is nothing in the article which indicated that Plaintiff has engaged in criminal behavior. To the contrary, the article states that "[a] law enforcement source said that the developer's deals do not rise to the level of criminality. . . ." The article goes on to quote Plaintiffs attorney's declaration that his client was nothing but a savvy investor. Thus, the headline is not reasonably susceptible of a defamatory meaning and is not actionable (Golub v Enquirer/Star Group, 89 N.Y.2d 1074, 1076 [1997]). When reading the article and the statements therein, there is nothing to convey the concept of Plaintiff as a criminal. Accordingly, the Court finds that the headline cannot be found to be defamatory.
Lastly, the headline "OWNERS: BEWARE OF THIS BUYER" cannot be found to be a factual statement. Grammatically, the statement is a warning which, at best, can be said to be an opinion. The Court is tasked with determining whether a statement is fact or opinion (see Parks v Steinbrenner, 131 A.D.2d 60, 62 [1st Dept 1987] ["In all defamation cases, the threshold issue which must be determined, as a matter of law, is whether the complained of statements constitute fact or opinion"]. Statements that clearly "constitute[] the expression of opinion" are not actionable (Costanza v Seinfeld, 279 A.D.2d 255, 256 [1st Dept 2001]). Additionally, the headline is a fair index of the article, which discusses real estate transactions entered into by Plaintiff thereafter subject to court proceedings in which findings indicated that the seller had entered into an unfavorable deal, often without the benefit of an attorney.
Actual Malice
Under the anti-SLAPP statute as amended, in a case involving public petition and participation, damages may only be recovered if the plaintiff, in addition to proving all other necessary elements, establishes by clear and convincing evidence that "any communication which to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action" (Civil Rights Law § 76-a[2]).
In light of the Court's findings that the statements regarding judicial proceedings are privileged under Section 74 of the Civil Rights Law, or were not defamatory, this Court need not address whether Defendants acted with actual malice. Were this Court to consider that argument, it could make no finding of actual malice based on the conclusory allegations set forth in the Complaint (see L.Y.E. Diamonds, Ltdv Gemological Inst, of Am., Inc., 169 A.D.3d 589, 591 [1st Dept 2019], citing O 'Neill v New York Univ. 97 A.D.3d 199, 212-213 [1st Dept 2012]; see also Jiminez v UnitedFed'n of Teachers, 239 A.D.2d 265, 266 [1st Dept 1997]). Plaintiff fails to establish by clear and convincing evidence that any of the communications contained in the articles were made with knowledge of its falsity or with reckless disregard of whether the statements were false.
Accordingly, Plaintiff fails to set forth a cause of action for defamation and Defendants' motion to dismiss will be granted.
Lipstick Alley
As Defendants are not affiliated with Lipstick Alley, a third-party website, Plaintiff cannot sustain an action against them with respect to that publication.
Counsel Fees
Section 70-a(1)(a) of the Civil Rights Law provides for mandatory counsel fees "upon a demonstration . . . that [an] action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law," including where such an action is dismissed pursuant to CPLR 3211(g). Having found that Plaintiffs action involves public petition and participation and that Plaintiff fails to establish a substantial basis in fact or law to sustain his defamation claims, the Court finds that Defendants are entitled to costs and counsel fees.
Accordingly, it is hereby:
ORDERED that the motion to dismiss is granted and the action is dismissed with prejudice; and it is further
ORDERED that by November 30, 2022, Defendants shall file a fee application (billing records and an affirmation of reasonableness) that set forth their fees in this action; by December 30, 2022, Plaintiff shall file any objections to the fee application; and Defendants shall notify the court by email when these submissions are fully submitted.
All matters not decided herein are hereby denied.