Opinion
Index No. 522720/2019
10-05-2023
Daniel Montanino, Plaintiff, v. New York City Department of Sanitation, The City of New York, "John Doe," name being fictitious, Michael Femia and Robert Bass, Defendants.
For Plaintiff Daniel Montanino: Peter P. Traub of Stevens & Traub, PLLC. For Defendant NYC (sued as NYC Dept. of Sanitation): Jonathan R. Sherwin of New York Law Dept. For Defendant Michael Femia: Anthony J. Auciello of Auciello Law Group P.C. For Defendant Robert Bass: Lloyd D. Thompson
For Plaintiff Daniel Montanino: Peter P. Traub of Stevens & Traub, PLLC.
For Defendant NYC (sued as NYC Dept. of Sanitation): Jonathan R. Sherwin of New York Law Dept.
For Defendant Michael Femia: Anthony J. Auciello of Auciello Law Group P.C.
For Defendant Robert Bass: Lloyd D. Thompson
Hon. Patria Frias-Colón, J.S.C.
Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:
NYSCEF Doc #s 39-48; 57 by Defendant City
NYSCEF Doc #s 49-56 by Plaintiff
Upon the foregoing papers and after oral argument on July 26, 2023, Defendants the City of New York (the City) and New York City Department of Sanitation (DSNY) (collectively the City) move this Court, pursuant to CPLR § 3211 (a) (7) and the Communications Decency Act (CDA) 47 USC § 230, to dismiss the action because the City is immune from any defamation claims. For the following reasons, the City's motion is GRANTED and the Plaintiff's complaint is dismissed as against the City.
Background
Daniel Montanino (Plaintiff) commenced the instant action on October 17, 2019 with the filing of a summons and verified complaint. According to the complaint, Defendant DSNY conducted a city-wide "promotion to supervisor" civil-service exam on April 13, 2019, that was taken by 2,349 employees, including Plaintiff. Prior to April 20, 2019, DSNY discovered that there was potential cheating as the questions and answers were posted on the internet before the exam was administered. Plaintiff alleges that on April 23, 2019, at 9:08 p.m., an unknown operational level employee of DSNY, "John Doe", sent DSNY message number dm2019-4444 with the subject heading "corruption" using the sign-in "HDGTRSOP. The message was sent to specific garages throughout Brooklyn, Manhattan, Queens, Bronx, and Staten Island (subject garages) as well as all transfer stations within the City of New York. According to the complaint, the message read as follows (the statement):
NYSCEF Doc No. 1.
Id. at ¶ 6.
Id. at ¶ 7.
Id. at ¶ 8.
Id.
"[T]he guilt has gotten to me. i just want to say the answers were leaked by 444 union president mannon i received them from daniel montanino, son of chief montanino statten [sic] island boro chief. superintendents test is also compromised. how do i know? the same way every garage is reading this. no more corruption we are all sick of it. suck it."
Plaintiff asserts the allegations raised by said message are false, slanderous per se, libelous per se, malicious, and is patently and obviously false. The complaint alleges that only an operational level employee had access to DSNY's internal communication network and passwords, and had the knowledge, training, and ability to utilize the internal network. Plaintiff contends that within 24 hours, DSNY "obsessively published" the message. Plaintiff maintains that the false message is still being published by DSNY on its message board and messaging systems, as of the date of filing of the summons and verified complaint. Plaintiff alleges that DSNY published, printed, and posted the statement at each and every subject garage and transfer station.
Id. at ¶¶ 9-13.
Id. at ¶ 13.
Id. at ¶ 16.
Id. at ¶ 17.
Id. at ¶¶ 18-21.
Plaintiff's complaint further asserts a cause of action against Defendant Michael Femia (Femia), a supervisor and operational employee with access to the garage known as Staten Island #03 (Staten Island garage), where the alleged defamatory message was initially published. Plaintiff maintains that while Femia was not actively working due to a purported work-related injury, he had access to the Staten Island garage and previously demonstrated hostility towards Plaintiff and Plaintiff's father, Borough Chief Stephen Montanino. Plaintiff also contends that Femia monitored, operated, and controlled a Facebook page known as DSNY Rules and Regulations (Facebook page) for employees of DSNY. April 28, 2019, Defendant Robert Bass (Bass) published a photograph of the message and encircled it with a heart shape on the Facebook page. Plaintiff asserts that Femia was aware or should have been aware that the message was false, defamatory, slanderous, and injurious to Plaintiff's reputation. Plaintiff argues Femia had the ability and authority to delete posts on the Facebook page but did not do so. The complaint also asserts a cause of action against Bass for publishing the statement on the Facebook page.
Id. at ¶¶ 26-34.
Id. at ¶¶ 35-38.
Id. at ¶¶ 42-44.
Id. at ¶ 45.
Id. at ¶¶ 46-50.
Id. at ¶¶ 55-64.
On or about November 12, 2019, the City served an answer denying the allegations in the complaint, raised an immunity defense, and stated a crossclaim against Bass. Bass filed an answer on March 9, 2020, denying the allegations as asserted against him. Plaintiff previously moved (Mot. Seq. # 1) for a default judgment against Femia; Plaintiff subsequently withdrew said motion awn, and Bass filed an answer on August 13, 2020. The instant motion to dismiss ensued (Mot. Seq. # 2).
NYSCEF Doc No. 44.
NYSCEF Doc No. 17.
NYSCEF Doc No. 27.
Arguments
In support of its motion, the City contends that § 230 of the CDA was passed to prevent tort liability for defamation in precisely this type of case. The City asserts that the prevailing law in New York State, as held in Shiamili v Real Estate Group of NY, Inc., 17 N.Y.3d 281 (2011), is that as a provider of an interactive computer service, it is immune from the instant suit and several New York opinions have dismissed similar complaints where defendants allege liability based on permitting comments to be posted on a messaging board or other electronic medium that defames a plaintiff. The City notes that since statutory immunity was conferred in more controversial cases, then it must be applied in the present, benign circumstance because it is only being sued as a provider of the DSNY internal communication network messaging board that an unknown individual used to post a comment.
NYSCEF Doc No. 40 at ¶ 11.
Id. at ¶¶ 13-19.
Id. at ¶ 20.
Id. at ¶ 22.
In support of its position, the City cites Zeran v Am. Online, Inc, 129 F.3d 327, 331 (4th Cir. 1997), which outlined the important policy considerations. Specifically, the City argues that the following policy explanation is particularly pertinent to the present situation:
"The amount of information communicated via interactive computer services is [] staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect" (Zeran, 129 F.3d at 331).
The City contends that this policy has been widely accepted and applied by many courts, including in New York, and a torrent of limitless liability would descend upon the City if preemption were not applied. Since the City employs hundreds of thousands of employees, across a range of different departments, each with their own respective operating systems, email systems, and messaging board services, it could potentially be liable for defamation for simply providing a platform for its employees to make or share comments. These types of tort claims would never cease, and the platforms would be rescinded, communication halted, and efficacy slow. Thus, the City urges the complaint be dismissed as it is afforded immunity pursuant to the CDA.
Id. at ¶¶ 24-25.
Id. at ¶ 25.
In opposition to the motion, Plaintiff initially notes that the City did not plead, as an affirmative defense, immunity based on the CDA and such failure to plead said defense requires denial of the City's motion. Plaintiff contends that the defamatory statement was created by a DSNY operational level employee as the message originated from a terminal in a secured DSNY facility that can only be accessed with a DSNY operational level password. Id. Plaintiff states that the John Doe Defendant is clearly an employee of DSNY and DSNY can identify the employee yet has failed to comply with discovery. Id. Plaintiff claims that the internal communication system is not connected to the internet, but is an intranet designed to send daily messages from the DSNY operational control units to their various garage managers throughout the city. Id.
NYSCEF Doc No. 49.
The only employees allowed to post a message on this system must work in operational control and have a password. Id. Plaintiff asserts that operational personnel have more authority than supervisors in the hierarchy of the DSNY. Id. The Plaintiff further notes that the only individuals who can see any messages on the DSNY intranet system are individual managers at each of the garages, as well as DSNY supervisors. Id. Ordinary DSNY employees and third parties do not have access to the system as all terminals are located on DSNY property. Id. Plaintiff contends that the offender is not a third party within the meaning of the CDA since it was written by an employee of DSNY for internal transmission and thus DSNY is vicariously liable for the defamatory message.
Plaintiff further asserts that the defamation was a "three-part play." Id. The first act involved a DSNY operational employee posting a work-related message on message boards throughout the city accusing the Plaintiff and Union President Mannon of stealing the answers to the DSNY supervisor's test and passing them around to others. Id. The second act involved DSNY facility managers orally defaming (slandering) Plaintiff at roll calls during each shift on April 24th, 2019, and April 25th, 2019. During said roll calls, Plaintiff maintains that facility managers told DSNY employees in attendance that Plaintiff was the responsible person involved in the cheating scandal. This allegation did not involve the use of a computer, thus 47 USC § 230 is inapplicable. The third act involved defamatory (libel) when the statement/message was printed and pinned to every bulletin board at every DSNY facility for all DSNY workers to read. Finally, Plaintiff asserts that the CDA is inapplicable here because the interactive computer service and information content provider are one and the same, whereas the law provides immunity to the interactive computer service only where the content was provided by another or third party provider.
Id.
Id.
Id.
In reply, the City highlights that Plaintiff agreed that DSNY's internal communication systems constitutes an interactive computer system as defined by 47 USC § 230 and that no case law supports Plaintiff's broad interpretation of 47 USC § 230 that would impose vicarious liability for employee actions, such that it becomes the creator of the defamatory content itself. It further notes that Plaintiff's opposition papers cited inapposite case law. The City argues that it is not the unknown individual who posted and distributed the allegedly defamatory message on the DSNY internal communication network and New York courts have broadly applied the CDA to provide immunity in similar cases. The City asserts that Plaintiff does not contend that the alleged defamatory comments were official or even unofficial pronouncements, or that it did anything other than develop an internal networking system that can be used, twenty-four hours a day, by DSNY employees to communicate with one another. The City confirms that Plaintiff does not know who made the alleged defamatory statement and no assumption can be made that the individual was even an active DSNY employee, let alone acting within the scope of his or her employment when distributing the statement on the system.
NYSCEF Doc No. 57 at ¶ 1.
Id.
Id. at ¶ 4.
Id.
Finally, regarding Plaintiff's theory of vicarious liability, raised for the first time in the his opposition, the City argues said theory is not properly before this Court since it was not alleged in the Notice of Claim or the complaint and cannot be considered. In any event, the City contends that a corporation may not be held liable for defamation if the statements were made without authorization and not within the scope of the declarant's employment. Rent Stabilization Assn. of N.Y.C., Inc v McKee, 2019 NY Slip Op 33127(U), at 7 (Sup Ct, NY County 2019).
Id. at ¶ 11.
Id. at ¶ 12.
Discussion
"Although a publisher of defamatory material authored by a third party is generally subject to tort liability, Congress has carved out an exception for Internet publication by enacting § 230 of the CDA, passed as part of the Telecommunications Act of 1996." § 230 provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider," 47 USC § 230 [c][1], which preempts any state law inconsistent with its protections, including imposition of tort liability. A Defendant is therefore immune from state law liability if (1) it is a provider or user of an interactive computer service; (2) the complaint seeks to hold the Defendant liable as a publisher or speaker; and (3) the action is based on information provided by another information content provider.
Shiamili, 17 N.Y.3d at 286 (quoting Pub. L. 104-104, 110 U.S. Stat. 56 [104th Cong., 2d Sess., Feb. 8, 1996]).
Shiamili, 17 N.Y.3d at 286; see 47 USC 230[e][3].
47 USC 230 [c][1]; Shiamili, 17 N.Y.3d at 286; see Trump Village Section 4, Inc. v Bezvoleva, 161 A.D.3d 916, 918-919 [2d Dept 2018]; see also Fed. Trade Commn. v Accusearch Inc., 570 F.3d 1187, 1196 [10th Circ. 2009]; Barnes v Yahoo!, Inc., 570 F.3d 1096. 1100-1101 [9th Cir. 2009]).
The statute provides the following definitions:
"(1) Internet
The term "Internet" means the international computer network of both Federal and non-Federal interoperable packet switched data networks.
(2) Interactive computer service
The term "interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
(3) Information content provider
The term "information content provider" means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
(4) Access software provider
The term 'access software provider' means a provider of software (including client or server software), or enabling tools that do any one or more of the following:
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content."
47 USC 230 [f].
Both state and federal courts around the country have generally interpreted § 230 immunity broadly, so as to effectuate Congress's policy choice not to deter harmful online speech through the route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages. Courts have construed the immunity provisions in [the CDA] broadly in all cases arising from the publication of user-generated content. New York trial courts have adopted this view. However, if a Defendant service provider is itself the content provider, it is not shielded from liability.
Shiamili, 17 N.Y.3d at 288 [internal quotation marks omitted]; see also Universal Communications Sys., v Lycos, Inc., 478 F.3d 413, 418 [1st Cir. 2007]; Zeran, 129 F.3d at 330-331.
Id.; Doe v America Online, Inc., 783 So.2d 1010. 1013 [2001].
Id.; see also Reit v Yelp!, 29 Misc.3d 713, 716-717 [Sup Ct, New York County 2010].
Trump Village Section 4, Inc., 161 A.D.3d at 919 [internal quotation marks omitted].
The goal of statutory interpretation is to give force to the intent of the Legislature and the court therefore begins with the plain text, the clearest indicator of legislative intent. Thus, the Court "should construe unambiguous language to give effect to its plain meaning" When the statute is part of a broader legislative scheme, its languages must be construed in context and in a manner that harmonizes the related provisions and renders them compatible.
James B. Nutter & Co. v County of Saratoga, 39 N.Y.3d 350, 355 [2023] [internal quotation marks omitted]; see Lubonty v U.S. Bank N.A., 34 N.Y.3d 250, 255 [2019]; see also Majewski v Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577, 583 [1998].
Id.; Kuzmich v 50 Murray St. Acquisition LLC, 34 N.Y.3d 84, 91 [2019], cert denied --U.S.--, 140 S.Ct. 904 [2020].
James B. Nutter & Co., 39 N.Y.3d at 355 [internal quotation marks omitted]; Matter of Kosmider v Whitney, 34 N.Y.3d 48, 55 [2019].
Here, the City established that it was a provider of an interactive computer service as defined by 47 USC § 230 (f) (2) and not the information content provider as defined in 47 USC § 230 (f) (3). The parties do not dispute that DSNY's internal communication network messaging board is an interactive computer service as defined in 47 USC § 230 (f) (2). Relevant case law has held that an employer who provides employees with access through its internal computer system is an interactive computer service provider and among the class of parties potentially immune under the CDA. Delfino v Agilent Technologies, Inc., 145 Cal.App.4th 790, 807 (CA App. 2006).
Contrary to Plaintiff's contentions, the Court finds that DSNY, in the context of this action, is not an information content provider as defined in 47 USC § 230 (c). DSNY is not the entity that is responsible, in whole or in part, for the alleged defamatory statement posted on its internal communication network messaging board. DSNY is not the publisher or speaker, did not create the message, and did not authorize or approve John Doe's message or its content. The allegations in the complaint do not suggest that DSNY, other than as employer and interactive computer service provider, played any role in the "creation or development" of the alleged defamatory message. Delfino, 145 Cal.App.4th at 807 (finding that CDA immunity applied to employer for threatening messages sent by an employee using employer's computer system since no evidence was alleged that employer played any role in the creation or development of the threatening messages). The Court finds that DSNY is the provider of an interactive computer service entitled to CDA immunity as it was not the information content provider for John Doe's message sent on its internal communication network messaging board. The complaint only alleges that John Doe was the creator of the message and any outcome finding DSNY as the information content provider under the facts presented in this case, would be contrary to the stated policy, intent, and prevailing case law. Shiamili, 17 N.Y.3d at 281. In support of its position, Plaintiff provides no controlling or persuasive authority finding an employer is the creator or developer of a message sent by one of its employees for purposes of the CDA.
In addition to the protection offered by the CDA, New York law provides that "[u]nder the doctrine of respondent superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment." An employee's actions fall within the scope of employment where the purpose in performing such actions is to further the employee's interest, or to carry out duties incumbent upon the employee in furthering the employer's business. An employee's action also falls within the scope of employment when it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment. Id. However, an employer cannot be held vicariously liable for its employee's alleged tortious conduct if the employee was acting solely for personal motives unrelated to the furtherance of the employer's business at the time of the incident." Id.
Browne v Lyft, Inc., 2023 NY Slip Op 04102, *1 [2d Dept 2023].
Cobena v Antonioli, 217 A.D.3d 746, 747 [2d Dept 2023]; quoting Camisa v Rosen, 150 A.D.3d 809, 810 [2d Dept 2017].
Here, John Doe's conduct was clearly outside the scope of his employment. The message posted by John Doe was seemingly out of personal motive and was unrelated to the furtherance of DSNY's business at the time of the incident. As the City notes, it is not clear if the John Doe Defendant was even an active employee of DSNY. But even assuming so, Plaintiff failed to allege that the John Doe Defendant was acting within the scope of his or her employment, under the direction or control of the City, or pursuant to orders given by the City rather than as a voluntary endeavor. Thus, the City's motion to dismiss must be granted as it is immune from civil liability pursuant to 47 USC § 230 and the complaint does not allege sufficient facts to hold it vicariously liable for John Doe's actions.
Browne, 2023 NY Slip Op 04102 at *2; Donohue v Young, 298 A.D.2d 354, 354 [2d Dept 2022]; Calafiore v Penna, 289 A.D.2d 359, 359-360 [2d Dept 2001]; Rausman v Baugh, 248 A.D.2d 8, 10 [2d Dept 1998].
Conclusion
All arguments raised on this motion and evidence submitted by the parties in connection thereto have been considered by this Court, regardless of whether they are discussed herein. All relief not specifically granted herein have been considered and denied.
Accordingly, the City's motion is granted in its entirety and the Plaintiff's complaint is dismissed as against the City.
This constitutes the Decision and Order of the court.