Opinion
9407–9408 Index 161367/15 161423/15
08-27-2019
Marie NAPOLI, Plaintiff–Appellant, v. NEW YORK POST, et al., Defendants–Respondents. Marie Kaiser Napoli, Plaintiff–Respondent–Appellant, v. Marc Jay Bern, et al., Defendants–Appellants–Respondents.
Marie K. Napoli, Paul B. Maslo, and Salvatore C. Badala, Napoli Shkolnik, PLLC, for plaintiff Marie K. Napoli. Joseph J. Ortego and Santo Borruso, Nixon Peabody LLP, for defendants Marc J. Bern, The Parkside Group, LLC, Brian Brick, and Cathy Bern. Farrell Fritz, P.C., Uniondale (James M. Wicks and Franklin C. McRoberts of counsel), for Clifford S. Robert, appellant-respondent.
Marie K. Napoli, Paul B. Maslo, and Salvatore C. Badala, Napoli Shkolnik, PLLC, for plaintiff Marie K. Napoli.
Joseph J. Ortego and Santo Borruso, Nixon Peabody LLP, for defendants Marc J. Bern, The Parkside Group, LLC, Brian Brick, and Cathy Bern.
Farrell Fritz, P.C., Uniondale (James M. Wicks and Franklin C. McRoberts of counsel), for Clifford S. Robert, appellant-respondent.
Renwick, J.P., Manzanet–Daniels, Kahn, Moulton, JJ.
Order, Supreme Court, New York County (Kathryn Freed, J.), entered November 9, 2015, which, to the extent appealed from as limited by the briefs, granted the New York Post defendants' motion to dismiss the amended complaint, unanimously affirmed, without costs. Order, same court (Carmen Victoria St. George, J.), entered August 14, 2018, which, to the extent appealed from as limited by the briefs, denied that part of the Bern defendants' motion to dismiss plaintiff's claims for defamation and prima facie tort against the Bern defendants and breach of fiduciary duty as against Marc Jay Bern individually, unanimously affirmed, without costs.
The court properly dismissed plaintiff's claims against the New York Post defendants. The allegedly defamatory statements appearing in various news articles essentially summarize or restate the allegations in judicial filings in a case related to plaintiff, so they are protected by Civil Rights Law § 74 (see McRedmond v. Sutton Place Rest. & Bar, Inc., 48 A.D.3d 258, 259, 851 N.Y.S.2d 478 [1st Dept. 2008] ). The court correctly held that plaintiff failed to adequately allege that the Post defendants participated in drafting the purported "sham" filings in that action (see Williams v. Williams, 23 N.Y.2d 592, 599, 298 N.Y.S.2d 473, 246 N.E.2d 333 [1969] ).
The court properly determined that the Post defendants' reporting of the contents of an email concerning third-party conversations mentioning plaintiff were not actionable (see generally Brian v. Richardson, 87 N.Y.2d 46, 51–52, 637 N.Y.S.2d 347, 660 N.E.2d 1126 [1995] ). The court also properly found that the intentional infliction of emotional distress claim was duplicative since the underlying allegations fall within the ambit of the defamation causes of action (see Akpinar v. Moran, 83 A.D.3d 458, 459, 922 N.Y.S.2d 8 [1st Dept. 2011], lv denied 17 N.Y.3d 707, 2011 WL 3925035 [2011] ), and that plaintiff failed to allege that she was placed in physical danger or was caused to fear for her personal safety as a result of the Post defendants' conduct in support of her negligent infliction of emotional distress claim (see Ferreyr v. Soros, 116 A.D.3d 407, 984 N.Y.S.2d 296 [1st Dept. 2014] ).
The court in the Bern action properly determined that collateral estoppel does not apply to bar plaintiff's defamation claims against the Bern defendants. The issues raised in the Bern action, in which plaintiff claims that the Bern defendants made sham filings and circulated them to the press for the sole purpose of defamation, differ from those raised in the New York Post action, in which plaintiff alleges that the New York Post defamed her by reporting on those filings (see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500–501, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984] ). The court also properly determined that issues of fact remained as to whether the litigation privilege extended to the Bern defendants' court filings (see Flomenhaft v. Finkelstein, 127 A.D.3d 634, 638, 8 N.Y.S.3d 161 [1st Dept. 2015] ). The court properly sustained plaintiff's prima facie tort cause of action against the Bern defendants, pleaded in the alternative, which did not rest on the same facts and allegations supporting the alleged defamation (see generally Curiano v. Suozzi, 63 N.Y.2d 113, 118, 480 N.Y.S.2d 466, 469 N.E.2d 1324 [1984] ). Furthermore, plaintiff's allegations that Marc Bern disclosed confidential information obtained in the course of his representation of her and disclosed documents in violation of the attorney-client privilege state a cause of action against him for breach of fiduciary duty (see Keller v. Loews Corp., 69 A.D.3d 451, 894 N.Y.S.2d 376 [1st Dept. 2010] ). The court correctly found that plaintiff's allegations, along with two affidavits supporting her claim that Bern represented her sufficiently pleaded the requisite elements of a breach of fiduciary duty claim (see Burry v. Madison Park Owner LLC, 84 A.D.3d 699, 924 N.Y.S.2d 77 [1st Dept. 2011] ).
We have considered the remaining arguments and find them unavailing.