Opinion
103916/07.
Decided June 16, 2008.
Law Office of Michael G. Dowd, 112 Madison Ave., 3rd Flr., New York, NY, Gregory P. Joseph Law Offices LLC, NY, NY, Attorney for the Plaintiff.
Levine Sullivan Koch Schulz, New York, New, Attorney for the Clinton Defendants.
Davis Wright Tremaine LLP, New York, New York, Attorney for the New York Daily News Defendant.
Kornstein Veisz Wexler/ano, New York, New York, Attorney for the Defendant.
David E. Kendall, Williams and Connolly, Washington DC, Attorney for the Defendant Burkle.
Most of the relevant facts are detailed in the Complaint. Briefly stated, Plaintiff Jared Paul Stern (Stern), is a former gossip columnist for the New York Post's Page Six. According to Mr. Stern, Defendant Burkle is a wealthy businessman with ties to former President Clinton and Senator Hillary Rodham Clinton (the "Clintons"). Mr. Stern claims that when Mr. Burkle became unhappy about stories printed in the New York Post, Mr. Burkle tried to bribe Plaintiff to write favorable articles about himself and the Clintons.
Mr. Stern claims that, when bribery failed, all of the Defendants conspired to ruin his reputation. In furtherance of this claim, Mr. Stern points to several articles published in the New York Daily News which reported that he had demanded $220,000 from Mr. Burkle in exchange for one year's worth of protection from the publication of inaccurate and unflattering items in the New York Post's infamousgossip page. The "shakedowns" reportedly occurred during two face-to-face meetings between the Plaintiff and Mr. Burkle in Manhattan. Both meetings were videotaped by Mr. Burkle and the second meeting was monitored by federal law enforcement officers. Subsequently, the Daily News published two additional articles about the alleged dealings between Plaintiff and Mr. Burkle. Although Plaintiff does not deny that these meetings took place, he claims that these meetings and the articles written thereafter were all part of a larger scheme to ruin his reputation after Mr. Burkle's attempts to bribe him had failed.
Plaintiff claims that the Clintons participated in the plot by using their influence and position to involve federal authorities. Defendant Michael Sitrick ("Sitrick"), a professional public relations consultant, was allegedly employed by Mr. Burkle to plant false and misleading information in the Daily News about Mr. Stern. Defendant Frank Rezni ("Rezni"), a former United States Secret Service Agent who Mr. Stern claims collected information on Mr. Burkle's and the Clintons' adversaries and was also part of the conspiracy. Mr. Stern also claims that Mr. Renzi used his influence to have Mr. Burkle's allegations of Stern's misconduct investigated by the authorities and directed the team responsible for monitoring meetings between Stern and Burkle. Finally, Defendant William Sherman ("Sherman") writes for the Daily News and wrote the articles that Mr. Stern claims were untrue and misleading.
As a result of the unfavorable publicity, Mr. Stern claims that: he was fired from the New York Post; a new venture of designer clothing he was involved with failed; and he suffered both physical and emotional injuries.
This action followed. Plaintiff's Complaint, comprised of five causes of action, seeks to recover damages under theories of; (1) defamation; (2) intentional infliction of emotional distress; (3)tortious interference with business relationships; (4) injurious falsehood; (5) malicious prosecution; and (6)conspiratorial and alternative liability.
Discussion
Upon a motion to dismiss a cause of action for failure to state a claim upon which relief can be granted, the facts must be accepted as true and all favorable inferences must be credited to Plaintiff before determining whether any cognizable legal theory can be discerned. ( Sokoloff v. Harriman Estates Dev. Corp, 96 NY2d 409, 414).
That having been said, the First Verified Amended Complaint, a thirty-eight page, one-hundred and eight paragraph document, can most accurately be described as a political diatribe drawn by Larry Klayman of Freedom Watch, Inc., an avowed enemy of the Clintons. The Complaint contains all of the buzzwords calculated to evoke visions of licentious behavior, conspiracy and criminality. There are references to Anthony Pellicano, Monica Lewinsky, "Whitewater", "Filegate", "Travelgate", "Chinagate" and Mr. Burkle's alleged illicit sexual liaisons. In short, the Complaint reads more like a Mickey Spillane novel than a "statement . . . sufficiently particular to give the court and parties notice of the transactions or occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action . . ." (CPLR 3013).
Indeed the court is sorely tempted to dismiss the Complaint outright as it fails, for the most part, to detail the specific acts to enable the Defendants a fair opportunity to defend ( Gluckman v. Alper, 236 AD2d 230 [1st Dept 1999]). That being said, the court now deals with the Complaint seriatim.
Defamation Claims
The first cause of action sounds in defamation. Defamation is a false statement resulting in injury to reputation ( Rinaldi v. Holt, Rinehart Winston, Inc., 42 NY2d 369). Defamation occurs in the form of libel or slander. Libel involves publication, something in writing or pictures, and slander involves statements, something spoken. The elements of a defamation claim are: (1) a false and injurious statement of fact concerning the plaintiff that exposes a person to hatred, contempt or aversion or causes an unsavory opinion of him or her in the minds of a substantial number in the community; (2) publication to a third-party; and (3) special damages ( Golub v. Enquirer/Star Group, 89 NY2d 1074).
CPLR 3016 is clear and unambiguous: "In an action for libel or slander, the particular words complained of shall be set forth in the complaint." (CPLR 3016[a]). This pleading requirement is strictly enforced and the claimed defamatory words must be set forth exactly ( Gardner v. Alexander Rent-A-Car, Inc., 28 AD2d 667 [1st Dept 1967] emphasis added). The particular words complained of and the time, place and manner in which the words were stated must be set forth clearly in a defamation action ( Rosenberg v. HBO, Inc. , 33 AD3d 550 [1st Dept 2006]).
The Amended Complaint falls short of the CPLR 3016(a) requirements for maintaining a cause of action for defamation. The Complaint states, inter alia, that stories were planted with the Daily News; that the reporter was provided with misleading quotes; and the entire investigation was premised on misleading allegations and that the video recordings of conversations between Mr. Stern and Mr. Burkle were doctored. (Complaint ¶¶ 26, 31, 32, 35, 49 and 50). However, the Complaint fails to identify any of the supposedly false and defamatory statements that any of the Defendants ever made or conveyed. (Emphasis added). Additionally, and equally important, is that the Complaint does not deny that any acts or quotes attributed to Plaintiff were untrue. There is no denial that there was a federal investigation into Plaintiff's conduct and no denial that Plaintiff made a "request" to Mr. Burkle for money in exchange for favorable press.
Plaintiff avers in his affidavit that the transcripts of his meetings with Mr. Burkle as published, and/or the tapes from which they were derived, have been highly edited, misquoted or taken out of context. However, Plaintiff also states that he has not seen the video or heard any recordings from which the transcripts were derived (Mr. Stern Aff.). Mr. Stern therefore argues that he requires discovery in order to determine the ways in which he was defamed. This court disagrees. Simply stated, Mr. Stern has failed to identify a single statement that is substantially false because of editing or otherwise. Additionally, there are no statements set forth in the Complaint which can be attributed to any of the non-newspaper ( New York Daily News) Defendants. Accordingly, Plaintiff's first cause of action must be, and is, dismissed in its entirety.
Intentional Infliction of Emotional Distress
At the outset and to the extent that the conduct which Plaintiff complains of falls within the scope of the cause of action for defamation, Plaintiff cannot recover damages under a separate cause of action for emotional distress. ( Hirschfeld v. Daily News L.P., 269 AD2d 248 [1st Dept 2000]). A substantial portion of Plaintiff's claim for the intentional infliction of emotional distress is based on the very same factual allegations in the defamation cause of action.
More significantly, the conduct complained of is not extreme and outrageous as defined under New York law. As explained by the Court of Appeals in Howell v. NY Post, 81 NY2d 115, 121, "[t]he tort [of intentional infliction of emotional distress] has four elements: (1) extreme and outrageous conduct; (2) intent to cause or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress." With respect to the first required element of "extreme and outrageous" conduct, Plaintiff must allege conduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." ( Howell v. New York Post Co., 81 NY2d 115, 122; Slatkin v. Lancer Litho Packaging Corp. , 33 AD3d 421 [1st Dept 2006]).
Rigorous and difficult to satisfy, the element of outrageous conduct has been characterized as having been designed to filter out frivolous complaints, and ensure that the claim of emotional distress is genuine (PJI 3:6, V2 p. 60; Howell v. New York Post Co., 81 NY2d 115). Establishing the requisite outrageousness has indeed proven difficult. For example, outrageousness was not established where the defendant, plaintiff's supervisor, was alleged to have maliciously displayed, to coworkers, nude photos taken of plaintiff in connection with his work a model ( Anderson v. Abodeen , 29 AD3d 431 [1st Dept 2006]). It was not established when defendant was accused of fabricating an email in plaintiff's name in which plaintiff was made to appear to be a rude, petty, self-absorbed cartoonist and in which people were encouraged to vomit on plaintiff ( Rall v. Hellman, 284 AD2d 113 [1st dept 2001]) and, it was not established when defendant's misreading of x-rays, led defendants to erroneously conclude that foreign bodies in plaintiff's abdomen were packages of narcotics, and caused a police investigation and invasive medical procedures ( Berrios v. Our Lady of Mercy Medical Center , 20 AD3d 361 [1st Dept 1995]).
Nevertheless, certain conduct may be so outrageous as to warrant a directed verdict of liability in favor of the plaintiff. ( See Harvey v. Cramer, 235 AD2d 315 [1st Dept 1997]; Lovcen Construction Co. v. Culbreth, 196 AD2d 445 [1st Dept 1993]; Richard L. v. Armon, 144 AD2d 1 [1st Dept 1986]; Doe v. Esposito, 114 AD2d 992 [2nd Dept [1985]; Ahrens v. Stalzer , 4 Misc 3d 1013 (A) [NY Dist. Ct. 2004]). Plaintiff in this case however, fails to meet this high threshold. As such the second cause of action for the intentional infliction of emotional distress must be, and is, dismissed.
Tortious Interference
Plaintiff's tortious interference claim, which is substantially duplicative of his defamation cause of action, is also dismissed. The duplicative nature of the claim aside, Plaintiff has failed to plead (1) a business relationship with a third party which is (2) interfered with by any or all of the Defendants, who are (3) acting solely to harm Plaintiff or using wrongful means and (4) and injury to the business relationship ( Advance Global Tech. LLC c. Sirius Satellite Rado, Inc., 15 Misc 3d 776,779 [Sup. Ct. NY Cty. 2007] aff'd, 843 NYS2d. 220 [1st Dept 2007]; Rad Advertising Inc. v. United Footwear Org., Inc., 154 AD2d 309 [1st Dept 1989]) No interference with any valid, binding contract is alleged within the instant Complaint, and the Complaint is devoid of allegations satisfying the requisite elements of tortious interference with prospective economic relations. Plaintiff's tortious interference claim is therefore dismissed.
Injurious Falsehood
Again, as an initial matter, this claim is duplicative of the defamation claim. In addition, a Plaintiff asserting a claim for injurious falsehood must set forth the particular falsehood uttered by the Defendant(s) ( Alexander Alexander of New York v. Fritzen, 114 Ad2d 814 [1st Dept 1985]). As previously discussed, the Complaint does not set forth any defamatory or injurious statements with any particularity. Plaintiff's allegations of special damages due to the failure of his product line were also not plead with sufficient particularity. It follows that Plaintiff's injurious falsehood claim must also be dismissed.
Malicious Prosecution
The requisite elements of malicious prosecution are (1)the commencement or continuation of a civil or criminal proceeding, where the court granted a provisional remedy or there occurred other interference with the Defendant's person or property; (2) termination of the proceeding in Defendant's favor; and (3) actual malice. ( Manti v. New York City Transit Authority, 165 AD2d 373 [1st Dept 1991]).
Here, a criminal proceeding was never commenced. In fact, the Complaint states that, not withstanding the apparent investigation, no charges were ever filed against Mr. Stern (Complaint ¶ 101). There is no cause of action for malicious investigation, and reporting conduct to the proper authorities does not give rise to a malicious prosecution cause of action.Inasmuch as there is no basis in either law or fact for a claim of malicious prosecution, this cause of action is dismissed.
Conspiratorial, Participatory Alternative Liability
Finally, Plaintiff's claim for conspiratorial, participatory and alternative liability is dismissed as New York does not recognize an independent tort for conspiracy. ( Jebran v. LaSalle Business Credit LLC , 33 AD3d 424 [1st Dept 2006] citing Agostini v. Sobol, 304 Ad2d 395 [2003]).
Accordingly it is
ORDERED that Defendants' motions to dismiss (Seqs. 010, 011, 012, 013 and 014) are all granted in their entirety and the Complaint is dismissed with costs and disbursements to the Defendants as taxed by the Clerk of the court; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
This memorandum opinion constitutes the decision and order of the Court.