Opinion
99 Civ. 1637 (AKH)(FM).
November 21, 2000.
REPORT AND RECOMMENDATION TO THE HONORABLE ALVIN K. HELLERSTEIN
I. Introduction
Pro se plaintiff Julio Cesar Valdez ("Valdez") has brought this action to seek redress for certain allegedly defamatory statements about him made by defendant Bienvenido Perez ("Perez"), the former Consul General of the Dominican Republic Consulate in New York ("Consulate"). On August 2, 1999, after Perez failed to answer or appear despite the service of a summons, complaint and amended complaint, a default judgment was entered against him for an unspecified amount. Valdez served a copy of the default judgment on Perez on August 13, 1999, by delivering it to a person of suitable age and discretion at the Consulate.
The original affidavit of service of the default judgment evidently was not filed with the Clerk of the Court after service was effected. Accordingly, on August 17, 2000, a duplicate affidavit was accepted for filing.
The default judgment provided that service was to be effected at both Perez's "last known address and in the manner of service of the complaint." (Default Judgment at 2). Valdez appears to have complied with these requirements because the default judgment and the summons and amended complaint were served on a person of suitable age and discretion at the Consulate. Additionally, although Perez was served with a copy of the default judgment at his last known place of business, rather than his last known residence, the default judgment did not preclude service at this location.
This action subsequently was referred to then — Magistrate Judge Naomi R. Buchwald for an inquest. Judge Buchwald directed Valdez to submit his damages evidence by October 19, 1999. When Judge Buchwald was appointed as a District Judge on September 23, 1999, the inquest was reassigned to me.
In January and February 2000, after he had requested and received several extensions of time, Valdez submitted extensive evidence, including seven affidavits and a videotape, in support of his request for an award of economic and non-economic damages against Perez in the amount of $13 million. Thereafter, on August 8, 2000, I held an inquest hearing at which Valdez, appearing pro se, was the only witness. Although he had received notice of the inquest and was afforded an opportunity to participate, Perez neither submitted opposition papers nor appeared at the hearing.
By letter dated August 26, 1999, Judge Buchwald indicated that she would hold an inquest hearing or decide the question of damages on the papers "unless defendant files a motion pursuant to Rule 60(b) to seek relief from the judgment of default." A copy of this letter was sent to Perez at the Consulate. My Chambers also mailed to Perez, among other documents, a copy of my July 19, 2000 Order stating than an inquest hearing would be held on August 8, 2000. Despite such communications, Perez has never expressed any interest in participating in the inquest proceeding.
Having conducted the hearing and reviewed the exhibits, for the reasons detailed below, I respectfully recommend that Valdez be awarded actual damages in the amount of $30,000.
II. Factual Background
This factual recitation is based upon the undisputed allegations of the amended complaint ("Compl. ¶ ___ or Ex. ___"); Valdez's pre-hearing evidentiary submissions; Valdez's prehearing affidavit, dated January 31, 2000 ("Valdez Aff. ¶ ___"); and the transcript of the inquest hearing ("Tr. ___").
A. Valdez and His Employment at the Consulate
Valdez is a 40-year old naturalized citizen of the United States. He was born in the Dominican Republic, but now resides in Brooklyn, New York. (Compl. ¶ 7; Tr. 6-7, 17). In 1995, after attending classes at the Kiev Institute of Engineering, New York University and The School of Visual Arts, he earned a Bachelor of Fine Arts degree from the City College of New York in film and video production. (Compl. ¶ 1; Tr. 7). Following the award of that degree, in September of 1996, Valdez began to work for the Dominican Republic Consulate in New York City ("Consulate"), where he eventually became Director of the Audiovisual Department, earning a weekly salary of $350.00, which was paid "in cash." (Tr. 7-8). Valdez describes himself as a "pupil and understudy" of Leonel Fernandez, who was then the President of the Dominican Republic. (Compl. ¶ 1). As such, Valdez apparently also had political aspirations of his own. (Id.).
Fernandez left office on August 16, 2000, (Tr. 9), at which time Hipolito Mejia became President. See Juan Forero, Dominican Power Shift Lifts a Father's Hope for Justice, N.Y. TIMES, Aug. 16, 2000, at B3.
As Director of the Audiovisual Department, Valdez was engaged in a number of projects intended to enhance the image of the Dominican Republic and President Fernandez. (Tr. 8-10). Together with one of his former professors, Jerry Carlson, Valdez had produced the first in what was intended to be a series of television programs regarding Dominican Republic authors. (Id. 10-11). Valdez also had worked on various stages of other similar film projects. (Id. 10-12).
Much to his dismay, while he was an employee of the Consulate, Valdez discovered "certain irregularities." (Id. 16). For example, Dominican Republic nationals residing in the United States were being required to pay "exorbitant prices" for such services as the issuance of a passport." (Compl. ¶ 10). Additionally, the administrative controls at the Consulate were so slipshod that known criminals were able to secure Dominican passports to enter the United States. (Id.). After he learned of these problems, Valdez sought to publicize them over the Internet using a computer at the Consulate and an assumed name. (Tr. 17). His role in these disclosures was detected by consular officials after he inadvertently left his computer running at the end of one day. (Id.). Shortly thereafter, on January 10, 1998, Valdez was terminated. (Id. 16-17). The dismissal letter sent to him suggested that the reason for this action was some sort of scheduling conflict with another consular office. (Id. 17-18). Not surprisingly, Valdez believes that this purported reason for his termination was pretextual. (Id. at 18).
The conduct of officials at the Consulate that Valdez found troublesome has also been the subject of significant media scrutiny. See, e.g. Juan Forero, Inquiry on Money Making at the Dominican Consulate, N.Y. TIMES, October 17, 2000, at A1. (suggesting that the unusually high fees at the Consulate lined the pockets of Fernandez, Perez, and other senior officials of the ruling political party in the Dominican Republic). These alleged abuses reportedly have become "the focus of a formal investigation by the newly elected Dominican government." (Id.). The conduct of the Consulate during the period that Perez served as Consul General was also the focus of a March 4, 1998 "Special Report" on Channel 4 in New York City entitled "Passport to Kill." (Compl. ¶ 2; Valdez Aff. ¶ 10 Ex. F (videotape)). Valdez appeared on camera during that Report to criticize the practices of the Consulate. (Compl. ¶ 10).
B. Subsequent Events
Following his termination, Valdez was advised by others that he was in "big trouble" as a consequence of his efforts to expose "corruption" at the Consulate, and that he should leave the area "for a little while" because unnamed persons were following him and would seek to provoke a confrontation, perhaps by pushing him "in the subway." (Tr. 20). The predicted confrontation in fact occurred on January 19, 1998, when Valdez was arrested on a charge of assault in the third degree as a result of a fistfight in the subway, a charge that later was dropped. (Id. 20-22).
Valdez contends that the aggressor was not charged in a cross-complaint because the police "say that I hitted him more strongly." (Id. 23).
The subway altercation was not the only untoward consequence of Valdez's efforts to expose the problems at the Consulate. Within a matter of days after Valdez appeared on Channel 4, Perez began making a series of defamatory statements about him to reporters in both New York and Santo Domingo. (Compl. ¶¶ 11-18). These statements were quoted in several newspapers circulated in the New York City area and were also the subject of news reports on local Spanish-language television stations. (Id. ¶¶ 11-12).
The documentation submitted by Valdez in connection with the inquest hearing details the various statements made by Perez. Among other things, on or about March 18, 1998, in the course of defending the Consulate, Perez made available to the New York press a copy of a letter that he had sent to Channel 4, in which he said that Valdez was "mentally unbalanced" and had been fired due to his "inadequate performance." (Compl. Ex. E (English translation of March 18, 1998 news story in EL DIARIO, captioned "Dominican Consul Breaks His Silence")). The original Spanish text of this story indicates that Perez used the word "desequilibrado" to describe Valdez's mental state. Although the word suggests a disequilibrium or imbalance, Valdez maintains that it has a unique negative connotation in the Dominican Republic, which is far worse than the word "loco." (Tr. 19). As Valdez explained, a "desequilibrado" is an "insane person [upon whom] you will never turn your back, because [he] can quickly stab you or kill you." (Id.). Valdez also has proffered the affidavit of a published Dominican author who states that "[t]he derogatory term 'desequilibrado' (mentally insane) is one of the most devastating epithets that can be used to destroy a person's image, credibility and career." (Affidavit of Viriato Sencion, sworn to on Jan. 11, 2000, ¶ 6).
One Spanish-English dictionary defines the word to mean "unbalanced," "one-sided," or "lop-sided," but also notes that it can refer to a "mentally disturbed person." Collins Spanish-English Dictionary at 162 (2d ed. 1993).
The Complaint notes that one or more of the articles quoting statements by Perez also falsely accuse Valdez of having used brass knuckles during the subway altercation, citing that as one of the reasons for his termination. (See, e.g., Compl. ¶¶ 14,17 Exs. A, D; see also Tr. 19).
At the time of his termination, Valdez was seeking to raise approximately $200,000 for another film project of interest to the Dominican community. (Tr. 11-12). Although he had high hopes for this project, the investors had not actually committed themselves to provide the requisite funds, nor had anyone agreed to pay him a specified sum for his role in producing the film. (Id. 11-15). Valdez maintains that he was unable to proceed with this project because of Perez's defamatory statements. (Valdez Aff. ¶¶ 15-16). In support of this contention, he has submitted the affidavit of Professor Carlson, who observes that movie production "is an industry based upon trust." (Affidavit of Jerry W. Carlson, sworn to on Jan. 11, 2000, para. 5). As Professor Carlson explains, labeling somebody as "'mentally imbalanced' thus hinders (at best) or prohibits (at worst) a filmmaker from securing investment." (Id.).
Valdez testified that he has suffered from depression as a result of his termination and the criticism of him in the press. (See Tr. 24). Indeed, in or around August 1998, he was hospitalized at Lutheran Hospital in Brooklyn for several days after calling the police to request assistance. (Id. 24-25). Then, after checking himself out of the hospital, Valdez returned voluntarily for a second stay (of unspecified duration) in late August or early September 1998. (Id. 25, 27) Valdez testified that he never attempted suicide, but felt "desperate and impotent," in part because he was being touted as "the enemy" in the Dominican community. (Id. 26).
Since then, Valdez has been working as a waiter at "Ben's," a kosher delicatessen, where he earns $250-350 per week, including tips. (Id. 24). He testified that his attendance at work has been sporadic due to his continuing depression. (Id.).
D. Perez and His Status in the United States
In late April 2000, Valdez sought an order restraining and preliminarily enjoining Perez from removing any of his assets from the United States. Valdez sought this relief because Perez allegedly had been "removed from his post in the USA and . . . assigned to work in the Dominican Republic." (See affirmation of Julio Cesar Valdez, dated Apr. 24, 2000). As Valdez later explained during the inquest hearing, Perez was under consideration for appointment as the head of the Dominican Republic delegation to the United Nations, but ultimately was not selected. (See Tr. 6; Carolina Gonzalez, Dominican Consul Big in UN Job, DAILY NEWS, Jan. 19, 2000, at 3). According to Valdez, Perez now holds a "no showing job" in the Dominican Republic as Secretary of State. (Tr. 6).
On May 1, 2000, I recommended that Valdez's request to restrain Perez's assets in this country be denied. That recommendation was adopted by the Court on June 29, 2000.
In the course of reviewing Valdez's application for injunctive relief, and because this case concerned a former consular official, I wrote to the U.S. Department of State in April 2000, seeking information regarding Perez's diplomatic status. In early May, Lawrence Dunham, Assistant Chief of Protocol, responded that the United States recognized "Bienvenido De La G. Perez" as "Consul General of the Dominican Republic at New York City" effective May 6, 1998. (See letter from Mr. Dunham to the Court, dated May 10, 2000). Mr. Dunham also noted that the State Department's records fail to indicate that Perez was ever registered in any capacity as an official of the Dominican Republic prior to May 6, 1998. (Id.). Curiously, although it appears that Perez may have left his position at the Consulate in 1999, the State Department's records indicate that he continued to be recognized as the Consul General for some time thereafter. (See id.; Juan Forero, Inquiry on Money Making at the Dominican Consulate, N.Y. TIMES, October 17, 2000, at A1).
III. Discussion
A. Subject Matter Jurisdiction
This is a suit brought by a citizen of the United States, residing in Brooklyn, against a citizen of the Dominican Republic, concerning allegedly slanderous statements made in Manhattan, among other places. Accordingly, the Court would ordinarily exercise diversity jurisdiction over this action under 28 U.S.C. § 1332(a) because it involves citizens of different states and the amount in controversy is alleged to exceed $75,000.
By the time that this action was commenced, however, the Department of State had recognized Perez as the Consul General of the Dominican Republic Consulate in New York City. Moreover, the State Department's determination that Perez was (and apparently continues to be considered) a consular official is binding upon the Court. In re Baez, 135 U.S. 403, 432, 10 S.Ct. 854, 862, 34 L.Ed. 222 (1890); Sullivan v. State of Sao Paulo, 122 F.2d 355, 357 (2d Cir. 1941). Accordingly, the Court's jurisdiction to hear this case arises under 28 U.S.C. § 1351(1), which vests district courts with exclusive original jurisdiction "of all civil actions and proceedings against . . . consuls or vice consuls of foreign states." United States v. Coplon, 84 F. Supp. 472, 475 (S.D.N.Y. 1949); Matter of United States of Mexico v. Schmuck, 293 N.Y. 264, 272, 56 N.E.2d 577, 580 (1944), adhered to on reargument, 294 N.Y. 265, 270, 62 N.E.2d 64, 66 (1945).
A consular official's immunity from suit is more limited than that of a foreign official of ambassadorial rank. An ambassador is entitled to absolute diplomatic immunity from suit, even if the cause of action arises out of a personal transaction. Arcaya v. Paez, 145 F. Supp. 464, 467 (S.D.N.Y. 1956). Although this broad protection can sometimes lead to seemingly harsh results, it is firmly grounded in principles of international law, and is essential to ensure that our diplomats receive corresponding treatment abroad. See 767 Third Avenue Associates v. Permanent Mission of Zaire, 988 F.2d 295, 299-301 (2d Cir. 1993); Anderson v. Villela, 210 F. Supp. 791 (D.Mass. 1962).
Under Article 43 of the Vienna Convention on Consular Relations, Apr. 24, 1983, 21 U.S.T. 77, 596 U.N.T.S. 261 ("Convention"), a consular official is not subject to the jurisdiction of this Court "in respect of acts performed in the exercise of consular functions."
The Convention defines consular functions, in a catch-all provision, to include any functions:
entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State.
Convention, Article 5(m). Accordingly, in resolving issues of consular immunity, the Court must resolve two questions. First, did the conduct complained of involve some consular function? Second, did the consular official engage in those acts in the exercise of that consular function? See Ford v. Clement, 834 F. Supp. 72, 75 (S.D.N.Y. 1993) (Sotomayor, J.), aff'd, 29 F.2d 621 (2d Cir. 1994).
Here, at the time of each of the allegedly defamatory statements, Perez had yet to be recognized by the State Department as a consular officer of the Consulate. Consequently, because he was not yet recognized as the Consul General, his defamatory statements could not have involved, or been made in the exercise of, a consular function. Perez therefore is not entitled to consular immunity in this action.
In Mateo v. Perez, No. 98 Civ. 7426, a case strikingly similar to the one before this Court, Perez was also sued after allegedly making defamatory remarks to the press. Unlike the present case, Perez appeared in that action, seeking its dismissal for lack of subject matter jurisdiction under Article 43 of the Convention. Before ruling on the motion to dismiss, Judge Scheindlin ordered a hearing to determine whether the conduct complained of had occurred in the performance of Perez's consular functions. Mateo v. Perez, No. 98 Civ. 7426 1999 WL 216651, at *5 (S.D.N.Y. April 13, 1999). An Order of Discontinuance subsequently was entered on May 6, 1999.
In this action, of course, the allegedly defamatory remarks were made before Perez was recognized by the State Department as a Consul General.
B. Consequences of Default
The default judgment in this action constitutes an admission of all of Valdez's well-pleaded allegations of liability, but is not a concession as to the proper quantum of damages. Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); Fed.R.Civ.P. 8(d) (averments in a pleading requiring a response, "other than those as to the amount of damage, are admitted when not denied in the responsive pleading"). Accordingly, because the damages in this case are neither liquidated nor mathematically precise, a hearing was required so that Valdez could prove (and Perez could contest) the specific damages for which recovery was sought.
Under New York law, a plaintiff seeking to recover damages for slander typically must prove special damages. Liberman v. Gelstein, 80 N.Y.2d 429, 434-35, 590 N.Y.S.2d 857, 860, 605 N.E.2d 344, 347 (1992). "Special damages consist of the loss of something having economic or pecuniary value which must flow directly from the injury to reputation caused by the defamation and not from the general effects of the defamation. Microlan Systems, Inc. v. Omnitech Corporation Solutions, Inc., 99 Civ. 2850, 1999 WL 1034751 (S.D.N.Y. Nov. 15, 1999) (citing Agnat v. Shakur, 30 F. Supp.2d 420, 426 (S.D.N.Y. 1998). This requires a detailed accounting of the loss, not mere generalizations that there has been some injury to business reputation. Agnat, 30 F. Supp. at 426.
There is an exception to the special damages requirement when the defamatory statements amount to slander per se. Liberman, 80 N.Y.2d at 434-35, 605 N.E.2d at 347, 590 N.Y.S.2d at 860. An oral statement rises to the level of slander per se if, among other possibilities, it tends to injure another in his or her trade, business or profession. Id.; Spivak v. J. Walter Thompson U.S.A., Inc., 258 A.D.2d 364, 364-65, 685 N.Y.S.2d 247 (1st Dep't 1999); Culverhouse v. Cooke Ctr. for Learning Dev., Inc., 177 Misc.2d 365, 369-70, 675 N.Y.S.2d 776, 780 (Sup.Ct. N.Y. County 1998); Fruchter v. Sossei, No. 94 Civ. 8586, 1996 WL 640896, at *9-*10 (S.D.N.Y. Nov. 4, 1996). "The statement must be made with reference to a matter of significance and importance for that purpose, rather than a more general reflection upon the plaintiff's character or qualities.'" Harris v. Hirsch, 228 A.D.2d 206, 208, 643 N.Y.S.2d 556, 559 (1st Dep't 1996) (quoting W. Page Keeton, et al., PROSSER AND KEETON ON THE LAW OF TORTS § 112, at 791 (5th ed 1984). "The words should be considered in the context in which they were used and whether they can be readily interpreted as imparting to plaintiff 'fraud, dishonesty, misconduct or unfitness in [her] business.'" Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 261, 633 N.Y.S.2d 106, 113 (1st Dep't 1995) (quoting Vacca v. General Electric Credit Corp., 88 A.D.2d 740, 451 N.Y.S.2d 869, 870 (3d Dep't 1982)).
In this case, at the time that Perez made the statements in question, Valdez was apparently engaged in some aspects of the film production business, even if he did not have signed contracts in hand. The allegation that he was severely mentally unbalanced, if believed, obviously suggests that he is unfit to produce motion pictures and would have a negative impact on his ability to secure financing for his film projects. It therefore constitutes slander per se. See Goldwater v. Ginzburg, 414 F.2d 324, 338 (2d Cir. 1969); Mattox v. News Syndicate Co., 176 F.2d 897, 901 (2d Cir. 1949) (Hand, C.J.) (finding an allegation of insanity to be slander per se under the "general law" and assuming, in the absence of evidence to the contrary, same was true of Virginia law); Demers v. Meuret, 266 Or. 252, 253-54, 512 P.2d 1348, 1348-49 (1973) (words that can be interpreted to mean that president of airport operator was insane are sufficient to allege slander per se under Oregon law); RESTATEMENT (SECOND) OF TORTS § 573, illus. 6 (1976) ("A says to B that C, a merchant, is insane. A is subject to liability to C without proof of special harm."); but see Kersul v. Skulls Angels, Inc., 130 Misc.2d 345, 349, 495 N.Y.S.2d 886, 890 (Sup.Ct. Qns. County 1985) (statements made over fleet radio system indicating that former office manager and bookkeeper is crazy "do not make out a cause of action for slander per se"); Estate of Martineau v. Arco Chemicals Co., 203 F.3d 904, 914 (5th Cir. 2000) (statements that fellow employee was "insane, delusional and irrational" do not constitute slander per se under Texas law). Because the false allegations of insanity here adversely affected Valdez in his chosen occupation, proof of special damages is not required. See, e.g., Rinaldi v. Holt Rinehart Winston, Inc., 42 N.Y.2d 369, 379, 366 N.E.2d 1299, 1305, 397 N.Y.S.2d 943, 949 (1977); Alvarado v. K-III Magazine Corp., 203 A.D.2d 135, 137, 610 N.Y.S.2d 241, 243 (1st Dep't 1994).
Following the Supreme Court's decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the New York Court of Appeals has indicated that in an area of "public concern," a plaintiff seeking to recover for alleged defamation must establish by a preponderance of the evidence 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" and thereby caused "actual injury." Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 199, 341 N.E.2d 569, 571, 379 N, Y.S.2d 61, 64 (1975). In this case, assuming that Valdez has injected himself into the public arena through his accusations, Perez's failure to answer or otherwise appear may be construed as an admission that he made the defamatory statements knowing that they were false or with reckless disregard for the truth, and that his intent was to destroy Valdez's reputation. (Compl. ¶¶ 30, 31). Moreover, Valdez's testimony concerning his fragile mental state establishes that he has sustained "actual injury," even if the precise dollar value of that injury cannot readily be quantified. Accordingly, Valdez has made a showing which meets the requirements of Gertz and Chapadeau.
At the inquest hearing, Valdez indicated that Perez's defamatory statements caused him to lose sources of financing that he otherwise expected to secure for one or more film projects. His testimony clearly shows, however, that he had no firm commitments or contracts and cannot quantify his economic damages. Additionally, although several affiants have stated that Valdez's credibility was "destroyed" as a consequence of Perez's defamatory statements, none has alleged that he or she actually believed Perez's accusations. (See, e.g., Affidavit of Belkis Santana, sworn to on Jan. 23, 2000, ¶ 4 ("Santana Aff.") ("I have always considered Mr. Valdez a very honest, talented, dedicated, and hardworking individual, with great potential for success.").
On the other hand, Perez's defamatory statements have unquestionably caused Valdez considerable mental anguish and suffering, and have led to his hospitalization for emotional problems. (Tr. 24-26). As Valdez explains in his affidavit, he sank "into a deep state of depression, accompanied by nightmares and restlessness, eventually forcing [him] to seek professional counseling." (Valdez Aff. ¶ 21). Additionally, he testified at the inquest hearing that he was required to limit his public participation in the Dominican community in New York because he feared for his personal safety. (Id. ¶ 20). Finally, several of his friends and professional acquaintances have indicated that they limited their contact with him following the publication of the articles quoting Perez because they: did not "want to get into trouble for being associated with him" (Affidavit of Irma Niembro, sworn to on Jan. 25, 2000, ¶ 6); "were ashamed to be considered a friend to an alleged traitor and insane person" (Santana Aff. ¶ 7); feared for their own business and reputation if they socialized with him (Affidavit of Froilan A. Barinas-Duval, sworn to on Feb. 10, 2000, ¶ 9); and wanted "to avoid any problem" (Affidavit of Margarita Kouros, sworn to on Jan. 26, 2000, ¶ 6).
Although there is no set formula which the Court can employ to quantify the damages that Valdez should be awarded for the emotional distress that Perez caused him, I respectfully submit that an award of $30,000 would be appropriate to compensate him for the actual injuries that he proved at the hearing. See, e.g., Walia v. Vivek Purmasir Assocs, Inc., No. 95 CV 2428, 2000 WL 1523286, at 12 (E.D.N.Y. Feb. 8, 2000) (Pollak, Mag. J.) (recommending that plaintiff in employment discrimination suit receive no damages for emotional pain and suffering for slander per se because $20,000 award for emotional distress under N.Y. Human Rights Law was adequate); Pirre v. Printing Developments, Inc., 468 F. Supp. 1028, 1037-38 (S.D.N.Y. 1979) (reducing $325,000 jury verdict for injury to reputation and "indignity" to $45,000 and setting aside as speculative $75,000 medical damages award); Sweeney v. Prisoners' Legal Services of New York, Inc., 197 A.D.2d 189, 195, 610 N.Y.S.2d 628, 631 (3d Dep't 1994), rev'd on other grounds, 84 N.Y.2d 786, 647 N.E.2d 101, 622 N.Y.S.2d 896 (1995) (reducing jury award of $150,000 in compensatory damages to $35,000 where plaintiff's employment was not shown to have been adversely affected and there was "no supporting evidence that the damage to [plaintiff's] psyche had been other than superficial and transitory"); Nellis v. Miller, 101 A.D.2d 1002, 1003, 477 N.Y.S.2d 72, 73 (4th Dep't 1984) (granting new trial in libel action unless plaintiff agreed to reduce $150,000 compensatory damages award to $5,000 where only proof of injury was "plaintiff's self-serving testimony, which was never corroborated by expert medical opinion, that the news release caused him to become emotionally upset and 'uptight' and that . . . he visited a doctor who prescribed medication."); Dattner v. Pokoik, 81 A.D.2d 572, 574, 437 N.Y.S.2d 425, 428 (2d Dep't 1981) (reducing $75,000 compensatory damages award to $25,000 where newspaper with small circulation printed later lead story reflecting additional exculpatory facts); see also Lappin v. Gwartney, No. 99-2292, 2000 WL 1532765 (D.Kan. Sept. 18, 2000) (awarding slandered employees $25,000 in compensatory damages under Kansas law for "humiliation, emotional distress, inconvenience, mental anguish and loss of enjoyment of life").
IV. Conclusion
Valdez should be awarded judgment in the amount of $30,000 for his actual injuries arising out of Perez's defamatory statements.
V. Notice of Procedure For Filing of Objections to This Report And Recommendation
The parties shall have ten days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a) and (e). Any such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Alvin K. Hellerstein, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Hellerstein. Failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Fed.R.Civ.P. 6(a), 6(e), 72(b).