Foley v CBS Broadcasting, Inc.

[*1] Foley v CBS Broadcasting, Inc. 2006 NY Slip Op 52712(U) [28 Misc 3d 1227(A)] Decided on September 13, 2006 Supreme Court, New York County Friedman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 13, 2006
Supreme Court, New York County

Mary Foley and INGRID DOULET, Plaintiff(s),

against

CBS Broadcasting, Inc., and ARNOLD DIAZ, Defendant(s).



108403/2005

Marcy Friedman, J.

In this action, plaintiff Mary Foley ("Foley") sues for defamation based on statements made in three segments of a television news program, "Shame on U," broadcast by defendant CBS Broadcasting, Inc. ("CBS") and reported by defendant Arnold Diaz ("Diaz"). In addition to causes of action for defamation, the complaint also alleges intentional infliction of emotional distress and tortious interference with prospective business relations. Defendants now move to dismiss the amended complaint pursuant to CPLR 3211(a)(5) and (7) and 3211(g).

The facts on which the complaint is based are largely undisputed: Plaintiff Mary Foley operates a business that sells high end kitchen cabinets. In December 2003, CBS broadcast a "Shame On U" segment ("December 2003 broadcast") in which Diaz reported that numerous customers of Foley had made complaints against her. Several customers who were interviewed on camera described their complaints, and they were asked by Diaz whether they felt "ripped off" by Foley. In his introduction to the segment, Diaz stated that Foley had been "scamming customers for years." Diaz also stated that several customers had taken her to court and won judgments against her, and that one had obtained a restraining order against her. At the close of the broadcast, Diaz stated that complaining customers were referred to the New York City Consumer Affairs Department ("DCA"), which has "the power to take action against crooked businesses." Foley alleges that she was defamed by statements made in the December 2003 broadcast that something "stinks" in her store, that she "scammed" customers, that cabinet manufacturing companies had "cut her off," and that she operated a "crooked" business.

In November 2004, another "Shame on U" segment was broadcast ("November 2004 broadcast") about Foley, focusing on DCA's closing of Foley's store. Diaz introduced this segment by stating that "con artist" Foley was furious when her cabinet showroom was padlocked by DCA. Diaz also reported that there were 20 outstanding complaints against Foley, and that DCA's closing of Foley's showroom was "a direct result" of defendants' prior broadcast about Foley's "scam." In the November 2004 broadcast, the DCA commissioner stated that DCA received many more complaints against Foley as a result of the December 2003 program, and that Foley owes customers and the city tens of thousands of dollars. In closing this segment, Diaz reported that Foley's store will remain padlocked until she resolves all customer complaints and [*2]pays fines owed to the City.

A third segment of "Shame on U" which focused on Foley was broadcast in June 2005 ("June 2005 broadcast"). This segment rebroadcast some material from the two earlier broadcasts, including footage of customers being asked if they were "ripped off" and showing the showroom being padlocked. In this third segment, Diaz reported that, according to the DCA commissioner, the padlocking was done to force Foley to settle 25 customer complaints against her. Diaz also reported that a "proposed deal" between Foley and DCA to resolve complaints against her had fallen apart, and that she failed to pay back money owed to her "victims." Diaz further reported that Foley was appealing "multiple decisions that have found her guilty of unlicensed home improvement activity."

As a threshold matter, defendants argue that the instant action is a "SLAPP" suit, or strategic lawsuit against public participation, as defined by Civil Rights Law § 76-a, and that the action should be dismissed pursuant to CPLR 3211(g). Civil Rights Law § 76-a (1)(a) defines a SLAPP suit as "an action, claim, cross claim or counterclaim for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission." "The anti-SLAPP provisions of Civil Rights Law § 70-a and § 76-a were enacted in 1992 to protect citizen activists from lawsuits commenced by well-financed public permit holders in retaliation for their public advocacy." (Guerrero v Carva, 10 AD3d 105, 116 [1st Dept 2004].) A finding that a lawsuit is a SLAPP suit imposes upon the plaintiff a heightened standard of proof to avoid dismissal of the action. (Id. See CPLR 3211[g].) However, "because the anti-SLAPP law is in derogation of common law, it must be narrowly construed. A narrow construction of the anti-SLAPP law requires that a SLAPP-suit defendant must directly challenge an application or permission in order to establish a cause of action under the Civil Rights Law." (Guerrero, 10 AD3d at 117.)

Here, defendants do not demonstrate that the instant action falls within the statutory definition of a SLAPP suit. Contrary to defendants' claim, it is not clear that plaintiff is a "public applicant" for purposes of the statute. There is no claim or evidence that at the time of defendants' first or second broadcasts, plaintiff was an applicant or permitee. "Defendants have not established that New York courts, as a matter of law, consider a plaintiff who has not applied for a permit * * * an applicant' for SLAPP purposes, simply because the opposing party (or anyone else) contends that the plaintiff should have applied for such an entitlement." (Yeshiva Chofetz Chaim Radin, Inc. v Village of New Hempstead, 98 F Supp 2d 347, 361 [SD NY 2000].See Hariri v Amper, NYLJ, June 30, 2006, at 24, col 1 [Sup Ct, NY County, Goodman, J.].)

Further, while plaintiff acknowledges that she completed an application for a home improvement contractor license which had not been approved as of the time of the third broadcast, none of the statements in the broadcasts "directly challenge" the application. Notwithstanding that the broadcasts reported on proceedings by the DCA against Foley, the broadcasts did not oppose, or comment on, a pending application before the DCA. The statements in the broadcasts therefore do not fall within the narrow construction given to the anti-SLAPP law. (See Guerrero v Carva, 10 AD3d 105, supra.)

Moreover, defendants' use of the anti-SLAPP provisions in this case "appears to stand the purpose of the legislation on its head. Defendants have identified no pertinent fundamental right [*3]in which they engaged, or which was curtailed, by [Foley's] lawsuit. Defendants certainly were not engaging in their right to petition the government." (Yeshiva Chofetz Chaim Radin, Inc. 98 F Supp 2d at 360. Compare Duane Reade, Inc. v Clark, 2 Misc 3d 1007[A] [Sup Ct, NY County 2004].) Nor do defendants claim that the instant lawsuit has interfered with their free speech rights. To the contrary, defendants have continued to broadcast their programs unimpeded by plaintiff's actions.

Defendants also move to dismiss Foley's defamation claim based on the December 2003 broadcast as barred by the statute of limitations. The statute of limitations for libel or slander claims in New York is one year. (CPLR 215 [3].). Although repetition of a defamatory statement in a later edition or broadcast may recommence the period of limitations (see Firth v State of New York, 98 NY2d 365 [2002]; Rinaldi v Viking Penguin, Inc., 52 NY2d 422 [1981]), the alleged defamatory statements made in the December 2003 broadcast which form the basis for plaintiff's third cause of action were not rebroadcast in later segments. The transcripts of the broadcasts at issue show that the rebroadcast portions of the December 2003 broadcast included interviews with customers and Diaz asking customers if they felt ripped off, which were not alleged by plaintiff to be defamatory. As plaintiff commenced the instant action in or around June 2005, the cause of action based on the December 2003 broadcast should be dismissed.

As to Foley's claims for defamation based on the November 2004 and June 2005 broadcasts, defendants move to dismiss these claims on the grounds that the statements at issue are either non-actionable expressions of opinion or rhetorical hyberbole, or are protected as substantially true and fair reports.

It is well settled that "expressions of an opinion false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions'." (Steinhilber v Alphonse, 68 NY2d 283, 286 [1986], quoting Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 380, cert denied 434 US 969.) It is further settled that whether a statement expresses fact or opinion is a question of law for the court. (Id. at 290.) The determination as to whether a statement is fact or opinion must be based on "what the average person hearing or reading the communication would take it to mean." (Id.) Thus, the dispositive inquiry is "whether a reasonable [listener] * * * could have concluded that [the broadcast was] conveying facts about plaintiff." (Gross v New York Times Co., 82 NY2d 146, 152 [1993]; 600 West 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 139 [1992].) The inquiry generally entails an examination of "(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact." (Gross, 82 NY2d at 153 [internal quotation marks and citations omitted].) The court must examine "the content of the whole communication as well as its tone and its apparent purpose." (Steinhilber, 68 NY2d at 293. Accord Immuno AG. v Moor-Jankowski, 77 NY2d 235, 254 [1991], cert denied 500 US 954.)

Further, "in determining whether a particular communication is actionable, [the courts] continue to recognize and utilize the important distinction between a statement of opinion that implies a basis in facts which are not disclosed to the reader or listener, and a statement of opinion that is accompanied by a recitation of the facts on which it is based." (Gross, 82 NY2d [*4]at 153 [internal citations omitted].) The latter are ordinarily not actionable because "a proffered hypothesis that is offered after a full recitation of the facts on which it is based is readily understood by the audience as conjecture." (Id. at 154.)

Applying these standards, the allegations of the complaint are insufficient to withstand the instant motion to dismiss. The allegedly defamatory statements at issue in this case include statements that Foley was a "con artist," that she engaged in a "scam," that she "ripped off" her customers, and that she ran a "crooked" business. These statements were made in the context of Shame on U broadcasts which featured customers complaining that Foley either failed to deliver goods or delivered defective goods. The broadcasts also summarized DCA proceedings against Foley. Viewing the statements against this "contextual background," the court concludes "that a reasonable [viewer] would understand the statements defendant[s] made about plaintiff as mere allegations to be investigated rather than as facts." (See Brian v Richardson, 87 NY2d 46, 53 [1995][emphasis in original].) There was also no suggestion in the broadcasts that there were additional undisclosed facts on which the assertion that Foley was a "con artist" was based. (See id at 54.)

To the extent that the complaint also bases plaintiff's defamation claim on allegations regarding the DCA proceedings, it is protected by the privilege for the "fair and true report" of an official proceeding. (Civil Rights Law § 74; Freeze Right Refrig. & Air Conditioning Servs., Inc. v City of New York, 101 AD2d 175 [1st Dept 1984].). At most, the broadcasts contained minor inaccuracies about the proceedings — for example, that the premises was padlocked not only because of violations for unlicensed activities but also because of consumer complaints. Such inaccuracies did not deprive the broadcasts of the cloak of the privilege. (See Freeze Right Refrig. 101 AD2d at 183.)

The first cause of action, insofar as it purports to allege tortious interference with prospective business, and the fifth cause of action, for intentional infliction of emotional distress, should be dismissed. Plaintiffs fail to meet the pleading requirements for these claims. Plaintiffs' request for leave to amend the pleadings to correct any deficiencies is denied, as plaintiffs make no showing of merit and offer no proposed pleading amending these claims.

Defendants' motion accordingly is granted to the extent that it is

ORDERED that the complaint is dismissed and the Clerk is directed to enter judgment accordingly.

The constitutes the decision and order of the court.

Dated:New York, New York

September 13, 2006________________________

MARCY FRIEDMAN, J.S.C.