Ava v NYP Holdings, Inc.

[*1] Ava v NYP Holdings, Inc. 2008 NY Slip Op 51281(U) [20 Misc 3d 1108(A)] Decided on June 24, 2008 Supreme Court, New York County Tolub, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 24, 2008
Supreme Court, New York County

Ava a/k/a Maximilia Cordero, Plaintiff,

against

NYP Holdings, Inc., d/b/a NEW YORK POST, DAREH GREGORIAN, LUCY CARNE, PETER COX, MICHELLE GOTTHELF, NEWS CORPORATION d/b/a MYSPACE, MYSPACE, GERALD LEFCOURT, GERALD LEFCOURT, P.C., JEFFREY EPSTEIN, Defendants.



115597/07



Attorney for the Plaintiff:

JACQUELINE MARI

16 EAST 98 STREET #9D

NEW YORK, NEW YORK 10029

Phone : (212) 360-0876

Attorney for the Defendants :

HOGAN & HARTSON, L.L.P.,

875 THIRD AVENUE

NEW YORK, NEW YORK 10022

10022

Walter B. Tolub, J.

Defendants NYP Holdings, Inc., Dareh Gregorian, Lucy Carne, Peter Cox, Michelle Gotthelf and News Corporation (collectively "Defendants") move to dismiss Plaintiff's first, second, third and fourth causes of action. Plaintiff cross-moves for an order sealing the records in this proceeding.



FactsThis action arises out of Defendant New York Post's (the "Post") coverage of an action entitled Ava Maximilia Cordero v. Jeffrey Epstein, (NY Co. Index No. 113903/2007)(the "Epstein Lawsuit"). Later amended to include Victoria's Secret and a litany of corporate defendants, the Epstein Lawsuit, in graphic [*2]and explicit language, charges that Mr. Epstein is a serial pedophile who, over a number of years and while Plaintiff was still a minor, sexually molested Plaintiff at Epstein's Manhattan mansion. Plaintiff in the instant action is the very same Ava a/k/a Maximilia Cordero, who in this case, claims that the Defendants defamed her in the New York Post article of October 23, 2007 (the "Article").

Defendant NYP Holdings ("NYP") is the owner and publisher of The New York Post (the "Post"), a widely distributed and very recognizable New York City news publication. Former defendant News Corporation d/b/a MySpace [FN1] ("News Corp."), is ultimately the parent company of Defendant NYP. Former Defendant MySpace, Inc. ("MySpace") is the operator of a popular internet site which allows registered users to post information about themselves.

Defendants Darah Gregorian ("Gregorian"), Peter Cox ("Cox") and Lucy Carne ("Carne") are reporters for the Post who contributed to the October 23, 2007, Article. Defendant Michelle Gotthelf ("Gotthelf") is an editor for the Post.

Defendant Gerald Lefcourt PC is a law firm representing Mr. Epstein in the Epstein Lawsuit.

The gravamen of Plaintiff's complaints in this action stem from the Post Article, emblazed with the headline, "Gender Bend Shocker, Kinky Sex Suit Gal is a Man" (the "Article"). The Article summarized the Epstein Lawsuit and revealed that Plaintiff had been born a man, had been living as a woman since her early teens, had cosmetic work, had taken hormone treatments and that Plaintiff looked "sick" when one of the reporters saw her.

The Article includes quotations from Mr. Epstein's spokesman, Howard Rubenstein, in which he denied Plaintiff's allegations and stated that Epstein is an easy target for "money seeking lawyers and their women." The Article also quotes Plaintiff's former attorney, William Unroch, who stated that Plaintiff was mentally unwell and on medication for her psychosis. In addition, the Article references three Myspace pages which contained Plaintiff's photograph and details of what are purported to be her sexual fantasies.

Plaintiff's complaint in this litigation, asserts causes of action against all of the Defendants for: (1) libel, based on the Article; (2) invasion of privacy; (3) intentional infliction of emotional distress; (4)violations of her civil rights by News [*3]Corp. and MySpace under Civil Rights Law §§50-51 [FN2] (5) invasion of privacy by the Lefcourt parties pursuant to NY Civil rights Law §50(b); and (6) invasion of privacy by defendant Epstein. The fourth, fifth and sixth causes of action asserted in the complaint are not the subject of this decision.

Plaintiff cross-moves for an order sealing certain records.

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 [2001]).

Defamation and the Article

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 [1977]). Acts of defamation which are published in printed form are viewed as libel. By contrast, slander only involves those statements which are spoken. Regardless of the form the allegedly defamatory comments take, success on a defamation claim requires the showing that: (1) the defendant(s) made 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 of people in the community; (2) publication of that statement to a third-party; and (3)a showing that plaintiff suffered special damages. (Golub v. Enquirer/Star Group, 89 NY2d 1074 [1997]).

Although it is not entirely clear from the complaint as to which of the statements made by Defendants Plaintiff believes are libelous, it is this court's determination that certain statements are dismissible inasmuch as Plaintiff has, by her sworn pleadings, admitted the truthfulness of those underlying facts. As such, Plaintiff's claims that she was libeled by statements made concerning her gender at birth, admitted psychiatric problems, drug use and HIV positive status are clearly dismissible. Each of these facts constitute party admissions (Liquidation of Union Indemnity Ins. Co. of New York v. American Centennial Ins. Co., 89 NY2d 94 [1996]) and are contained in the verified complaint served in the Epstein Lawsuit (See, Defendants' Ex. F; Epstein Lawsuit ¶ 2 [Plaintiff was born a man but always viewed herself as a girl]; ¶¶ 8, 11, 13, and 28 [Plaintiff was hospitalized multiple times for psychiatric [*4]problems]; ¶¶ 29 and 31 [Plaintiff was a heavy drug user]; ¶ 31 [Plaintiff is HIV positive). Plaintiff cannot now maintain any action sounding in defamation as to these statements.

As best as this court can discern, two allegations remain in the complaint which might be considered actionable. The first is that the Plaintiff was engaged in some form of criminal conduct (Complaint, ¶ 54). The second statement which may be actionable, pertains to the claim that Plaintiff "was a promiscuous lying slut" (Complaint, ¶ 54).

Plaintiff claims, inter alia, that the Article accuses her of being a thief and attempting to steal money. In determining whether language is capable of having a defamatory meaning, statements cannot be made defamatory by a strained or artificial construction (Aronson v. Weirsma, 65 NY2d 592 [1985]). A court must therefore construe the words "in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction." (Id. at 594). A contextual reading of the Article reveals that a voice was given to both parties, as demonstrated by the inclusion of quotes from Epstein's representatives, Plaintiff's own attorney and the Complaint in the Epstein Lawsuit. The Article quotes Epstein's spokesman, Howard Rubenstein, who denied the allegations made against his client, and as previously stated, commented that Mr. Epstein is an easy target for "money seeking lawyers and their women.

The Plaintiff seeks, by innuendo, to enlarge the meaning of Mr. Rubenstein's statement, thereby giving it a meaning not expressed by the words themselves. That is not permissible (Cole v. Fisher Rogow Inc. v. Carl Ally, Inc., 29 AD2d 423 [1st Dept 1968] aff'd 25 NY2d 943). Although the statement of Mr. Rubenstein does not reflect well on Ms. Cordero's character, it does not go so far as to accuse her of criminality. In common parlance, it is a stretch that this court believes is unwarranted, and as such cannot sustain a cause of action for defamation.

Finally, and with regard to the last allegation under the rubric of defamation, Plaintiff claims that the Article is defamatory because it implies that she is "promiscuous". Specifically, the Article takes an excerpt from one of the MySpace pages which state that her masturbatory fantasies include ". . .being with multiple men and then multiple women. . ." (Article, ¶5). Plaintiff claims that these MySpace pages are forgeries posted by unknown people.

Initially, the court notes that statements falsely suggesting that a person is sexually promiscuous or sexually licentious are generally actionable per se (Ward v. Klein, 10 [*5]Misc 3d 648 [NY Co. 2005]). The difficulty with the complaint in this regard is parsing the material in the Article, which are matters of public record (Civil Rights Law §74 [FN3]), and the material gleaned from the MySpace pages.

The only mention of anything related to sexual conduct in the Article, other than the allegedly forged Myspace pages, are the allegations contained within the Epstein Lawsuit. Those details are indeed explicit with regard to Plaintiff's sexual activities and sexual history. The Article, however, does not detail the graphic allegations made in the Epstein Lawsuit and never make any assertion about Plaintiff being promiscuous or having indiscriminate sex with others. The Article does, however, discusses Plaintiff's alleged sexual fantasies as posted on MySpace.

The question thus presented, is whether the alleged statement regarding Plaintiff's fantasies are reasonably capable of causing a defamatory meaning. Initially, it is for the court to determine whether the statements made are reasonably capable of conveying a defamatory import (Lenz Hardware Inc. v. Wilson, 94 NY2d 913 [2000]), and the court shirks its duty if it creates an issue where none exists (Crane v. New York World Tel. Corp., 308 NY 470 [2002]). However, a question for the jury is presented if the words used are ambiguous or susceptible of several meanings, one of which disgraces and or discredits the Plaintiff (James v. Gannett Co., Inc., 40 NY2d 415 [1976]). The court is mindful that changing social mores could affect how certain sexual conduct is viewed by the community, and recognizes that what was once considered defamatory per se may no longer be considered defamatory today (Ward v. Klein, 10 Misc 3d 648 [NY Co. 2005]). In this regard, the court is of the opinion that it is for the community to decide whether the language has a defamatory import, and whether the Article may be considered defamatory in the context in which it was presented (Rejent v. Liberation Publications, 197 Ad2d 240 [1st Dept 1994]). Accordingly, the court declines to dismiss the first cause of action as it pertains to the Defendants' comment relating to Plaintiff's sexual fantasies.

Invasion of Privacy

Plaintiff's second cause of action focuses on the contention that her privacy was invaded when Defendants maliciously obtained and published confidential medical records, mental health records and medical information regarding her medical and mental health in violation of the New York State Public Health Law, Federal [*6]HIPAA Laws, New York State Mental Hygiene Law and Civil Rights Law § 50(b).

At least three other "privacy" torts have been recognized elsewhere in other states; (1)unreasonable publicity given to another's private life (Restatement Second of Torts §652[D]); (2)unreasonable intrusion upon seclusion (Restatement Second of Torts §§ 652[D] and 652[B]); and (3)publicity that unreasonably places another in a false light (Restatement Second of Torts §§ 652[B], 652[D] and 652[E])(Howell v. New York Post Co., 81 NY2d 115, 123 [1993]).

While courts of other jurisdictions have adopted some or all of these torts, in this State, the right to privacy is governed exclusively by Sections 50 and 51 of the Civil Rights Law. (Id., at 123). New York does not recognize a common law of privacy. (Id. Citations omitted).

Plaintiff claims that Defendants violated §50[b] of the Civil Rights Law. Section 50[b] prevents a public officer or employee from disclosing the name of a victim of a sexual offense. The Defendants here are not public officers or employees and did not disclose Plaintiff's name as a victim of a sexual offense (NY Civil Rights Law §50[b]). Moreover, Plaintiff filed the Complaint in the Epstein Lawsuit. She may not now complain that the disclosure of her identity as an alleged sexual assault victim is a violation of her privacy under §50[b] of the Civil Rights Law.

Plaintiff has not asserted a Section 51 claim against the Defendants, rather she claims that Defendants have violated the New York State Public Health Law. However, Plaintiff does not state which provisions of the law were violated. In any event, the Public Health Law is inapplicable in this case since it governs the conduct of the Department of Health of New York State and the conduct of its officers and employees. Section 2135 of the Public Health law does provide for confidentiality with regard to positive HIV status, however it applies only to reports and information secured by the Health Department and Health Commissioner or District Health Officer and health care providers, not to the media Defendants (NY Pub. Health Law § 2135; Cruz v. Latin News Impacto Newspaper, 216 AD2d 50, 51 [1st Dept 1995]).

Plaintiff assertions that the Defendants have violated the Federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) also fail. HIPAA applies to health plans, health care clearinghouses and health care providers who transmit health information in electronic form. (45 CFR 160.102). The HIPAA laws do not apply to the Defendants in this case.

Plaintiff also claims violations of the New York State Mental Hygiene Law. Yet again, Plaintiff does not specify which provisions Defendants violated. Specificity of violations [*7]however are unnecessary. New York Mental Hygiene Law § 33.13 provides for confidentiality of clinical records, but applies to "each facility listed or operated by the department of mental health or the office of mental retardation and developmental disabilities" (NY Mental Hygiene Law § 33.13). It follows that the New York Mental Hygiene Law does not apply to the Defendants.

Finally, Plaintiff claims that the Defendants must have invaded her privacy in order to get her health information. However, Plaintiff cannot even point to how the information was obtained and states that more information is required. Parties may not proceed with discovery solely for the purpose of engaging in a fishing expedition. (Cohen v. City of New York, 183 AD2d 436, 437 [1st Dept 1992]).

In short, having investigated Plaintiff's claims and affording her the most reasonable of interpretations, it follows that Plaintiff is unable to sustain a cause of action for an invasion of privacy (Leon v. Martinez, 84 NY2d 83 [1994]). Defendants' motion to dismiss Plaintiff's the second cause of action is therefore granted.

Intentional Infliction of Emotional Distress

Turning to plaintiff's asserted claims of intentional infliction of emotional distress, the court notes, as a preliminary matter that, inasmuch as the conduct complained of falls completely which Plaintiff complains of falls totally within the scope of the factual allegations set forth in her cause of action for defamation, Plaintiff has failed to establish a separate cause of action for emotional distress. (Hirschfeld v. Daily News L.P., 269 AD2d 248 [1st Dept 2000]).

Furthermore, even if a claim were independently asserted, the elements for Intentional Infliction are "rigorous and difficult to satisfy." (Howell v. New York Post Co., 81 NY2d 115, 122 [1993]). "The tort 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." (Id. at 121). The first element, "extreme and outrageous" conduct is by far the most elusive. The conduct complained of must be so extreme, surpassing conduct comprised of mere threats or annoyances, and must be "so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community" (Fischer v. Maloney, 43 NY2d 553, 557 [1978] quoting Restatement [Second] of Torts §46 Comment d; Howell v. New York Post Co., 81 NY2d 115, 122 [1993]; See also, Seltzer v. Bayer, 272 AD2d 263 264 [1st Dept 2000][acts and threats of vandalism not enough to constitute outrageous conduct]; Owen v. Leventritt, 174 AD2d 471 [1st Dept 1991][threats made about plaintiff, but not in [*8]plaintiff's presence could not support a claim of intentional infliction of emotional distress]).

Here, Plaintiff claims, without any support, that a reporter approached her relatives and asked them whether Plaintiff was HIV positive. As stated before, Plaintiff's HIV status is not at issue since it is true and was included in papers filed in prior lawsuits. Furthermore, even if Defendants asked Plaintiff's relatives about her HIV status, that action alone does not constitute extreme and outrageous conduct of a character and degree so as to exceed the bounds of decency. Accordingly, Plaintiff's third cause of action alleging intentional infliction of emotional distress must be, and is, dismissed.

Plaintiff's Cross-Motion for a Sealing Order

Lastly, this court addresses Plaintiff's cross-motion, which seeks an order sealing the records in this proceeding under Penal Law Article 130 and New York Civil Rights Law Section 50[b].

There exists a broad Constitutional presumption arising from the First and Sixth Amendments, as applied to the States by the Fourteenth Amendment, that the public is entitled to access to court proceedings and judicial records (Landberg v. National Enterprises, 2007 WL 2176343 *4 [July 6, 2007] citing Danco Labs., Ltd. v. Chemical Works of Gedeon Richter, Ltd., 274 AD2d 1 [1st Dept 2000]). This presumption of openness regarding court records is also firmly grounded in common law, and courts have even been reluctant to allow the sealing of records where both sides to a litigation have asked for such sealing (Id.).

Courts are required to make an independent determination of good cause before granting a request to seal an order. This right is further secured through Article I, Section 8 of the New York State Constitution and New York Judiciary Law Section 4, which provides that the sittings of every court within this state shall be public, and every citizen may freely attend. (NY Const. Art I, Sec.8; Judiciary Law Sec. 4). This presumption of openness applies to documents filed with the court (Uniform Rules of the Trial Courts § 216.1; In re Will of Hofmann, 284 AD2d 92 [1st Dept 2001]).

New York Civil Rights Law Section 50[b] states that the identity of a victim of a sex offense shall be confidential and that "[n]o report, picture, photograph, court file or other documents in the custody or possession of any public officer or employee, which identifies such a victim shall be made available for public inspection." (Civil Rights Law §50[b] emphasis added).

Section 50[b] does not provide a basis for sealing documents in this action. This section prevents a public officer or employee from disclosing information about a victim of a sexual offense. Here, none of the Defendants are public officers or employees nor did they disclose that Plaintiff was a victim of a [*9]sexual offense.

Plaintiff does not specifically set out which records should be under seal and were wrongfully obtained. It was Plaintiff who disclosed that she was a victim of a sexual offense by filing a complaint in open court against Mr. Epstein. Furthermore, Plaintiff's original attorney in the Epstein Lawsuit spoke to the media about the action. To date, Plaintiff has commenced three cases under her own name in which she openly discusses her sex life. After making so many allegations over the years and permitting her attorney to speak to the media about such allegations, Plaintiff cannot turn the clock back to seal the documents now (Feeney v. City of New York, 225 AD2d 438 [2d Dept 1998]).

It follows that Plaintiff's motion for an order sealing the document is this matter must be and is denied.

Accordingly, it is

ORDERED that Defendants' motion to dismiss Plaintiff's first, second, third and fourth causes of action is granted to the extent indicated; and it is further

ORDERED that Plaintiff's motion for an order sealing the documents in this matter is denied.

Counsel for the parties are directed to appear for a Preliminary Conference on September 5, 2008 at 11 AM in room 335 at 60 Centre Street.

This memorandum opinion constitutes the decision and order of the Court.

Dated:

____________________________

HON. WALTER B. TOLUB, J.S.C. Footnotes

Footnote 1: The court notes that while this motion was subjudice, Plaintiff discontinued all causes of action against the defendants News Corp. and MySpace, with prejudice, releasing them from this litigation by stipulation dated June 24, 2008.

Footnote 2: As noted earlier, the claims asserted against Defendants News Corp. and MySpace are now moot.

Footnote 3:The court notes that Plaintiff, in addition to the Epstein Lawsuit (NY Co. Index No. 113903/2007) has brought a similar and equally graphic complaint entitled Avarelle M. Cordero a/k/a Maxilillia Cordero v. Glen Jeremiah Gentile, (NY Co. Index No. 103201/2004).