Abakporo v Daily News

[*1] Abakporo v Daily News 2008 NY Slip Op 52740(U) Decided on November 19, 2008 Supreme Court, Kings County Solomon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2008
Supreme Court, Kings County

Eric Abakporo, Plaintiff(s)

against

Daily News, WILLIAM SHERMAN, ANDREW THEODORAKIS and STEPHEN CAPUTO, Defendant(s).



10690/08

Martin M. Solomon, J.

Plaintiff brings this action asserting two causes of action for libel and one cause of action under the Civil Rights Law for use of his photograph. The action arises out of two news articles, March 30, 2008 and April 1, 2008, published by defendant Daily News.

The first article outlines plaintiff's purported involvement in a series of transactions with an elderly woman, Ina McCarthur. It asserts that Ms. McCarthur was befriended by plaintiff and another person, Letanya Pierce, and subsequently transferred real estate in Manhattan for far less than fair market value to Ms. Pierce's corporation, despite purportedly having substantially better offers. The checks from the sale were never negotiated and Ms. McCarthur later made a loan of the proceeds of the sale to Ms. Pierce's corporation. Ultimately Ms. McCarthur netted twenty thousand dollars in the transactions. The second article, a day later, asserting that the District Attorney in Manhattan was investigating the matter.

Defendants move to dismiss the complaint asserting that the statements set forth in the [*2]complaint were either not defamatory or protected opinions and that use of plaintiff's photograph in connection with the article is not actionable under the Civil Rights Law.

The complaint can hardly be considered a model pleading. It falls somewhere between a narrative defense of plaintiff's actions and an angry rant that resembles a complaint more in form than substance. Many of its allegations are irrelevant, superfluous and not helpful to the plaintiff. Indeed, many of the allegations are damaging to the plaintiff and show a continuing relationship with Ms. McCarthur that would hardly be considered "arms length". Conspicuously absent from the complaint are clear allegations of "the particular words complained of", as required by CPLR 3016(a).

To ameliorate this failing, plaintiff incorporates by reference the two articles, which are annexed as exhibits to the complaint. In a fairly isolated case, the Second Department has held this acceptable.

Since writings annexed to the complaint are deemed part of the pleading (CPLR 3024), in many cases the annexation of the article referred to as libelous has satisfied the specificity mandate (see, e.g., Hogan v. Herald Co., 84 AD2d 470, 446 N.Y.S.2d 836; Cogan Mgt. Co. v. Lipset, 79 AD2d 918, 434 N.Y.S.2d 417; Ostrer v. Reader's Digest Assn., 48 AD2d 856, 368 N.Y.S.2d 575; Cabin v. Community Newspapers, Inc., 50 Misc 2d 574, 270 N.Y.S.2d 913, affd. 27 AD2d 543, 275 N.Y.S.2d 396). In The Law of Libel and Slander in the State of New York (par 389) Seelman notes that it is proper to set forth in the complaint the entire article containing the libel, and although specific portions should be alleged where a lengthy article is involved, if the entire article gives the impression of libel it is unnecessary to designate the specific part. In such a case, omission of greater detail is usually curable by a bill of particulars (see, also, Siegel, NY Practice, § 216). However, if perusal of a lengthy article does not reveal the libelous material, the plaintiff must plead the particular passages

(Edison v. Viva Int., 70 AD2d 379, 421 N.Y.S.2d 203).

Pappalardo v. Westchester Rockland Newspapers

101 AD2d 830, 475 N.Y.S.2d 487 [2d Dept. 1984].

This procedure, however, leaves it to the court on a motion to dismiss, to parse through

the article to determine precisely what statements are objectionable. In the instant matter this is not self evident.

In the first instance, it must be noted that the copy of the internet edition of the March 30, 2008 article annexed to the complaint is incomplete, comprising somewhat less than half of the text. In the second instance, a careful review of the portion of the article annexed to the Complaint shows that it contains few references to the plaintiff and none that could be considered clearly defamatory. The bulk of the references are to Ms. Latanya Pierce and her corporation, although plaintiff is referred to as a "partner in real estate deals". Finally, it is clear that the bulk of this article, at least to the extent that it is unflattering, are various opinions of quoted individuals or the authors. [*3]

Whether a particular statement constitutes an opinion or an objective fact is a question of law ( see Rinaldi v. Holt, Rinehart & Winston, 42 NY2d 369, 381, 397 N.Y.S.2d 943, 366 N.E.2d 1299 [1977], cert. denied 434 U.S. 969, 98 S. Ct. 514, 54 L. Ed. 2d 456 [1977] ). Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation ( see Weiner v. Doubleday & Co., 74 NY2d 586, 593, 550 N.Y.S.2d 251, 549 N.E.2d 453 [1989], cert. denied 495 U.S. 930, 110 S. Ct. 2168, 109 L. Ed. 2d 498 [1990], citing Steinhilber v. Alphonse, 68 NY2d 283, 508 N.Y.S.2d 901, 501 N.E.2d 550 [1986] ). Distinguishing between opinion and fact has "proved a difficult task," but this Court, in furtherance of that endeavor, has set out the following factors to be considered:

"(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" ( Brian v. Richardson, 87 NY2d 46, 51, 637 N.Y.S.2d 347, 660 N.E.2d 1126 [1995], quoting Gross v. New York Times Co., 82 NY2d 146, 153, 603 N.Y.S.2d 813, 623 N.E.2d 1163 [1993], quoting Steinhilber, 68 NY2d at 292, 508 N.Y.S.2d 901, 501 N.E.2d 550 [internal quotation marks omitted] ).

Mann v Abel, 10 NY3d 271, at 276, 885 N.E.2d 884, 856 N.Y.S.2d 31 [2008]

In regard to the claim for violation of the Civil Rights Law, not every use of a person's photograph is actionable under this statute.

Although the statute itself does not define the terms "advertising" or "trade" purposes, courts have consistently held that the statute should not be construed to apply to publications concerning newsworthy events or matters of public interest ( Finger v. Omni Publs. Intl., 77 NY2d 138, 141-142, 564 N.Y.S.2d 1014, 566 N.E.2d 141; Stephano v. News Group Publs., 64 NY2d 174, 184, 485 N.Y.S.2d 220, 474 N.E.2d 580). This is both a matter of legislative intent and a reflection of constitutional values in the area of free speech and free press ( Stephano, 64 NY2d, at 184, 485 N.Y.S.2d 220, 474 N.E.2d 580; Arrington v. New York Times Co., 55 NY2d 433, 440, 449 N.Y.S.2d 941, 434 N.E.2d 1319). Thus, a " picture illustrating an article on a matter of public interest is not considered used for the purpose of trade or advertising within the prohibition of the statute * * * unless it has no real relationship to the article * * * or unless the article is an advertisement in disguise' " ( Murray v. New York Mag. Co., 27 NY2d 406, 409, 318 N.Y.S.2d 474, 267 N.E.2d 256, quoting Dallesandro v. Henry Holt & Co., 4 AD2d 470, 471, 166 N.Y.S.2d 805, appeal dismissed, 7 NY2d 735, 193 N.Y.S.2d 635, 162 N.E.2d 726; see also, Finger, 77 NY2d, at 142, 564 N.Y.S.2d 1014, 566 N.E.2d 141; Stephano, 64 NY2d, at 185, 485 N.Y.S.2d 220, 474 N.E.2d 580; Arrington, 55 NY2d, at 440, 449 N.Y.S.2d 941, 434 N.E.2d 1319).

Howell v New York Post Company Inc., 81 NY2d 115, at 123, 612 N.E.2d 699, 596 N.Y.S.2d 350 [1993].

In Howell, the Court of Appeals found that New York does not recognize the tort of [*4]"publicity that unreasonably places another in a false light". Id. For this reason, if all of the statements regarding plaintiff in the story are essentially true or non-actionable opinions, then even if in totality the article paints plaintiff in an unfavorable false light, plaintiff has no cause of action for the publication.

For the foregoing reasons, the motion to dismiss the complaint is granted and the summons and complaint are hereby dismissed.

Dated:November 19, 2008Hon. Martin M. Solomon

Justice of the Supreme Court