Haefner v New York Media, L.L.C.

[*1] Haefner v New York Media, L.L.C. 2009 NY Slip Op 52765(U) [27 Misc 3d 1208(A)] Decided on October 22, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2009
Supreme Court, New York County

James R. Haefner and RICHARD CRAWFORD on Behalf of Themselves and as Representatives of the Class, Plaintiffs,

against

New York Media, L.L.C., PRIMEDIA, INC., MARK JACOBSON, FRANK LUCAS and GROVE/ATLANTIC, INC., Defendants.



150189/08

Walter B. Tolub, J.

In this libel action, two sets of defendants move separately to dismiss the complaint (motion sequence numbers 001 and 002). For the following reasons, both motions are granted.

BACKGROUND

Plaintiffs James R. Haefner, a retired New York City Police Department (NYPD) officer, and Richard Crawford, a retired federal Drug Enforcement Administration (DEA) agent, are the two lead members of a class of plaintiffs that is comprised of law enforcement officials who were involved in the January 28, 1975 arrest of defendant Frank Lucas. Mr. Lucas is a convicted major narcotics trafficker. (See Notice of Motion, Exhibit A [complaint], ¶¶ 1-3, 7, 10, 12). Plaintiffs claim that, when Mr. Lucas was arrested, $585,000.00 in small bills was recovered from his residence. (Id., ¶ 13, 14). Plaintiffs further claim that, after Mr. Lucas was released from prison, he was interviewed by defendant Mark Jacobson, a writer employed by New York Magazine. At the interview, Mr. Lucas stated that there had actually been "nine or ten million" dollars at his residence at the time he was arrested, and that the arresting officers had stolen the majority of that money. (Id., ¶¶ 6, 19-22). Plaintiffs claim that this statement is untrue and libelous. (Id., ¶ 23).

On August 7, 2000, defendant Primedia, Inc. (Primedia), a Delaware corporation that is licensed to do business in New York and is the owner of New York Magazine, published an article in New York Magazine by Mr. Jacobsen entitled "The Return of Superfly" which contained the above statements made by Mr. Lucas. (Id., ¶ 19).

Thereafter, on January 9, 2004, Primedia executed a contract to sell New York Magazine (the New York Magazine sales contract) to New York Magazine Holdings, L.L.C., the parent company of defendant New York Media, L.L.C. (New York Media). (Id., ¶ 5, 19; Emery Affirmation, ¶ 7). The relevant portion of the New York Magazine sales contract provides: 1.01Assets Being Sold(a)Upon the terms and subject to the conditions of this Agreement, at the Closing ... Seller shall sell, convey, assign, transfer and deliver to Purchaser, and [*2]Purchaser shall purchase and acquire from Seller ... all of Seller's right, title and interest in and to all of the following assets of Seller ...

***

(K)all copyrights, copyright registrations and applications therefore owned by Seller and relating to ... all articles ... contained in the Publication [i.e., New York Magazine] ... pursuant to any contracts with authors ... including, without limitation, the following: (I) all rights, if any, of Seller to the possession, publication, distribution and sale of any article ... whether heretofore published or being prepared for publication in the Publication or any supplements thereto or derivatives thereof ...

(Id., Emery Affirmation, Exhibit B).

Plaintiffs claim that Mr. Jacobsen and New York Media republished "The Return of Superfly" on October 25, 2007 on New York Magazine's website, and thereafter republished the article again on October 29, 2007 on the website "IFC.com." (Notice of Motion , Exhibit A, ¶¶ 61, 77). Defendants argue that this is inaccurate. Instead, defendants claim that Mr. Jacobsen had published a new article entitled "The Lords of Dopetown," which was available on New York Magazine's website on October 25, 2007 and available in print on October 29, 2007. Defendants further argue that the "Lords of Dopetown" merely contained an internet link to Mr. Jacobsen's earlier article, "The Return of Superfly," and that there was no republication of any of the material contained in the earlier article. ( See Notice of Motion [motion sequence number 002], Maloni Affidavit, ¶¶ 17-19; Exhibit C). Defendants also argue that the article that appeared on IFC.com on October 29, 2007 was entitled "American Gangster," and was written by Matt Singer, and that the defendants were not involved in either its writing or its publication. (Id.; Metcalf Affirmation, ¶ 8; Exhibit D). Defendants note that the IFC.com article also contained an internet link to Mr. Jacobsen's earlier article, "The Return of Superfly," and did not, contain any of Mr. Jacobsen's original material. (Id).

In January of 2001, Mr. Jacobsen executed an agreement with Universal Pictures granting it the rights to develop "The Return of Superfly" into a motion picture entitled "American Gangster". (See Notice of Motion [motion sequence number 002], Jacobsen Affidavit, ¶ 10) . Plaintiffs claim that the [alleged] republications were made in order to further interest in the movie which was released on November 2, 2007. (See Notice of Motion [motion sequence number 001], Exhibit A, ¶¶ 42, 47-49, 58-60, 82). The film, "American Gangster," has previously been the subject of a libel litigation in the U.S. District Court for the Southern District of New York, in a case entitled Diaz v NBC Universal, Inc. (536 F Supp 2d 337 [SD NY 2008], affd 2009 WL 2143216, 2009 US App LEXIS 15653 [2nd Cir 2009]).

Finally, plaintiffs claim that, on November 2, 2007, defendant Grove/Atlantic, Inc. (Grove/Atlantic), a licensed New York State publishing company, published a book of Mr. Jacobsen's collected works entitled "Jacobsen Tales" which included "The Return of Superfly". (See Notice of Motion [motion sequence number 001], Exhibit A, ¶ 83-86). Mr. Jacobsen claims that although he published a book of his collected works with Grove/Atlantic, its correct title is "American Gangster and other Tales of New York," and that its correct publication date was September 13, 2007. (See Notice of Motion [motion sequence number 002], Jacobsen Affidavit, ¶ 11; Exhibit B; Metcalf Affirmation, Exhibit E).

Plaintiffs commenced this action on October 22, 2008 by serving a summons and [*3]complaint that sets forth causes of action for: (1) libel in republishing "The Return of Superfly" on New York Magazine's website (against Jacobsen, Primedia, New York Media and Lucas); (2) libel in republishing "The Return of Superfly" article on the IFC.com website (against Jacobsen, Primedia, New York Media and Lucas); (3) libel in republishing "The Return of Superfly" article in the film "American Gangster" (against Jacobsen, Primedia, New York Media and Lucas); (4) libel in republishing "The Return of Superfly" article in "Jacobsen Tales" (against all defendants); and (5) intentional infliction of emotional distress (against all defendants). (See Notice of Motion [motion sequence number 001], Exhibit A). Thereafter, rather than filing answers, Primedia (motion sequence number 001) and New York Media and Mr. Jacobsen (motion sequence number 002) moved to dismiss the complaint.

DISCUSSION

Primedia's Motion

Pursuant to CPLR 3211 (a) (5), "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that ... the cause of action may not be maintained because of ... [the] statute of limitations." Pursuant to CPLR 215 (3), causes of action for libel are governed by a one-year statute of limitations that accrues on the date the offending material is first published. (See e.g. Nussenzweig v diCorcia, 9 NY3d 184 [2007]).

In its motion, Primedia asserts that it published "The Return of Superfly" article in New York Magazine on August 7, 2000, and that it thereafter sold New York Magazine to New York Media's parent company (New York Magazine Holdings, L.L.C.) on January 9, 2004. Primedia argues that its only publication of the allegedly libelous article occurred in 2000, and because it was not involved in any of the republications that occurred after its sale of New York Magazine, plaintiffs' libel claims are barred by the one-year statute of limitations. (See Memorandum of Law in Support of Motion [motion sequence number 001], at 5-8). Plaintiffs argue that Primedia's argument fails because Primedia "approved, participated in [and/or] reasonably foresaw" the republication of "The Return of Superfly" by third parties after its sale of New York Magazine. Therefore, according to Plaintiffs, the statute of limitations has not yet expired on those subsequent acts of libel. (See Memorandum of Law in Opposition to Defendants' Motions, at 19-24).

The initial publisher of libelous material cannot be held liable for injuries arising from its subsequent republication absent a showing that it "approved or participated in some other manner in the activities of the third-party republisher." (Karaduman v Newsday, Inc., 51 NY2d 531, 540 [1980]).

When evaluating a defendant's motion to dismiss, pursuant to CPLR 3211 (a), the test " is not whether the plaintiff has artfully drafted the complaint but whether, deeming the complaint to allege whatever can be reasonably implied from its statements, a cause of action can be sustained'." (Jones Lang Wootton USA v LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168, 176 [1st Dept 1998], quoting Stendig, Inc. v Thom Rock Realty Co., 163 AD2d 46, 48 [1st Dept 1990]). To this end, the court must accept all of the facts alleged in the complaint as true, and determine whether they fit within any "cognizable legal theory." (Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, L.L.P., 96 NY2d 300, 303 [2001]). However, where the allegations in the complaint consist only of bare legal conclusions, or of factual claims which are inherently incredible or are flatly contradicted by documentary evidence, [*4]the foregoing considerations do not apply. (See e.g. Tectrade Intl. Ltd. v Fertilizer Dev. and Inv., B.V., 258 AD2d 349 [1st Dept 1999]; Caniglia v Chicago Tribune-New York News Syndicate, Inc., 204 AD2d 233 [1st Dept 1994]).

Here, the complaint states that Primedia "foresaw" the republication of "The Return of Superfly" article. (See Notice of Motion [motion sequence number 001], Exhibit A, ¶¶ 106, 108, 109, 125, 129, 133). Were the court to give this allegation the generous reading required by CPLR 3211, it might be possible to infer that Primedia had somehow "approved or participated in" the republication of "The Return of Superfly". However, as section 1.01 (a) (K) of the New York Magazine sales contract makes clear, there is no justification for according plaintiffs' allegations any credence. That contract provision specifically states that Primedia sold all of its copyrights, including "all rights ... to the ... publication, distribution and sale of any article ... whether heretofore published." (Id.; Exhibit B). The balance of the New York Magazine sales contract does not provide for Primedia to retain any post-sale interest in, or liability for, any such articles. Thus, the documentary evidence conclusively establishes that Primedia, the original publisher of "The Return of Superfly", had no ability to either approve, disapprove, or in any way participate in any decision to republish the article after it sold its copyright on January 9, 2004. Therefore, because this action was commenced in 2008, plaintiffs' libel claims against Primedia are barred by the governing one-year statute of limitations.

Primedia next argues that, because plaintiffs' claim for intentional infliction of emotional distress is governed by the same one-year statute of limitations that applies to the libel claims, the former claim should also be dismissed as time-barred. (See Memorandum of Law in Support of Motion [motion sequence number 001], at 9-10; CPLR 215 (3); see e.g. Spinale v Guest, 270 AD2d 39 [1st Dept 2000]). Plaintiffs argue that "the limitations period had not elapsed by October 22, 2007." (See Memorandum of Law in Opposition to Defendants' Motions, at 28).

As mentioned, the documentary evidence before the court completely refutes plaintiffs' allegation that Primedia was involved in any of the republications of "The Return of Superfly". Therefore, because Primedia's original publication of that article on August 7, 2000 is the only act upon which plaintiffs can base their claim of intentional infliction of emotional distress, the claim is barred by the governing one-year statute of limitations. Accordingly, Primedia's motion to dismiss is granted.

New York Media and Jacobsen's Motion

New York Media and Mr. Jacobsen also argue that plaintiffs' libel claims against them are barred by the statute of limitations. (See Memorandum of Law in Support of Motion [motion sequence number 002], at 9-18).

With respect to the first and second causes of action, which allege republication of "The Return of Superfly" on two separate websites, defendants specifically cite the Court of Appeals' decision in Firth v State of New York, 98 NY2d 365 [2002]. Defendants argue that Firth v. State of New York, as applied to the facts of this case, stands for the proposition that the inclusion of internet links in the "Lords of Dopetown," and "American Gangster" articles to the unmodified "The Return of Superfly" article does not constitute as republication. (See Memorandum of Law in Support of Motion [motion sequence number 002], at 11-13, 14-15). In Firth v State of New York, the Court of Appeals held that:

Republication, retriggering the period of limitations, occurs upon a separate aggregate [*5]publication from the original, on a different occasion, which is not merely "a delayed circulation of the original edition." The justification for this exception to the single publication rule is that the subsequent publication is intended to and actually reaches a new audience. Thus, for example, repetition of a defamatory statement in a later edition of a book, magazine or newspaper may give rise to a new cause of action.

The mere addition of unrelated information to a Web site cannot be equated with the repetition of defamatory matter in a separately published edition of a book or newspaper. The justification for the republication exception has no application at all to the addition of unrelated material on a Web site, for it is not reasonably inferable that the addition was made either with the intent or the result of communicating the earlier and separate defamatory information to a new audience [internal citations omitted].

(98 NY2d at 371).

Mr. Jacobsen presented printouts of the "Lords of Dopetown," and "American Gangster" articles, and of the original, unedited "The Return of Superfly" article. In the two former articles, the reader is redirected by the internet hyperlinks to "The Return of Superfly" article. ( See Notice of Motion [motion sequence number 002], Jacobsen Affidavit, Exhibits A, B, C). Plaintiffs argue that this does not conclusively establish that "The Return of Superfly" was not republished on the New York Magazine and IFC.com websites because defendants have not presented an affidavit from someone in New York Magazine's editorial department stating that the wording of the article was never changed. (See Memorandum of Law in Opposition to Motions, at 10-15).

Such an affidavit is unnecessary. The documentary evidence speaks for itself. Therefore, because New York law provides that the inclusion of internet hyperlinks to the original article in two later articles does not give rise to republications, plaintiffs' two causes of action that are premised on such republications are time-barred. As such, New York Media and Mr. Jacobsen's motion seeking dismissal of plaintiffs' first and second causes of action for libel is grated.

With respect to the third cause of action, which alleges the republication of "The Return of Superfly" in the film "American Gangster," defendants argue that it is also barred by the statute of limitations. ( See Memorandum of Law in Support of Motion [motion sequence number 002], at 15-16). The court notes that Mr. Jacobsen himself admitted that, in January of 2001, he executed an agreement with Universal Pictures, granting it the rights to develop his article into a motion picture. (See Notice of Motion [motion sequence number 002], Jacobsen Affidavit, ¶ 10). Thus, the film is a "republication" of "The Return of Superfly", pursuant to the holding of Firth v State of New York (98 NY2d 365, supra .).As such, because the film was released on November 2, 2007, and plaintiffs commenced this action on October 22, 2008 - i.e., within one year of the film's release date - plaintiffs' claim is not in violation of the statute of limitations (CPLR 215 [3]).

Defendants argue, in the alternative, that plaintiffs' third cause of action should be dismissed because the alleged libel derived from "The Return of Superfly" article which is portrayed in the "American Gangster" is not "of and concerning" plaintiffs herein, as the law requires. (See Memorandum of Law in Support of Motion [motion sequence number 002], at 15-16). Plaintiffs argue that their claim is permitted pursuant to the "small group libel" doctrine. (See Memorandum of Law in Opposition to Motions, at 24-27). [*6]

New York law provides that, in order to maintain an action for libel, the plaintiffs must allege that the statement published was "of and concerning" them, even if they were not specifically named therein. (See e.g. Lazore v NYP Holdings, Inc., 61 AD3d 440 [1st Dept 2009]; Giaimo v Literary Guild, 79 AD2d 917 [1st Dept 1981]). The U.S. District Court for the Southern District of New York dismissed an identical libel claim that was brought by a plaintiffs' class composed of DEA agents who were involved in Mr. Lucas's arrest. The case was brought against NBC Universal, Inc., the producer of the film "American Gangster." (Diaz v NBC Universal, Inc., 536 F Supp 2d 337, supra ). The court (McMahon, J.), applying New York State law, found that plaintiffs' claim failed pursuant to the "group libel doctrine" without reaching the question of whether the allegedly libelous material in the film - which was drawn from Mr. Jacobsen's "The Return of Superfly" article - was "of and concerning" plaintiffs. (Id. at 344). This finding alone would be insufficient to bar plaintiffs' claim in this court. However, in its affirmance of the District Court's decision, the U.S. Court of Appeals for the Second Circuit, reviewing the case de novo, found: (1) that the allegedly libelous film was not "of and concerning" plaintiffs; and (2) that plaintiffs' claim was not sustainable pursuant to the "small group libel" doctrine. (2009 WL 2143216, * 2, 2009 US App LEXIS 15653). Indeed, the only ground upon which to distinguish this action from the one litigated in federal court is that the instant class of plaintiffs is composed of members of both the DEA and the NYPD, whereas the class in the former action was composed entirely of DEA agents. As was the case in the federal court action, none of the plaintiffs herein is referred to specifically in the film "American Gangster," and Mr. Lucas's statement in "The Return of Superfly" merely referred to all of plaintiffs indiscriminately as "cops." As the Second Circuit found: By seeking to limit the group referenced ..., appellants arguably seek to do just what Brady v Ottaway Newspapers, Inc., 84 AD2d 226 [2d Dept 1981], prohibits, i.e., they seek to define the group by standards outside the comment. See Brady, 84 AD2d at 237 ("Imputation to the plaintiff will be evaluated in relation to the group as defined by the comment and not by the plaintiff's relationship to a smaller subset of the group defined." (citations omitted)).

(2009 WL 2143216, * 2, 2009 US App LEXIS 15653).

Here, plaintiffs' inclusion of NYPD officers along with DEA agents among the allegedly libeled class does nothing to rectify this infirmity. Therefore, the court finds that plaintiffs' third cause of action is barred, as a matter of law, by the findings of the federal courts in Diaz v NBC Universal, Inc., pursuant to the doctrine of res judicata. Accordingly, the portion of New York Media and Mr. Jacobsen's motion seeking dismissal of plaintiffs' third cause of action for libel is granted.

With respect to the fourth cause of action, which alleges republication of "The Return of Superfly" in Mr. Jacobsen's book, "American Gangster and other Tales of New York," defendants claim that the claim is barred by the statute of limitations. (See Memorandum of Law in Support of Motion [motion sequence number 002], at 16-17). Defendants' argue that the book was published on September 13, 2007, while this action was commenced over one year later on October 22, 2008. (See Notice of Motion [motion sequence number 002], Metcalf Affirmation, Exhibits A, E). Plaintiffs deny this, but offer no documentary evidence to the contrary. (See Memorandum of Law in Opposition to Motions, at 16-17). Plaintiffs also argue that defendants [*7]republished the book on November 13, 2007 (i.e., within the statute of limitations period) by releasing a "Kindle Edition" of the book for an audience of digital book readers. (Id. at 8, 17). Defendants note that the complaint does not contain any allegation of libel as regarding the Kindle Edition of the book. (See Defendants' Reply Memorandum of Law [motion sequence number 002], at 12-13). Plaintiffs' papers offer no legal argument as to why a digital version of a book, which is not argued to differ at all from the print version, should constitute a republication.

Although there does not appear to be any governing caselaw regarding digital "Kindle Editions" of books, pursuant to the holding of Firth v State of New York [supra ], such editions should be treated as merely "a delayed circulation of the original edition," rather than as a republication thereof. Therefore, the fourth cause of action for libel is time-barred and the portion of New York Media and Mr. Jacobsen's motion seeking dismissal of plaintiffs' fourth cause of action is granted.

Finally, with regard to plaintiffs' fifth cause of action for intentional infliction of emotional distress, the court notes that the federal courts dismissed an identical cause of action in Diaz v NBC Universal, Inc., discussed, supra . Plaintiffs' instant claim is dismissed for the same reasons as discussed above - i.e., that the intentional infliction of emotional distress claim derives entirely from plaintiff's claim of libel arising from the film "American Gangster," which claim the court has already determined lacks merit, as a matter of law. Accordingly, the portion of New York Media and Mr. Jacobsen's motion seeking the dismissal of plaintiffs' fifth cause of action is granted.

DECISION

ACCORDINGLY, for the foregoing reasons it is hereby

ORDERED that Primedia, Inc.'s motion, pursuant to CPLR 3211, is granted and the complaint is hereby severed and dismissed as against said defendant, and the Clerk is directed to enter judgment in favor of said defendant; and it is further

ORDERED that the motion, pursuant to CPLR 3211, of defendants New York Media, L.L.C. and Mark Jacobson is granted and the complaint is hereby severed and dismissed as against said defendants, and the Clerk is directed to enter judgment in favor of said defendants; and it is further

ORDERED that the remainder of the action shall continue.

Counsel for the remaining parties are directed to appear for a conference on November 13, 2009 at 11:00AM in room 335 at 60 Centre Street.

Dated:ENTER:

_________________________

Hon.Walter B. Tolub, J.S.C.