Skeet v 150 RFT Varick Corp.

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Skeet v 150 RFT Varick Corp. 2012 NY Slip Op 32652(U) October 18, 2012 Supreme Court, New York County Docket Number: 104761/2010 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. NNED ON I012212012 [* 1] [* 2] Index Number: 10476 1/ 10 Suhinission Date: 8/1/12 DECISION and ORDER - against - 150 IWT VARTCK CON ., d/b/a GREENHOUSE, JONA TI-ION BAKT-WHI, a/lda JON I3 in his official aid individual capacities, BARRY MlJLLlNEAl JX, in his official and individual capacities, MERLIN WTI,I,IS, allda MERLIN I W H H in his official atid individual capacilies, and R1C AKI)O REGISFORD, &/a TTMMY REGISFORD in l i s official and individual capacities, 1)efendants. _ _ _ _ _ _ _ _ _ - - - - - r l l L I _ ~ ~ ~ ~ - - - - - - - - - - - - - - - - - - ~ ~ ~ ~ ~ ~ ~ - ~ - - - - - - - - - - - - - - - - X 150 RP T VA ¬UC:K COW., d/b/a GREENHOUSE, JONATHON BAKHSIII, a/lda JON H in his of ficial and individual capacities, BARRY MI.JL,LlNEAUX, in his official and iridiviiliral capacitics, MERLIN WILLIS, a/k/a ML :KI,IN BOBB in his official and individual capacitics, and JUCAKDO REGISFORD, allda I IMMYREGTSFOKL) in his offjcial and inclividrral capacities, Th i rd -Party Plaint i ffs, -against- MICITAIX GIBBARD, 1 [* 3] For Plaintiff: Thompson Wigdor LLP 85 Fi111i Avenue, Fifth Floor New York, NY 10003 2 12-2574800 For Defendants/ I h i i &Party Plaiiilil f s: Morris IILifuy Aloiiso & Paley 2 Rcclor Street, 22nd I looi New York, N Y 10006 212-7hh-1888 Third-l ai-ly Dcfcndatit, pro S I : : Michacl Gibbard 47- 2 1 3 Strcct 17 Bayside, NY 1 136 1 Papers considcrcd in review of this molion for summai-y judgment: Notice of Motion/AIlirm. of Counscl in Supp ................... ............. I Memo. in Opp. to Defendant s Mot ........................................................... 2 Rlliriii. of Counsel i n Opp. to Defendant s Mot ...................................... 3 Reply Affirm. in Further Supp .................. ..............4 NEW YORK COUNTY CLERK S OFFICE HON SALIANN SCARPULLA, J.: 111 this iicgligence and defiiniation action, dc~endant/third-p;lrtyplaintirf I 50 RFT Varick Corp., d/b/a Greenhouse ( C;reeiiliouse ) moves for partial suniinaiy judgment disrnissiiig pl~iintiff Jasoii Skcct s ( Skeet ) defmation claim pursuant lo CPLR 32 12, and for a dcFmlt j udgment against third-party ddendant Michad Gibbard ( Gibbard ) pursuant to CPLR 3215. Skeet is an African-Americaii male who workcd as ii security guai-d at Greenhouse, a niglitclub at 150 Variclc Street, New York, NY. On Octobcr 1 I , 2009, Skeet was stabbcd twice by a patron at Greenhouse, while lie visiting thc iiighlclub with a friend. Shortly after the incident, the police identificd Gibbard, a whitc male, as tlic person who stabbcd Skeet. On April 30, 20 10, Slccct coiiiinenced this action against Greenhouse and its owners, Jonathoii Baltlishi, Barry Mullineaux, Merlin Willis, and Ricardo Regis ford 2 [* 4] (collectivcly dek1ld;tnts ). In his complaint, Skeet alleges that thc defendants werc iicgligent because they hiled to provide propcr sccurity, training, aind supervision at Greenhouse, whjch negligelice allegedly caused Slccct to be stabbed inultiple tjrncs with a knife. More specifically, Skeet claims that Greenhouse was negligent in allowing Gibbard to entcr thc nightclub with a knifc, which resulted from tlic nightclub s discriminatory security practice of admitting wliitc patrons without a security check, wliilc black patrons were required to undergo a pat down or metal detector scan. After Skeet commenced his lawsuit, thc Daily News printed aii article eiititlcd Club s racism led to kniihg: suit by Jose Martinez on or about April 14, 201 0. The articlc discussed Skeet s lawsuit and other siiiilar lawsuits brought against Greenhouse based on the niglitclub s alleged discriminatory security practices. The article quotcd Skeet s lawyer Kciiiictli Thompson stating, [ilt s an outrage that any club would not search white patrons but search black patrons .. . (tjhis discriminatory practice almost cost my client liis lifc. The article later statcd that Greenhouse denies the charges and then quoted a Greciiliouse spokesperson wino statcd, [t]his lawsuit is clearly an attcinpt by a disgruntlcd f oriner employee who was Gred to blaclimail tile Grccnhouse owncrship for a payout. After publication of the article, Skcct amended his complaint to include a third cmsc of action h r defamation, specifically libcl p e r se ;tnd s l a n d e r p r se, based on th e staten1ent of Circcii h o Lis c s spokesp ers on. On May 25, 20 IO, tine dcf endants iniplel-ded Gibbard as a third-party defendant for iindciiiiiii~cation; i d contribution. The defendants tlicii moved lor a default judgincnt 3 [* 5] against Gikbnrd. I issired an October 25, 201 I order deiiyiiig the defendants motion for defdult +judgmentagainst Ciibbard, with leave to resubmit the motion with an afiidavit oi merit by a party with linowlcdge of the facts. On March 2 1, 2012, I also dismissed the action against the defendants Jonathon Balchshi, Barry MuI iiiciiux, Merlin Willis, and Ricardo Rcgisi ord. In support of its current iiiotioii for partial summary udgm ent, Cireenhousc argucs that Skeet s defamation claim should be dismissed because: ( I ) Grcmlm~~se s statement is nun-actioriablc opinion; and (2) Slceet failed to prove special damages for his defamation claim. In support of its motion for default judgment, Cireenhousc argues that it corrected the deficiency o r its prior dchult -judgment motion by submitting an affidavit of merit from a party with lciiowlcdgc of the facts. Jn opposition to the motion lor partial suiiiiiiary judgmcnt, Slceet argues that: (1j Greenhouse s statement is a dchiialory factual statement and/or actionable iiiixecl opinion; and (2 j Skcet is not required to prove spccial chinages hccause Greenhouse's statement qualifks as libel per s e and slander p c r se. ln regards to Greeiiho~rse s motion for defiiuIt judgment against Ciibbard, Skeet docs not set forth m y ob-jectioii. ,Discussio 11 1. Motion for Summary Judgrncrit A iiiovmt seeking sumnary judgment must make a p7pimuLfm,ic showing of entitlement to judgment as a matter of law and offer sufficient evidence to elimiiiatc any material issues offact. Winegradv. New York Univ M e d C lr., 64 N.Y.2d 851, 853 4 [* 6] (1985). Once a sliowiiig has been made, the burden shifts to Ihe opposing party to demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hmp., 68 N.Y.2d v. 320, 324 ( I 986); Zzick~~mnnCi/v of New York, 49 N.Y .2d 557, 562 (1 980). Jn a defamation action, the plaintiff iiiust show: ( 1 ) a de1amatoiy false statemcnl; (2) publislied without privilege or authorization to a third party; (3) constituting fault as judged by, at a iiiiniiiiLiiii, H negligence standard; and (4) it inirst either cause special harm or coiistitutc dcl amation per. SL . Foster v. CT/zurchill,87 N.Y.2cl 744, 751 (19%): D i h n v. C ity ofNew York, 261 A.D.2d 34, 38 (1st Dcp l 1999). To be actionable, tlic alleged defainalory statement must be an assertion 01 fact, not an expression of opiiiioii which cannot rorin the basis of ii defimation claim. Munn v Ahc.1, 10 N.Y.3d 271, 276 (2008). An cxprcssion of opinion is not actionable because it receives tlic Federal constitutioiial protection accorded to the exprcssion of ideas. 31 Steinlzilher v. A l ~ h j n s c 68 N.Y 283, 289 (1986). I licdctcrminatiom of whether a , .2d particular statement constitutes fact or opinion is n question o f law and is tested by the standard ol whether a reasonable reader coirld have concluded that the article was conveying facts about plaintifl. hlam, J 0 N.Y.3d at 276; C?~nssv NPWY w k Tjllws L o , 82 N.Y.2d 146, 152-153 (1993). In determining whether r? stateinelit is non-actionable opinion, thc court must consider: ( I ) whether the s p c c i k langiragc in issuc has a precise meaning that is readily understood; (2) whether tlie stateinciil is capable of being proven true or fiilsc; and (3) 5 [* 7] whether the full contcst o ¬the statement or broader social context signals that it is likely to bc opinion. Steinhill?er, 68 N.Y.2d at 289; Dillon, 26 I A.D.2d at 39. IJpon consiclcring the foregoing factors, I find that Greenhouse s statement was lion-actionable opinion. Bascd on the languagc in the statement and the overall context of the article, a reasonable reader would conclude that the stateiiicnt was conveying an opinion about thc merits of Skeet s lawsuit, rather than an assertion of f k t that Skeet s lawsuit was an actual attempt to coininit a crime - blaclcinaiI - against Greenhouse. The statement appears in an article concerning a contentious lawsuit between Sleet and Greenhouse, in which Skeet claiins that Crreenliousc negligently caused his stabbing becausc of thc nightclub s discriminatory security policies. The article ikst quotes Skeet s lawyer, Kenneth Thoinpson, who dcscribes Grccnhouse s sccurity policies as an outrage that almost cost my client his life, Greenhouse s statement appears several lines later, prefaced by the phrase "Greenhouse denies thc charges. Given the content and format o l the article, a reasonable reader would understand that the article statement was an opinion that prcscnted both sides ofthc lawsuit and Greex~liousc s Skccl s lawsuit was mcritless. Galasso v. Sultzman, 42 A.Ll.3~1 10, 3 11 ( I s t Dep t 2007) 3 (finding that an alleged defiimattory statement was non-actionable opinion because issues were clearly in dispute arid the statement was niade when respcctivc sides were presctiting their posit ioils), Moreover, while Grccnliouse used strong language to rebut Skeet s allegations of discrimination, it is clear from the overall tone of the article tliat Greenhouse s words 6 [* 8] wcre used iiguratively. Tmose, figurative or hyperbolic statemcnts, even if deprecating thc plaintiff arc not actionable. Dillon, 26 1 A.D.2d at 3 8. Furthermore, Greeiilioiise s usc of the word blaclcmail in this contcxt is insufficicnt to constitute a serious accusation of blackmail. Yecile v. Tifan Cupital Group, LLC, , 96 A.D.3d 543, 544 (1st Jkp t 2012) (finding that the use ofthe term shakedown did not convey the spccilicity that would suggest that defendants werc scrioirsly accusing thc plaintifl of coimi i tti rig extorti mi). 1 also find that the statement docs not qualify its actionable mixed opinion. An actionable mixed opinion implies that the speaker knows ccrlain facts, imkiiown to thc audieiice, which support his opinion and are detrimental to the person about wliom he is spcaking. S~einhilber, N.Y at 290. Here, Circeiihouse s statement did not imply 68 .2d ally facts unknown to the rcader. Grceiihoiise s statement exprcssed an opinion that Skeet s lawsuit was meritlcss, and that Slccet was disgruntled aftcr his firing. ? he f k t that Skeet was fired formcd the basis of Grcenhouse s opinion and was made known to readers. The statement is not ail actionnble mixed opinion because il is an opinion that specifically rccilcs the facts on wliich it is based. Gross, 82 N.Y.2d at 154; Dillon, 261 A.D.2d at 41. Becaiise Greenhouse s statements in the I)aily News article coiistitutcd nom actioiiablc opinion, I grant the defciidant s motion for partial summury judgment dismissing Skeet s dchination caiise of action (the third cause of action). 7 [* 9] 2. Motion for Default .Judgment Greenhouse also iiioves Cor dehult .j irdgineiit against third-party defendant, Michael Cribbard, 011 its coiitrjbution and iiideinnification claims. CI LR 32 15 provides tliat an q3plication for default Judginent must include: (1) proor of service of thc suiiiinons and complaint; (2) proof of the iiicrits of the claim; and (3) proof of the dchult. In my October 25, 201 1 order, 1 deiiicd the defendant s motion for dchult judgiiient for failure to subinit adequate proof of the merits of the claim. J oprove thc merits of the claim, an applicant must sulmit ail af klavit csccirted by a party with personal knowledge oftlic merits. Francisco v. Soh, 286 A.D.2d 573, 573 (1st l k p t 2001); Thaltil v. Mondesir, 253 A.11.2d 809, 810 (2nd Dcp t 1998). The affidavit ofmerit must also establish npriina,fucir case against the defendant. ,YCP StUte v. Williums, 44 A.D.3d I 149, 1 IS2 (3rd Dep t 2007). I L A claim for contribution arises wlieii two or inore tort- reasors share in responsibility for a n injury, in violation of duties they respectively owed to the in-jured pcrson. Smith v. S qiienza, 52 N.Y.2d 82, 87 (198 I). The critical rcquireincnt of a contribution claiiii is that the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which coiitribution is sought. Ncrssuzi lioofing 1 Sheet Metul C o v.F~xilifics 3 Dcv., 7 1 N.Y .2d 599, 603 (1 988). To prove an iiidemnification claim, thc movant must show that it maintains a rig111 to shift the ciitire loss to another party based on an express contract or iimplied x . - - -. . . - . - - -- - - - - - . [* 10] indemniiication. Bellmue S Assoc. v. HKJ/ Constr. Cloy., 78 N.Y.2d 282, 296 ( 199 1). An iinplicd indeimifjcation claim inust be predicated on a theory ol vicarious liability. Guznwn v. H m ~ Plmm i Hous. Dev. Fund Co., Inc.) 69 N.Y.2d 559, 567 (1987); Consolidatrd Kid Corp. v. Hunts Point Terminal Producc Coop. Ass 12, I I A.D.3d 341, 342 ( I s t Dep t 2004); Great Am.h s . Co. v. C uncE-nduiguaNcxtl. Bunk & Trust C?. , 23 ,) A.D.3d 1025, 1028 (4th Dcp t ZOOS). Here, 1 find that Greenhouse is entitled to a default -jiidginent against Hibbard, on its curitribtitioil claim, but not its indci?iiiiGcation claim. Greeiihousc submitted a proper affidavit of merit fi-om Jonathon Bakshi, an owiicr of Cireeiiliousc, who attests that hc has personal lciiowledge of the l c t s and circuinstaiices alleged in the third-party complaint. I hethird-party coinplaint scls forth nprirnufucip case for contribution against Gibbzird, based on Greeiilmisc s allegations that Gibbard caused or contributed to Skeet s injuries by assaulting him. Greenhouse also submitted proper proof of service of the third-party sitininom and complaint, and proof of Gibbard s default in failing to answer the thirdparty complaint or oppose Grcenliouse s niolion for dcfiwlt judgment. C~re c~iIio~~s~ , docs not sullkiently state ayrimn fix+ however, CBSC for its indeinni~icatioii claim becausc it does not allege the existcnce of any express contract or vicarious 1i abi 1i t I-, c 1we en Green h 011 s c a 1d Gibb ard . y 1 Accordingly, Cireciihouse s motion for a dcfiiilt judgment on its contribution claim is granted, and the motion For a default judgment on its indemnification claim is denied. 9 [* 11] JJI accordance with the foregoing, it is ORLIERED that defendant Greenhouse s motion for partial suiiiinary judgmeiit I dismissing Skeet s def amation claim pursuant to CPLIi 32 12 is granted and the third I cause of action is dismissed; and it is further I ORDERED that the defendant Grccnhouse s motion for dcf adt judginciit against third-party delendant hi bbarct is graiitcd only oii thc issue of liability for contribution, aiid denied on the issuc of liability for indemnification; and it is flirther ORDEIIEL) that an inquest asscssing daiiiagcs against dchilting third-party defendzint Hibbard will be held at trial of the main action. J hisconstitutes the dccision and order of this Coiirl. Datcd: k, Ncw Yorl New Yorlc October 20 I2 EN I ER: I0 .

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