O'Brien v Higginbotham

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O'Brien v Higginbotham 2017 NY Slip Op 30335(U) February 3, 2017 Supreme Court, New York County Docket Number: 162746/2014 Judge: Lucy Billings Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 02/22/2017 11:00 AM 1] INDEX NO. 162746/2014 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/22/2017 .SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 --------------------------------------x Index No. 162746/2014 RICHARD KERRY O'BRIEN, Plaintiff DECISION AND ORDER - against .ADAM HIGGINBOTHAM, JOSH TYRANGIEL, and BLOOMBERG L.P., Defendants --------------------------------------x LUCY BILLINGS, J.S.C.: I. ·BACKGROUND Plaintiff sues to recover damages for libel and intentional infliction of emotional distress caused by an article entitled "The Irish Clan Behind Europe's Rhino-Horn Theft Epidemic," dated January 2, 2014, writt~n by defendant Higginbotham, edited-by' defendant Tyrangiel,· and published by defendant Bloomberg L. P. r De.fendants move to dismiss .the complaint based on a documentary defertse and failure to state a claim. C.P.L.R. (7). the court grants For the reasons explained be~ow, § 32ll(a) (1) and defendants' motion. II. APPLICABLE STANDARDS Upon defendants' .motion to dismiss the complaint pursuant to C.P.L.R. § alle~~tions favor. 32ll(a) (1) or (7), the court accepts the cdmpl-aint's as true and draws all inferences in plaintiff's Simkin v. Blank, 19 N.Y.3d 46, 52 (2012); Art & Fashion Group Corp. v. Cyclops Prod.; Inc., 120 A.D.3d 436, 437 (1st Dep't 2014) ;!Amsterdam Hospitality Group, LLC v. Marshal-Alan o'brien.179 1 2 of 13 [*FILED: NEW YORK COUNTY CLERK 02/22/2017 11:00 AM 2] NYSCEF DOC. NO. 50 .. -··---"'· INDEX NO. 162746/2014 RECEIVED NYSCEF: 02/22/2017 ~ Assoc., Inc., 120 A.D.3d 431, 432 (1st Dep't 2014) ~Cabrera v. Collazo, 115 A.D.3d 147, 150 (1st Dep't 2014). warranted under C.P.L.R. § Dismissal is 3211(a) (7) only if .the complaint fails to allege facts that fit within any cognizable legal theory. Nonnon v. City of New York, 9 N.Y.3d 825, 827 (2007); Goldman v. Metropolitan Life Ins. Co., 5 N. Y. 3d 561, 570-71 (2005) Financial, LLC v. Gillett, 122 A.D.3d 98, 103 .i Mill (1st Dep't 2014); Cabrera v. Collazo, 115 A.D.3d at 151. Dismissal of the complaint's claims pursuant to C.P.L.R. § 3211{a) (1) requires documentary evidence in admissible, form that conclusively resolves all factual issues and establishes a defense as a matter of law. Goshen·v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002); Mill Financial, LLC v. Gillett,· 122 A.D.3d at 103; Art & Fashion Group Corp. v. Cyclops Prod., Inc., 120 A.D.3d at 438; Amsterdam Hospitality Group, LLC v. Marshal-Alan Assoc., Inc., 120 A.D.3d at 433. The documentary evidence must plainly and flatly contradict the complaint's claims.' Maas v. Cornell Univ.', 94 N.Y.2d 87, 91 (1999); Xi Mei Jia v. Intelli-Tec Sec. Servs., Inc., 114 A.D.3d 607, 608 (1st Dep't 2014); Cathy Daniels, Ltd .. v. Weingast, 91 A.D.3d 431, 433 (1st Dep't 2012); KSW Mech. Servs., Inc. v. Willis of N.Y., Inc., 63 A.D.3d 411 (1st Dep't 2009). 569~ 572 (1st Dep't 2011). See Lopez v. Fenn, 90 .A.D.3d - The court may dismiss claims based on such evidence only if plaintiff fails to rebut it. Hicksville Dry Cleaners, Inc. ·v. Stanley Fastening Sys., L.P.·, 37 A.D.3d 218 (lst.Dep't 2007). o'brien.179 2 3 of 13 / [*FILED: NEW YORK COUNTY CLERK 02/22/2017 11:00 AM 3] INDEX NO. 162746/2014 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/22/2017 III. PLAINTIFF'S CLAIMS While'the complaint includes a claim for intentional infliction of emotional distress, at oral argument January 21; 2016, plaintiff conceded that this claim merely duplicated his clairµ for libel. Dep't 2011). See Akpinar v. Moran, 83 A.D.3d 458, 459 (1st Libel is an injury to a person's reputation throu$h a written publication of facts, rather than opinion. Thomas H. v.· Paul B., 18 N.Y.3d 580, 584 (2012); Saint David's Sth. v. Hume, 101 A.D.3d 582, 583 (1st Dep't 2012); Konrad v. Brown, 91 A.D.3d 545, 546 (1st Dep't 2012). To sustain a claim for libel, plaintiff must show that defendants made (1) a non-privileged statement of fact, Martin v. Daily N~ws L.P., 121 A.D.3d 90, 100 ( (1st Dep't 2014); O'Neill v. New York Univ., 97A.D.3d 199, 212 1 (1st Dep't.2012); GS Plasticos Limitada v. Bureau Veritas, 84 A.D.3d 518, 519 (1st Dep't 2011), (2) concerning him, Smith v . . , Catsimatidis, 95 A.D.3d 737 (1st Dep't 2012); Prince v. Fox Tel. Stas., Inc., 93 A.D.3d 614 (1st Dep't 2012), requisite degree of fault, (3) with the (4) that is false and defamatory, Brian v. Richardson, 87 N.Y.2d 46, 51 (1995); Omansky v. Penning, 101 A.D.3d 514, 515 (1st Dep't 2012); Amaranth LLC v. J.P. Morgan Chase & Co., 100 A.D.3d 573, 574 (1st Dep't 2012); Konrad v. Brown, 91 A.D.3d at 546, and (5) that damaged him. ~' Rinaldi v. Holt, Rihehart & Winston, 42 N.Y.2d 369, 379 (1977); Sandals Resort Intl. Ltd. v. Google, Inc., 86 A.D.3d 32, 38 2011). A statement is defamatory only if it (a) (1st Dep't is false and (b) exposes plaintiff "to public contempt, ridicule, aversion or o'brien.179 3 4 of 13 [*FILED: NEW YORK COUNTY CLERK 02/22/2017 11:00 AM 4] NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/22/2017 disgrace, or . · 11 INDEX NO. 162746/2014 . an evil opinion" of him and deprives hirri of friendly intercourse in society." Inc., 120 A.D.3d 28, 34 Stepanov v. Dow Jones Co. , & (1st Dep't 2014); Dillon v .. City cif New York, 261 A.D.2d 34, 37-38 (1st Dep't 1999). See Thomas H. v. Paul B., 18 N.Y.3d at 584; Martin v. Daily News L.P., 121 A.D.3d at 100; Sandals Resort Intl. Ltd. v. Google, Inc., 86 A.D.3d at 38; Bement v. N.Y.P. Holdings, 307 A.D.2d 86, 92 2003). (1st Dep't Whether the statements are susceptible of a defam~tory connotation is a legal determination for the court. Buffalo News, Inc., 21 N.Y.3d 988, 990 (2013); & Alf v. A~mstrong v. Simon Schuster, 85 N.Y.2d 373, 380 (1995); Weiner v. Doubleday 74· N.Y.2d 586, ·592 (1989) i & Co., Ava v. NYP Holdings, Inc., 64 A.D.3d 407, 412 (1st Dep't 2009). Plaintiff contends that defendants' article is defamatory insofar as it reports that (1) a law enforcement raid recover~d rhinoceros horns; (2) police arrested him during that operation~ but then released him upon the posting of bail,· and seized artwork from his home; (3) he is the "King of the Travellers"; and {4) he sold homes in Rathkeale, Ireland, to Travellers. Plaintiff conceded at oral argument February 17 ,· 2016, that defendants accurately reported statements by law enforcement officials, but maintain that these sources' statem~nts were false. A. Privileged Content Defendants first contend that the article, in accurately citing statements by law enforcement o'brien.179 4 5 of 13 officials~ is privileged [*FILED: NEW YORK COUNTY CLERK 02/22/2017 11:00 AM 5] NYSCEF DOC. NO. 50 INDEX NO. 162746/2014 RECEIVED NYSCEF: 02/22/2017 under New York Civil Rights Law § 74, which provides that: A civil action cannot be maintained against any person, firm or corporation, for the publication of a faii and ttue report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published. This privilege applies to governmental investigations, Daniel Goldreyer, Ltd. v. Van de Wetering, 217 A.D.2d 434, 435. (1st Dep't 1995); .Freeze Right Refrig. & A.C. Servs. v. City of New York, 101 A.D.2d 175, 182 (1st Dep't 1984), including police investigations connected to a jud.icial proceeding. Akpinar v. Moran, 83 A.D.3d at 459; Rodriguez v. Daily News, L.P., 142 A.D.3d 1062, 1063 (2d Dep't 2016). The published articile's accounts of four rhinoceros horns recovered during an ,.·operation Oakleaf," of the police's seizure of artwork from plaintiff's: home during that operation, and of his arrest and release on bail are subject to the privilege under Civil Rights Law § 74, as these accounts report on an investigation by governmental law enforcement officials. The privileg~ applies even if the article's accounts are only substantially accurate. Russian Am. Found., Inc. v. Daily News, L.P., 109 A.D.3d 410, 413 (1st Dep't 2013); Daniel Goldreyer, Ltd. v. Van de Wetering, 217 A.D.2d at 435; Rodriguez v. Daily News, L.P., 142 A.D.3d at 1064. substantially accurate if it sugg~sts A report is not that the conduct investigated was more serious than actually occurred in the official proceeding. 217 A.D.2d at 436. o' brien. 179 Daniel Goldreyer, Ltd. v. Van de Wetering, Defendants' article attributes rhinoceros 5 6 of 13 [*FILED: NEW YORK COUNTY CLERK 02/22/2017 11:00 AM 6] NYSCEF DOC. NO. 50 INDEX NO. 162746/2014 RECEIVED NYSCEF: 02/22/2017 horn thefts to the Rathkeale Rovers, not to plaintiff. Therefore, by omitting that the horns recovered during the law enforcement operation were tested and found to be fake, the article did not falsely suggest more serious conduct by him. ; Even if defendants' article attributed the rhinoc~ros horn thefts to plaintiff, plaintiff's evidence that the horns were tested and found to be fake is irrelevant hearsay. In opposition to defendants' motion to dismiss the complaint pursuant to c.P.L.R. § 3211(a) (1) or (7), plaintiff may rely on admissible evidence to supplement his complaint. Nonnon v. City of New York, 9 N.Y.3d 825, 827 (2007); Cron v. Hargro Fabrics, 91 N.Y._2d 362, 366 (1998); Ray v. Ray, 108 A.D.3d 449, 452 (1st Dep't ' 2013); Thomas v. Thomas, 70 A.D.3d 588, 591 (1st Dep't 2010). The unsworn report on which plaintiff relies to show that the rhinoceros horns were fake, however, lacks a foundation for admissibility as an exception to the rule against hearsay. Second, even were this report that plaintiff presents admissible, it is dated July 20, 2015, after the publication of defendants' article. Therefore defendants may not be charged with knowledge of these facts that were unknown when their article Was published. While plaintiff also maintains that defendants were irresponsible in not testing the rhinoceros horns before reporting that the horns were real, defendants owed no duty to uncover any error in the official investigation by conducting their own investigation. Freeze Right Refrig. & A. C.. Servs. v. City of New York, 101 A.D.2d at 183; Rodriguez v. Daily o'brien.179 6 7 of 13 [*FILED: NEW YORK COUNTY CLERK 02/22/2017 11:00 AM 7] ·• NYSCEF DOC. NO. 50 News, L.P., 142 A.D.3d at 1064. INDEX NO. 162746/2014 RECEIVED NYSCEF: 02/22/2017 Plaintiff does not claim that the~rticle inaccurately reported law enfo~cement official$' view of what their investigation found based on their own examination or that, when defendants published their article, anyone knew the recovered rhinoceros horns were fake. Plaintiff further urges that defendants' article suggests conduct more serious than actually occurred, his involvement in the rhinoceros horn thefts, by reporting that in September 2013 he was arrested, questioned, and released on bail after the Operation Oakleaf raid that found.four rhinoceros horns, but omitting that his bail subsequently was cancelled. Plaintiff shows this subsequent fact through a bail cancellation notice dated November 5, 2014, attached to the complaint, as well as through defendants' affidavit by Adrian Green, a senior investigating officer of the United Kingdom Police·, authenticating that notice. Yet this date when plaintiff's bail was cancelled was also after the publication of defendants' article: again, a fact unknown when their article was publis~ed, such that knowledge of the fact may not be charged to defendants. Therefore the accqunt of plaintiff's arrest, questioning, and release on bail, which plaintiff does not dispute, was .not false when published. Regarding the seizure of artwork from plaintiff's home, plaintiff maintains that this account suggests his involvement in theft of Chinese artifacts. The article does refer to the seizure of Chinese artifacts as an objective of law enforcement o'brien.179 7 8 of 13 [*FILED: NEW YORK COUNTY CLERK 02/22/2017 11:00 AM 8] NYSCEF DOC. NO. 50 INDEX NO. 162746/2014 RECEIVED NYSCEF: 02/22/2017 officials' Operation Oakleaf. Nowhere, however, does the article link the accomplishment of that objective to the seizure of artw6rk from plaintiff's home during a law enforcement ~aid. Even if such a connection is inferable, the fact that a seized painting, among other items, subsequently was returned, as ·shown by a receipt dated November 7, 2013, does not render the arti9le substantially inaccurate. To report the return of the seized artwork, like the cancellation of plaintiff's bail, is simply to report facts after the raid that portray plaintiff's side of the controversy, which defendants, reporting what occurred during the raid, bore no duty to report, and which plaintiff was free to publish in his own account. Curto v. New York Law Journal, 144 A.D.3d 1543, 1544 (4th Dep't 2016); Alf v. Buffalo News, 110 A.D.3d 1487, 1489 (4th Dep't 2012), aff'd, 21 N.Y.3d 988. No authority required defendants to include facts that developed after the raid that cast a different light on their accurate reporting of the raid itself. B. Non-Privileged Content The article's statements that plaintiff is the King of the Travellers and built and sold houses in Rathkeale are unconnected to the official investigation, so these statements are not subject to the privilege under Civil Rights Law§ 74. Plaintiff claims these statements are defamatory because they suggest his involvement in laundering the proceeds of criminal activity. First, plaintiff contends that naming him the King of the Travellers falsely labels him a criminal. o'brien.179 8 9 of 13 Defendants' article [*FILED: NEW YORK COUNTY CLERK 02/22/2017 11:00 AM 9] INDEX NO. 162746/2014 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/22/2017 describes a group named the Rathkeale Rovers as "part of a network of clans called the Irish Travellers, a nomadic and ofteti secretive ethnic group that maintains its own distinct customs and language." The article attributes various criminal activities to the Rathkeale Rovers by describing that the gro~p operates "within the extended families of the Irish Traveller I network, a tangle ·of relatives who work together in all enterprises, both legal and illegal." Aff. of Deirdre Hykal Ex. 1 (Compl.), Ex. A, .at 5. The article merely connects the Rathkeale Rovers to the Irish Travellers and plaintiff to the Travellers, but does not connect plaintiff to the Rathkeale Rovers. Absent thi~ connection, naming plaintiff the King of the Travellers does carry a defamatory connotation concerning him. ~ot The article implicates the Rathkeale Rovers, not the Travellers, in criminal activity. Stepanov v. Dow Jones & Co., Inc., 120 A.D.3d at 35. For the same reason, neither the article's label of King of the Travellers, even in the context of its title, "The Irish Clan Behind Europe's Rhino-Horn Theft Epidemic," nor its.claim that plaintiff was the wealthiest Traveller, is defamatory. While plaintiff contends that Green's unauthenticated ·testimony in another action admits that the Rathkeale Rovers is a euphemism and a fictitious entity, Green does not suggest, in ei.ther his testimoi:y or his affidavit, that Rathkeale euphemism or a fictitious name for the Travellers. even refer to the Rathkeale Rovers as the group under 9 10 of 13 is a Nor does he , o'brien.179 ~overs ! [*FILED: NEW YORK COUNTY CLERK 02/22/2017 11:00 AM '. 10] INDEX NO. 162746/2014 . ~~~~~--,::~~~~---~~~~~~~~~~~~~~~~~~~~~-'-~-.J NYSCEF. DOC. NO. 50 .. RECEIVED NYSCEF: 02/22/2017 investigation for stolen rhinoceros horns and Chinese artifacts. Therefore the use of Rathkeale Rovers as a euphemism or a reference to a fictitious entity did not defame plaintiff. If,,the article stated that plaintiff built and sold homes as part of a scheme to launder the proceeds of.criminal activity, the statement would be defamatory in claiming that he committed a serious crime. See Rosenberg v. MetLife,. Inc., 8 N.Y.3d 359, 363-64 (2007). Once again, however, the article attributes the purchase of real estate for the purpose of laundering the proceeds of crime to the Rathkeale Rovers, not to plaintiff. The article merely notes that he built 20 homes that he sold to other Travell~rs, to whom the article attributes no criminality. Therefore these statements are not defamatory either. Russian Am. Found., Inc. v. Daily News, L.P., 109_ A.D.3d at 413; Asenio v. KPMG, LLP, 293 A.D.2d 426 (1st Dep't 2002) i Alf v. Buffalo. News, Inc., 100 A.D.3d at 1488, aff'd, 21 N.Y.3d 988. Plaintiff also fails to demonstrate that these two nonprivileged statements constituted defamation by implication, which are implied falsehoods derived from truthful sta~ements. Armstrong v. Simon & Schuster, 85 N.Y.2d at 380-81; Stepanov v. Dow Jones & Co., Inc., 120 A.D.3d at 35; Garcia A.D.3d 199, 200 (1st Dep't 2005). v. Puccio, 17 To establish implied defamation, plaintiff must show that the communication as a whole imparts a defamatory inference intended by the author. v. D6w Jones Co., Inc., 120 A.D.3d at 37. Stepanov As discussed above 1 the article's association of plaintiff with the Travellers, of o'brien.179 10 11 of 13 [*FILED: NEW YORK COUNTY CLERK 02/22/2017 11:00 AM 11] NYSCEF DOC. NO. 50 INDEX NO. 162746/2014 RECEIVED NYSCEF: 02/22/2017 which his affidavit in opposition to defendants' motion admits he is a member, does not imply his involvement in criminal activity, because the article focusses on the Rathkeale Rovers' criminal activity, not plaintiff's. Nor does the article's portrayal of plaintiff as an antiques expert in the business of importing furniture or in the business of manufacturing aluminum gutters imply that he trades in stolen Chinese artifacts or buflds homes to launder the proceeds of crime. Finally, the arrest of plain~iff's son or other family members of the same name does.not reasonably imply plaintiff's criminality--particularly where the - article aescribes the Travellers' tradition of their members using jdentical names. Stepanov v. Dow Jones & Co., Inc., 120 A.D.3d at 39-40. In sum, .because defendants' article does not implY: plaintiff's involvement in.the Rathkeale Rovers' criminal activity, the article does not implicitly defame plaintiff. Stepanov v. Dow Jones & Co., Inc., 120 A.D.3d at 39. I Moreover, '1even if plaintiff's claim that the law enforcement authorities in Operation Oakleaf bear animosity toward the Travellers, plaintiff fails to show defendants' intent to defame plaintiff, as required for defamation by implication. IV. CONCLUSION Since the statements in defendants' article are either privileged or not defamatory concerning plaintiff, the court grants defendants' motion and dismisses the complaint .. C. P. L. R. o'brien.179 11 12 of 13 i .I [*FILED: NEW YORK COUNTY CLERK 02/22/2017 11:00 AM 12] NYSCEF DOC. NO. 50 §. 3211 INDEX NO. 162746/2014 RECEIVED NYSCEF: 02/22/2017 (a) (1) and (7). This decision constitutes the court's order and judgment of dismissal. DATED: February 3, 2017 LUCY BILLINGS, J.S.C. -·· .. , o'brien.179 12 13 of 13 J.S.c.

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