Manfredonia v Weiss

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Manfredonia v Weiss 2005 NY Slip Op 30539(U) December 15, 2005 Supreme Court, New York County Docket Number: 103498/05 Judge: Michael D. Stallman 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. [* 1] SUPRE COURT OF THE STATE OF NEW YORK PF NEW YORK: IAS PART 5 COUNTY ----------------------------------------------------------------------){ ·BowARD !MANFREDONIA, .• Index No. 103498/05 Decision and Order Plaintiff, J:t I 1,. ~ - against 1 GAR.YW iss, THEMCGRAW-HILLCOMPANIES, INC., ROB RT PRITCHARD, HAROLD MCGRAW III, STEPHEN SHEPARD and THE CITY OF NEW YO~ c.1 '11 4 ' .'Jlftylvf$""' Defendants. ;-;;;:~ -~~-~~-~~~~~:~:;-------------------X i ~ 04 A CJ <006 0~~ rq'iJr '' v De endants Gary Weiss, The McGraw-Hill Companies, Inc., Robert Pritchard, Harold McGraw III, and Stephen Shepard {the McGraw-Hill defendants) move for summary judgment dismissing the complaint. 1 .. · Thif is a defamation action by plaintiff Edward Manfredonia, who is appearing pro se, 1 relating to series of articles written by Gary Weiss, a former writer for B·usiness Week, published by McGraw-Hill. It ii essentially undisputed that Manfredonia considered himself, and was considered by Weiss, to ble a whistleblower concerning various practices at the American Stock Exchange. Weiss met with l'.1anfredonia and talked with him on numerous occasions in or about 1998 and 1999, and carried out investigations concerning Stock Exchange practices, at least in part, as a result of his discussions with Manfredonia. As a result of his discussions and investigations, Weiss wrote a 12- page cove1 story that appeared in BusinessWeek on April 28, 1999, entitled "The American Stock 1 4e McGraw-Hill defendants originally filed their motion as a motion to dismiss, but this Court ordered that the motion be converted to summary judgment and afforded the parties opportuni to submit further papers. an [* 2] Exchange icandal on Wall Street." That story described serious problems on Wall Street, ranging from pricefxing, to alleg~y improper activities by Stock Exchange officials 31,1~ specialists. Manfredonia has characterized the April 1999 article as having saved his life. Later in 1999, Weiss wrote another story published in BusinessWeek on December 20, 1999 entitled, " Message from the Mob?u which concerned the murder of a stock promoter, Albert Alain Chalem, an his business associate, Maier Lehmann. That article led to what Manfredonia describes in numerous letters as "a rift" between himself and Weiss. According to Manfredonia, Weiss "liedu in the Mob larticle, by incorrectly attributing the killings to the Italian Mafia, when he !mew that the Russian Mba was responsible. Manfredonia alleges that by attributing the deaths to the Italian Mafia, We· ss and the McGraw-Hill defendants smeared the good name ofltalian Americans and that defendants libeled him, in part, because he is Italian American. In r about the fall of 2000, a trade publication for investigative journalism, the IRE Journal, published edition. i article by Weiss titled uoffering Credence to the Crank," in its September/October 2000 that article, Weiss discussed the problem of writing stories about powerful institutions and the facf that reporters often disregard the disgruntled former employees or former customers "."ho offer information about improper practices. Noting that such people are often "cranks,u Weiss stressed thj importance oflistening to such sources, specifically mentioning Manfredonia, describing him as au ara avis [rare bird] - a bona-fide whistleblower" (Offering Credence to the Crank, IRE Journal, at 0), and noted that information from Manfredonia resulted in his 12-page BusinessWeek cover sto which appeared in the April 28, 1999 issue. Weiss stated, however, that "Manfredonia was not a source for the price-fixing or specialist parts of my story. u While explaining why reporters and editor often turn away information from such sources, Weiss wrote of the valuable information 2 [* 3] those sources may have, and the importance of giving them credence. I In a very lengthy and repetitious complaint, plainti~f essentially alleges that Weiss defamed him by desfribing him in the IRE Journal article as: a ucranku who "is unconventional, difficult and may give tJe appearance of being off-balanceu (Verified Complaint,~ 35); someone nwho wear[s] I baseball capsu (id.~ 94); and someone who "hang[s] out in front of stock exchangesu (id.,~ 45); and I by stating that "even more off-putting was his opaque writing and overuse of trading jargon that I found almo t impossible to decipher. 11 (id.,~ 30). Finally, Manfredonia contends that Weiss defamed him by sta g that he was not a source for the price-fixing or specialist parts of the story. Plaintiff furtheralle es that Weiss's statement, 11Noteverysourceresembles Russell Crowe[, s]ometimes they hang out· front of the stock exchange," was written "in a libelous manner." Id.,~ 45. Manfredonia's primary complaint regarding the IRE Journal article, however, concerns Weiss's st tement that Manfredonia was not a source for the price-fixing aspects of Weiss's Business eek article. Manfredonia contends that Weiss's statement was a lie and was defamatory, and that W iss made the statement because he planned to write a book about Wall Street and knew that Manfredonia also planned to write a book about the same subject. Aclording to Manfredonia, he first learned of Weiss's alleged libels in Offering Credence I to the Cr . on April 12, 2004, as a result of an internet search of uEdward Manfredonia u using the ch engine. In August 2004, Manfredonia wrote to defendant Harold McGraw, Chairman -Hill, and Kenneth Vittor, Executive Vice President of Legal Affairs of McGraw-Hill, alleging that Weiss had lied in his articles, A Message From The Mob and Offering Credence To The Crank, an demanding that Weiss be fired. In both letters, Manfredonia stated that he spoke to "your d "informed her that she must state to you that Gary Weiss had been forced to resign 3 [* 4] that Weiss as terminated for lying in two stories. u Verified Complaint, Exhs 7 & 8. The e were not Manfredonia's first letters complaining about Weiss. Beginning in 2000 and ~ ~ during the ext four years, Manfredonia wrote numerous letters to Vittor, defendant McGraw, defendant ephen Shepard, Editor in Chief of McGraw-Hill, several members of the McGraw-Hill Board of D~ectors, several BusinessWeek staff members, and Morton Janklow, Weiss's literary agent, allerg. inter alia, that Weiss "lied" in his "Message From the Mob" story. As early as November~ 1, 2000, Vittor had responded to Manfredonia's letters to Vittor and Shepard, stating that uMcGraw- ill Companies and BusinessWeek vigorously deny your unsubstantiated allegations against Me srs. Shephard and Gary Weiss concerning purported cover-ups, misconduct and lies." Letter from Kenneth M. Vittor to Edward Manfredonia, dated November 21, 2000. Vittor stated that McGraw-,ill would not respond to further communications from Manfredonia. In lctober 2004, Manfredonia wrote to Professor Brant Houston, Executive Director of the Journal of Investigative Reporters and Editors (The IRE Journal) of the University of Missouri School of loumalism, criticizing Weiss, particularly Weiss's statement that Manfredonia had not been the sLe for his information concerning price-fixing, and alleging that Weiss was a liar. On September 25, 2004, Manfredonia called Weiss on his cell phone and left a message repeatedly claiming that Weiss had lied in his articles, that Weiss had damaged Manfredonia's reputation, that Weiss's own reputation was ruined, that Manfredonia was going to be "relentlessu at "exposig what happened at BusinessWeek," that Weiss was "dead meat," and that Weiss had covered u, rape and murder. Transcript of voice mail message left September 25, 2004, Exh. D to Affidavit f Gary Weiss In Support Of The McGraw-Hill Defendants' Motion To Dismiss The Complaint After Weiss, who was no longer on the staff of BusinessWeek, received the phone call, 4 [* 5] he contacte , McGraw-Hill, and with the assistance ofMcGraw-Hill, on October 6, 2004, Weiss filed a complaint against Manfredonia for aggravated harassment at the Midtown North precinct of the N~~ York tity Police Department. .• On December 1, 2004, Manfredonia called Weiss's home telephone and left a message on his answetg machine, again complaining that Weiss had lied about the deaths of Chalem and Lehmann, ~d about whether Manfredonia had been his source, and threatening to sue Weiss. I I We ·iss again contacted McGraw-Hill concerning what he interpreted as escalating harassment. As a result, n January27, 2005, Robert Pritchard, Vice-President of Global Corporate Security for McGraw- ·n, sent a ucease and desistu letter to Manfredonia, directing him to cease attempting to communic te with Weiss. In that letter, Pritchard described the unsolicited messages left by Manfredon a on Weiss's home and cell phones, as well as the many letters concerning Weiss sent by Manfre,onia to numerous persons, including the Securities and Exchange Commission and other governmental and judicial entities, McGraw-Hill officials and employees, including the chairman and CEO, re general counsel and members of the board of directors, and former colleagues of Weiss, Wj ss's literary agent, Columbia University, and the IRE Journal at the University of e· Missouri S hool of Journalism. Pritchard mentioned that a complaint for aggravated harassment had been filed iWith the New York City Police Department, and that further attempts to contact or communidte with Weiss, or to contact third parties concerning Weiss, with libelous or threatening informatiJ "may be considered a violation of applicable civil and criminal laws, including New York state riminal laws whic~ prohibit stalking, harassment and criminal nuisance. Letter from 11 Robert Prit hard to Edward Manfredonia, dated January 27, 2005. 5 [* 6] M fredonia alleges that the Pritchard letter is false and libelous, and further alleges, on information and belief, that the McGraw-Hill defendants distributed copies of that letter to various ~ ~ individuals including the faculty of the University of Missouri and staff and employees of McGrawHill. Verified Complaint, if 244. Th~ McGraw-Hill defendants move for an order granting summaryjudgment dismissing the complaint against them. Thj McGraw-Hill defendants first argue that the claims based upon Weiss's articles, that were publired in 1999 and 2000, are all time-barred. The statute of limitations for defamation actions is Te year from the time of publication. CPLR 215 (3). New York has adopted the single publication rule, that "th! publication of a defamatory statement in a single issue of a newspaper, or a sin le issue of a magazine, although such publication consists of thousands of copies widely distributed, is, in legal effect, one publication which gives rise to one cause of ction and that the applicable [s]tatute of [l]imitation[s] runs from the date of that pu lication. 11 1 Firth v Sta e ofNew York, 98 NY2d 365, 369 (2002), quoting Gregoire_v G.P. Putnam~ Sons, 298 NY 119, 1 3 (1948). That rule has not been altered by the advent of the internet. According to the Court ofAppeals, communications over the internet resemble communications in traditional media, though onr grander scale. Therefore, it is even more important to maintain the single publication rule. 1 Re ublication of a defamatory statement, that is, a separate aggregate publication on a different o casion, which is not merely a delayed circulation of the original publication, would retrigger the statute of limitations. Drakes v Rulon, 6 Misc 3d 1025A (Sup Ct, Kings County 2005). Thus, publication of a paper copy of the IRE Journal and an on-line publication could constitute I . 6 [* 7] separate pu lications, if published at different times. Weiss states under oath that he saw the IRE Journal 1s o -line web edition of "Offering Credence to the Crank" during the year 2000. Thus, even • ,. I • ,. assuming tiat the website version of the article was published later in the year 2000 than the paper journal, th1 statute of limitations on the website version would also begin to run in 2000. Manfredonia1s statement that he finds Weiss's assertion that he saw a copy of the on-line 1RE Journal · le in the year 2000 11 implausible11 is insufficient to overcome Weiss's sworn statement. ~ See Plainti s Supplemental Affidavit In Opposition To Summary Judgment, 7. Manfredonia contends t at, had the IRE Journal article been publicly available on-line in the year 2000, when Weiss stat s that he saw it, it would have been readily available in a Google search of 11Edward Manfredo ·a11 at that time. However, Manfredonia does not state that he made such a search in the year 2000, or does the fact that Google might not have located the article necessarily mean that it was not av ilable. Manfredonia is essentially speculating that the on-line journal was not publicly the year 2000, and such speculation is insufficient to overcome Weiss's sworn statement. fact that Manfredonia accessed Weiss's article in the year 2004 using an internet search engine doe not constitute another 11 republicationu starting the limitations period anew. Rather, when plaintiff fo d the article on the internet it was more akin to his finding a magazine or book in a 1 library, ye s after publication. The Court, therefore, concludes thatManfredonia s first, second, and third causer of action, which relate to the Weiss articles that were published in I 999 and 2000, are time-barre , . Ev n if those causes of action were not time-barred, however, the Court finds that the statements on which plaintiff bases his complaint are not defamatory as a matter of law. 7 [* 8] ation is defined as uthe making of a false statement which tends to mexpose the plaintiff to ublic contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the 1 minds of ri t-thinking persons, and to deprive him of their friendly intercourse in society. um Foster v Churchill, 87 NY2d 744, 751 (1996), quoting Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, · 379 (1977) additional citations omitted. Unless the alleged statements are libelous per se, the plaintiff m st allege special damages, which he has not done. Statements that impugn a personls business reputation may be per se defamatory, however, uthe challenged statements lmust be more than a gen ral reflection upon [the plaintiffs] character or qualities', and must suggest improper .performan e of his duties or unprofessional conduct. u Chiavarelli v Williams, 256 AD2d 111, 113 (1st Dept 1998)(citation omitted). The court must consider whether, taken in context, the words can be readily ~terpreted as suggesting "'fraud, dishonesty, misconduct or unfitness in [his] business"' 1995)(citat on omitted). W~ether a particular statement is defamatory initially presents a threshold legal question which mu t be resolved by the court. Aronson v Wiersma, 65 NY2d 592, 593 (1985). In determinin whether a statement constitutes defamation, the court must consider whether it uwould reasonably appear to state or imply objective factu or whether it constitutes uopinion uand thus, is not actionable. ImmunoAG v Moor-Jankowski, 77 NY2d235, 243, cert denied 500 US 954 (1991). The court ·must give the words a fair reading, construed in the context of the entire statement, and 11 consider e impression created by the words used as well as the general tenor of the expression, from the p int of view of the reasonable person.u Id. 8 [* 9] Ce ainly none of the statements quoted by plaintiff from the article "Offering Credence to the Cranks' constitutes defamation per se. Assuming that Manfredonia's "business" is that of a "' "' whistleblo~er, Weiss has written nothing which suggests that Manfredonia is guilty of fraud, dishonesty r professional misconduct or that he is unfit to be a whistleblower. More important, looking at , e entire context of the article, as the court must, rather than describing Manfredonia as unfit to be a whistleblower, Weiss's article, taken as a whole, discusses the value of people like Manfredo ·a and encourages his colleagues in the press to pay attention to what they say, because they often ave valuable information to share. Finally, there is no way that Weiss's statement, that Manfredo ,·a was not his source regarding the price-fixing or specialist parts of his story, could objective! be considered defamatory, much less defamatory per se. Although Manfredonia may wish to be credited as Weiss's source of specific information, saying that he was not that source cannot, obJctively, be said to expose him to ridicule aversion or disgrace, particularly in light ofthe overall te1J°r of Weiss's article. Nor do the other statements complained of by Manfredonia, implying t~at Manfredonia wore a baseball cap and hung out in front of the courthouse, meet that definition tf defamation. The statements characterizing Manfredonia's prose as opaque and difficult to deciphr are statements of opinion, rather than fact, and are protected. The statements characterizing some whistleblowers as cranks and giving the appearance of being unstable do not I purport to 1escribe Manfredonia, and even if they did, they constitute opinion, not fact, and are not actionable Therefore, even ifManfredonia's first three causes of action were timely, they would be s a matter of law. fredonia's fourth cause of action alleges that Weiss libeled plaintiff when, on October filed a criminal complaint for aggravated harassment against Manfredonia with the New 9 [* 10] York City olice Department. Manfredonia further alleges that the ucease and desistn letter from defendant ritchard, dated January 27, 2005, which states that Weiss filed the harassment complaint is false and libelous. Manfredonia alleges, on information and belief, that the McGraw-Hill · defendants distributed copies of that letter to various individuals, including the faculty of the University of Missouri and staff and employees of McGraw-Hill. Verified Complaint,~ 244. 1 Th criminal complaint made by Weiss to the New York City Police Department stated as I follows: AT T/P/O CN STATES THAT THE SUBJECT OF THIS INVESTIGATION DE~LOPED A BUSINESS RELATIONSHIP IN 1997. CN WAS A WRITER FO BUSINESSWEEK MAGAZINE/McGraw-Hill COMP ANY WHEN HE BE AN TO WRITE NUMEROUS ARTICLES ABOUT THE AMERICAN STOCK EX HANGE. WHILE WRITING THESE ARTICLES FOR NEWSWEEK [sic] THE SUBJECT GREW ANGRY AT CN BECAUSE SUBJECT WAS NOT I SEAISFIED WITH THE ARTICLE AND COMPLAlNED TO McGraw-Hill CO ANY BY WRITING LETTER AND MAKING ALIGATIONS [sic] A AINST CN, ON 09/24/05 THE SUBJECT CONTACTED CN WIA [sic] HIS CE LPHONEANDSTATEDTHATHEWASVERY ANGRYWITHCN AND STATED THAT IF I COULD PROVE YOU DEFAMED ME I'M GOING TO SUE I Yqu, YOUR [sic] DEAD MEAT. CN FURTHER STATED THAT THIS WAS T~ FIRST TIME THAT THE SUBJECT HAS EVER CALLED TO SPEAK TO Cl THROUGH HIS CELLPHONE CAUSING ALARM AND ANNOYANCE TO Crf. DUE TO A RECENT LEGAL CHANGE WITHIN DEPARTMENT GUIDE LINES M03 WILL NOT ENFORCE PROVISIONS OF PENAL LAW SECTION 24·.30{l)WHENTHECOMMUNICATIONATISSUEISMERELYINTENDED T CAUSE ANNOYANCE OR ALARM. Complaint Report-2004-006-65950. 0 the basis ofManfredonia's lengthy correspondence, not only to Weiss, but to McGrawHill offici ls and others, as well as the tape recording and transcript of Manfredonia's voice mail messages, all of which are contained in the record, the Court concludes that the factual statements made by eiss to the police concerning Manfredonia's conduct are true. Manfredonia appears to argue that eiss could not have been alarmed by his phone message, because he had called Weiss 10 [* 11] on numero s occasions when Weiss was researching the BusinessWeek articles. Manfredonia does ~~wevfr, deny that those previous calls were always plac~ to Weiss's office phone and that he had never fefore called Weiss's cell phone. As to Weiss's statements to the police that he was not, alarmed and annoyed by the cell phone call and considered it an escalation of harassment, Weiss has submitted affidavit to this Court reiterating that he was alarmed by the call. Furthermore, Weiss's oncem his state of mind, and are not about Manfredonia. In any case, they are more akin to opinion statements, than to factual assertions about Manfredonia; thus, they do not constitute I 1 defamatio as a matter oflaw. , fredonia contends that the criminal complaint should not have been filed with the Midtown orth precinct, because Weiss lives in the 6th Police Precinct rather than in midtown. Even assuming at Weiss filed his complaint in the wrong precinct, that would not render the statements made to th I police defamatory, nor would the fact that the police did not enforce the complaint due in department guidelines. respect to the Pritchard letter, the McGraw-Hill defendants contend that the cause of action musl be dismissed, because Manfredonia failed to allege publication to a third party, which is necessarV for a cause of action for defamation. Inf dition to setting forth the particular words complained of, the complaint must allege "the time, plac~ and manner of the false statement and specify to whom it was made." Dillon v City of i New York, 261AD2d34, 38 (1st Dept 1999); see also Kahn v Duane Reade, 7 AD3d 311 (1st Dept 2004). Alt ough Manfredonia does allege, on information and belief, that defendants distributed the Pritchard etter to numerous persons, including McGraw-Hill staff members and faculty at the University of Missouri, that general assertion does not allege with sufficient particularity to whom 11 [* 12] the letter w~s distributed or the time, place, and manner of publication, to withstand dismissal. With respect to the content of the Pritchard letter, there too, Pritchard's statement that Manfredonia has sent letters con~~rning Weiss to the numerous parties mentioned, is ~;curate. Pritchard's rharacterization ofthose letters as libelous is opinion, and does not constitute defamation, as a matter rlaw. Pritchard's characterization ofthe unsolicited voice mail messages as threatening is a reason ble, and not false, characterization, and his statement that a criminal complaint for aggravated harassment was filed is also accurate, irrespective of whether the Police Department pursued th complaint. While Manfredonia may contest Pritchard's cease and desist demand, making th t demand to Manfredonia does not constitute defamation. Thus, summary judgment is In is fifth cause of action, Manfredonia seeks injunctive relief preventing defendants from disseminat g allegedly defamatory statements about him. Because of the constitutional guarantee of freedo of speech, a plaintiff has a heavy burden to justify prior restraint of speech, particularly where exp essions of opinion are involved. Trojan Elec. & Mach. Co., Inc. v Heusinger, 162 AD2d 859, 859- 60 (3d Dept 1990). Where, as here, plaintiff is seeking to enjoin future defamatory statements he must, at a minimum, establish a cause of action for defamation in the first place. Penn orp. v DiGiovanni, _ Misc3d _ , 2005 WL 2741947 (Sup Ct, NY County 2005). failed to do. Manfredonia's fifth cause of action is, therefore, dismissed. fredonia 's sixth cause of action seeks an order requiring the New York City Police Department to produce a copy of the police complaint filed against him as well as copies of all statements made to the police by Weiss and any of the McGraw-Hill defendants. Because that cause of action i not directed to the moving defendants, it will not be addressed here, beyond noting that 12 [* 13] Manfredon a is now in possession of a copy of the police report. In t e seventh cause of action, Manfredonia seeks compensatory and punitive damages . . against W iss. and the McGraw-Hill defendants for filing what he characterizes as a false and malicious ~omplaint against him with the police. Manfredonia alleges that Weiss filed the criminal complaint, j"'ith the assistance of the McGraw-Hill defendants, in an attempt to harass him and to cover up what he characterizes as Weiss's lies in his articles Offering Credence to the Crank and A Message frl m the Mob. · tate a claim for malicious prosecution, a plaintiffmust establish: 11 1) the commencement ·on of a criminal proceeding by the defendant against the plaintiff; 2) the termination of theprocee ing in favor of the accused; 3) the absence of probable cause for the criminal proceeding; and, 4) ac al malice. u Kellermue/ler v Port Auth. ofNew York and New Jersey, 201AD2d427, 428 (1st Dept 1 94). Although plaintiff has established the first and second elements of the cause of action, he as failed to establish the third. A lack of probable cause may not be inferred from the fact that the Po ·ce Department chose not to prosecute Weiss's complaint against Manfredonia. See Web Managem ntLLCvSphereDrakelns. Ltd., 302AD2d273 (l 5tDept2003). Furthermore, this Court has alrea~ ruled above that the specific factual statements made by Weiss in his statement to the police were true, and the Court further concludes that, in light of the barrage of correspondence from Manfredofa to and concerning Weiss over the two-year period, Weiss had an objectively reasonable basis for tiis concern regarding Manfredonia's telephone message, and therefore, for filing the complaint. Id.; see also Shapiro v County ofNassau, 202 AD2d 358 (1st Dept 1994). The Court need not r ach the fourth element of a cause of action for malicious prosecution, and the seventh cause of a tion is dismissed. 13 [* 14] Ajordingly, it is hereby OiERED that themotion.f?rsummaryjudgment of defendants Gary Weiss, The M~c;rraw Hill Companies, Inc., Robert Pritchard, Harold McGraw ill, and Stephen Shepard is granted and the I I complaint is severed and dismissed as to them, with costs and disbursements as taxed by the Clerk of the Co I upon the submission of an appropriate bill of costs; and it is further 0 ERED that the Clerk is directed to enter judgment in favor those defendants 0 ERED that the remainder of the action shall continue. 2 ~5 ENTER: Dated: D cember / N w York, New York J.S.C. HON. fuUCHAEl Dg STALLtAAN ,· / / .l I 2 Je Court does not opine on the merits, if any, of the remainder of the action as against the I City; the City has not moved with respect to the complaint. 14

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