Rapp v Robinson

[*1] Rapp v Robinson 2007 NY Slip Op 51333(U) [16 Misc 3d 1107(A)] Decided on July 6, 2007 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2007
Supreme Court, New York County

Joseph Rapp and Joseph Rapp Enterprises, Inc., Plaintiffs,

against

Carrie Joannia Robinson a/k/a Robbi Robinson, Defendant.



115574/06



Appearances:

For Plaintiffs:

Richard B. Herman, Esq.

Richard B. Herman, L.L.C.

300 Park Avenue, Suite 1700

New York, New York 10022

(212) 759-6300

For Defendant:

Donald M. Nussbaum, Esq.

250 W. 57th Street, Suite 719

New York, New York 10107

(212) 582-3636

Michael D. Stallman, J.

This defamation action arises in connection with an article published in the New York Daily News, and an alleged police report. Plaintiff Joseph Rapp alleges that he and his management agency, plaintiff Joseph Rapp Enterprises, Inc. (JRE), were personal managers of comedian Nipsey Russell from 1970 through Russell's death in October 2005.

According to the complaint, Russell's long-time companion, defendant Carrie Joannia Robinson, demanded after Russell's death that certain items that had been given to Rapp over the years be given to her; when Rapp refused, Robinson allegedly maliciously defamed Rapp through an interview in the Daily News, and by filing an allegedly false police report. This action ensued.

Robinson moved to dismiss the complaint on December 6, 2006. Pursuant to CPLR 3211(c), by order dated March 6, 2007, this Court converted the motion to dismiss to one for summary judgment dismissing the complaint. The parties were given notice of the conversion, and additional time to serve and respond to papers.

The text of the Daily News article, entitled "Nipsey stuff swiped by pals, heir charges" (hereinafter, the Article), is as follows: NIPSEY RUSSELL'S girlfriend says a robbery at the late comedian's Manhattan home is hardly a laughing matter.

Cops confirmed they are investigating her allegation that Russell's longtime neighbor and former gal pal, Peggy Chane, and his ex-manager, Joseph Rapp, looted the comic's valuables after his Oct. 2, 2005, death at age 87.

Robbi Robinson, the sole heir to Russell's multimillion-dollar estate and his girlfriend for the last 23 years, said she believes that Chane, 63, and Rapp stole $50,000 in bearer bonds, his will, address book, video cameras, tapes from his radio show with Count Basie and Ella Fitzgerald and [*2]letters from Langston Hughes, Red Skelton and Wayne Newton.

She said they were the only ones except her who had access to his Hudson Hotel apartment.

"I know his spirit is not at rest," Robinson told the Daily News. "While Nipsey lay dying from cancer at Lenox Hill Hospital, he was being robbed by people he had trusted for more than 30 years. This would have broken Nipsey's heart."

Robinson, who is in her 50s, reported the missing items to cops. She said Russell had kept them locked in a closet. On May 10, Chane was arrested and charged with petty larceny for allegedly stealing Russell's address book and two cameras. The cameras were recovered and Chane was issued a desk appearance ticket. The other material is still missing, Robinson said.

Chane declined to comment. Rapp has not been charged. He did not return calls.

To establish a cause of action for defamation, plaintiff must show that(1) defendant made a false statement, (2) which was publicized without privilege or authorization to a third party, (3) by at least a negligence standard of fault, and (4) the statement either caused special damages or was defamatory per se. See Restatement (Second) of Torts § 558; Dillon v City of New York, 261 AD2d 34, 38 (1st Dept 1999).

The Article is, however, patently a non-actionable expression of opinion. See Silverman v Clark, 35 AD3d 1, 14 (1st Dept 2006). Although giving a false statement to a representative of a newspaper with the intent that it be published may give rise to liability for damage caused by the publication (Campo v Paar, 18 AD2d 364, 368 [1st Dept 1963]), the writer reported only that Robinson said she believes that Chane and Rapp stole items from Russell's Hudson Hotel apartment. That specific language would lead a reasonable reader to conclude that the statement was an opinion. Silverman, 35 AD3d at 14; Clark v Schuylerville Cent. School Dist., 24 AD3d 1162, 1163 (3rd Dept 2005).

The only other reportage in the Article attributable to Robinson is that "[s]he said [Rapp and Chane] were the only ones except her who had access to [Russell's] Hudson Hotel apartment." This allegation is undisputed by Rapp, and appears to be substantially true.[FN1] Schwartzberg v Mongiardo, 113 AD2d 172, 174 (3rd Dept 1985) (substantial truth is an unqualified defense to an action for defamation); Love v William Morrow and Co., 193 AD2d 586, 587 (2nd Dept 1993) (truth as a defense need not be established to an extreme, literal degree).

Moreover, to the extent Robinson said she believes that Rapp stole items from Russell's apartment, that belief appears to have arisen from the fact that Rapp had access to the apartment, given the presentation of the circumstances in the Article. Thus, the expression of belief would be, at best, a " personal surmise built upon those facts' and thus not actionable." Silverman, 35 AD3d at 16 (citation omitted). Looking at the Article as a whole (James v Gannett Co., 40 NY2d 415, 419 [1976]), it appears to present an expression of opinion only.

Rapp also alleges that Robinson defamed him by making untrue allegations to the police. Robinson avers that the police asked her, normally enough in a larceny investigation, who had access to the Apartment. She apparently informed the police that both Chane and Rapp had access [*3]to Russell's apartment, which appears to have been true. Schwartzberg, 113 AD2d at 174. Indeed, it is notable that the missing items were actually recovered from Chane, one of two parties allegedly identified to the police by Robinson as having had access to the subject apartment. The Article, when read as a whole, clearly conveys to the average reader Robinson's conjecture, surmise or hypothesis on disclosed facts concerning access to Russell's apartment, whose accuracy is not disputed.

When one makes a statement based on facts truly stated, there is, in the absence of pure malice (Present v Avon Prods., 253 AD2d 183, 189 [1st Dept 1999]), a complete defense. The purpose of the "policy is to permit, within reasonable limits, free and intelligent discussion of matters in the public interest. Such discussion could not be effected, if reasonably drawn inferences resulted in liability, merely because they should prove to be wrong." Shenkman v O'Malley, 2 AD2d 567, 572 (1st Dept 1956). Individuals might be discouraged from offering good faith investigational leads to law enforcement without hard evidence to confirm their beliefs if they could face the threat of civil liability for such statements.

In this case, Robinson, who apparently knew that Chane and Rapp had access to Russell's apartment, suspected that they took Russell's property, and may have reported that belief and its basis to the police. If, under such circumstances, the law permitted Rapp sue Robinson for defamation, then the law would be, in effect, holding Robinson responsible for not narrowing down the list of possible suspects before giving that information to the police. Eliminating suspects is the duty of the police, not Robinson; Robinson, as any citizen, is expected to fully cooperate with police by offering all information at her disposal.

Moreover, the documentary evidence does not indicate that Robinson told the police that Rapp stole any items: the police report lists "Peggy Chene" as wanted, and makes no mention of Rapp whatsoever.[FN2] CPLR 3016 requires that the complaint set forth particular words. Rapp's repetition of his belief that Robinson made "unprivileged and false statements" is mere speculation, and insufficient to defeat summary judgment. See Oates v Marino, 106 AD2d 289, 291 (1st Dept 1984).

Even assuming, arguendo, that another party would not have reported the missing items to the police, a good faith communication of the crime to the police is qualifiedly privileged.[FN3] Present, 253 AD2d at 187-188; see also Liberman v Gelstein, 80 NY2d 429, 437 (1992). This privilege may not be defeated by bald allegations of malice. See Lee v City of Rochester, 254 AD2d 790, 792 (4th [*4]Dept 1998) (to show sufficient malice, plaintiff must show that statement was false and made with an intent to injure); see also Toker v Pollak, 44 NY2d 211, 219 (1978) (qualified privilege negates a presumption of implied malice flowing from the statements, and places the burden on plaintiff to show actual malice); Paskiewicz v National Assn. for the Advancement of Colored People, 216 AD2d 550, 551 (2nd Dept 1995) ("[m]ere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat the claim of qualified privilege") (citation omitted); accord Christenson v Gutman, 249 AD2d 805, 807 (3rd Dept 1998).

Rapp argues, nonetheless, that Robinson made her statements to the police with the malicious intent of defaming Rapp. However, the fact that Robinson may have harbored ill will towards Rapp is insufficient to render her alleged statement to the police defamatory, as animus was clearly not "the one and only cause for the publication." Present, 253 AD2d at 189 (citation omitted). Specifically, at least a part of the motivation for the alleged statements to the police was that the items were actually missing.

Finally, while defamatory words affecting a person's reputation in his or her profession may be actionable (Kotowski v Hadley, 38 AD3d 499, 500 [2nd Dept 2007]), there is no mention of plaintiff JRE in the Article or the police report whatsoever. The complaint also fails to allege any statement that Robinson made with specific reference to JRE (CPLR 3016), and fails to indicate any special or pecuniary damages JRE incurred as a result of the alleged defamation (Association for Preserv. of Freedom of Choice v New York Post Corp., 19 AD2d 528 [1st Dept 1963]; see also Adirondack Record v Lawrence, 202 App Div 251, 254-255 [3rd Dept 1922]).

Accordingly, it is hereby

ORDERED that the motion of defendant Carrie Joannia Robinson a/k/a Robbi Robinson for summary judgment dismissing the complaint is granted and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk of the Court upon submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated: July 6, 2007New York, New York

ENTER:

s/

J.S.C. Footnotes

Footnote 1:As this motion is the result of a conversion under CPLR 3211(c) (compare Garcia v Puccio, 17 AD3d 199, 201 [1st Dept 2005]), the truthfulness of the allegedly defamatory statements may be considered.

Footnote 2:The content of the Article does not obviate this flaw. The Article states that the "[c]ops confirmed they are investigating her allegation that ... Rapp, looted the comic's valuables...," and that "Robinson ... reported the missing items to cops." These statements are, however, at best double hearsay, in which the "cops" as declarants, report an extra-judicial statement ascribed to Robinson. See e.g. O'Connor v Incorporated Vil. of Port Jefferson, 104 AD2d 861, 862 (2nd Dept 1984).

Footnote 3:As this matter has been converted to one for summary judgment (CPLR 3211[c]), Rapp's argument that the qualified privilege may not be asserted before an answer is without merit. Rapp has had a full and fair opportunity to argue the merits of the qualified privilege defense, and was not surprised by it. Compare McSorley v Philip Morris, 170 AD2d 440 (2nd Dept 1991).