Lazore v NYP Holdings, Inc.

[*1] Lazore v NYP Holdings, Inc. 2008 NY Slip Op 52691(U) [24 Misc 3d 1236(A)] Decided on October 15, 2008 Supreme Court, New York County Edmead, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2008
Supreme Court, New York County

Barbara A. Lazore, JAMES W. RANSOM, and LORRAINE M.WHITE, Plaintiffs,

against

NYP Holdings, Inc., d/b/a THE NEW YORK POST, Defendant.



08/102674

Carol R. Edmead, J.

In this action for libel, defendant NYP Holdings, Inc., doing business as The New York Post ("defendant"), moves for an order, pursuant to CPLR 3211, dismissing the complaint of plaintiffs Barbara A. Lazore, James W. Ransom ("Mr. Ransom"), and Lorraine M. White ("plaintiffs").

Background

The following facts are undisputed.

On February 21, 2007, defendant published an unsigned editorial (the "2007 editorial") that referenced the St. Regis Mohawks Tribe (the "St. Regis Mohawks" or "Tribe"), of which the plaintiffs are the three voting members of the Tribal Council. Relevant excerpts of the 2007 editorial include the following:

Gov. Spitzer is getting into bed with the St. Regis Mohawks, giving the green light to a partnership between the upstate Indian tribe and a private firm to build a $600 million casino.... [D]oing a deal with this particular tribe - with its extended history of often-violent criminality - is a travesty. . . . Over the past eight years, the feds have cited the St. Regis Mohawks in connection with a $687 million smuggling operation involving illegal liquor, cigarettes and guns. They've also done a brisk business smuggling people . . . . They've also occasionally engaged in shoot-outs with the New York State Police, the Royal Canadian Mounted Police and the Canadian army . . . . If casino gambling is as inevitable as it appears, then it's time to amend the state Constitution to open gambling to everyone - not just dubious partners like the St. Regis Mohawks. . . . Meanwhile, Spitzer needs to read the relevant State Police files on the St. Regis Mohawk tribe.

On February 26, 2007, Mr. Ransom wrote a letter to the New York Post in response to the 2007 editorial, asserting that it was "misinformed, insulting, intellectually dishonest, despicable, disheartening, thuggish, and logically flawed." [*2]

On January 8, 2008, defendant published another editorial (the "2008 editorial') regarding the St. Regis Mohawks and the proposed casino project. Relevant excerpts of the 2008 editorial include the following:

U.S. Secretary Dirk Kempthorne did New York (and the rest of America) a big favor last Friday by nixing a plan to let the St. Regis Mohawk Indian tribe build a casino in the Catskills. Given the tribe's longstanding links to crime and violence, the idea of offering it legal entree into the gambling world, letting it run its own facility 350 miles from its home, is absurd. . . . We've never thought much of building an economy on legalized gambling. But it makes no sense whatsoever to invite what amounts to a criminal enterprise to run the joint. And make no mistake: Much of the Mohawks' recent record lands squarely on the foul side of the law. The Mohawk reservation seems to have served as an express lane for the smuggling of cigarettes, booze, drugs, weapons . . . even people. When Spitzer last year first struck a deal with the tribe to pursue the casino plan, we noted that the feds had linked the Mohawks to some $687 million worth of smuggled goods - plus 3,600 illegal aliens from China who snuck in via Canada. . . . Not exactly the kind of folk you'd want running a potential shady operation like a gambling establishment. . . .

Complaint

Subsequently, plaintiffs commenced this action for libel against defendant, bringing one count of libel per se for the 2007 editorial and another for the 2008 editorial.In their complaint, plaintiffs allege that they are the "three duly elected Chiefs of

The Saint Regis Mohawk Tribal Council" (the "Tribal Council"), which is the federally recognized governing body" of the St. Regis Mohawks. The Tribe, as an entity, only acts through the Tribal Council, and the plaintiffs, as Chiefs, are the three voting members of the Tribal Council. The Tribal Council is also the official representative of the Mohawks in dealings with New York State, and New York State deals exclusively with the Tribal Council in a government-to-government relationship.

The Chiefs, who were in office when the defendant published both editorials, are solely responsible for making major decisions on behalf of the Tribe, including reviewing and approving contracts and new programs. Furthermore, the Chiefs were responsible for the Tribe's efforts to build the casino.

Plaintiffs contend that the editorials "contain false and defamatory statements that charge the Chiefs [plaintiffs] with serious crimes . . . and that tend to expose them to public contempt, ridicule, eversion and disgrace . . . and depriv[e] them of their friendly intercourse in society," causing injury to plaintiffs' reputation, character and profession.

Plaintiffs assert that, although they are not mentioned in the editorials by name, the editorials are written in such a way that persons reading either editorial will understand it to refer to the plaintiffs personally. The editorials "state[] expressly, and by inference, implication and insinuation, that the Tribe, which is governed by plaintiffs, is a criminal organization [enterprise]," and anyone who reads the editorials would conclude that the plaintiffs operate the Tribe as such. [*3]

According to plaintiffs, the editorials are false and, with reasonable care, defendant should have realized that the editorials were false.

Defendant's Contentions

Defendant first implores the Court to examine plaintiffs' claims in the context of freedoms of speech protected by the First Amendment. Defendant asserts that protracted litigation of this matter could have a "chilling effect" on defendant's exercise of its free speech rights.

Defendant contends that plaintiffs lack standing to sue for libel because they, as individuals, were not defamed; that is, the editorials were not "of and concerning" the plaintiffs. Defendant asserts that the "group libel doctrine" prevents members of a large group from suing "based on statements about the group unless the circumstances of the publication reasonably give rise to the conclusion that there is a particular reference to the member.'" Defendant notes that the Tribe consists of approximately 2,700 members on the New York reservation and defendant points to caselaw noting that individual claims for libel regarding references to groups larger than approximately 60 members have not been allowed to go forward. Defendant asserts that the plaintiffs were not referred to by name; neither were they referred to through a reference to the Tribal Council; rather, the editorials only referenced "Tribal members" or the "St. Regis Mohawks." Thus, plaintiffs, as members of a large group, could not have been defamed by the group references that were contained in the editorials.

Defendant argues that the mere role of governance or authority over an organization does not render group references to be "of and concerning" those governing the group. Defendant relies on the Supreme Court, in New York Times Co. v Sullivan (376 US 254 [1964]), held, as a matter of law, that an advertisement that targeted the police force was not "of and concerning" the plaintiff, who was the chief of police, because "[t]here was no reference to [plaintiff] in the advertisement, either by name or official position."

Plaintiffs' Contentions

Plaintiffs assert that caselaw supports the standing of members of small groups, including governmental groups, to bring suits for libel if the language in question could be reasonably interpreted as pertaining to them as individuals. Plaintiffs maintain that the editorials referenced actions of the Tribe itself, and that the Tribe can only act through the Tribal Council. Plaintiffs point out that they, as the three voting members of the Tribal Council, are recognized as the government of the Tribe when dealing with other governments, such as New York State. Thus, any references to governmental relations with the tribe or private partnerships with the Tribe would necessarily be in reference to the governing body of the Tribe, the only individuals with the authority to form such partnerships on behalf of the Tribe. Specifically, plaintiffs assert that they, as the only voting members of the Tribal Council, were responsible for the Tribe's efforts to build the casino discussed in the editorials. Therefore, the editorials "were reasonably understood by those who read them as defaming Plaintiffs personally."

Plaintiffs contend that the defendant mischaracterized the Supreme Court's holding in New York Times (supra ). Plaintiffs assert that New York Times, along with subsequent Supreme Court (Rosenblatt v Baer, 383 US 75 [1966]) and New York cases, stand for the proposition that individuals in governing positions can bring claims for libel against the group if surrounding circumstances indicate that the libel was directed at the individual. [*4]

Plaintiffs additionally argue that caselaw supports that proposition that "when a defamatory statement references a large group in a manner that is reasonably interpreted as referring to the plaintiff leadership arm of the group, courts will deny a motion to dismiss."

Plaintiffs contend that the caselaw cited by defendant is procedurally and factually distinguishable from the case at bar.

Defendant's Reply

In reply, defendant reiterates its arguments that the Tribe is too large of a group for plaintiffs to maintain individual defamation claims, when the individual is not specifically referenced, and that plaintiffs' governing role does not entitle them to bring a claim when their group alone has been defamed.

Analysis

In determining a motion to dismiss, the Court's role is ordinarily limited to determining whether the complaint states a cause of action (Frank v DaimlerChrysler Corp., 292 AD2d 118, 741 NYS2d 9 [1st Dept 2002]). The standard on a motion to dismiss a pleading for failure to state a cause of action is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (see Stendig, Inc. v Thom Rock Realty Co., 163 AD2d 46 [1st Dept 1990]; Leviton Manufacturing Co., Inc. v Blumberg, 242 AD2d 205, 660 NYS2d 726 [1st Dept 1997]). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see, CPLR §3026). On a motion to dismiss made pursuant to CPLR § 3211, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory" (Nonnon v City of New York, 9 NY3d 825 [2007]; Leon v Martinez, 84 NY2d 83, 87-88, 614 NYS2d 972 [1994]).

It is the movant who has the burden to demonstrate that, based upon the four corners of the complaint liberally construed in favor of the plaintiff, the pleading states no legally cognizable cause of action (see Leon v Martinez, 84 NY2d at 87-88, 614 NYS2d 972, 638 NE2d 511 [1994]; Guggenheimer v Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182 [1977]; Salles v Chase Manhattan Bank, 300 AD2d 226, 228, 754 NYS2d 236 [1st Dept 2002]).

Under New York law, to prevail on a claim for defamation, a plaintiff must establish, inter alia,[FN1] that the libelous statements were "of and concerning" the plaintiff (Gross v Cantor 270 NY 93, 96 [1936]). "Consequently an impersonal reproach of an indeterminate class is not actionable" (Id. citing Eastwood v Holmes, 1 Fost. & F. 347). However, reference to a group of which plaintiff is a member while failing to specifically name the plaintiff individually is not a bar to relief (Gross v Cantor, 270 NY 93, 96 [1936] ["But if the words may by any reasonable application, import a charge against several individuals, under some general description or general name . . . it is for the jury to decide, whether the charge has the personal application averred by the plaintiff" quoting Ryckman v Delvan, 25 Wend. 186, 202 [1840]).

New York state law holds that a defamatory statement is "of and concerning" an individual if "a reasonable reader [could] have understood the statement ... to be of and [*5]concerning plaintiff'" (Fulani v New York Times Co., 260 AD2d 215, 216, 686 NYS2d 703, 703 [1st Dept 1999]). As defendant contends, a plaintiff's position of authority or governance in a group, standing alone, is insufficient to establish that a given statement was "of and concerning" the plaintiff (New York Times Co. v Sullivan, 376 US 254, 289 [1964]) ("[N]one of [the witnesses] suggested any basis for the belief that respondent [police commissioner] himself was attacked in the advertisement beyond the bare fact that he was in overall charge of the Police Department and thus bore official responsibility for police conduct . . . ."). However, plaintiffs here are not contending that their position of authority, by itself, supports their claim for defamation. Rather, they contend that their status as the sole three members of the Tribal Council, with the sole authority to enter into an agreement of such a nature as the construction of a gambling casino, establishes that the defamatory statements contained in the 2007 and 2008 editorials were reasonably read to refer to the governing arm of the tribe (i.e., the three plaintiffs).Both parties cite to and discuss the landmark case of New York Times (supra ), whichsupports the position of examining the context and surrounding circumstances of the libelous statements to determine if the could reasonably be interpreted as pertaining to the plaintiff(s):

[T]o the extent that some of the witnesses thought respondent to have been charged with ordering or approving the conduct or otherwise being personally involved in it, they based this notion not on any statements in the advertisement, and not on any evidence that he had in fact been so involved, but solely on the unsupported assumption that, because of his official position, he must have been.

(New York Times, 376 US at 289) (emphasis added).

Defendants here point out that the Supreme Court in New York Times held that "as a matter of law, [] the advertisement was not of and concerning' the plaintiff because [t]here was no reference to [plaintiff] in the advertisement, either by name or official position.'"

However, the Supreme Court merely pointed out that there was no specific reference to the police commissioner "by name or official position" before delving deeper into the reasonableness of a reading that would have suggested a reference to the commissioner (New York Times, 376 US at 288). The Court additionally noted that the statements "did not on their face make even an oblique reference to respondent as an individual" before asserting that it was then necessary to examine the witnesses' testimony for external evidence that the statements did in fact refer to the commissioner (id. at 289). As the plaintiffs herein point out, had the Court made a straight-forward holding requiring specific reference to the individual on the face of the statement, further inquiry into the witnesses' testimony for extrinsic proofs would have been unnecessary.

A 1966 Supreme Court case following New York Times held specifically that extrinsic evidence could be relied on to support a plaintiff's contention that libelous statements, while not identifying the individual by name, could reasonably be interpreted to refer to such an individual, even when that individual was a member of a governing group (Rosenblatt v Baer, 383 US 75, 82, 86 S Ct 669, 674 [1966] ["Even if a charge and reference were merely implicit . . . but a plaintiff could show by extrinsic proofs that the statement referred to him, it would be no defense to a suit by one member of an identifiable group engaged in governmental activity that another was also attacked"]). New York case law is similarly in accord (see Bruno v New York News, [*6]Inc., 89 AD2d 260, 263, 456 NYS2d 837, 839 [3d Dept 1982]; Brady v Ottaway Newspapers, Inc., 84 AD2d 226, 237 n.4, 445 NYS2d 786, 793 n.4 [2d Dept 1981]).

Defendant failed to cite any cases holding that members of a small governing group are precluded from bringing a claim for libel where the libelous statements could reasonably be interpreted as pertaining to them as individuals. The cases on which defendant relies are either factually distinguishable or do not support defendant's position. Therefore, accepting the allegations in the complaint as true, as this Court must, it cannot be said, at this juncture, that a reasonable reader could not have understood the statements in the 2007 and 2008 editorials to be "of and concerning" the plaintiffs. The 2007 editorial begins, "Gov. Spitzer is getting into bed with the St. Regis Mohawks, giving them a green light to a partnership between the upstate Indian tribe and a private firm to build a $600 million casino . . ." Similarly, the 2008 editorial begins, "US Interior Secretary Dirk Kempthorne did New York . . . a big favor last Friday by nixing a plan to let the St. Regis Mohawk Indian tribe build a casino in the Catskills." The balance of each editorial cites examples of bad conduct by "the tribe," "tribal members," or "Mohawks" in support of these opening sentences. According to the Complaint, the three plaintiffs, as the three voting members of the Tribal Council, are the only members of the Tribe who had the authority to enter into partnerships on behalf of the Tribe. Further, plaintiffs were responsible for the Tribe's efforts to build the casino; thus, accepting plaintiffs' allegations as true, each opening sentence could only be interpreted as referencing the plaintiffs personally.

Without more, it is possible that a person could reasonably read the aspersions cast thereafter as referencing any of the approximately 2,700 members; however, it is also not

unreasonable to read such aspersions as continuing to reference the plaintiffs' actions personally. Plaintiffs assert that a reasonable person would conclude, after reading either editorial, that the three individual plaintiffs were operating the Tribe as a criminal enterprise that engages in violence and other illegal activities. As in New York Times and Rosenblatt, plaintiffs should be permitted to explore extrinsic evidence during the course of discovery to establish whether the alleged libelous statements could reasonably be interpreted to refer to them individually (see New Testament Missionary Fellowship v E.P. Dutton & Co., Inc., 112 AD2d 55, 491 NYS2d 626 [1st Dept 1985]). As such, defendant's motion for dismissal must be denied.

Conclusion

Based on the foregoing, it is hereby

ORDERED that the motion by defendant pursuant to CPLR 3211, dismissing the complaint of plaintiffs is denied; and it is further

ORDERED that defendant shall serve and file its answer within 30 days of entry of this decision; and it is further

ORDERED that the parties appear for a preliminary conference on January 20, 2009, 2:15 p.m.; and it is further

ORDERED that defendant serve a copy of this order with notice of entry upon all parties within 20 days of entry.

This constitutes the decision and order of the Court.

Dated: October 15, 2008________________________________________ [*7]

Hon. Carol Robinson Edmead, J.S.C. Footnotes

Footnote 1:Because defendant argues only that plaintiffs lack standing to bring this claim, the other elements of defamation were not challenged and will not be discussed.