Cassini v Advance Publ., Inc.

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Cassini v Advance Publ., Inc. 2013 NY Slip Op 30796(U) March 14, 2013 Supreme Court, New York County Docket Number: 108971/2011 Judge: Lucy Billings 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. ANNED ON411912013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY _ . Index Number : 108971/2011 CASSINI, MARIANNE NESTOR vs. ADVANCE PUBLICATIONS, INC. SEQUENCE NUMBER : 001 DISMISS ACTION Dated: 3 INDEX NO. MOTION DATE MOTION SEQ. NO. 3 ..................................................................... d CASE DISPOSED 2. CHECK AS APPROPRIATE: .............. MOTION is: GRANTED DENIED I . CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 0DO NOT POST NON-FINAL DISPOSITION 0GRANTED IN PART CI OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 X - - - - - - - - - - - - - - f - - l l l l - - - - - - - - l l l l - - - - - - - - - - - M I M E NESTOR CASSINI, Index No. 108971/2011 Plaintiff - against - DECISION AND ORDER ADVANCE PUBLICATIONS, I N C . , ADVANCE MAGAZINE PUBLISHERS, INC. D/B/A CONDE NAST PUBLICATIONS, and MAUREEN ORTH, Defendants APPEARANCES: For Plaintiff Christopher Kelly Esq. Reppert Kelly, LLC 5 7 0 Lexington Avenue, New York, NY For Defendants Elizabeth A . McNamara Esq. Davis Wright Tremaine LLP 1633 Braodway, New York, NY FILED 10022 APR 19 2013 NEW YORK COUNlY CLERK SOFFICE 10019 LUCY BILLINGS, J.S.C.: I. BACKGROUND Plaintiff sues defendants to recover damages for libel and infliction of emotional distress based on an article published by defendants in the September 2010 issue of the well known magazine Vanity Fair, revealing plaintiff s relationship with h e r deceased husband, fashion designer Oleg Cassini. Defendants move to dismiss plaintiff s complaint on the grounds that plaintiff failed to serve it timely; her claims are time barred; the complaint, even as amended, fails to state a claim; and she failed to obtain personal jurisdiction over defendants by her cassini.147 1 [* 3] untimely service. C . P . L . R . § S 306-b, 3211(a) ( 5 ) , (7), and ( 8 ) . Plaintiff cross-moves to extend the time to serve defendants. C.P.L.R. 5 306-b. F o r the reasons explained below, the court grants defendants' motion and denies plaintiff's cross-motion. 11. DEFENDANTS' MOTION TO DISMISS THE COMPLAINT Plaintiff served an amended complaint with her motion to extend time to serve the summons and complaint. Since defendants never answered plaintiff's original complaint, her time to amend her complaint has not expired. C.P.L.R. § . 3025 (a) Therefore the court considers defendants' motion to dismiss this action based on its failure to state a claim as addressed to the claims for libel and infliction of emotional distress pleaded in the amended complaint. A. Libel Libel is an injury to a person's reputation through a written publication. See Gross v. New York Times Co., 82 N.Y.2d 146, 156 (1993). To recover for libel, plaintiff must establish that defendants made (1) an unprivileged statement of fact, Shulman v. Hunderfund, 12 N.Y.3d 143, 146-47 (2009); Steinhilber v . Alphonse, 68 N.Y.2d 283, 289-90 (1986); St. David's School v. Hume, 101 A.D.3d 582, 583 (1st Dep't 2012); Ssrewell v. NYP Holdinss, Inc., 43 A.D.3d 16, 21 (1st Dep't plaintiff, Smith v. Catsimatidis, 95 2007), (2) concerning A.D.3d 737 (1st Dep't 2012); Prince v. Fox Tel. Stas., Inc., 93 A.D.3d 614 (1st Dep't 2012), (3) with the requisite degree of fault, (4) that is false and defamatory, Brian v. Richardson, 8 7 N.Y.2d 46, 5 1 caasini.l47 2 (1995); Omanskv [* 4] v. Penninq, 101 A.D.3d 514, 515 (1st Dep't 2012); Amaranth LLC v. J . P . Morqan Chase & Co., 100 A.D.3d 573, 5 7 4 (1st Dep't 2012); Konrad v. Brown, 91 A.D.3d 545, 546 (1st Dep't 20121, and ( 5 ) that damaged plaintiff. E.s., Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 3 6 9 , 379 (1977); Sandals Resort Intl. Ltd. v. Goosle, Inc., 8 6 A.D.3d 32, 38 (1st Dep't 2011), The requisite fault on defendants' part may depend on the subject of their publication. Since the subject of the article was of legitimate public concern warranting public exposition, plaintiff was required to plead defendants' gross irresponsibility in investigating the accuracy of their reporting. Weiner v. Doubledav & Co., 74 N.Y.2d 586, 595-96 (1989); Sarwer v. Conde Nast Publs., 237 A.D.2d 191, 192 (1st Dep't 1997). The article was of public concern and warranted public exposition because it showed the difficulties in distributing a well known designer's estate, complicated by a little known marriage, his numerous romantic relationships, and internal family conflict. See Hussins v. Moore, 94 N.Y.2d 296, 304-305 (1999); Krauss v. Globe Intl., 251 A.D.2d 191, 193-94 (1st Dep't 1998); Lewis v . Newsday, Inc., 246 A.D.2d 434, 435 (1st Dep't 1998). A statement is defamatory only if it (a) is false and (b) exposes plaintiff "to public contempt, ridicule, aversion or disgrace, or induce an evil opinion" of her and deprive her of Itfriendlyintercourse in society.ll Dillon v . Citv of New York, 261 A.D.2d 34, 37-38 (1st Dep't 1999) (citations omitted). Sandals Resort Intl. Ltd. v . Gooqle, Inc., 86 A.D.3d at 3 8 ; cassini .147 3 See [* 5] Bement v. N . Y . P . Holdinqs, 307 A.D.2d 86, 92 (1st Dep t 2003). Upon a motion to dismiss a complaint, the court determines statements defamatory connotation. James v. Gannett Co., 40 N.Y.2d 415, 419 (1976); Ava v. NYP Holdinss, Inc., 64 A.D.3d 407, 412 (1st Dep t 2 0 0 9 ) . The amended complaint specifies various statements in defendants article as defamatory. Defendants reported that plaintiff s stepdaughter, Tina, stated plaintiff laughed when Tina complained she was unhappy. Plaintiff claims defendants report was malicious and false, but does not describe how it was malicious and false or deny that Tina made the statement. While plaintiff claims defendants failed to investigate adequately, she alleges neither that defendants inaccurately reported Tina s statement, see Weiner v. Doubleday & Co., 74 N.Y.2d at 596, nor that they knew Tina s statement was false, Hellenic Wirins Contr. Corp. v. Petracca & Sons, 3 0 7 A.D.2d 822, 823 (1st Dep t 20031, nor any other facts allowing an inference of defendants gross irresponsibility. Ramos v. Madison 492, 4 9 3 (1st Dep t 1999). Sa. Garden C o r p . , 257 A.D.2d To the contrary, the complaint alleges that defendant O r t h , the article s author, sought to interview plaintiff for the article, but she declined. Sprewell v. NYP Holdinqs, I n c . , 43 A.D.3d at 2 1 . The article s statement that plaintiff did not figure into the equation, Aff. of Christopher Kelly Ex. A 22, and because she merely was suggestion that she was a llnobody,ll available if O l e g Cassini and his mistress and editor needed cassini.147 4 [* 6] pencils sharpened," &, are incapable of verification and thus opinion, which does not furnish a basis for a defamation claim. Mann v. Abel, 10 N.Y.3d 271, 2 7 7 ( 2 0 0 8 ) ; Mercado v. Shustek, 309 A.D.2d 646, 647 (1st Dep't 2003). See Guererro v. Carva, 10 A.D.3d 105, 111 (1st Dep't 2004). The article discloses the source of the statement and does not suggest that it is premised on any undisclosed facts. Brian v . Richardson, 87 N.Y.2d 53-54; Shcheqol v. Rabinovich, 30 A.D.3d 311 (1st Dep't 2006); Mercado v. Shustek, 309 A.D.2d at 6 4 7 . at 114. See Guerrero v. Carva, 10 A.D.3d In fact, this characterization is consistent with plaintiff's public image portrayed in the article, which plaintiff does not challenge. Plaintiff claims defendants' further characterization of her and her sisters throwing parties for wealthy older men Illooking for action,lI Kelly Aff. Ex. A 19-20, was libel per se because the statements suggest she was a prostitute. In the context of the whole article, which relates to plaintiff's marriage to her renowned fashion designer husband, however, the statement does not suggest her unchaste behavior. James v. Gannett Co., 40 N.Y.2d at 4 2 0 - 2 1 ; Ava v. NYP Holdinqs, I n c . , 64 A.D.3d at 413. The article's depiction of plaintiff being in the couple's house while her husband was with a mistress likewise does not connote any unchaste behavior by her or assail her morality. Ava v. NYP Holdinss, Inc., 64 A.D.3d at 4 1 4 . Finally, plaintiff alleges that defendants' defamation caused her to lose business opportunities. While damages are presumed for libel tending to [* 7] injure plaintiff's business or profession, Geraci v. Probst, 15 N.Y.3d 336, 344 (2010), plaintiff does not identify her business or profession, and none of the statements impugns her business performance. Golub v. Enquirer/Star Group, 8 9 N.Y.2d 1074, 1 0 7 6 (1997). See Geraci v. Probst, 15 N.Y.3d at 345; Guerrero v. Carva, 10 A.D.3d at 113. B. Infliction of Emotional Distress To plead intentional infliction of emotional distress, plaintiff must show (1) that defendants engaged in extreme and outrageous conduct, (2) with intent to cause or in disregard of a substantial probability that the conduct would cause severe emotional distress, ( 3 ) a causal connection between their acts and her injury, and (4) severe emotional distress. Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993); Suarez v. Bakalchuk, 66 A.D.3d 419 (1st Dep't 2009). Negligent infliction of emotional distress must be based on defendants' breach (1) of a duty owed to plaintiff (2) that unreasonably endangered her or caused her to fear for her own safety. Bernstein v. East 51st St. Dev. Co., LLC, 7 8 A.D.3d 590, 591 (1st Dep't 2010); Sheila C . v. Povich, 11 A.D.3d 120, 130 (1st Dep't 2004). Extreme and outrageous conduct is also an element of negligent infliction of emotional distress. Bernstein v . East 51st St. Dev. Co., LLC, v. S&M Enters., 72 A.D.3d 497, 498 78 A.D.3d at 592; Lau (1st Dep't 2 0 1 0 ) ; Goldstein v. Massachusetts Mut. L i f e Ins. Co., 6 0 A.D.3d 5 0 6 , 508 (1st Dep't 2009); Berrios v. Our Lady of Mercy Med. Ctr., 20 A.D.3d 361, 362 (1st Dep't 2005). To support the element of extreme and cassini.147 6 [* 8] outrageous conduct, plaintiff must show that defendants' conduct was llbeyond all possible bounds of decency" and "utterly intolerable in a civilized community.Il Marmelstein v . Kehillat New Hempstead: The Rav Aron Jofen Community Synaqoque, 11 N.Y.3d 15, 22-23 (2008); Howell v. New York Post Co., 81 N.Y.2d at 122; Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303 (1983); Suarez v. Bakalchuk, 66 A.D.3d 419. Simply stated, defendants' publication of the article about plaintiff is not extreme and outrageous conduct. LoPresti v. Florio, 71 A.D.3d 574, 5 7 5 (1st Dep't 2010); Bement v . N.Y.P. Holdinqs, Inc., 3 0 7 A.D.2d at 92; Sarwer v. Conde Nast Publs., 237 A . D . 2 . d at 192. Nor are plaintiff's emotional distress claims more than duplication of h e r libel claim. Akpinar v. Moran, 83 A.D.3d 4 5 8 , 459 (1st Dep't 2011). See 164 Mulberry St. C o r p . v. Columbia Univ., 4 A.D.3d 49, 58 (1st Dep't 2004). 111. PLAINTIFF'S CROSS-MOTION TO EXTEND TIME Even if the amended complaint withstood dismissal on the merits, plaintiff has not met her burden to extend her time to serve defendants, as requested by her cross-motion. C.P.L.R. § 306-b. F o r plaintiff to extend her time to serve, she must show that good cause o r the interests of justice dictate the extension. C.P.L.R. § 306-b; Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104 (2001); Frank v. Garcia, 84 A . D . 3 d 654, 655 (1st Dep't 2011); Lippett v. Education Alliance, 14 A.D.3d 430, 431 (1st Dep't 2005); de Vries v. Metropolitan T r . Auth., 11 A.D.3d 312, 313 (1st Dep't 2004). Good cause focusses cassini.147 7 [* 9] on plaintiff s diligence in attempting to serve defendants and her reasons for not effecting service despite that diligence. Plaintiff s diligence bears on the interests of justice, but this standard also encompasses all other circumstances bearing on the determination. Leader v . Maroney, Ponzini & Spencer, 97 N.Y.2d at 104-105; Lippett v. Education Alliance, 14 A.D.3d at 431; Vries v. Metropolitan Tr. Auth., 11 A.D.3d at 313. Since plaintiff filed her complaint August 3, 2011, the last day for her to serve her summons and complaint was Thursday, December 1, 2011. Monday, December 5, Plaintiff served her summons and cornplaint 2011, two business days after the deadline and over three months after expiration of the applicable statute of limitations, which r a n from the magazine article s original publication. C.P.L.R. § 215(3). The article s continuing publication online did not extend the statute of limitations. Firth v. State of New Y o r k , 9 8 N.Y.2d 365, 369 (2002); Haefner v. New York Media, LLC, A. 82 A.D.3d 481, 482 (1st Dep t 2011). Good Cause While plaintiff attempts to show diligence by pointing out that she filed a claim against defendants in the United Kingdom around the same time she filed this action, she does not explain how the simultaneous actions caused the delay in serving her complaint in the United States, where there was a deadline to meet, and when she was free to discontinue one of the actions later. Plaintiff s attorney candidly admits simply miscalculating the deadline based on his erroneous assumption cassini.147 8 [* 10] that 1 2 0 days equaled four months. Consequently, he did not even attempt service until after the deadline expired. Up against his own assumed deadline, he still did not take the safest course to effecting service, via defendants' registered agent, until after an unsuccessful attempt to serve defendants at their offices. Although the candor and contrition of plaintiff's attorney is creditable, none of the steps he took demonstrates diligence in attempting to serve defendants. Khedouri v. Equinox, 73 A.D.3d 532 (1st Dep't 2010); Johnson v. Concourse Vil., I n c . , 6 9 A.D.3d 410 (1st Dep't 2 0 1 0 ) ; Esposito v. Isaac, 68 A.D.3d 483 (1st Dep't 2009); Pecker Iron Works, Inc. v. Namasco C o m . , 3 7 A.D.3d 3 6 7 , 368 (1st Dep't 2 0 0 7 ) . V. See Frank v. Garcia, 84 A.D.3d 654; Reyes, 60 A.D.3d 4 4 8 , 449 (1st Dep't 2009). Sutter Defendants were easily located and would have been easily served through the New York State Secretary of State. Johnson v. Concourse Vil., Inc., 69 A.D.3d 410. See Gilkes v. New York Wholesale Paper C a m . , 89 A.D.3d 534 (1st Dep't 2 0 1 1 ) Nor did plaintiff exhibit any diligence by promptly moving to extend her time for service. Only by a cross-motion to defendants' motion to dismiss the complaint did she seek to remedy the untimeliness on April 18, 2012, more than four months after the 120 days expired, even according to her attorney's miscalculation. Leader v. Maronev, Ponzini at 107; & Spencer, 9 7 N.Y.2d Johnson v. Concourse Vil., Inc., 69 A . D . 3 d at 411; Okoh v. Bunis, 48 A.D.3d cassini.147 357 (1st Dep't 2 0 0 8 ) . 9 [* 11] Interests of Justice B. In determining whether interests of justice mandate an extension, the court must consider the expiration of the statute of limitations, prejudice to defendants, and the merits of plaintiff's claims, as well as her diligence, the length of her delay in service, and the promptness of her request to extend her time. Leader v . Maroney, Ponzini & Spencer, 97 N.Y.2d at 105-106; Nicodene v. Byblos Rest., Inc., 98 A.D.3d 445 (1st Dep't 2012); Henneberry v. Borstein, 91 A.D.3d 493, 496 (1st Dep't 2012); Lippett v. Education Alliance, 14 A.D.3d at 431. As set forth, plaintiff did not attempt to serve defendants until after the statute of limitations expired. Nicodene v. Byblos Rest., Inc., 98 A.D.3d 445; Lippett v. Education Alliance, 14 A.D.3d at 431; de Vries v. Metropolitan Tr. Auth., 11 A.D.3d at 314. Although defendants claim prejudice from stale claims if the extension was granted, they fail to specify any lost rights, change of position, or expense due to their reliance on the statute of limitation's expiration. Sutter v. Reves, 60 A.D.3d at 449. In fact, defendants concede plaintiff's communication with defendants' attorney in the United Kingdom regarding the article, strongly suggesting that defendants received notice of plaintiff's claim against them before the statute of limitations expired. See Nicodene v. Byblos Rest., Inc., 98 A.D.3d 445; Henneberry v. Borstein, 91 A.D.3d at 496; Woods v. M.B.D. Community Hous. Corp., 90 A.D.3d 430, 431 (1st Dep't 2011). sum, defendants do not show prejudice from an extension. cassini.147 10 In [* 12] Unquestionably it is in the interests of justice to decide claims on their merits. Henneberrv v. Borstein, 91 A.D.3d at 497; Hernandez v. Abdul-Salaam, 93 A.D.3d 522 (1st Dep't 2012). Even if the amended complaint's weaknesses were not fatal at the pleading stage, any mere marginal merit would not weigh in plaintiff's favor in an interests of justice analysis. v. Equinox, 7 3 A.D.3d A.D.3d at 411. Khedouri at 533; Johnson v. Concourse V i l - , Inc., 69 Therefore, despite the lack of demonstrated prejudice to defendants from an extension, all other factors militate against extending plaintiff's time to serve defendants. C.P.L.R. § 306-b. IV. CONCLUSION For the reasons set forth above, the court grants defendants' motion to dismiss the amended complaint based on its failure to state a claim. C . P . L . R . 5 3211(a) ( 7 ) . Therefore defendants' further grounds for dismissal and plaintiff's crossmotion to extend her time to serve the complaint are moot. The court denies plaintiff's cross-motion both as moot and on its merits. C.P.L.R. § 306-b. This decision constitutes the court's order and judgment of dismissal. DATED: March 14, 2013 cassini.147 F1LED 11 1 .q1;3-/fb-5

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