Baines v Daily News, L.P.

[*1] Baines v Daily News, L.P. 2019 NY Slip Op 52132(U) Decided on December 27, 2019 Supreme Court, New York County Marin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 27, 2019
Supreme Court, New York County

Donnell Baines, Plaintiff,

against

Daily News, L.P.; John Does 1 through 4; Janon Fisher; Tracy Connor; Shayna Jacobs; Jane Doe a/k/a "Barbara," Defendants.



401845/2013



Donnell Baines, defendant pro se

Romulus, New York

Attorneys for Daily News, LP, et al

By: Geoffrey S. Brounell

Davis Wright Tremaine LLP

New York, New York
Alan C. Marin, J.

The Court has considered the following submissions:

Defendants Affirmation, dated September 24, 2019, with exhibits 1 through 5; and Plaintiff's Opposition to Defendants' Motion for Leave to Reargue, dated December 9, 2019, with exhibits A through F.

The Daily News defendants[FN1] seek re-argument of the Court's September 6, 2019 Order in this matter, arising from Donnell Baines' allegation that he was defamed by a News article describing the response of a spectator in the courtroom when the jury returned guilty verdicts against Mr. Baines on multiple felony charges.

In its earlier Order of March 4, 2019,[FN2] the Court had denied, without prejudice, motions [*2]by plaintiff to compel discovery and by defendants to stay discovery; the parties were instead directed to brief the issue of whether Mr. Baines was a limited-purpose public figure. If so, a claim for defamation would be subject to the standard of actual malice, rather than gross irresponsibility. Mr. Baines case was covered in media outlets in addition to the Daily News; in any event, the September 6 Order found that he did not fall within the category of limited-purpose public figure.

As part of the motion practice resulting in the September 6 Order, plaintiff sought either confidentiality or redaction with respect to three exhibits attached to an affidavit he had submitted (exhibits A, 1 and 2).

Exhibit A contains transcripts from Baines' criminal proceedings and trial (People v Baines, brought under indictment 5299/2010). Exhibit 1 is the brief filed for his appeal before the First Department, and the names of the victims are referenced throughout (The brief does use only the first name of two women and the nickname of another). Exhibit 2 is Baines' supplemental brief to the appellate division.

On September 6, the Court ordered the following:

• Discovery by plaintiff shall only proceed via written interrogatories of one or more defendants, which focus on the basis for submitting and publishing the article in question. If an interrogatory response references an email or document directly relating to the basis for submitting and publishing the article, it shall be produced.• Other names that are known or that may come up shall only become the subject of an interrogatory or of document production with the approval of the Court.• No discovery shall be directly sought from the Office of District Attorney of New York County.• The Court will not consider the deposition testimony of Kira Treyvus, Esq., who was Mr. Baines' criminal attorney.• The names of Baines' victims shall be redacted, but if it becomes necessary, the Court has the authority to permit disclosure only for use in this lawsuit.

The Reargument[FN3]

I. Defendants' application to amend the caption reflecting Justice Carmen St. George's Order of March 28, 2018 (see also footnote 1 to the September 6, 2019 Order) is granted; the caption will read as follows:

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index no. 401845/2013

DONNELL BAINES,

Plaintiff,

against

DAILY NEWS, L.P., JANON FISHER, TRACY CONNOR, SARAH RYLEY, and JANE DOE a/k/a "BARBARA,"

Defendants.

II. The defendants seek to have Baines produce "the full and unredacted versions of all briefs and documents filed by any party in his criminal appeal, all decisions and orders in his criminal appeal, and the trial transcripts and minutes of proceedings in his various court appearances, including the complete transcript of his criminal trial." (Defendants' Affirmation, page 2).

Baines has responded in two ways: he does not possess the requested briefs and documents, and that were there such disclosure, it would violate section 50-b of the Civil Rights Law, which protects the identity of victims of sex crimes. Defendants argue that disclosure is permissible because plaintiff is not a public officer or employee per subdivision one of §50-b.

The September 6, 2016 Order directed that with respect to exhibits A, 1 and 2, the names of Baines' victims should be redacted, and if there were disclosure, such would be only for purposes of this case. Plaintiff maintains that only the court that had jurisdiction over the crimes has such disclosure authority, apparently referring to paragraph b of subdivision two of §50-b. Given that the case turns on defendants' basis for publishing the October 25, 2012 article, it is unclear what would be accomplished by identifying his known victims.

With that said, Mr. Baines shall produce the above requested material in their full and unredacted versions. Much of this happened in open court; the prosecution, in its opening to the jury, named four of Baines' victims. If the requested material or a portion thereof is not in Mr. Baines' possession or otherwise available to him, he shall submit to the Court an affidavit to that effect.

III. The Court is also being asked to take another look at its prior determination not to consider the deposition testimony of Kira Treyvus, who was Donnell Baines' criminal defense lawyer. Ms. Treyvus' deposition was ordered by Justice Carmen St. George on July 9, 2018 over her objection that it breached the attorney-client relationship. Baines did not object, but wanted to appear via telephone. The deposition of Ms. Treyvus took place, on or about September 12, 2018, but the telephone connection did not.

Plaintiff states that:

"[T]his court made the appropriate decision to refuse to consider Treyvus' testimony. To rectify this matter, Mr. Baines respectfully requests that the Daily News Defendants be permitted to take the deposition of Ms. Treyvus again, on appropriate notice to Mr. Baines." (Plaintiff's Opposition, page 13)

Plaintiff describes defendants as "[recycling] the same losing arguments . . . with one slight alteration," namely that Ms. Treyvus's testimony is critical because it "flatly disproves Mr. Baines' unsupported assertion" (id., page 11). Plaintiff did not then recite the assertion, nor challenge that he made it, which was as follows:

"[T]hat the Assistant District Attorney informed the judge in his criminal trial in open court, in the presence of Ms. Treyvus and several Daily News Reporters, that the District Attorney's office had investigated Barbara's claims and found them to be not credible and that the judge instructed the Daily News not to publish Barbara's claims—assertions that [*3]are central to his claim that the Daily News Defendants acted in a grossly irresponsible manner by publishing Barbara's story." (Defendants' Affirmation, page 3).

Defendants propose that Baines be permitted to make written objections to the deposition transcript and to conduct a deposition on written questions to Ms. Treyvus, but they have not shown that the Court overlooked or misapprehended the law.

NOW therefore, in view of the foregoing, Motion no. 011 is granted in part and denied in part as follows:

IT IS ORDERED that the caption is amended as set forth above;

IT IS FURTHER ORDERED that plaintiff Donnell Baines shall submit the requested unredacted material, subject to the conditions thereon as set forth above; and

IT IS FURTHER ORDERED that defendants' application for the Court to consider the deposition transcript of Kira Treyvus, or to permit written objections or questions thereon, or to schedule a new deposition of Ms. Treyvus is denied.

Dated: December 27, 2019

Alan C. Marin

J.S.C. Footnotes

Footnote 1: See below, on amending the caption so that the defendants are: Daily News L.P., Janon Fisher, Tracy Connor, Sarah Ryley, and Jane Doe a/k/a "Barbara." The "Daily News defendants" include Fisher, Connor and Ryley. Jane Doe a/k/a "Barbara" has not been served, nor appeared and is not represented by counsel for the Daily News defendants. References herein to "defendants" shall mean the Daily News defendants.

Footnote 2: 63 Misc 3d 1201(A); the September 6, 2019 Order is reported at 65 Misc 3d 815.

Footnote 3: Procedurally, Baines contends that motion 011 is invalid because a full set of papers was not attached, citing Biscone v JetBlue Airways Corp., 103 AD3d 158, 2d Dept. However, two years later, subdivision (c) of CPLR 2214 was amended; the memorandum of introduction to what became chapter 109 of the laws of 2014 provided that "This measure responds to the decision in Biscone v JetBlue Airways." The new law emphasized that the core concern is whether the court already had the papers necessary to the consideration of the questions involved.