Baines v. Daily News, L.P.

• Decision Date: 06 September 2019
• Docket Number: 401845/2013
• Citation: 110 N.Y.S.3d 526,65 Misc.3d 815
• Parties: Donnell BAINES, Plaintiff, v. DAILY NEWS, L.P.; John Does 1 through 4; Janon Fisher ; Tracy Connor; Shayna Jacobs; Jane Doe a/k/a "Barbara,", Defendants.
• Court: New York Supreme Court

65 Misc.3d 815
110 N.Y.S.3d 526

Donnell BAINES, Plaintiff,
v.
DAILY NEWS, L.P.; John Does 1 through 4; Janon Fisher ; Tracy Connor; Shayna Jacobs; Jane Doe a/k/a "Barbara,", Defendants.

401845/2013

Supreme Court, New York County, New York.

Decided September 6, 2019

110 N.Y.S.3d 527

Donnell Baines, plaintiff pro se.

Matthew A. Leish, Assistant General Counsel, Daily News, L.P., New York City, and Davis Wright Tremaine LLP, New York City (Geoffrey S. Brounell and Laura R. Handman of counsel), for Daily News, L.P. and others, defendants.

Alan C. Marin, J.

110 N.Y.S.3d 528

65 Misc.3d 816

Donnell Baines has brought a defamation suit because of an article entitled Torture of Guilt that appeared in the Daily News on October 25, 2012, which described the response of a spectator in the courtroom when the jury returned guilty verdicts against Mr. Baines on charges including rape, assault, coercion and unlawful imprisonment:¹

"As the jury said guilty 13 times, Barbara put her hands over her face and choked back tears, her hands shaking ... She stayed as the lawyers packed up, watching closely as court officers took Baines out of the courtroom ..."

In the article, Barbara Doe said she had met Baines in the East Village six years earlier when she was down on her luck, was lured back to his apartment on East 77th Street and over a period of 24 hours was beaten, raped and threatened with dismemberment. She said Baines had beaten her with a rubber mallet and slats from his window blinds; the Daily News included a photo of a mallet. Mr. Baines has denied knowing Barbara Doe.

* * *

This Court has denied, without prejudice, motions by plaintiff and defendants to compel and stay discovery (nos. 009 and 010 in its Order of March 4, 2019,

65 Misc.3d 817

63 Misc. 3d 1201[A], 2019 WL 1234024 ). Further, the Order directed that the parties brief the issue of whether Mr. Baines was a limited-purpose public figure.² A claim for defamation so categorized is subject to the same legal standard as a general-purpose public figure, namely, actual malice.

Previously, Justice Lucy Billings and Justice Carmen St. George had ruled that Mr. Baines' case involved a matter of legitimate public concern subject to a standard of gross irresponsibility ( 2015 WL 13699421 ; 59 Misc. 3d 1207[A], 2018 WL 1546555 ). These decisions (and a preceding one from Justice Billings, 51 Misc. 3d 229, 26 N.Y.S.3d 658 ) did not consider whether Baines was a limited-purpose public figure. Baines essentially argues that if a factual pattern is slotted into one category, it is effectively the law of the case and precludes additional characterization. It is unnecessary to reach this issue, inasmuch as this Decision and Order finds that Donnell Baines is not a limited-purpose public figure.³

110 N.Y.S.3d 529

"An individual becomes a ‘general-purpose’ public figure if he ‘achieve[s] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts’ " ( McKee v. Cosby , 874 F.3d 54, 61, 1st Cir., cert denied ––– U.S. ––––, 139 S. Ct. 675, 203 L.Ed.2d 247, citing Gertz v. Robert Welch, Inc. , 418 U.S. 323, 351-352, 94 S.Ct. 2997, 41 L.Ed.2d 789 ).⁴

As for a ‘limited-purpose’ public figure, an individual becomes one when "he ‘voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues,’ the scope of which is determined by the ‘nature and extent of [his] participation in the particular controversy giving rise to the defamation’ ..." [ id. ].

Defendants argue that an individual who is something less than a voluntary participant in a matter of public concern can

65 Misc.3d 818

still be a limited-purpose public figure. They reference "drawn into" in the phrase "voluntarily injects himself or is drawn into a particular public controversy."

The Gertz court goes on to impart something more of an activist cast: "The critical questions for limited-purpose public figure status are whether a matter of ‘public controversy’ existed prior to the alleged defamation, and whether the defamed individual deliberately ‘thrust [herself] into the vortex’ of that controversy or otherwise ‘engage[d] the public's attention in an attempt to influence its outcome’ " ( 874 F.3d at 61, citing 418 U.S. at 351-352, 94 S.Ct. 2997 ).

* * *

Baines' trial and conviction were reported in other media outlets besides the Daily News. Baines found his prey online with his identity shielded: "Well she responded to an advertisement. I put an advertisement online in a bunch of different places. And she was one of the people who responded, and she sent me [an] email. I replied with my telephone number. She called me, we talked for a while, and then we met for an initial interview at the apartment. Q. What did the advertisement say it was for? A. For models." (Exhibit 5 to defendants' May 8, 2019 Affirmation. Pages 89-90 of Baines June 26, 2018 testimony before a jury in Baines v. White et al. , 10 CV 9545 [SD NY] ).

As the sole plaintiff, Baines brought several section 1983 lawsuits in the Southern District against the City of New York and its police officers, arising out of the entry into his apartment and the level of force used to effect his arrest in December of 2009. These were captioned Baines v. City of New York, et al : 2017 WL 3425746, app dismissed 2018 WL 1444498, 2d Cir. ; 2016 WL 3042787 ; 2015 WL 3555758 ; and 2014 WL 1087973.

No evidence has been advanced that plaintiff ever attempted to have an impact on any issue. Other than using websites to find vulnerable women, Baines sought no attention, and would clearly have preferred it if noone else ever learned of his existence. On the use of online sites to ensnare young women, defendants

65 Misc.3d 819

submit: i) articles and transcripts from the New York Times, CNN and NPR, none of which mention Baines; and ii) testimony before a U.S. Senate hearing by the chief assistant district attorney for New York County, which contained brief descriptions of five successful sex trafficking prosecutions by her office, including People v.

110 N.Y.S.3d 530

Baines (exhibits 10 and 11 to defendants' May 8, 2019 Affirmation)

* * *

The cases defendants rely upon are distinguishable from the facts that obtain here. Ms. McKee "came forward after more than twenty other women had leveled highly publicized sexual assault accusations against Cosby ... By purposefully disclosing to the public her own rape accusation against Cosby via an interview with a reporter, McKee ‘thrust’ herself to the ‘forefront’ of this controversy, seeking to ‘influence its outcome.’ 874 F.3d at 62.

Elmer Gertz, a lawyer representing a family suing a Chicago police officer for killing their son, had brought suit against a magazine publisher for calling him a "Communist-fronter" and a "Leninist" who had an agenda to discredit local police ( 418 U.S. at 326, 94 S.Ct. 2997 ). The Supreme Court found that while long active in professional and community affairs, Gertz was not a public figure. Nor was he a limited-purpose public figure as for the particular controversy that gave rise to the claim of defamation: "[H]is participation related solely to his representation of a private...