Baines v. Daily News L.P.

• Decision Date: 13 July 2015
• Citation: 51 Misc.3d 229,26 N.Y.S.3d 658
• Parties: Donnell BAINES, Plaintiff, v. DAILY NEWS L.P., John Doe No. 1, John Doe # 2, John Doe # 3, John Doe # 4, Janon Fisher, Tracey Connor, Shayna Jacobs, and Jane Doe a/k/a "Barbara," Defendants.
• Court: New York Supreme Court

51 Misc.3d 229

26 N.Y.S.3d 658

Donnell BAINES, Plaintiff,

v.DAILY NEWS L.P., John Doe No. 1, John Doe # 2, John Doe # 3, John Doe # 4, Janon Fisher, Tracey Connor, Shayna Jacobs, and Jane Doe a/k/a "Barbara," Defendants.

Supreme Court, New York County, New York.

July 13, 2015.

Donnell Baines, pro se.

Daily News L.P, John Does, Fisher, Connor, and Jacobs Yonaton Berkovits Esq., Carolyn Foley Esq., and Laura Handman Esq., Davis Wright Tremaine LLP, Matthew Leish, Assistant General Counsel, Daily News, L.P., New York, for Defendants.

LUCY BILLINGS, J.

I. BACKGROUND

Plaintiff sues to recover damages for defamatory statements about him by defendant Jane Doe, identified as "Barbara" and for a defamatory article based on those statements published by defendant Daily News L.P. October 25, 2012, and written by defendants Fisher and Connor. Plaintiff alleges that the John Doe defendants are Daily News editors who participated in publication of the articles.

Plaintiff's first claim is against defendant Jane Doe for giving a false account to Daily News reporters, defendants Fisher and Connor, of plaintiff luring her to his apartment, holding her captive, and assaulting, sexually abusing, and threatening her and her family. Plaintiff bases his second claim on the publication by Daily News L.P., Fisher, Connor, Jacobs, and John Does 1–4 (Daily News defendants) of an article October 25, 2012, reporting plaintiff's convictions and Jane Doe's allegedly false account of crimes plaintiff committed against her, which were not part of the criminal prosecution leading to his convictions.

The Daily News defendants move to dismiss the complaint based on its failure to state a claim and based on documentary evidence. C.P.L.R. § 3211(a)(1) and (7). Plaintiff moves to compel disclosure of the Doe defendants' identities. C.P.L.R. § 3124. For the reasons explained below, the court grants defendants' motion in part and denies plaintiff's motion.

II. PLAINTIFF'S MOTION TO COMPEL DISCLOSURE

As set forth above, plaintiff moves to compel disclosure of the names and contact information of John Does 1 through 4 and Jane Doe. C.P.L.R. § 3124. Plaintiff proceeded against the Doe defendants without naming them as is permitted as long as he is unaware of their identities, C.P.L.R. § 1024, and demonstrates due diligence in ascertaining their identities. Henderson–Jones v. City of New York, 87 A.D.3d 498, 506, 928 N.Y.S.2d 536 (1st Dep't 2011) ; Goldberg v. Boatmax://, Inc., 41 A.D.3d 255, 256, 840 N.Y.S.2d 570 (1st Dep't 2007) ; Opiela v. May Indus. Corp., 10 A.D.3d 340, 341, 781 N.Y.S.2d 353 (1st Dep't 2004) ; Tucker v. Lorieo, 291 A.D.2d 261, 738 N.Y.S.2d 33 (1st Dep't 2002). Plaintiff demonstrates that, before commencing this action October 21, 2013, via correspondence to the Daily News March 5, 2013, he requested the disclosure he now seeks and, after receiving no response, via follow-up correspondence June 4 and October 12, 2013. In opposition to plaintiff's motion, a Daily News employee responsible for overseeing its mail distribution attests, and its vice president and assistant general counsel Matthew Leish affirms, that the Daily News never received any of that correspondence from plaintiff.

Approximately seven months after commencing the action, on June 1, 2014, plaintiff moved to compel disclosure of the Doe defendants' identities. His motion, prefaced by his correspondence, whether or not received, demonstrates diligent attempts to discover the Doe defendants' identity, particularly considering his incarceration. Although Leish insists these efforts were entirely unnecessary regarding the John Doe defendants' identities, as the editorial page's masthead in the Daily News printed edition would have shown plaintiff this information, the Daily News defendants present no such page. Leish's description of the editorial page's contents without presenting and authenticating the page is sheer hearsay. E.g., People v. Joseph, 86 N.Y.2d 565, 570, 635 N.Y.S.2d 123, 658 N.E.2d 996 (1995) ; Mastroddi v. WDG Dutchess Assoc. Ltd. Partnership, 52 A.D.3d 341, 342, 861 N.Y.S.2d 11 (1st Dep't 2008) ; Lapin v. Atlantic Realty Apts. Co., LLC, 48 A.D.3d 337, 338, 851 N.Y.S.2d 543 (1st Dep't 2008) ; Chubb Natl. Ins. Co. v. Platinum Customcraft Corp., 38 A.D.3d 244, 245, 831 N.Y.S.2d 382 (1st Dep't 2007). Nevertheless, plaintiff has served no demands for a bill of particulars or disclosure, e.g., C.P.L.R. §§ 3042(a), 3102(a), 3107, 3109(a), 3120(1)(i), 3130(1), rendering his motion to compel disclosure of the Doe defendants' identities premature. See C.P.L.R. § 3102(b) ; Oak Beach Inn Corp. v. Babylon Beacon, 62 N.Y.2d 158, 167, 476 N.Y.S.2d 269, 464 N.E.2d 967 (1984).

Regarding plaintiff's request for disclosure of Jane Doe's identity, the Daily News defendants claim this information is privileged under New York's Shield Law. N.Y. Civ. Rights Law § 79–h. That statute prohibits holding news professionals in contempt or otherwise penalizing them for nondisclosure of news or its source obtained in confidence through gathering news for publication. N.Y. Civ. Rights Law § 79–h(b) ; Holmes v. Winter, 22 N.Y.3d 300, 308, 980 N.Y.S.2d 357, 3 N.E.3d 694 (2013). See Oak Beach Inn Corp. v. Babylon Beacon, 62 N.Y.2d at 168, 476 N.Y.S.2d 269, 464 N.E.2d 967 ; New GPC Inc. v. Kaieteur Newspaper Inc., 127 A.D.3d 601, 602, 8 N.Y.S.3d 123 (1st Dep't 2015). If the news professionals did not obtain information in confidence, they still may not be held in contempt for:

refusing or failing to disclose any unpublished news obtained or prepared by a journalist or newscaster in the course of gathering or obtaining news as provided in subdivision (b) of this section, or the source of any such news, where such news was not obtained or received in confidence, unless the party seeking such news has made a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim ...; and (iii) is not obtainable from any alternative source.

N.Y. Civ. Rights Law § 79–h(c). See Holmes v. Winter, 22 N.Y.3d at 308, 980 N.Y.S.2d 357, 3 N.E.3d 694 ; Gilson v. Coburn, 106 A.D.3d 424, 964 N.Y.S.2d 149 (1st Dep't 2013) ; Emerson v. Port, 303 A.D.2d 229, 230, 757 N.Y.S.2d 18 (1st Dep't 2003) ; Matter of CBS Inc., 232 A.D.2d 291, 292, 648 N.Y.S.2d 443 (1st Dep't 1996). Penalties as prescribed by C.P.L.R. § 3126 against the Daily News defendants for nondisclosure also are restricted, Oak Beach Inn Corp. v. Babylon Beacon, 62 N.Y.2d at 168, 476 N.Y.S.2d 269, 464 N.E.2d 967, as long as defendants do not exploit or benefit from the unavailability of the undisclosed evidence. Id. at 166, 476 N.Y.S.2d 269, 464 N.E.2d 967 ; Sands v. New Am. Publ., 161 A.D.2d 30, 37, 42, 560 N.Y.S.2d 416 (1st Dep't 1990) ; Collins v. Troy Publ. Co., 213 A.D.2d 879, 881, 623 N.Y.S.2d 663 (3d Dep't 1995).

Even assuming plaintiff established that Jane Doe's identity was material, relevant, and necessary to his claim, he fails to meet Civil Rights Law § 79–h(c)'s further requirement that the information be unavailable from another source, as he shows no efforts to determine her identity other than asking the Daily News. Gilson v. Coburn, 106 A.D.3d 424, 964 N.Y.S.2d 149 ; Emerson v. Port, 303 A.D.2d at 230, 757 N.Y.S.2d 18 ; Matter of CBS Inc., 232 A.D.2d at 292, 648 N.Y.S.2d 443. See Scott v. Cooper, 227 A.D.2d 463, 464, 642 N.Y.S.2d 935 (2d Dep't 1996). Absent satisfaction of the statutory requirements, her identity would "be inadmissible in any action or proceeding." N.Y. Civ. Rights Law § 79–h(d). See Holmes v. Winter, 22 N.Y.3d at 308, 980 N.Y.S.2d 357, 3 N.E.3d 694.

III. STANDARDS APPLICABLE TO DEFENDANTS' MOTION TO DISMISS THE COMPLAINT

Upon defendants' motion to dismiss the complaint pursuant to C.P.L.R. § 3211(a)(1) or (7), the court accepts the complaint's allegations as true and draws all inferences in plaintiff's favor. Art & Fashion Group Corp. v. Cyclops Prod., Inc., 120 A.D.3d 436, 437, 992 N.Y.S.2d 7 (1st Dep't 2014) ; Amsterdam Hospitality Group, LLC v. Marshall–Alan Assoc., Inc., 120 A.D.3d 431, 432, 992 N.Y.S.2d 2 (1st Dep't 2014) ; Cabrera v. Collazo, 115 A.D.3d 147, 150, 979 N.Y.S.2d 326 (1st Dep't 2014) ; Devash LLC v. German Am. Capital Corp., 104 A.D.3d 71, 76–77, 959 N.Y.S.2d 10 (1st Dep't 2013). Dismissal is warranted under C.P.L.R. § 3211(a)(7) only if the complaint fails to allege facts that fit within any cognizable legal theory.

Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 (2007) ; Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561, 570–71, 807 N.Y.S.2d 583, 841 N.E.2d 742 (2005) ; Mill Financial, LLC v. Gillett, 122 A.D.3d 98, 103, 992 N.Y.S.2d 20 (1st Dep't 2014) ; Cabrera v. Collazo, 115 A.D.3d at 151, 979 N.Y.S.2d 326.

Dismissal of the complaint's claims pursuant to C.P.L.R. § 3211(a)(1) requires documentary evidence in admissible form that conclusively resolves all factual issues and establishes a defense as a matter of law. Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (2002) ; Mill Financial, LLC v. Gillett, 122 A.D.3d at 103, 992 N.Y.S.2d 20 ; Art & Fashion Group Corp. v. Cyclops Prod., Inc., 120 A.D.3d at 438, 992 N.Y.S.2d 7 ; Amsterdam Hospitality Group, LLC v. Marshall–Alan Assoc., Inc., 120 A.D.3d at 433, 992 N.Y.S.2d 2. The documentary evidence must plainly and flatly contradict the complaint's claims. Maas v. Cornell Univ., 94 N.Y.2d 87, 91, 699 N.Y.S.2d 716, 721 N.E.2d 966 (1999) ; Xi Mei Jia v. Intelli–Tec Sec. Servs., Inc., 114 A.D.3d 607, 608, 981 N.Y.S.2d 79 (1st Dep't 2014) ; Cathy Daniels, Ltd. v. Weingast, 91 A.D.3d 431, 433, 936 N.Y.S.2d 44 (1st Dep't 2012) ; KSW Mech. Servs., Inc. v. Willis of N.Y., Inc., 63 A.D.3d 411, 879 N.Y.S.2d 328 (1st Dep't 2009). See Lopez v. Fenn, 90 A.D.3d 569, 572, 937 N.Y.S.2d 1 (1st Dep't 2011). The court may dismiss claims based on such evidence only if plaintiff fails to rebut it. Hicksville Dry...