Behr v. Weber
| Decision Date | 30 April 1991 |
| Citation | 172 A.D.2d 441,568 N.Y.S.2d 948 |
| Parties | , 18 Media L. Rep. 2237 Henry S. BEHR, Henry S. Behr, Inc., Plaintiffs-Appellants, v. Karin L. WEBER, Phil Donahue, Patricia McMillen, Lori Antosz, Susan Podbielski, Jose Pretlow, Marlaine Walsh Selip, Lillian Smith, The National Broadcasting Co., Inc., Multimedia Entertainment, Inc., and Multimedia, Inc., Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Before MURPHY, P.J., and CARRO, ELLERIN, WALLACH and ASCH, JJ.
Order, Supreme Court, New York County (William Davis, J.), entered February 23, 1990, which granted defendants' motion for summary judgment dismissing the amended verified complaint and which denied plaintiffs' cross-motion for summary judgment, unanimously affirmed, without costs.
Judgment of the same court and Justice, entered March 16, 1990, in favor of the defendants and against the plaintiffs, dismissing the amended verified complaint, with prejudice, unanimously affirmed, without costs.
Plaintiffs, Henry S. Behr, Inc., a Long Island juvenile furniture company which extensively advertises its slogan "We Deliver When You Deliver", and Henry S. Behr, the sole shareholder thereof, commenced the underlying defamation action against defendant Karin Weber, a Long Island housewife and consumer activist who had picketed plaintiffs' store and who appeared as one of several guests on the syndicated talk-show "Donahue" discussing the topic of consumer advocacy. Also named as defendants were Phil Donahue, a prominent television journalist and host of the program, six of his staff employees, including executive producer Patricia McMillen, five additional producers, Multimedia, Inc. and its wholly-owned corporate subsidiary Multimedia Entertainment, Inc., which owns, produces and syndicates Donahue, and the National Broadcasting Company which broadcasts Donahue in New York ("the Media Defendants").
Plaintiffs' amended complaint alleged that defendant Weber defamed the plaintiffs by displaying a picket sign in front of their store and on the Donahue program that read "Behr's Does Not Deliver", parodying plaintiffs' advertising slogan, "We Deliver When You Deliver", and by complaining about the plaintiffs' poor service and incomplete delivery of a furniture order. These alleged statements were purportedly published on the Donahue program, in correspondence to the Better Business Bureau and the Suffolk County Department of Consumer Affairs, and to a consumer columnist at Newsday. The amended complaint also alleged that the Media defendants defamed plaintiffs in broadcasting, producing and distributing the specific broadcast of Donahue on which defendant Weber appeared.
Upon examination of the record, we find that the IAS court properly granted defendants' motion for summary judgment dismissing the complaint.
Although the United States Supreme Court in Milkovich v. Lorain Journal Co., 497 U.S. ----, 110 S.Ct. 2695, 111 L.Ed.2d 1, has held that there exists no separate constitutional protection or exemption for statements of opinion relating to matters of public concern, nevertheless, the New York Court of Appeals, in Immuno A.G. v. Moor-Jankowski, 77 N.Y.2d 235, 243, 566 N.Y.S.2d 906, 567 N.E.2d 1270, has held that in this respect, as a matter of state law, "the...
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...deem it a public figure." Behr v. Weber , No. 16047/89, 1990 WL 270993, at *2 (Sup.Ct.N.Y.Cty. Jan. 5, 1990), aff'd , 172 A.D.2d 441, 568 N.Y.S.2d 948 (1st Dep't 1991) (citation omitted); see, e.g., Lee v. City of Rochester , 174 Misc.2d 763(A), 663 N.Y.S.2d 738, 742–45 (Sup.Ct.Monroe Cty.1......
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...the basis for recovery of monetary damages." Klementowski's personal expression of disapproval is not actionable (see, Behr v. Weber, 172 A.D.2d 441, 443, 568 N.Y.S.2d 948, lv. denied 78 N.Y.2d 861, 576 N.Y.S.2d 219, 582 N.E.2d We conclude that defendants are also entitled to summary judgme......
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Enigma Software Grp. United States, LLC v. Bleeping Computer LLC, 16 Civ. 57 (PAE)
...reason to deem it a public figure." Behr v. Weber, No. 16047/89, 1990 WL 270993, at *2 (Sup. Ct. N.Y. Cty. Jan. 5, 1990), aff'd, 568 N.Y.S.2d 948 (1st Dep't 1991) (citation omitted); see, e.g., Lee v. City of Rochester, 663 N.Y.S.2d 738, 742-45 (Sup. Ct. Monroe Cty. 1997), aff'd, 677 N.Y.S.......
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