Brummer v. Benjamin Wey. FNL Media LLC
| Decision Date | 01 March 2016 |
| Docket Number | INDEX NO. 153583/2015 |
| Citation | 2016 NY Slip Op 31021 (U) |
| Parties | CHRISTOPHER BRUMMER. Plaintiff, v. BENJAMIN WEY. FNL MEDIA LLC, and NYG CAPITAL LLC d/b/a NEW YORK GLOBAL GROUP, Defendants. |
| Court | New York Supreme Court |
MOTION DATE 01-20-16
Upon a reading of the foregoing cited papers, it is Ordered that defendant's motion pursuant to CPLR §3211[a] [1], [7], is denied. The relief sought for defendant Benjamin Wey pursuant to CPLR §3211[a][8], is granted, soley to the extent of ordering a traverse hearing. Plaintiff's motion filed under Motion Sequence 008, to strike this motion to dismiss, for sanctions and for an Order directing defendants to refrain from the spoliation of evidence and to preserve evidence, is denied.
Plaintiff commenced this action on April 22, 2015, asserting three causes of action for defamation, defamation per se, and intentional infliction of emotional distress . Plaintiff, is a professor of law at Georgetown University Law Center and the sole African-American on the National Adjudicatory Council (NAC). He was part of a panel that upheld a decision by the Financial Industry Regulatory Authority, Inc. ("FINRA"), issuing a lifetime ban from the security industry against two African-American stockbrokers: non-parties William Scholander and Talman Harris. NYG Capital LLC d/b/a New York Global Group (hereinafter referred to individually as "NYGG") is a U.S. and Asia based strategic market entry advisory, venture capital, and private equity investment group that services clients worldwide. FNL Media, LLC, is described in the Complaint as a division or subsidiary of NYGG, and the owner of TheBlot, a website and online digital magazine that claims to combine investigative journalism with reader-submitted opinions. According to the Complaint Benjamin Wey is the CEO of NYGG, a publisher and contributor to TheBlot .
The Complaint alleges that almost a month after the NAC panel wrote the decision upholding the FINRA lifetime ban on non-parties William Scholander and Talman Harris, TheBlot, an on-line magazine, began publishing a series of articles defaming the plaintiff. The articles are described by plaintiff as falsely characterizing him as a "racist," an "Uncle Tom," as having an affair with a married woman, as being under investigation and implicated in fraud. Plaintiff also alleges that the defendants posted comments under a false identity and altered photographs of the plaintiff. Plaintiff claims that he is a private individual that had an excellent professional and personal reputation which has been damaged by the defendants' defamatory statements that resulted in the loss of work together with other damages .
Defendants seek an Order pursuant to CPLR §3211[a], [1],[7] dismissing all the causes of action asserted against them in the Complaint relying on documentary evidence and plaintiff's alleged failure to state a causes of action. Defendants argue that the TheBlot clearly identifies itself as opinion based and as publishing sensationalist content which is protected by the right to free speech afforded in both the United States and New York State Constitutions. They provide printouts including the "About Us" page, as documentary evidence in support of the contention that the material printed is only opinion and not stated as fact.
A motion to dismiss pursuant to CPLR §3211[a][1], requires that the party seeking dismissal produce documentary evidence that "utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." (Leon v. Martinez, 84 N.Y. 2d 83, 638 N.E. 2d 511, 614 N.Y.S. 2d 972 [1994]). Plaintiff is provided with every favorable inference and the complaint is construed liberally. A motion to dismiss pursuant to CPLR §3211[a][1], does not require that the plaintiff establish the ultimate success of the allegations (African Diaspora Maritime Corp. v. Golden Gate Yacht Club, 968 N.Y.S. 2d 459 [1st Dept., 2013]).
The documentary evidence provided by the defendants does not "utterly refute" the allegations asserted in the Complaint. Plaintiff has stated a potentially meritorious claim and he is not required to establish the success of his allegations.
Opinions that imply they are based on facts, "...which justify the opinion but are unknown to those reading or hearing it," are considered mixed opinion and actionable (Steinhilber v. Alphonse, 68 N.Y. 2d 283. 501 N.E. 2d 550, 508 N.Y.S. 2d 901 [1986]). Opinions are privileged, no matter how offensive, but defamatory statements of fact are actionable. Three factors to be taken into consideration are, "(1) whether the specific language in issue has a precise meaning, which is readily understood, (2) whether the statements are capable of being proven true or false, and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such to signal ...readers or listeners that what is being read or heard is likely to be opinion, not fact" (Davis v. Boeheim, 24 N.Y. 3d 262, 22 N.E. 3d 999, 998 N.Y.S. 3d 131 [2014]). Under the New York State and United States Constitutions publications that can be reasonably interpreted as stating or implying false facts are actionable (Gross v. The New York Times Co., 82 N.Y. 2d 146, 623 N.E. 2d 1163, 603 N.Y.S. 2 d 0813 [1993]).
The printed material from TheBlot contains the referenced disclaimer, on the "About Us" page, which states that it, "...brings traditional journalism to the modern day with smart, witty and opinionated content..." (Mot. Wipper Aff. Exh. C). The website includes "articles, written by "contributing journalists," and references "investigations" that result in the reasonable perception by the readers as being derived from fact. The "articles" include a "comment" section that is more readily interpreted as the opinion to which the disclaimer would apply .
Dismissal pursuant to CPLR §3211[a][7], requires a reading of the pleadings to determine whether a legally recognizable cause of action can be identified and is properly pled. A cause of action does not have to be skillfully prepared but it does have to present facts so that it can be identified and establish a potentially meritorious claim (Leon v. Martinez, 84 N.Y. 2d 83, supra).
A limited purpose public figure is a private individual that has placed himself in the forefront of public controversies and is required to, "...show by clear and convincing evidence that the defendants published the statements at issue with "actual malice" (Huggins v. Moore, 94 N.Y. 2d 296, 726 N.E. 2d 456, 704 N.Y.S. 2d 904 [1999] and Perez v. Violence Intervention Program, 116 A.D. 3d 601, 984 N.Y.S. 2d 348 [1st Dept. 2014]).
Defendant's argue that plaintiff as a limited purpose public figure has not established malice. Defendants have not provided proof that the plaintiff did anything to place himself in the forefront of the controversy or otherwise draw attention to himself concerning the NAC's December 14, 2014 decision. They have not established thatplaintiff's employment as either a professor of law or with the NAC makes him a limited purpose public figure, and that the higher "actual malice" standard applies.
Defamation involves a false statement that tends to expose the subject of the communication to, "public contempt, ridicule, aversion or disgrace, or induce an evil opinion of [her] in the minds of right-thinking persons and to deprive [her] of their friendly intercourse in society" (Rinaldi v. Hold, Rinehart & Winston, 42 N.Y. 2d 369, 366 N.E. 2d 1299, 397 N.Y.S. 2d 943 [1977]). A claim of defamation requires, "(1) a false statement that is (2) published to a third party (3) without privilege or authorization, and that (4) causes harm, unless the statement is one of the types of publications actionable regardless of harm" (Stephanov v. Dow Jones & Co., 120 A.D. 3d 28. 987 N.Y.S. 2d 37 [1st Dept., 2014]). The publication must be given a fair reading and considered as a whole and considered in context, statements should not be considered in isolation (Alf v. Buffalo News, Inc., 21 N.Y. 3d 988, 995 N.E. 2d 168, 972 N.Y.S. 2d 206 [2013]).
The argument that the Complaint fails to state causes of action for defamation or defamation per se, because the statements plaintiff relies on are imprecise, ambiguous and "race baiting" or name calling which are not actionable, fails because the terms cited are taken out of context. Racist terms referring to plaintiff, as stated TheBlot, together with other statements describing the plaintiff as available for hire, involved in fraud, and affiliated with felons, could reasonably be susceptible to a defamatory connotation. The "articles" refer to plaintiff's alleged affiliation and implication in fraud investigations and the language is sufficiently specific to state a claim of defamation.
Defamation per se, involves a statement that, charges the plaintiff with a serious crime or "tends to injure another in his or her trade, business or profession." (Konig v. Wordpress.com. 112 A.d. 3d 936, 978 N.Y.S. 2d 92 [2nd Dept., 2013]). Plaintiff has stated a potential claim of defamation per se by the allegations in the Complaint that defendants referred to criminal affiliation and fraud. Plaintiff alleges he had to forgo a consulting engagement involving banking regulations and spend an additional $882.82, to purchase internet domains to protect himself and his professional reputation .
Defendants have not established immunity under the Communications Decency Act of 1996. A claim for liability under the Communications Decency Act of 1996 will not survive if the statements were re-posts or third-party statements on a Web site. Active provision...
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