Greenberg v. Spitzer
Decision Date | 13 September 2017 |
Docket Number | 2014-07682. Index No. 1436/13. |
Parties | Maurice R. GREENBERG, respondent-appellant, v. Eliot L. SPITZER, appellant-respondent. |
Court | New York Supreme Court — Appellate Division |
Levine Sullivan Koch & Schulz, LLP, New York, NY (Jay Ward Brown of counsel), for appellant-respondent.
Boies, Schiller & Flexner LLP, Armonk, NY (David Boies, Nicholas A. Gravante, Jr., Robert J. Dwyer, and Amy L. Neuhardt of counsel), for respondent-appellant.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
This appeal presents an opportunity to discuss in some detail the proper application of CPLR 3211(a)(1) and (7) in the context of an action sounding in defamation.
The plaintiff, Maurice R. Greenberg, is the former chairman and chief executive officer of American International Group, Inc. (hereinafter AIG), and the defendant, Eliot L. Spitzer, is the former Attorney General of the State of New York (hereinafter the NYAG).
In May 2005, Spitzer, who was then the NYAG, brought a lawsuit against Greenberg under General Business Law article 23–A (hereinafter the Martin Act), alleging, among other things, that Greenberg initiated at least two sham reinsurance transactions with General Reinsurance Corporation, Inc. (hereinafter the GenRe Transactions), which misled the investing public as to AIG's true financial condition. The case arose following Spitzer's announcement, in October 2004, of a wide-ranging investigation into fraud and anti-competitive practices in the insurance industry. During the same time period, AIG was embroiled in a series of lawsuits brought against it by the United States Securities and Exchange Commission (hereinafter the SEC), the United States Department of Justice (hereinafter the DOJ), and the Office of the NYAG.
On July 13, 2012, Spitzer (who was no longer in public office at the time) appeared on the CNBC television program "The Closing Bell" with program anchor Maria Bartiromo (hereinafter the July 13 Interview) to respond to comments made by Dennis Vacco, who had preceded Spitzer as the NYAG. Vacco had appeared on the same program a few days earlier and had stated that during a meeting with Spitzer in September 2004, Spitzer made a "startling personal attack" on Greenberg, which left Vacco "with an uneasy feeling that there was some personal animus that was driving him."
During the July 13 Interview, Spitzer made several statements concerning Greenberg's role in the GenRe Transactions, as well as the circumstances surrounding the termination of his tenure as chairman and chief executive officer of AIG.
On July 16, 2012, Spitzer appeared on his own program, "Viewpoint" on Current TV (hereinafter the Viewpoint Appearance), during which he re-aired several portions of the July 13 Interview. Approximately one year later, a book written by Spitzer entitled Protecting Capitalism Case by Case (hereinafter Protecting Capitalism ) was published.
At the time of Spitzer's two television appearances and the publication of Protecting Capitalism, the NYAG's action against Greenberg with respect to the GenRe Transactions remained pending and undecided (see People v. Greenberg, 21 N.Y.3d 439, 971 N.Y.S.2d 747, 994 N.E.2d 838 ; People v. Greenberg, 127 A.D.3d 529, 8 N.Y.S.3d 68 ).
On July 12, 2013, Greenberg commenced this defamation action against Spitzer based on various statements he made during the July 13 Interview and the Viewpoint Appearance, as well as in Protecting Capitalism. Spitzer subsequently moved to dismiss the amended complaint pursuant to CPLR 3211(a)(1) and (7) on the grounds that the challenged statements were substantially true, privileged under Civil Rights Law § 74 as fair and true reports of judicial proceedings, or otherwise non-actionable. He also argued that the amended complaint failed to sufficiently plead actual malice.
In an order dated June 24, 2014, the Supreme Court granted the motion in part and denied it in part. Spitzer appeals from so much of the order as denied certain branches of his motion, and Greenberg cross-appeals from so much of the same order as granted the remaining branches of Spitzer's motion.
Statements at issue
The alleged defamatory statements are reproduced below exactly as they appear in the amended complaint (including bolded language), except for statement number 3.1, which is reproduced from Protecting Capitalism.
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