Humane League of Phila., Inc. v. Berman

• Decision Date: 02 July 2013
• Citation: 969 N.Y.S.2d 35,2013 N.Y. Slip Op. 04989,108 A.D.3d 417
• Parties: The HUMANE LEAGUE OF PHILADELPHIA, INC., Plaintiff–Respondent, v. BERMAN AND COMPANY, et al., Defendants–Appellants, The New York Times, Defendant.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 417

969 N.Y.S.2d 35

2013 N.Y. Slip Op. 04989

The HUMANE LEAGUE OF PHILADELPHIA, INC., Plaintiff–Respondent,

v. BERMAN AND COMPANY, et al., Defendants–Appellants,The New York Times, Defendant.

Supreme Court, Appellate Division, First Department, New York.

July 2, 2013.

Baker & Hostetler LLP, New York (Mark I. Bailen of counsel), for appellants.

Bryan W. Pease, Liverpool, for respondent.

FRIEDMAN, J.P., SWEENY, DeGRASSE, RICHTER, FEINMAN, JJ.

Order, Supreme Court, New York County (Lucy Billings, J.), entered March 7, 2013, which, to the extent appealed from, denied so much of defendants' motion for summary judgment as sought to dismiss the amended complaint as against defendants Berman and Company, Center for Consumer Freedom, Richard Berman and David Martosko (the CCF defendants), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the amended complaint.

At issue is an advertisement that the CCF defendants created and placed in the New York Times in December 2008 to alert the public that a Humane Society of the United States (HSUS) vice president would speak at plaintiff's holiday fundraiser. The ad was captioned, “Why is [HSUS] Helping a Terrorist Group Raise Money?” Plaintiff alleges libel based on the ad's statements that plaintiff, in its purported prior incarnation as SHAC Philly and Hugs For Puppies, had ties to SHAC USA (an animal rights organization whose leaders undisputedly were convicted of, among other things, conspiracy to violate the Animal Enterprise Protection Act); that plaintiff's organizers have been involved in violence; and that the media had reported that plaintiff's leader, Nicholas Cooney, threatened to kill the child of a pharmaceutical company that works with Huntingdon Life Sciences, an animal research lab targeted by SHAC USA for its animal testing practices.

The court should have dismissed the amended complaint as against all of the defendants. Contrary to plaintiff's contention, it is a public figure ( see James v. Gannett Co., 40 N.Y.2d 415, 422, 386 N.Y.S.2d 871, 353 N.E.2d 834 [1976] ). It thrust itself to the forefront of the public controversy on animal cruelty and sought to influence public action on this issue. Accordingly, as a public figure, plaintiff must show by clear and convincing evidence that defendants published the ad at issue with actual malice in order to prevail on any claim of libel ( Kipper v. NYP Holdings Co., Inc., 12 N.Y.3d 348, 353–354, 884 N.Y.S.2d 194, 912 N.E.2d 26 [2009] ).

“[A] libel defendant's burden in support of summary judgment is not ... to prove as a matter of law that it did not publish with actual malice, but to point to deficiencies in the record that will prevent plaintiff from proving that fact by clear and convincing evidence” ( id. at 354, 884 N.Y.S.2d 194, 912 N.E.2d 26). Here, defendants were entitled to summary judgment because they cited deficiencies in the record that prevent plaintiff from proving actual malice (i.e., that defendants “entertained serious doubts as to the truth of [its] publication or acted with a high degree of awareness of ... probable falsity ... at the time of publication”) by clear and convincing evidence ( see Kipper, 12 N.Y.3d at 354–355, 884 N.Y.S.2d 194, 912 N.E.2d 26 [internal quotation marks omitted] ). Indeed, defendant David Martosko wrote the ad and stated his belief in the veracity of the statements therein, and submitted documentation corroborating his beliefs. The motion court largely credited the veracity of those statements as of 2007. The court, however, focusing on the lack of evidence of misconduct in 2008, during which restraining orders were in place against plaintiff and Cooney, erred in suggesting that the statements were no longer accurate as of 2008. Contrary to the motion court's conclusion, defendants' failure to mention or address the lack of violent...