Kenny Kramer & Kramer's Reality Tours, Inc. v. Skyhorse Publ'g, Inc.

• Citation: 989 N.Y.S.2d 826,45 Misc.3d 315,2014 N.Y. Slip Op. 24196
• Parties: Kenny KRAMER and Kramer's Reality Tours, Inc., Plaintiffs, v. SKYHORSE PUBLISHING, INC. and Fred Stoller, Defendants.
• Decision Date: 14 July 2014
• Court: United States State Supreme Court (New York)

45 Misc.3d 315

989 N.Y.S.2d 826

2014 N.Y. Slip Op. 24196

Kenny KRAMER and Kramer's Reality Tours, Inc., Plaintiffs,

v.SKYHORSE PUBLISHING, INC. and Fred Stoller, Defendants.

Supreme Court, New York County, New York.

July 14, 2014.

Fred Lichtmacher, Esq., Law Office of Fred Lichtmacher, P.C., New York, for plaintiffs.

Kristen McCallion, Esq., John T. Johnson, Esq., Fish & Richardson, P.C., New York, for Skyhorse.

Francis X. Dehn, Esq., Smith Dehn LLP, New York, David Albert Pierce. Esq., Azita Mirzaian, Esq., Pro Hac Vice, Beverly Hills, CA, for Stoller.

BARBARA JAFFE, J.

Defendants move pursuant to CPLR 3211(a)(7) for an order dismissing plaintiffs' complaint in its entirety. Plaintiffs oppose.

I. PARTIES

Plaintiff Kenny Kramer, known by television fans as the inspiration for the eccentric character Cosmo Kramer on the popular 1990s television situation comedy series, Seinfeld, is the principal agent of plaintiff Kramer Reality Tours, Inc., which provides bus tours of New York City locations portrayed in the show. (N.Y.SCEF 1). Defendant Stoller is a comedian and former Seinfeld staff writer who appeared several times as a guest star on the series. (N.Y.SCEF 9). Defendant Skyhorse Publishing, Inc., located in Manhattan, published a memoir authored by Stoller entitled, “Maybe We'll Have You Back: The Life of a Perennial TV Guest Star.” (N.Y.SCEF 1).

II. FACTUAL BACKGROUNDA. “The Outing ”

Plaintiffs' claims ultimately arise from a particular episode of the Seinfeld show, a “fictional comedic representation” ( Costanza v. Seinfeld, 181 Misc.2d 562, 566, 693 N.Y.S.2d 897 [Sup.Ct., New York County 1999],affd. as mod.,279 A.D.2d 255, 719 N.Y.S.2d 29 [1st Dept.2001] ), co-written and co-created by a Jerry Seinfeld, a comedian who is well-known for his observationalhumor ( see Jerry Seinfeld, available at http:// en. wikipedia. org/ wiki/ Jerry—Seinfeld). The series was based in New York City, which is well-known for the liberal values of its population. ( See Ginia Bellafante, Exposing the Hypocrisies of the New York Liberal,” The New York Times, May 2, 2014, available at http:// www. nytimes. com/ 2014/ 05/04/nyregion/exposing-the-hypocrisies-of-thenewyork-liberal. html [referencing “primacy” of New York City's “liberal values”] ).

The episode, entitled “The Outing,” aired on February 11, 1993. (IMDb, available at http:// www. imdb. com/ title/ tt 0697745/). In it, Jerry, the heterosexual main character, and George, his heterosexual friend, are outed as a gay couple by a student journalist who was interviewing them for a New York University newspaper. After Jerry and George “strenuously deny” being gay, they add, “Not that there's anything wrong with that.” ( The Outing, Wikipedia, last updated July 4, 2014, available at http:// en. wikipedia. org/ wiki/ The—Outing).

B. “Kramer's Reality ”

In chapter 22 of his memoir, entitled “Kramer's Reality” and published on April 1, 2013, Stoller describes his 1996 experience on the Reality Tour, which he took at Kramer's instance. According to Stoller, plaintiffs' employee “ran around the bus for over two hours, trying to keep the tourists excited by screaming out famous lines from Seinfeld.” (N.Y.SCEF 8, Exh. B). He recounts the employee crying out to the tourists, “Everyone, say it together, No soup for you!' ” a popular Seinfeld catch phrase, and continues as follows:

Then [the employee would] point to a bum and say, “Everyone, he is picking his nose. Or as Jerry would say, The Pick! The Pick!”

[The employee] had a slight lisp which caused him to spit on me when he led the crowd in a hearty chant of, “Hell-oooo Newman!”

In spite of my distaste for the whole thing, Kramer prodded me to sit on the touragain.For the second day in a row, I had to hear [the employee] scream out all of the catch phrases by all of the same places. I'm sure the tourists were wondering why the Seinfeld special guest star was covering his ears.

I just shook my head, amazed that a show as brilliant as Seinfeld could be so lamed down. In the gay-dominated Greenwich Village, I had to hear [the employee] make everyone scream out, “Not that there's anything wrong with that!” Once wasn't embarrassing enough, so he'd scream it out again like some sort of deranged cheerleader, “Not that there's anything wrong with that!

Many of the bus riders had seen me on the show and seemed excited that I was on the tour. I was happy to tell them some of my stories before getting on the bus, but once the tour started, I just couldn't hide the pain I was in. I rode with my hands pressed hard against the side of my head to drown out Kramer and [the employee's] shtick.

( Id.).

III. PROCEDURAL BACKGROUND

On or about December 30, 2013, plaintiffs commenced this action advancing causes of action for defamation, defamation per se, and intentional interference with business relations. They allege, in paragraph seven of the complaint, that Stoller's book was published by Skyhorse on April 1, 2013, and in paragraph 13, that defendants' “false and malicious statements injured [their] reputations and their professional standing, not only in their community, but in every venue where the book is published ...” They seek $1 million in damages, plus punitive damages. (N.Y.SCEF 1).Specifically, they allege as follows:

8. The book contained statements which describes [sic] Defendant Stoller's experiences with Plaintiff Reality Tours.

9. Stoller states that while on a tour with Reality Tours, in Greenwich Village, Stoller[ ] heard one of the employees of Reality Tours scream out “Not that there's anything wrong with that” on more than one occasion, a direct reference to a line used on the Seinfeld show, referring to members of the gay community. In fact, Plaintiff Reality Tours does not travel through Greenwich Village nor did Plaintiffs or its employees ever make such statements.

(N.Y.SCEF 1). Plaintiffs maintain that in this chapter, Stoller thereby “falsely accuse[s them] of taunting persons from the gay community,” and that defendants thereby damage Kramer's reputation in the gay community, negatively affecting his career as an entertainer and causing him emotional harm, and intentionally damage Reality Tours's business reputation, frustrating its ability to attract customers, and resulting in lost income. ( Id.).

IV. CONTENTIONS

Defendants contend that plaintiffs fail to plead defamation with sufficient particularity and do not allege the pecuniary losses suffered, and that, in any event, they lack standing, as the allegedly defamatory statement attributes the conduct on the bus to a Reality Tours employee, not to plaintiffs. They deny any defamatory meaning, and maintain that the alleged defamatory meaning arises solely from an artificial and strained reading of the statement, and observe that the Seinfeld catch phrase, “Not that there's anything wrong with that” used on the Reality Tour is “instantly recognizable to Seinfeld fans as a comical commentary on political correctness, changing sexual mores, and the First Amendment.” (N.Y.SCEF 9). They also deny that the statement constitutes defamation per se, as it is neither incompatible with plaintiffs' trade or business nor does it reference a matter of significance or importance to the tourism industry. Defendants also argue that as Kramer has attained the status of a public figure, plaintiffs fail to plead facts demonstrating that the statement was made with knowledge of its falsity or with reckless disregard of it, and maintain that plaintiffs' business interference claim fails absent any allegation of the existence of a valid contract. (N.Y.SCEF 9, 20).

In opposition, plaintiffs argue that the statement, as set forth in paragraph nine of the complaint, is sufficiently particular, and observe that the particulars of its making are sufficiently set forth. They assert that the statement falsely accuses them of “taunting members of the gay community” which “impl[ies] that they may be hostile to gay people.” (N.Y.SCEF 23). As a result, plaintiffs claim that they have been “exposed to public contempt, hatred, ridicule, aversion or disgrace,” which is incompatible with their business. They also maintain that they have pleaded that defendants acted maliciously by making the false statements, and that their status as public figures is irrelevant at the pleading stage, and contend that their business interference claim has merit given their contractual relationships with their customers. ( Id.).

In reply, defendants observe that nowhere in the statement is it written that the tour employee taunted anyone on the street, and argue that plaintiffs fail to rebut their showing that Kramer has no standing, and do not deny that he is a public figure. (N.Y.SCEF 29, 33).

V. DISCUSSION

Pursuant to CPLR 3211(a)(7), a party may move for an order dismissing a cause of action against it on the ground that the pleading fails to state a cause of action. In deciding the motion, the court must liberally construe the pleading, accept all of the alleged facts as true, and accord the non-movant every possible favorable inference, ascertaining only whether the allegations fall within any cognizable legal theory. ( Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ).

A. Particularity

In an action for libel, “the particular words complained of shall be set forth in the complaint ...” (CPLR 3016[a] ). The statute was enacted to ensure that defendants are adequately notified of the alleged defamatory statement and to discourage actions intended solely to harass. (5 Carmody–Wait 2d § 29:255; Pappalardo v. Westchester Rockland Newspapers, 101 A.D.2d 830, 831, 475 N.Y.S.2d 487 [2d Dept.1984],affd.64 N.Y.2d 862, 487 N.Y.S.2d 325, 476 N.E.2d 651 [1985] ). The statutory requirement is “strictly enforced” ( Laiken v. American Bank & Trust Co., 34 A.D.2d 514, 308 N.Y.S.2d 111 [1st Dept.1970];Gardner v. Alexander Rent–A–Car, Inc., 28 A.D.2d 667, 280 N.Y.S.2d 595 [1st Dept.1967] ), and...