McGill v. Parker

• Decision Date: 24 March 1992
• Citation: 582 N.Y.S.2d 91,179 A.D.2d 98
• Parties: , 19 Media L. Rep. 2170 Gloria McGILL, Arthur "Buster" McGill, and Chateau Stables, Inc., Plaintiffs-Respondents, v. Peggy PARKER, Holly Cheever, John F. Kullberg, The Carriage Horse Action Committee and the American Society for the Prevention of Cruelty to Animals, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 91

582 N.Y.S.2d 91

179 A.D.2d 98, 19 Media L. Rep. 2170

Gloria McGILL, Arthur "Buster" McGill, and Chateau Stables Inc., Plaintiffs-Respondents, v. Peggy PARKER, Holly Cheever, John F. Kullberg, The Carriage Horse Action Committee and the American Society for the Prevention of Cruelty to Animals, Defendants-Appellants.

Supreme Court, Appellate Division First Department.

March 24, 1992.

R. Jay Fortin, of counsel, New York City (Erik W. Hepler and Cynthia Colt, with him on the brief, Winthrop, Stimson, Putnam & Roberts, attorneys), for defendants-appellants Peggy Parker, Holly Cheever, and Carriage Horse Action Committee.

Richard T. Mermelstein, of counsel, New York City (Therese E. White, with him on the brief, Jones Hirsch Connors & Bull, attorneys), for John F. Kullberg and The American Soc. for the Prevention of Cruelty to Animals.

Lonnie S. Rosenberg, of counsel, New York City (Jill Randy Epstein and Frank S. Benjamin, with him on the brief, Rosenberg & Epstein, attorneys), for plaintiffs-respondents.

Before SULLIVAN, J.P., and MILONAS, WALLACH, KUPFERMAN and ASCH, JJ.

SULLIVAN, Justice.

This lawsuit based, inter alia, on allegations of defamation and conspiracy, is an outgrowth of the controversy over the treatment of New York City's carriage horses, a controversy which ultimately resulted in the enactment of Local Laws 1989 No. 89 of the City of New York. The law regulates the working conditions of these horses, requires drivers to take and successfully complete a training course on equine care and traffic laws and, in response to industry concerns of financial hardship by virtue of its requirements, provides for a 100% fare increase. In addition, horse drawn carriages must now be covered by liability insurance.

Throughout the legislative process and for some years before, defendants, The Carriage Horse Action Committee (CHAC), organized in 1986 and dedicated to ending the abuse of carriage horses in New York City; Peggy Parker, its founder; Holly Cheever, an equine veterinarian and member of CHAC; The American Society for the Prevention of Cruelty to Animals (ASPCA), a not-for-profit corporation having enforcement responsibility of the animal protection laws in New York State, and John F. Kullberg, its president, lobbied in support of legislation to improve the living and working conditions of carriage horses in New York City. Their letters to public officials and the editors of various news publications and leaflets distributed to those on CHAC's mailing list are the subject of this lawsuit. Plaintiffs Gloria McGill, Arthur "Buster" McGill and Chateau Stables, Inc., are carriage horse owners and operators who fought strenuously and unsuccessfully against the enactment of Local Law No. 89. They contend that the letters and leaflets are libelous.

The allegations of the complaint encompass six letters and one flyer. The first cause of action is based on an April 19, 1989 letter, eventually published in the New York Times, from Cheever to the editor, written in response to a letter published in the Times by a public relations consultant to the carriage horse industry. In the only specific reference to any of the plaintiffs, Dr. Cheever described the author of the original letter as "worth every penny that Chateau Stables pays him to promote its image." The balance of the letter concerns Dr. Cheever's credentials and her detailed description of the unhealthy and inhumane conditions under which, according to her, carriage horses are forced to live. The sixth cause of action also involves the April 19, 1989 letter with a more expansive allegation of damages.

The second cause of action involves a January 4, 1989 letter from Dr. Cheever to Mr. Kullberg reporting her findings with respect to a December 27, 1988 inspection, her second, of three carriage horse stables, one of which was Chateau Stables. As to Chateau Stables, Dr. Cheever reported that the horses were housed in an area "completely unacceptable and unsuitable", and accessible only by a "steep, narrow [and] dangerous ramp"; that the stalls and aisles were "filthy"; that the stalls were too narrow and short, with worn away flooring, causing urine pooling, which resulted in urine scald and foot infection; that only 10 to 20% of the stalls had salt blocks; that the "[v]entilation was inadequate with excessive ammonia levels"; that there was "more overt ill-health with lack of proper care in this stable than in the [other] two"; that three horses were suffering from specifically identified veterinary maladies and that the stable presented "a serious fire hazard" with such poor ventilation and lack of cleanliness that the health of the horses was "severely compromised," so as to constitute a clear "form of abuse." There was no allegation that Mr. Kullberg took any action with respect to this letter other than to receive it. The third and fourth causes of action, respectively, allege that Dr. Cheever sent copies of the letter to Ms. Parker and to William Kapps, a non-party not otherwise identified.

The fifth cause of action is based on a March 20, 1989 letter from Dr. Cheever to the editor of 7 Days, a weekly magazine, opposing the proposed "diaper" solution to the manure problem. The letter, which never appeared in the publication, includes general comments, similar to those in the January 4, 1989 letter, about conditions in the stables housing carriage horses. Although the letter does not make any reference to Chateau Stables, plaintiffs allege that it is "of and concerning" them in that they are part of the carriage horse trade.

The seventh cause of action concerns a May 31, 1989 letter in support of the proposed Local Law from Dr. Cheever to the New York City Council extensively describing the poor conditions to which carriage horses are exposed in New York City. ¹ There is no specific mention of Chateau Stables, although there is a reference to "[o]ne stable I inspected." Again, plaintiffs allege that the letter is "of and concerning" them.

The eighth cause of action is based on a March 14, 1989 letter, never published, from Ms. Parker to Diana DeRosa, the editor of Horse World USA, challenging the conditions found by DeRosa in her visits to "some" New York City stables. In her letter, Ms. Parker suggested that Ms. DeRosa, whose inspection revealed conditions quite different from those she and Dr. Cheever witnessed, must have been "invited" to a "staged presentation", most certainly by Chateau Stables since the McGills "have been very reliant on PR to defend their business." Ms. Parker's comments about the stable conditions in that letter are general in nature. The ninth cause of action repeats the allegations concerning the March 14, 1989 Parker letter with emphasis on the conspiracy to injure plaintiffs.

The tenth cause of action involves a June 12, 1989 letter from Ms. Parker to Henry J. Stern, the then Commissioner of the New York City Department of Parks and Recreation, with respect to the legislative hearings on the proposed Local Law No. 89. In it, Ms. Parker compared New York City's carriage horse trade unfavorably with that of Indianapolis, with which she was familiar. No mention is made of Chateau Stables but, again, plaintiffs repeat the same "of and concerning" allegation.

The eleventh cause of action charges "defendants" with publicly distributing a flyer repeating the statements as to the deplorable conditions in which carriage horses are compelled to live and, in calling for restrictive legislation, accusing the carriage trade industry of "deport[ing] itself in an almost lawless manner." Reference is made to "six stables", but not to Chateau Stables by name.

Without answering, the CHAC defendants moved to dismiss the complaint for failure to state a cause of action, arguing, inter alia, that the statements at issue constitute protected opinion under State law or are not provably false and concern matters of public concern and, as such, are non-actionable and, on that and other grounds as well, constitutionally protected. The motion was supported by an affidavit from Dr. Cheever, in which she reviewed her qualifications and described her three inspections of Chateau Stables. Ms. Parker also submitted an affidavit in which she reviewed her efforts and those of CHAC in support of the passage of Local Law No. 89. Annexed to her affidavit was an extensive series of press excerpts, including editorials, letters to the editor and editorial cartoons, all commenting on the inhumane treatment of horses involved in the carriage trade and the disruption caused by the use of hansom cabs in city streets, the purpose of which was to show the issue as one of public interest. The ASPCA defendants cross-moved for the same relief, arguing, inter alia, that, with respect to Kullberg, plaintiffs failed to allege publication of the allegedly defamatory words in the January 4, 1989 letter sent to him and asserting this state's proscription against civil actions for conspiracy, absent an allegation of an underlying tort committed by the conspirators. In support of the motion, they submitted an affidavit from Mr. Kullberg in which he described the activities of the ASPCA in the effort to obtain humane treatment for carriage horses and in support of Local Law No. 89.

Gloria McGill submitted an affidavit in opposition, denying any abuse or mistreatment of Chateau Stables' animals and describing defendants' allegations as to the conditions found at six inspected stables as "lies" and part of a "campaign" to "destroy" the carriage horse trade in New York City. The affidavit is replete with claims of defendants' personal animosity toward plaintiffs and other members of the carriage horse trade. Plaintiffs also submitted affidavits from two veterinarians, who, without disputing the conditions Dr. Cheever found in her inspection and from which she drew her conclusions, disagreed only with her assessment that the horses were...