Napoli v. N.Y. Post

• Decision Date: 27 August 2019
• Docket Number: Index 161367/15,9407–9408, 161423/15
• Citation: 107 N.Y.S.3d 279,175 A.D.3d 433
• Parties: Marie NAPOLI, Plaintiff–Appellant, v. NEW YORK POST, et al., Defendants–Respondents. Marie Kaiser Napoli, Plaintiff–Respondent–Appellant, v. Marc Jay Bern, et al., Defendants–Appellants–Respondents.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 433

107 N.Y.S.3d 279

Marie NAPOLI, Plaintiff–Appellant,

v.NEW YORK POST, et al., Defendants–Respondents.

Marie Kaiser Napoli, Plaintiff–Respondent–Appellant,

v.Marc Jay Bern, et al., Defendants–Appellants–Respondents.

9407–9408

Index 161367/15

161423/15

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

ENTERED: AUGUST 27, 2019

Marie K. Napoli, Paul B. Maslo, and Salvatore C. Badala, Napoli Shkolnik, PLLC, for plaintiff Marie K. Napoli.

Joseph J. Ortego and Santo Borruso, Nixon Peabody LLP, for defendants Marc J. Bern, The Parkside Group, LLC, Brian Brick, and Cathy Bern.

Farrell Fritz, P.C., Uniondale (James M. Wicks and Franklin C. McRoberts of counsel), for Clifford S. Robert, appellant-respondent.

Renwick, J.P., Manzanet–Daniels, Kahn, Moulton, JJ.

Order, Supreme Court, New York County (Kathryn Freed, J.), entered November 9, 2015, which, to the extent appealed from as limited by the briefs, granted the New York Post defendants' motion to dismiss the amended complaint, unanimously affirmed, without costs. Order, same court (Carmen Victoria St. George, J.), entered August 14, 2018, which, to the extent appealed from as limited by the briefs, denied that part of the Bern defendants' motion to dismiss plaintiff's claims for defamation and prima facie tort against the Bern defendants and breach of fiduciary duty as against Marc Jay Bern individually, unanimously affirmed, without costs.

The court properly dismissed plaintiff's claims against the New York Post defendants. The allegedly defamatory statements appearing in various news articles essentially summarize or restate the allegations in judicial filings in a case related to plaintiff, so they are protected by Civil Rights Law § 74 (see McRedmond v. Sutton Place Rest. & Bar, Inc., 48 A.D.3d 258, 259, 851 N.Y.S.2d 478 [1st Dept. 2008] ). The court correctly held that plaintiff failed to adequately allege that the Post defendants participated in drafting the purported "sham" filings in that action (see Williams v. Williams, 23 N.Y.2d 592, 599, 298 N.Y.S.2d 473, 246 N.E.2d 333 [1969] ).

The court properly determined that the Post defendants' reporting of the contents of an email concerning third-party conversations mentioning plaintiff were not actionable (see generally Brian v. Richardson, 87 N.Y.2d 46, 51–52, 637 N.Y.S.2d 347, 660 N.E.2d 1126 [1995] ). The court also properly found that the intentional infliction of emotional distress claim was duplicative since the underlying allegations fall within the ambit of the defamation causes of action (see Akpinar v. Moran, 83 A.D.3d 458, 459, 922 N.Y.S.2d 8 [1st Dept. 2011], lv denied 17 N.Y.3d 707, 2011 WL 3925035 [2011] ), and that plaintiff failed to allege that she was placed in physical danger or was caused to fear for her personal safety as a result of the Post defendants' conduct in support of her negligent infliction of emotional distress claim (see Ferreyr v. Soros, 116 A.D.3d 407, 984 N.Y.S.2d 296 [1st Dept. 2014] ).

The court in the Bern action properly determined that collateral estoppel does not apply to bar plaintiff's defamation claims against the Bern defendants. The issues raised in the Bern action, in which plaintiff claims that the Bern defendants made sham filings and circulated them to the press for the sole purpose of defamation, differ from those raised in the New York Post action, in which plaintiff alleges that the New York Post defamed her by reporting on those filings (see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500–501, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984] ). The court also properly determined that issues of fact remained as to whether the litigation...