New Yorker Hotel Mgmt. Co. v. Dist. Council No. 9 N.Y. Iupat
Decision Date | 27 January 2017 |
Citation | 55 Misc.3d 437,2017 N.Y. Slip Op. 27012,45 N.Y.S.3d 909 |
Parties | NEW YORKER HOTEL MANAGEMENT CO., INC., Plaintiff, v. DISTRICT COUNCIL NO. 9 NEW YORK IUPAT, Defendant. |
Court | New York Supreme Court |
Venable LLP by Michael J. Volpe, Esq. and Nicholas M. Reiter, Esq., New York, Attorneys for Plaintiff.
Barnes, Iaccarino & Shepherd LLP by Steven H. Kern, Esq. and Lauren M. Kugielska, Esq., Elmsford, Attorneys for Defendant.
This is an action for defamation seeking damages, and preliminary and permanent injunctive relief, arising out of the giving out of handbills by defendant District Council No. 9 New York IUPAT outside of the premises of plaintiff New Yorker Hotel. Defendant is a union representing painters. The three versions of the handbills in question all begin in large bold print:
In somewhat smaller type size in the very next line of each handbill, but all still in large bold print, the handbills state:
THE WORD (sic )BED BUG IS DEFINED AS ONE WHO SUCKS THE FINANCIAL BLOOD FROM ITS WORKERS.
The handbills went on to explain that painters who were hired to paint the hotel were not being paid wages and benefits that have been established by defendant's workers for the area. One set of handbills further requested:
PLEASE HELP U.S. SEND A MESSAGE TO THE NEW YORKER & CAULDWELL WINGATE LETS (sic ) TELL THEM THAT IF THEY CONTINUE TO DO BUSINESS IN THIS MANNER, WE (THE RESIDENTS OF NEW YORK CITY) ARE ALL IN DANGER OF OUR LIVING STANDARDS BEING ERODED BY BIG FAT BED BUGS!
In other versions of the handbill, the substance was the same, except that they were addressed not to plaintiff, Cauldwell Wingate, and a painting company but only to plaintiff and the latter, and the wording was only slightly different. All of the handbills included photos or drawings of bed bugs.
Defendant moves for summary judgment dismissing the complaint. Defendant contends that the handbills as a whole make clear that the use of bed bugs is figurative, that plaintiff has not shown actual malice, and that intemperate rhetoric is protected speech in the context of labor disputes. Plaintiff counters that there are issues of fact that exist as to whether the handbill maliciously sought to create a false impression that plaintiff's hotel was infested with bed bugs, which harmed plaintiff's business reputation.
A party moving for summary judgment must show prima facie an entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1039, 1043, 33 N.Y.S.3d 853, 53 N.E.3d 730 [2016] ; Pokoik v. Pokoik, 115 A.D.3d 428, 982 N.Y.S.2d 67 [1st Dept.2014] ; CPLR 3212[b] ). To defeat summary judgment, the party opposing the motion has to show that there is a material question(s) of fact that requires a trial (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ; Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 82, 978 N.Y.S.2d 13 [1st Dept.2013] ; see Hoover v. New Holland N. Am., Inc., 23 N.Y.3d 41, 56, 988 N.Y.S.2d 543, 11 N.E.3d 693 [2014] ). Conclusory allegations are inadequate in opposition to a summary judgment motion (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068 [1978] ; Ruggiero v. Cardella Trucking Co., 16 A.D.3d 342, 344, 793 N.Y.S.2d 337 [1st Dept.2005] ).
Defamation grows out of the making of a false statement that "tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society." (Sydney v. MacFadden Newspaper Publ. Corp., 242 N.Y. 208, 211–212, 151 N.E. 209 [1926].) CPLR 3016(a) requires that in a defamation action, "the particular words complained of ... be set forth in the complaint." The complaint has to "allege the time, place, and manner of the false statement and specify to whom it was made (Arsenault v. Forquer, 197 A.D.2d 554, 602 N.Y.S.2d 653 ; Vardi v. Mutual Life Insurance Co. of New York, 136 A.D.2d 453, 523 N.Y.S.2d 95 )." (Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1 [1st Dept.1999].)
Expressions of opinion "false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions" (Steinhilber v. Alphonse, 68 N.Y.2d 283, 286, 508 N.Y.S.2d 901, 501 N.E.2d 550 [1986], quoting from Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 380, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 [1977] ). A state remedy for libel derived from labor unrest is preempted by Federal law in that a plaintiff must demonstrate malice and actual damages (Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL–CIO v. Austin, 418 U.S. 264, 282, 94 S.Ct. 2770, 41 L.Ed.2d 745 [1974] ; Linn v. Plant Guard Workers, 383 U.S. 53, 64–65, 86 S.Ct. 657, 15 L.Ed.2d 582 [1966] ).1 Malice in the defamation context is knowledge that the defamatory statement is false or in reckless disregard of whether the statement is false or not (see Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL–CIO v. Austin, 418 U.S. at 272–273, 281–282, 94 S.Ct. 2770 ).
Thus, "federal law gives a union license to use intemperate, abusive, or insulting language without fear of restraint or penalty if it believes such rhetoric to be an effective means to make its point" (Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL–CIO v. Austin, 418 U.S. at 283, 94 S.Ct. 2770 ), provided that it is not a malicious falsehood (see Linn v. Plant Guard, 383 U.S. at 63, 86 S.Ct. 657 ; San Antonio Community Hosp. v. Southern California Dist. Council of Carpenters, 125 F.3d 1230, 1237 [] (internal question marks omitted), quoting from Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 U.S. 91, 107 n. 14, 110 S.Ct. 2281, 110 L.Ed.2d 83 [1990] ).
Consequently, in Beverly Hills Foodland, Inc. v. United Food & Commercial Worker's Union, 840 F.Supp. 697, 705, and n. 2 (E.D.Mo.1993), affd. 39 F.3d 191 (8th Cir.1994) the court held that a union handbill entitled "Don't Help Feed the Rat" that identified the plaintiff as a "rat" and a "rat employer" was protected under Federal labor law. The court held that "rat" could not be construed as a misrepresentation of fact and that no reader would believe that the owner/manager of Beverly Hills Foodland Supermarket was actually a rodent.
In contrast, in San Antonio Community Hosp. v. Southern California Dist. Council of Carpenters, 125 F.3d 1230, 1236–1237 (9th Cir.1997), the defendant union's members held a banner near the maternity entrance to the plaintiff hospital that stated "THIS MEDICAL FACILITY IS FULL OF RATS." The Ninth Circuit, in affirming the grant of a preliminary injunction against the union enjoining it from using the term "Rats", agreed with the District Court that there was a high probability that member of the public would be and actually were deceived by the use of that phrase on a banner, where the contractor Best Interiors was not clearly identified as a rat contractor. "Best Int." was identified in small handwritten letters at the bottom of the banner as the entity with which the union had a dispute, but the court found it would be difficult for passersby in cars to see that (id. at 1237–1238 ).2
This case is similar to San Antonio Community Hosp., but, by defining bed bug prominently in the second line of the handbill "as one who sucks the financial blood from its workers," and by the understandable interpretation of the statement regarding erosion of New York City residents' living standards as not meaning that plaintiff actually had bed bugs, defendant made it clear that the claim that plaintiff hotel is infested with bed bugs is metaphorical and not an assertion of fact. Anyone who reads past the title of the handbill would be so informed. While plaintiff's sensitivity to any association with bed bugs is understandable, and someone who just read the title of the handbill could be misled, the entire context of the statement must be considered (see Steinhilber v. Alphonse, 68 N.Y.2d at 292, 508 N.Y.S.2d 901, 501 N.E.2d 550 ). Moreover, plaintiff fails to offer proof supporting its allegation that patrons of the hotel were misled by the handbills (cf. San Antonio Community Hosp. v. Southern California Dist. Council of Carpenters, 125 F.3d at 1237–1238 [ ] ).
Consequently, the circumstances are closer to Beverly Hills Foodland, Inc. than they are to San Antonio Community Hosp. In San Antonio Community Hosp., the qualification was deemed to be too inconspicuous and unclear to suffice to establish that the claim that the hospital was full of rats was merely symbolic. Here, the definitional qualifier is sufficiently prominent and clear to distinguish this case from San Antonio Community Hosp. Indeed, following the issuance of the preliminary injunction by the trial court in San Antonio Community Hosp., the union began displaying a second banner alongside the first one, which stated "Best Interiors is the Rat Contractor." The District Court declined the plaintiff's application for a contempt citation finding that "the injunction had not been violated because the Union had clarified the misleading nature of the term ‘rats.’ " (id. at 1238 ).
Thus, the handbills here cannot be understood to include a defamatory falsehood, but merely the type of...
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