Shuman v. New York Magazine

• Decision Date: 15 December 2022
• Docket Number: 16895, M–4161,Index No. 155577/20,Case No. 2021–02653
• Citation: 211 A.D.3d 558,179 N.Y.S.3d 651
• Parties: Mischa SHUMAN et al., Plaintiffs–Appellants, v. NEW YORK MAGAZINE et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

211 A.D.3d 558

179 N.Y.S.3d 651

Mischa SHUMAN et al., Plaintiffs–Appellants,

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

16895, M–4161

Index No. 155577/20

Case No. 2021–02653

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

Entered December 15, 2022

Boies Schiller Flexner LLP, Armonk (David Boies of counsel), for appellants.

Davis Wright Tremaine LLP, New York (Katherine Bolger of counsel), for respondents.

Webber, J.P., Friedman, Gonza´lez, Mendez, JJ.

Order, Supreme Court, New York County (Richard G. Latin, J.), entered on or about June 16, 2021, which granted defendants’ motion to dismiss the complaint, unanimously affirmed, with costs.

The content of the magazine articles at issue is well within the sphere of legitimate public concern, and plaintiffs did not adequately allege facts to show defendants acted in a grossly irresponsible manner in writing and publishing them (see Huggins v. Moore, 94 N.Y.2d 296, 302–304, 704 N.Y.S.2d 904, 726 N.E.2d 456 [1999] ; Chapadeau v. Utica Observer–Dispatch, 38 N.Y.2d 196, 198–199, 379 N.Y.S.2d 61, 341 N.E.2d 569 [1975] ). Where, as here, a publication encompasses matters of public concern and related private behavior, it is not for courts to determine the balance to be stricken; instead, "[t]his is precisely the sort of line-drawing that ... is best left to the judgment of journalists and editors" ( Weiner v. Doubleday & Co., 74 N.Y.2d 586, 595, 550 N.Y.S.2d 251, 549 N.E.2d 453 [1989], cert denied 495 U.S. 930, 110 S.Ct. 2168, 109 L.Ed.2d 498 [1990] ). Plaintiffs’ efforts to show defendants abused their editorial discretion in this regard are unavailing. To the extent the articles discuss their sexual relationships and other private conduct, they do so in connection with the matters of significant public concern: their apparent involvement in wrongful activity within and around the Harvard University community. The articles zero in on plaintiffs’ ostensible paternity extortion scheme involving nonparty Professor Bruce Hay, and related extortion or attempted extortion of other men, including via accusations of rape, assault and, in Hay's case, sexual harassment. They address plaintiffs’ engagement in other wrongful behavior, such as their apparent scheme to defraud Hay out of his home, and the Title IX process at Harvard. Those matters warrant public exposition (see Huggins, 94 N.Y.2d at 302, 303, 704 N.Y.S.2d 904, 726 N.E.2d 456 ), and contrary to plaintiffs’ contention, the court properly made this determination at the pleading stage (see e.g. Hayt v. Newsday LLC, 176 A.D.3d 787, 108 N.Y.S.3d 204 [2d Dept. 2019] ; Ramos v. Madison Square Garden Corp., 257 A.D.2d 492, 684 N.Y.S.2d 212 [1st Dept. 1999] ; Cassini v. Advance Publications, Inc., 41 Misc.3d 1202[A], 2013 N.Y. Slip Op. 51553[U], 2013 WL 5336570 [Sup. Ct., N.Y. County 2013], affd 125 A.D.3d 467, 4 N.Y.S.3d 4 [1st Dept. 2015], lv denied 26 N.Y.3d 902, 2015 WL 5148830 [2015] ).

Plaintiffs’ blanket denials of having been involved in any paternity extortion scheme, their insistence that plaintiff Mischa Shuman's Title IX action against Hay was brought in good faith, and their rendition of the supposedly legitimate way they came to live in Hay's home do not bear on the analysis of whether these are matters of public concern. Plaintiffs’ denials instead go to the question of whether defendants were grossly irresponsible in having produced articles in which wrongful acts such as extortion and fraud are attributed to plaintiffs, a question the motion court properly resolved against them. The gross irresponsibility standard "demands no more than that a publisher utilize methods of verification that are reasonably calculated to produce accurate copy" ( Hayt v. Newsday, LLC, 176 A.D.3d 787, 788, 108 N.Y.S.3d 204 [2d Dept. 2019] ) and does not require "exhaustive research nor painstaking judgments" ( DeLuca v. New York News Inc., 109 Misc.2d 341, 350, 438 N.Y.S.2d 199 [Sup. Ct., N.Y. County 1981] [internal quotation marks omitted]). A publisher's "obligation is to base its story on a reliable source" ( Mitchell v. Herald Co, 137 A.D.2d 213, 217, 529 N.Y.S.2d 602 [4th Dept. 1988], appeal dismissed 72 N.Y.2d 952, 533 N.Y.S.2d 59, 529 N.E.2d 427 [1988] ).

Plaintiffs’ arguments as to defendants’ gross irresponsibility are largely based on conclusory assertions as to what defendants knew or should have known pre-publication. For example, they aver that they "provided documentary evidence that challenged the accuracy of Hay's story and the documents Hay claimed supported him," but neither their briefs nor the pages they cite to in the record indicate what "documentary evidence" they provided. Nor do they adequately show, beyond conclusory denials, what other "information" they furnished defendants that unambiguously showed the falsity of the statements (see e.g. Edwards v. Natl. Audubon Socy., Inc., 556 F.2d 113, 121 [2d Cir.1977], cert denied 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 [1977] ). Moreover, defendan...