Three Amigos SJL Rest., Inc. v. CBS News, Inc.

• Decision Date: 04 August 2015
• Docket Number: 152184/12, 15190
• Citation: 15 N.Y.S.3d 36,2015 N.Y. Slip Op. 06409,132 A.D.3d 82
• Parties: THREE AMIGOS SJL REST., INC., doing business as The Cheetah Club, Plaintiff, Times Square Restaurant No. 1., Inc., et al., Plaintiffs–Appellants, v. CBS NEWS, INC., et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

132 A.D.3d 82

15 N.Y.S.3d 36

2015 N.Y. Slip Op. 06409

THREE AMIGOS SJL REST., INC., doing business as The Cheetah Club, PlaintiffTimes Square Restaurant No. 1., Inc., et al., Plaintiffs–Appellants

v.CBS NEWS, INC., et al., Defendants–Respondents.

152184/12, 15190

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

Aug. 4, 2015.

Law Offices of Nichelle A. Johnson, PLLC, New Rochelle (Nichelle A. Johnson and Vivian Lee of counsel), for appellants.

Levine Sullivan Koch & Schulz, LLP, New York (Jay Ward Brown and Chad R. Bowman of the bar of the District of Columbia and the State of Maryland admitted pro hac vice), and CBS Law Department, New York, (Anthony M. Bongiorno and Joseph F. Richburg of counsel), for respondents.

PETER TOM, J.P., DAVID FRIEDMAN, LELAND G. DeGRASSE, ROSALYN H. RICHTER, BARBARA R. KAPNICK, JJ.

Opinion

TOM, J.P.

This defamation action arises out of a wholly accurate news report stating that federal authorities raided The Cheetah Club (Cheetah's), a midtown Manhattan strip club, which they alleged to be “run by the [M]afia” and at the center of an underground immigration ring that brought Russian and eastern European women into the United States, forcing them to work as exotic dancers.

On November 30, 2011, federal agencies charged seven alleged members and associates of the Gambino and Bonanno crime families with, inter alia, transporting and harboring illegal aliens to work as dancers in New York area strip clubs. The indictment alleged that organized crime defendants controlled certain strip clubs and forced women who had been trafficked from eastern Europe to dance at the clubs. As the women would be placed in sham marriages for citizenship purposes, the federal operation was called “Operation Dancing Brides.”

On November 30, 2011, federal authorities executed a search warrant at Cheetah's. In support of the warrant's application, a federal officer averred that organized crime conspirators had negotiated terms with strip clubs, including Cheetah's, for trafficked dancers to perform because, in Cheetah's case, other providers had not been able to meet the club's needs. According to the affidavit, the trafficked women were brought to Cheetah's, where they were video recorded reading contracts and where the women thereafter danced. Plaintiffs take the position that no one at Cheetah's was involved in the crimes underlying Operation Dancing Brides.

The relationship of the Times Square plaintiffs and their employees, the individual plaintiffs, to Cheetah's is not explained, but there is no allegation that these entities are anything more than independent contractors. According to the complaint, plaintiff Times Square Restaurant No. 1, Inc. (No. 1) provides management and promotional services for the Champagne and VIP lounge areas of Cheetah's. Plaintiff Dominica O'Neill is president of No. 1, and plaintiff Sean Callahan is employed as a manager and consultant whose responsibilities include food and beverages, as well as vendor coordination. Plaintiff Times Square Restaurant Group (the Group) operates a booking agency for the talent (dancers) at Cheetah's, and plaintiff Philip Stein is employed by the Group as a manager. Plaintiff Three Amigos SJL Rest., Inc., doing business as The Cheetah Club, is not a party to this appeal.

After the raid at Cheetah's, defendant CBS News broadcast the event during its noon news broadcast. Reporter Kathryn Brown (in front of Cheetah's) broadcast the following:

“[S]ources tell CBS–2 News this bust is being dubbed ‘Operation Dancing Brides,’ and this strip club here, Cheetahs in Midtown, they say is at the center of the operation. Cheetahs advertises exotic women and the ... federal authorities say it is run by the mafia. They have been here—feds have been here all morning. They conducted an early morning raid and they've been here for hours inside collecting evidence. They are still inside right now. Meantime, earlier this morning, agents with the immigrations and customs enforcement arrested 25 men described as ringleaders of this entire operation. Many of them they say are members of the Gambino and Bonanno crime families. They say the men were involved in an elaborate operation to recruit women from Russia and eastern Europe into the U.S. ... [to] force the women to work as dancers in strip clubs across New York City, including Cheetahs ... This is still a developing story and we will have much more on this tonight on CBS–2 News at 5:00.”

At 5:00 p.m., defendants broadcast a news program called The Evening Report, which contained, inter alia, the following segment:

“Federal authorities carried out boxes of evidence from this Midtown strip club during an early morning raid. They say the club, Cheetahs, is one of several at the center of an underground immigration ring that stretches from Times Square to the heart of Russia. Investigators say Russian and Italian mobsters were working together in the elaborate scheme to bring Russian and eastern European women to the U.S., then funnel them to strip clubs to work as exotic dancers.”

The Report then showed Kathryn Brown interviewing a federal law enforcement official, the director of the National Organization for Women, and David Carlebach, an attorney for Cheetah's. Carlebach was broadcast saying, “There is absolutely no La Cosa Nostra, as you say, connection.”

At 9:25 p.m., the local CBS New York website posted a summary of the story, embedding a PDF copy of the indictment. The website included the statements that Cheetah's had been “raided,” and that Cheetah's was “one of several [strip clubs] at the center of an underground immigration ring” controlled by indicted defendants who “protected their turf through intimidation and threats of physical and economic harm.” The story ended, “As federal teams cast a wide net around strip clubs and their owners[,] attorney David Carlebach ... insisted his client's hands are clean. ‘There is absolutely no “La Cosa Nostra,” as you say, connection,’ Carlebach said.”

By summons and verified complaint filed April 27, 2012, plaintiffs alleged that defendants, in broadcasting and publishing stories concerning Operation Dancing Brides, defamed them. Plaintiffs claimed that the stories were misleading, false, and malicious, and that plaintiffs had no connection with the Mafia, Operation Dancing Brides, human trafficking, extortion, or any other human rights abuse. The complaint contains four causes of action-defamation per quod, defamation per se, injurious falsehood, and respondeat superior. Plaintiffs assert that the false allegations of Cheetah's involvement subjected plaintiffs to scorn and ridicule and adversely affected their ability to earn income from their activities on behalf of the club.

Defendants moved pursuant to CPLR 3211(a)(1) and (7) for dismissal of the complaint. Defendants argued, inter alia, that all claims made by the Times Square plaintiffs and by the individual plaintiffs (collectively plaintiffs) must be dismissed because the challenged news reports were not “of and concerning” plaintiffs, as a matter of law.

Plaintiffs opposed defendants' motion, arguing that the alleged libel designated plaintiffs in such a way so as to let those who knew them understand that they were the persons meant and that plaintiffs were entitled to so prove that fact to a jury. Specifically, plaintiffs pointed to the reports' assertions that Cheetah's was “run by the mafia” and “at the center” of a human trafficking ring. By making such statements, plaintiffs argued, defendants were asserting that O'Neill, Stein, and Callahan were members of organized crime.

The motion court granted defendants' motion, found that all of the challenged statements related solely to Cheetah's, and dismissed the claims of the Times Square plaintiffs and the individual plaintiffs. The court further found that nothing in any of the broadcasts mentioned, or even indirectly referred to, the Times Square corporations, nor did any statement assert or even imply that the individually named plaintiffs were part of the Mafia or a global trafficking scheme. That the broadcast might have a negative impact on the business of the Times Square corporations, or that they might have caused plaintiffs' friends to shun them did not demonstrate that the statements were “of and concerning” plaintiffs. The court also noted that First Amendment concerns required plaintiffs to be clearly identifiable, which they were not.

On appeal, plaintiffs cling to their contention that they are clearly identifiable as the persons and entities that “run” Cheetah's on account of the functions they perform for the club. At the outset, plaintiffs do not explain why entities that merely supply services to an establishment should be perceived by the public to exercise such control over its operation as to be identified with illegal activities on the premises. To the contrary, plaintiffs' relationship to Cheetah's is peripheral, and the public at large would have no reason to think that they were implicated in the federal investigation. As to patrons, there is no explanation of why they would be aware of the businesses that supply food and beverages to the club (Times Square Restaurant No. 1) or book dancers to perform there (Times Square Restaurant Group). While the individual plaintiffs involved in the operation of those businesses may be present at the club “on a daily basis ... and are highly visible to ... customers,” as the affidavit of Dominica O'Neill states, they are nevertheless mere employees. Significantly, they are not employees of Cheetah's itself, but rather, present at the club to perform the services provided to it by their own employers. They can hardly be understood to be “those who ‘run’ the Cheetah Club,” which implies persons in a position of ownership or control, not vendors that supply management services or their employees, whose presence is required in order to render those services.

As noted, Cheetah's is not a party to...