Opinion
25520/2010
08-08-2011
Gorilla Coffee, Inc., DARLEEN SCHERER and CAROL McLAUGHLIN, Plaintiff, v. The New York Times Company, et al., Defendants.
Plaintiff Attorney - Stephen H. Finkelstein, Esq Defendant Attorney - David McCraw, Esq. The New York Time Legal Dept.
Plaintiff Attorney
Stephen H. Finkelstein, Esq
Defendant Attorney
David McCraw, Esq.
The New York Time Legal Dept.
Wayne P. Saitta, J.
Defendants, THE NEW YORK TIMES and OLIVER STRAND, (hereinafter "Defendants"), move this Court for an Order pursuant to CPLR § 3212 for Summary Judgment against the Plaintiffs and granting further relief as this Court deems just and proper.
Upon reading the Notice of Motion by David E. McGraw, Esq., Attorney for Defendants, THE NEW YORK TIMES and OLIVER STRAND, dated November 29th, 2010, and all exhibits annexed thereto; the Memorandum of Law in Support of Motion to Dismiss by THE NEW YORK TIMES COMPANY and OLIVER STRAND, by David E. McGraw, Esq., dated November 29th, 2010; the Affirmation of Martin Garbus, Esq., Attorney for the HANRAHAN, WILHELMI, ALEXANDER, HARRISON, McKEE, NORTON, SANDS and WHITE, (the " Defendant employees"), dated December 7, 2010; the Affidavit in Opposition of Stephen H. Finkelstein, Esq., Attorney for Plaintiffs, GORILLA COFFEE, INC., DAREEN SCHERER and CAROL McLAUGLIN, dated January 4th, 2011, and all exhibits annexed thereto; the Plaintiffs' Memorandum of Law in Opposition to the Defendants' Motion to Dismiss by Stephen H. Finkelstein, Esq.; the Reply Memorandum in Support of Motion to Dismiss by THE NEW YORK TIMES COMPANY and OLIVER STAND, of David E. McGraw, Esq., dated January 11th, 2011; and after argument of counsel and due deliberation thereon, the Defendants' motion for Summary Judgment is granted for the reasons set forth below.
FACTS
Plaintiff GORILLA COFFEE, (hereinafter "GC"), is a Delaware corporation authorized to do business in New York. GC is a retail and wholesale seller of coffee and coffee related products. It is located in the Park Slope section of Brooklyn.
Plaintiff SCHERER is the sole shareholder of GC. Plaintiff McLAUGHLIN is the Director of Operations of GC.
Defendant New York Times Company, (hereinafter "the TIMES"), is a newspaper authorized to do business in New York. It maintains a website under www.NYTimes.com, (hereinafter "the website") where it has a blog called "the City Room" where the TIMES' contributors post articles, and readers can post comments.
Defendant STRAND is a columnist who writes articles for the TIMES, which have appeared on "the City Room".
Defendants HANRAHAN, WILHELMI, ALEXANDER, HARRISON, McKEE, NORTON, SANDS and WHITE were employees of GC in April of 2010, (hereinafter "the Defendant employees").
This action for defamation and emotional injury arises from allegedly defamatory statements made by the Defendant employees and published by the TIMES Defendants on their website which related to a dispute between the Plaintiffs and the Defendant employees.
The TIMES Defendants posted an article by Oliver Strand on the City Room blog on April 10, 2010 about a staff dispute which had closed the Park Slope coffee shop. The article included information which had been provided by Plaintiff SCHERER about the dispute. No statement from the Defendant employees was included in the April 10 article.
The following day, on April 11, 2010 at 5:29 p.m., the TIMES Defendants posted another article by STRAND on the blog which included an excerpt from a statement prepared by the Defendant employees.
At 9:44 p.m. that evening, an updated article by STRAND was posted on the blog which contained further views from the management, including direct quotes from SCHERER.
In the April 11 9:44 pm update, the TIMES published the Defendant employees' statement in full. The following portion of the workers' statement included in STRAND's update is identified in the complaint as the defamatory statement.
"We the workers would have preferred to keep this between the people involved, thus our silence towards the press. However, we do feel it is important to clarify the situation for the friends and patrons of Gorilla Coffee. The issues brought up with the owners of Gorilla Coffee yesterday are issues that they have been aware of for some time. These issues which have repeatedly been brushed aside and ignored have created a perpetually malicious, hostile, and demeaning work environment that was not only unhealthy, but also, as our actions have clearly shown, unworkable."
Plaintiffs' action for defamation and emotional injury stems from the publication of the workers' statement on April 11, 2010.
ARGUMENTS
The TIMES Defendants argue that they were reporting on a story of public interest and that the postings at issue were opinions, and therefore is protected by both the New York and the US Constitutions.
They further argue that the statement made by the Defendant employees lacks defamatory meaning and therefore is not actionable.
The TIMES Defendants argue that Plaintiffs' claim for emotional injury must fail because even had they defamed Plaintiffs, their conduct does not rise to the level of "extreme and outrageous conduct", the standard required for compensation.
The Defendant employees join in the TIMES Defendants' motion to dismiss on the grounds that the statements published are opinion and not actionable.
Plaintiffs argue that at a minimum, the statement published by the TIMES Defendants amounts to "mixed opinion" which sustains Plaintiffs' claims for defamation, and therefore Defendants' motion must be denied.
ANALYSIS
Plaintiffs' first cause of action claims that GORILLA COFFEE sustained a loss of its reputation and a decline in its business due to the defamatory statements made by the Defendant employees and published by the TIMES Defendants. The first step in determining whether there is an actionable claim for defamation per se is whether the statements were defamatory in the first place.
Once the statements are found to be defamatory, there is a second analysis to determine whether the statements constituted such an attack on the corporation's business reputation so as to be actionable without proof of special damages. First Natl. Bank of Waverly, NY v Winters, 225 NY 47 (1918).
Defamation
Defamation has been defined as "the making of a false statement of fact which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace'." Sandals Resorts Intern. Ltd. v. Google, Inc., 86 AD3d 32, 925 NYD2d 407, 2011 WL 1885939 (1st Dept 2011), quoting Rinaldi v. Holt, Rinehart & Winston, 42 NY2d 369, 379 (1977).
It is well settled that expressions of opinion, whether false or libelous are constitutionally protected and are not properly the subject of private damage actions. Steinhilber v. Alphonse, 68 NY2d 283, 501 N.E.2d 550 (1986), at 285, 550.
Under both state and federal law, a finding of defamation requires a finding that the reader would perceive the alleged defamatory statements made were statements of fact. Without such a perception, there can be no defamation as statements of opinion are not actionable. Steinhilber v. Alphonse, 68 NY2d 283, 501 N.E.2d 550 (1986).
It is the role of the court to first determine whether a statement is capable of being construed as an actionable defamatory statement. Rinaldi v. Holt, Rinehart & Winston, 42 NY2d 369, 379 (1977).
The court must decide whether a reasonable person could interpret the statement as conveying facts about its subject. Springer v. Almontaser, 75 AD3d 539, 540—41 (2d Dept 2010), Gross v. New York Times Co., 82 NY2d 146, 152-153, 603 N.Y.S.2d 813, 623 N.E.2d 1163. If the statement could be construed as factual, and therefore could possibly be construed as having been defamatory, the question of whether the statement is in fact defamatory is placed properly before a jury.
Standard to be applied
The New York Constitution has a more expanded protection of the first amended than does the US Constitution. The Court Of Appeals, in Immuno AG. v. Moor-Jankowski, 77 NY2d 235, 567 N.E.2d 1270 (1991), stated,
The expansive language of our State constitutional guarantee (compare, NY Const., art. I, § 8, with U.S. Const. 1st Amend.), its formulation and adoption prior to the Supreme Court's application of the First Amendment to the States * * * the recognition in very early New York history of a constitutionally guaranteed liberty of the press * * * and the consistent tradition in this State of providing the broadest possible protection to the sensitive role of gathering and disseminating news of public events' * * * all call for particular vigilance by the courts of this State in safeguarding the free press against undue interference." (O'Neill v. Oakgrove Constr., 71 NY2d 521, 528-529, 528 N.Y.S.2d 1, 523 N.E.2d 277.)
The New York Court of Appeals in Steinhilber v. Alphonse, 68 NY2d 283, 501 N.E.2d 550 (1986) sets forth four factors to be considered in determining whether a statement is fact or opinion.
(1) an assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous; (2) a determination of whether the statement is capable of being objectively characterized as true or false; (3) an examination of the full context of the communication in which the statement appears; and (4) a consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which might "signal to readers or listeners that what is being read or heard is likely to be opinion, not fact". Id. quoting Ollman v. Evans, 750 F2d 970, discussion of four factors, at 978-984).
While opinions are not actionable, "mixed opinions", that is, opinions which are based upon undisclosed facts that imply that the opinion is really an assertion of fact, may be actionable. "The actionable element of a "mixed opinion" is not the false opinion itself - - it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking". Id., citing Rand v. New York Times Co., 75 AD2d 417, 430 N.Y.S.2d 271 (1st Dept 1980).
Recognizing the difficulty with this task, the Steinhilber Court stated, "[t]he essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were spoken or written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion". Id., at 290.
The Plaintiffs argue that the Defendants' statement is mixed opinion.
In Gross v. New York Times Co., 82 NY2d 146, 623 NE2d 1163 (1993), the Court of Appeals addressed the issue of whether certain statements made in a series of articles published in the New York Times were actionable as defamatory statements. The Times had published a series of articles which made certain statements about the City's Chief Medical Examiner at the time, Elliot Gross.
The trial court dismissed the libel claims, finding that the Times articles contained only the opinions of the interviewees and the Times' staff, and therefore were not actionable. The Appellate Division affirmed.
The Court of Appeals reversed, finding that although the articles contained protected opinions, they also contained "defamatory assertions that a reasonable reader would understand to be advanced as statements of fact". Id., at 151. Among those facts were accusations that Gross engaged in "cover-ups, directed the creation of misleading' autopsy reports and was guilty of possibly illegal' conduct. The Court concluded that because these accusations, taken in context, appeared to convey "facts" which could be proven true or false, the were actionable. Id., at 154-155.
The Court essentially found that where a statement implied it was based upon undisclosed facts, e.g. that Gross directed the creation of "misleading" autopsy reports, the reader would be less suspicious of whether the statements were true. Although the statements were presented as opinion, the reference to undisclosed facts could lead the reader to perceive the opinion as "factual".
Merely couching a statement in the form of an opinion will not necessarily prevent a finding that it is actionable. By way of illustration the Gross Court explained that the statement that "John is a thief" is no more or less actionable than the statement "I believe John is a thief".
Indeed, the Courts have found that assertions which imply undisclosed, defamatory facts are actionable because they are likely to be understood as assertions of fact. (See Guerrero v. Carva, 10 AD3d 105, 779 NYS2d 12 (1st Dept 2004), where the defendants made general accusation that the plaintiff was unfit as a building manager, it was "the assertions of specific instances of illegal evictions' and racial discrimination in employment", without citing the basis for these assertions, which made the statements actionable. See also People ex rel. Spitzer v. Grasso, 21 AD3d 851, 801 NYS2d 584 (1st Dept 2005), where a Chairman of the New York Stock Exchange made public statements that if an attorney were to read a certain undisclosed report, the attorney would find a basis for legal action related to the plaintiff's compensation; see also Goldreyer v. Van de Wetering, 217 AD2d 434, 630 NYS2d 18 (1st Dept 1995), finding that an opinion that a painting was restored with housepaint, inferring it had relied on a specific finding in a lab report issued by the Dutch Ministry of Justice, the contents of which had not been disclosed, was actionable).
In this case, while the Defendant employees' statement may be based on undisclosed facts, the statement does not imply underlying defamatory facts. The statement that there was "a perpetually malicious, hostile, and demeaning work environment that was not only unhealthy, but also, as our actions have clearly shown, unworkable", is too subjective and vague to be considered anything more than an opinion.
None of the words used imply reliance on any outside or objective source or facts which could be objectively characterized as either true or false. Whether a "hostile work environment" existed is not capable of being objectively shown to be true or false as it is a subjective statement.
It is clear to a reasonable reader that the statement made by the workers is based on their perception of their work conditions, not based on an objective source of information. On the other hand, had the workers made a statement which asserted that the working conditions were in violation of a safety code or labor regulations, a reasonable reader might perceive it as implying a factual basis.
Furthermore, the statement must be viewed in the context of the entire post.
The TIMES Defendants presented the workers' statement as part of an ongoing labor dispute. The article presented the opinions of management first, and then that of the workers. It did not state or imply one side's position to be factual or more credible than the other.
Also, the Article quoted Plaintiff SCHERER describing her co-Plaintiff McLAUGHLIN as "passionate, she pushes people" and "she's like a drill sergeant".
Considering the employees' statement together with SCHERER's statements, the reader is given a context to infer the basis for the employees perceiving McLAUGHLIN as hostile and demeaning.
While the Defendant employees' statement that the work environment was malicious, hostile and demeaning and unhealthy does not recite the underlying incidents which caused them to feel this way, it does not imply any derogatory facts that could be characterized as either true or false. It is merely the employees' perceptions about or feelings about the work environment.
Emotional Distress
Plaintiffs' second cause of action sounds in intentional infliction of emotional distress.
Plaintiffs seek punitive damages against the Defendants for emotional distress they say they sustained as the result of embarrassment, contempt and ridicule from the publication of the article. In the absence of their having made out a claim for defamation, Plaintiffs must make out their intentional infliction of emotional distress claim separately.
The tort of "intentional infliction of emotional distress" has four elements: extreme and outrageous conduct; intent to cause, or disregard of, a substantial probability of causing severe emotional distress; a causal connection between the conduct and the injury; and severe emotional distress. Howell v. New York Post Co. Inc., 81 NY2d 115, 596 NYS2d 350.
The Court of Appeals set forth the level to which conduct must arise in order to make out a claim for damages as the result of intentional infliction of emotional distress. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community". Fischer v Maloney, 43 NY2d 553, 402 N.Y.S.2d 991 (1978), quoting Restatement, Torts 2d section 46(1).
None of the conduct by any of the Defendants in this case was outrageous or even came close to approaching the bounds of decency required by this standard. Conduct far more egregious than it was in this case has been found not to have met the standard. (E.g., Bernat v. Williams, 81 AD3d 679, 916 N.Y.S.2d 614 (2nd Dept 2011); claim dismissed where plaintiff sued former boyfriend's estate where he entered her home and committed suicide in her bedroom).
Further, where defendant may have acted to achieve some other purpose, plaintiff must show that the desire to cause emotional distress was more than incidental to defendant's proper motive. O'Rourke v. Pawling Sav. Bank., 80 AD2d 847, 444 NYS2d 471 (2nd Dept 1981).
The Defendant employees issued a statement which reflected their position in a labor dispute. Their intent was to counter the stated position of their employer, and to articulate their reasoning for quitting en masse.
The TIMES Defendants were reporting on a story of public interest, and there is no evidence they were motivated by a desire to cause Plaintiffs emotional distress. The content of the articles contained direct quotes from both sides of the dispute. They did not embellish the quotes or editorialize the statements.
Giving the Plaintiffs the benefit of every inference, they have presented no evidence which supports the position that the TIMES Defendants' conduct was extreme and outrageous, which intentionally or recklessly caused severe emotional distress to the Plaintiffs. Id., at 557.
Furthermore, in this case, the Plaintiffs' claim for infliction of emotional distress is merely duplicative of the claim for defamation.
Plaintiffs argue that litigants have been awarded damages for emotional distress based upon the publication of defamatory material. They cite Morisette v. "The Final Cut", 309 Ad2d 249, 764 NYS2d 416 (1st Dept 2003) for this proposition. However that case dealt with an award of damages for emotional distress suffered as a result of defamation, not a separate cause of action for intentional infliction of emotional distress. Where the only act complained of is publication of a defamatory statement, then a cause of action for intentional infliction of emotional distress based on the statement is duplicative of a claim for defamation.
WHEREFORE, the TIMES Defendants' motion for summary is herein granted and it is
Ordered that the Plaintiffs' complaint is dismissed as to all Defendants.
The foregoing constitutes the decision and order of the court.
ENTER,
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J S C