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In Haefner v New York Media, LLC, 82 AD3d 481, 482 (1st Dept 2011), the First Department similarly held that "the continuous access to a web article via links on [defendant's] website was not a republication."
Summary of this case from Bacon v. NygardOpinion
Nos. 4460, 4460A.
March 8, 2011.
Orders, Supreme Court, New York County (Walter B. Tolub, J.), entered October 22, 2009 and October 26, 2009, which, in an action alleging, inter alia, libel, granted the motions of defendants Primedia, Inc., New York Media, LLC (NYM) and Mark Jacobson to dismiss the complaint as against them, unanimously affirmed, with costs.
Dominic F. Amorosa, New York, and Carey Associates LLC, New York (Michael Q. Carey of counsel), for appellants.
Hogan Lovells US LLP, New York (Slade R. Metcalf of counsel), for New York Media, LLC and Mark Jacobson, respondents. Lynch Daskal Emery LLP, New York (Scott R. Emery of counsel), for Primedia, Inc., respondent.
Before: Andrias, J.P., Catterson, Moskowitz, Abdus-Salaam and Román, JJ.
The claims against Primedia were properly dismissed as time-barred. The asserted republications within the one-year limitations period all took place after Primedia had sold its rights with regard to the articles in question to NYM. Primedia had no ability to participate or acquiesce in the decision to republish the material ( see Rinaldi v Viking Penguin, 52 NY2d 422, 435).
With regard to NYM and Jacobson, we exercise our discretion to disregard the inaccuracies in the notice of appeal and deem it valid (see CPLR 5520 [c]). Nevertheless, dismissal of the complaint as against them was appropriate. The complained of statements' vague reference to a "NYPD/DEA strike force" failed to provide sufficient identifiers to make it "of and concerning" plaintiffs so as to avail them of the small-group libel doctrine ( see Brady v Ottaway Newspapers, 84 AD2d 226, 232 [internal quotation marks omitted]). Furthermore, the continuous access to a Web article via links on NYM's Web site was not a republication ( see Firth v State of New York, 98 NY2d 365, 371-372), and the link by IFC.com was not alleged to have been effected with defendants' acquiescence or participation. The paperback edition of a book was published more than one year before the action was filed.
We have considered plaintiffs' remaining contentions and find them unavailing.
[Prior Case History: 27 Misc 3d 1208(A), 2009 NY Slip Op 52765(U).]