Anita Chanko,, et al., Appellants,v.American Broadcasting Companies Inc., et al., Respondents, Anil S. Ranawat, et al., Defendants.

Brief

N.Y.February 18, 2016

To be Argued by: NATHAN SIEGEL (Time Requested: 20 Minutes) APL-2015-00086 New York County Clerk’s Index No. 152552/13 Court of Appeals of the State of New York ANITA CHANKO, as Executor of the Estate of Mark S. Chanko, deceased, ANITA CHANKO, individually, KENNETH CHANKO, BARBARA CHANKO, PAMELA CHANKO and ERIC CHANKO, Plaintiffs-Appellants, – against – AMERICAN BROADCASTING COMPANIES, INC., THE NEW YORK AND PRESBYTERIAN HOSPITAL and SEBASTIAN SCHUBL, M.D., Defendants-Respondents, – and – ANIL S. RANAWAT and TRAVIS MAAK, M.D., Defendants. BRIEF FOR DEFENDANT-RESPONDENT AMERICAN BROADCASTING COMPANIES, INC. LEVINE SULLIVAN KOCH & SCHULZ, LLP Attorneys for Defendant-Respondent American Broadcasting Companies, Inc. 321 West 44th Street, Suite 1000 New York, New York 10036 Tel.: (212) 850-6100 Fax: (212) 850-6299 Date Completed: August 10, 2015 i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... iv CORPORATE DISCLOSURE STATEMENT ......................................................... 1 QUESTION PRESENTED ........................................................................................ 1 PRELIMINARY STATEMENT ............................................................................... 1 STATEMENT OF FACTS ........................................................................................ 5 A. The NY Med Documentary At Issue ................................................................ 5 1. NY Med is an Award-Winning Medical Documentary Series ................................................................ 5 2. The Broadcast ........................................................................................ 7 3. Appellant Anita Chanko Watches the Broadcast .................................. 9 4. ABC Removes The Segment In Deference to the Chanko Family ............................................................................ 9 B. The Intentional Infliction of Emotional Distress Claim Against ABC ......................................................................... 10 C. The Proceedings Below ................................................................................. 12 1. The Proceedings in the Trial Court ..................................................... 12 a. ABC’s Motion to Dismiss ......................................................... 12 b. The Trial Court’s Decision ....................................................... 13 2. The Proceedings in the Appellate Division ......................................... 13 ARGUMENT ........................................................................................................... 15 ii POINT I THE APPELLATE DIVISION CORRECTLY DISMISSED THE CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST ABC NEWS BECAUSE THE NY MED BROADCAST WAS NOT EXTREME AND OUTRAGEOUS .................................................................................. 15 POINT II ALTERNATIVELY, THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM AGAINST ABC FAILS ON SEVERAL OTHER GROUNDS ........................................................................... 22 A. NY Med Was Not Intentionally or Recklessly Directed at the Chanko Family ............................... 22 B. The NY Med Broadcast Is Privileged As a Matter of New York Law ................................................. 25 C. The First Amendment Bars The Intentional Infliction Of Emotional Distress Claim Against ABC........................................................................................... 28 POINT III THE REMAINING ISSUES APPELLANTS RAISE WITH RESPECT TO ABC ARE NOT PROPERLY BEFORE THIS COURT ...................................... 31 A. This Court Lacks Jurisdiction to Review the Trial Court’s Decision to Dismiss the Physician-Patient Confidentiality Claim Against ABC ............................................................................. 32 B. Appellants May Not Assert New Theories of Aiding and Abetting That Were Neither Pled in the Complaint Nor Raised Below ............................................. 33 C. Appellants Waived Any Objection to the Trial Court’s Consideration of the DVDs of the Broadcasts ................................................................................. 34 POINT IV THE THEORIES APPELLANTS RAISE FOR THE FIRST TIME IN THIS COURT LACK MERIT ................................................................................................. 35 iii A. Appellants State No Claim that ABC News Aided and Abetted a Breach of Physician-Patient Confidentiality............................. 36 B. Appellants Do Not State a Claim that ABC News Aided and Abetted any Alleged Intentional Infliction of Emotional Distress By the Hospital Respondents .......................................................... 42 C. The Appellate Division Properly Considered The DVD Of The Broadcast To Dismiss The Intentional Infliction Of Emotional Distress Claim Against ABC .................................................................. 45 CONCLUSION ........................................................................................................ 48 iv TABLE OF AUTHORITIES Page(s) Cases Anderson v. Abodeen, 29 A.D.3d 431 (1st Dep’t 2006) .............................................................. 19 Ava v. NYP Holdings, Inc., 20 Misc. 3d 1108(A), 2008 WL 2522631 (Sup. Ct. N.Y. Cty. June 24, 2008) .......................................................................................... 40 Bartnicki v. Vopper, 532 U.S. 514 (2001) ..................................................................... 30, 37, 38 Best v. Berard, 776 F. Supp. 2d 752 (N.D.Ill. 2011) .................................................. 30, 31 Bowley v. City of Uniontown Police Dep’t, 404 F.3d 783 (3d Cir. 2005) .................................................................... 41 Burlew v. Am. Mut. Ins. Co., 63 N.Y.2d 412 (1984) .............................................................................. 16 Butler v. Del. Otsego Corp., 203 A.D.2d 783 (3rd Dep’t 1994) ........................................................... 44 Cohn v. NBC, 50 N.Y.2d 885 (1980) .............................................................................. 47 Cohn-Frankel v. United Synagogue of Conservative Judaism, 246 A.D.2d 332 (1st Dep’t 1998) ............................................................ 17 Collucci v. Collucci, 58 N.Y.2d 834 (1983) .............................................................................. 34 Colton v. Roccobono, 67 N.Y.2d 571 (1986) .............................................................................. 35 Connick v. Myers, 461 U.S. 138 (1983) ................................................................................. 29 v Creel v. Crown Publ’g, 115 A.D.2d 414 (1st Dep’t 1985) ............................................................ 26 Cruz v. Latin News Impacto Newspaper, 216 A.D.2d 50 (1st Dep’t 1995) .............................................................. 40 Doe v. American Broadcasting Cos., 152 A.D.2d 482 (1st Dep’t 1989) ...................................................... 19, 20 Dumas v. Koebel, 841 N.W.2d 319 (Wis. Ct. App. 2013) .................................................... 30 Fischer v. Maloney, 43 N.Y.2d 553 (1978) .................................................................. 16, 17, 44 Fla. Star v. B.J.F., 491 U.S. 524 (1989) ........................................................................... 30, 41 Fleischer v. NYP Holdings, Inc., 104 A.D.3d 536 (1st Dep’t 2013) ...................................................... 24, 26 FMC Corp. v. Capital Cities/ABC, Inc., 915 F.2d 300 (7th Cir. 1990) ................................................................... 41 Foster v. Svenson, 128 A.D.3d 150 (1st Dep’t 2015) ...................................................... 20, 21 Frank v. NBC, 119 A.D.2d 252 (2d Dep’t 1986) ............................................................. 26 Frechtman v. Gutterman, 115 A.D.3d 102 (1st Dep’t 2014) ............................................................ 48 Freihofer v. Hearst Corp., 65 N.Y.2d 135 (1985) ............................................................. 16, 18,19, 26 Gallela v. Onassis, 487 F.2d 986 (2d Cir. 1973) .................................................................... 41 Gautier v. Pro-Football, Inc., 304 N.Y. 354 (1952) ................................................................................ 26 vi Gawker Media, LLC v. Bollea, 129 So. 3d 1196 (Fla. Dist. Ct. App. 2014) ............................................. 39 Global Minerals & Metals Corp. v Holme, 35 A.D.3d 93 (1st Dep’t 2006) ................................................................ 44 Green v. Leibowitz, 118 A.D.2d 756 (2d Dep’t 1986) ............................................................. 23 In re Harmon, 73 A.D.3d 1059 (2d Dep’t 2010) ............................................................. 33 Harvey v. Mazal Am. Partners, 79 N.Y.2d 218 (1992) .............................................................................. 35 Hecht v. City of N.Y., 60 N.Y.2d 57 (1983) .......................................................................... 32, 33 Held v. Kaufman, 91 N.Y.2d 425 (1998) .............................................................................. 46 Herlihy v. Metro. Museum of Art, 214 A.D.2d 250 (1st Dep’t 1995) ...................................................... 23, 44 Howell v. N.Y. Post Co., 1990 WL 10587771 (Sup. Ct. N.Y. Cty. Apr. 12, 1990) ........................ 18 Howell v. N.Y. Post Co., 81 N.Y.2d 115 (1993) ....................................................................... passim Huggins v. Povitch, 1996 WL 515498 (Sup. Ct. N.Y. Cty. Apr. 19, 1996)............................. 40 Huggins v. Whitney, 24 Med. L. Rep. 1088 (Sup. Ct. N.Y. Cty. Aug. 28, 1995) ..................... 40 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) ................................................................................... 28 Immuno AG. v Moor-Jankowski, 77 N.Y.2d 235 (1991) .............................................................................. 28 vii Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007) ...................................................................... 38 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) ................................................................................. 27 Kasachkoff v. City of N.Y., 68 N.Y.2d 654 (1986) .............................................................................. 16 Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978) ..................................................................... 36, 37, 38 LeMistral Inc. v. CBS, 61 A.D.2d 491 (1st Dep’t 1978) .............................................................. 41 Lemerond v. Twentieth Century Fox Film Corp., 2008 WL 918579 (S.D.N.Y. Mar. 31, 2008) ........................................... 26 Little Joseph Realty, Inc. v. Town of Babylon, 41 N.Y.2d 738 (1977) .............................................................................. 33 Margrabe v. Sexter & Warmflash, P.C., 353 F. App’x 547 (2d Cir. 2009) ............................................................. 17 Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Cmty. Synagogue, 11 N.Y.3d 15 (2008) ................................................................................ 16 Martin v. Citibank, N.A., 762 F.2d 212 (2d Cir. 1985) .............................................................. 22, 23 Mazzu v. Benderson Dev. Co., 224 A.D.2d 1009 (4th Dep’t 1996) .......................................................... 33 Messenger ex. rel. Messenger v. Gruner + Jahr Printing & Publ’g, 94 N.Y.2d 436 (2000) .............................................................................. 26 Misicki v. Caradonna, 12 N.Y.3d 511 (2009) .............................................................................. 34 Moran v. Hearst Corp., 40 N.Y.2d 1071 (1076) ............................................................................ 47 viii Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293 (1983) .............................................................................. 16 Nader v. Gen. Motors Corp., 25 N.Y.2d 560 (1970) .............................................................................. 23 Nicholson v. McClatchy Newspapers, 223 Cal. Rptr. 58 (Cal. Ct. App. 1986) .................................................... 39 Oster v. Kirschner, 77 A.D. 3d 51 (1st Dep’t 2010) ............................................................... 36 Owen v. Leventritt, 174 A.D.2d 471 (1st Dep’t 1991) ............................................................ 23 Preston v. Martin Bregman Prods., Inc., 765 F. Supp. 116 (S.D.N.Y. 1991) .................................................... 19, 24 Rain CII Carbon, LLC v. Kurczy, 2012 WL 3577534 (E.D. La. Aug. 20, 2012) .......................................... 39 Rall v. Hellman, 284 A.D.2d 113 (1st Dep’t 2001) ............................................................ 44 Rankin v. McPherson, 483 U.S. 378 (1987) ........................................................................... 29, 30 Roach v. Stern, 252 A.D.2d 488 (2nd Dep’t 1998) ..................................................... 21, 22 Rovello v. Orofino Reality Co., 40 N.Y.2d 633 (1976) .............................................................................. 47 Sarwer v. Conde Nast Publ’ns, 237 A.D.2d 191 (1st Dep’t 1997) ................................................ 18, 19, 26 Sawicka v. Catena, 79 A.D.3d 848 (2d Dep’t 2010) ............................................................... 43 Seminole Tribe of Fla. v. Times Publ’g Co., 780 So. 2d 310 (Fla. Dist. Ct. App. 2001) ............................................... 39 ix Semper v. N.Y. Methodist Hosp., 786 F. Supp. 2d 566 (E.D.N.Y. 2011) ..................................................... 24 Sexual Minorities Uganda v. Lively, 960 F. Supp. 2d 304 (D.Mass. 2013) ....................................................... 30 Sheila C. v. Povich, 11 A.D.3d 120 (1st Dep’t 2004) ........................................................ 16, 19 Small v. Lorillard Tobacco Co., 94 N.Y.2d 43 (1999) .......................................................................... 36, 42 Smith v. Daily Mail Publ’g Co., 443 U.S. 97 (1979) ............................................................................. 30, 37 Smukler v. 12 Lofts Realty, Inc., 156 A.D.2d 161 (1st Dep’t 1989) ............................................................ 23 Snyder v. Phelps, 131 S. Ct. 1207 (2011) ........................................................... 28, 29, 30, 31 Stauber v. NYC Transit Auth., 10 A.D.3d 280 (1st Dep’t 2004) .............................................................. 19 Sunset Café, Inc. v. Mett’s Surf & Sports Corp., 103 A.D.3d 707 (2d Dep’t 2013) ............................................................. 46 Town of Massena v. Niagara Mohawk Power Corp., 45 N.Y.2d 482 (1978) .............................................................................. 22 United States v. Morison, 844 F.2d 1057 (4th Cir. 1988) (Wilkinson, J., concurring) ............... 38, 39 V. Groppa Pools, Inc. v Massello, 106 A.D.3d 722 (2d Dep’t 2013) ....................................................... 23, 24 Walter v. NBC Television Network, Inc., 27 A.D.3d 1069 (4th Dep’t 2006) ............................................................ 26 Winters v. New York, 333 U.S. 507 (1948) ................................................................................. 27 x Wojtowicz v. Delacorte Press, 43 N.Y.2d 858 (1978) ........................................................................ 45, 47 Zeman v. Falconer Elecs. Inc., 55 A.D.3d 1240 (4th Dep’t 2008) ............................................................ 33 Zerilli v. Evening News Ass’n, 628 F.2d 217 (D.C. Cir. 1980) ........................................................... 39, 40 Statutes & Other Authorities N.Y. Civ. Rights Law § 50 ..................................................................... 10, 45 § 51 ............................................................................................... 10, 45, 46 § 79-h ....................................................................................................... 38 N.Y. CPLR § 3211(a) ............................................................................. passim Prosser and Keeton, Torts § 12 (5th ed) ....................................................... 16 Restatement (Second) of Torts § 46 cmt. i. ................................................... 23 1 CORPORATE DISCLOSURE STATEMENT American Broadcasting Companies, Inc.’s immediate parent is ABC Holding Co., Inc. and its ultimate parent is The Walt Disney Company, a publicly- traded company. American Broadcasting Companies, Inc.’s subsidiaries are ABC News Ventures LLC, ABC Sports Group, Inc., American Broadcasting AM Radio Services, Inc., American Broadcasting FM Radio Services, Inc., American Broadcasting Radio Network Services, Inc., Lincoln Square Productions, LLC, and Wedco International Holdings, Inc. QUESTION PRESENTED 1. Was that portion of the decision of the Appellate Division, First Department which held that the Second Amended Verified Complaint (“Complaint”) does not state a claim for intentional infliction of emotional distress against ABC News, properly made? PRELIMINARY STATEMENT The Appellate Division correctly held that the ABC News’ NY Med documentary at issue here (“the Broadcast”) cannot give rise to a claim that ABC intentionally inflicted emotional distress on the Appellants. The documentary was part of a critically acclaimed series that portrayed how several nationally renowned hospitals treat a wide variety of medical conditions and how medical professionals operate in an environment that routinely involves life-and-death situations. The 2 point of the few minutes of the program that are at issue in this appeal was to show the general public an example of how a hospital trauma unit operates in an emergency, including the emotional challenges faced by doctors who are unable to save a patient. To educate the public about trauma care, the Broadcast showed the unsuccessful emergency room treatment of an unidentified accident victim. The Broadcast fully obscured the patient’s image and never showed any of his family. Nonetheless, when she watched the Broadcast, Appellant Anita Chanko was able to discern that her husband was the accident victim. After some of the Appellants complained to ABC News shortly after the program was initially broadcast in August 2012, ABC immediately removed the entire hour-long program from its website in deference to their concerns and then re-edited it to delete the few minutes relating to the accident victim. None of the subsequent versions of the program disseminated in any form of media included that segment. Appellants’ 46-page brief devotes just a single, perfunctory sentence to their contention that ABC News intentionally inflicted emotional distress on them by broadcasting the NY Med episode. Yet that is the only claim against ABC that is properly at issue in this appeal.1 With respect to that claim, the Appellants advance 1 See Appellants’ Brief at 46 (“Br.”) (“And its own broadcast of this ill-gotten information constituted its own infliction of emotional distress on the plaintiffs.”). 3 the same argument that many other litigants in New York have unsuccessfully tried to make over the past several decades: that the publication of information that was upsetting to them, without their consent, supports a cause of action against the publisher for the intentional infliction of emotional distress. No appellate court in New York has ever recognized such a claim in the context of news articles or programs that implicate matters of public interest. Moreover, the United States Supreme Court has recently confirmed that the First Amendment bars intentional infliction of emotional distress claims arising out of the dissemination of public interest subject matter. The Appellate Division correctly concluded that the NY Med documentary at issue here cannot establish the “extreme and outrageous” conduct necessary to state the first element of a claim for the intentional infliction of emotional distress. And while its decision should be affirmed on that ground alone, the intentional infliction of emotional distress claim against ABC fails on several other grounds as well. Nothing in the Complaint or the Broadcast supports the proposition that ABC intentionally or recklessly disseminated the Broadcast to inflict distress on these Appellants. Moreover, as a documentary about health care, NY Med addresses subjects of pervasive public interest. It is therefore privileged and thus protected from intentional infliction of emotional distress claims under both New York law and the First Amendment. 4 The remaining page and a half of argument in Appellants’ brief that is directed at ABC raises new theories that are not properly before this Court. Br. at 45-46. Appellants seek to revive their original claim against ABC for breach of physician-patient confidentiality by re-casting it under an “aiding and abetting” theory. But this Court lacks jurisdiction to consider that argument because the breach of patient confidentiality cause of action was dismissed by the trial court as to ABC and the Appellants did not cross-appeal that decision. Moreover, the aiding and abetting theories Appellants introduce here were never pled in the Complaint nor raised in either court below. And as for the DVDs of the Broadcasts they now complain about, Appellants never objected below to their submission but, to the contrary, utilized that material themselves in opposing the motions to dismiss. Even if this Court were to consider any of the theories Appellants try to raise here for the first time, it would make no difference because the new theories lack merit. No claim that ABC aided and abetted the other Respondents (“the Hospital Respondents”) may be stated because the underlying claims against the Hospital Respondents were also properly dismissed by the Appellate Division. Even if that were not so, as a matter of law, journalists do not tortiously aid and abet their sources by gathering and reporting information the sources were allegedly supposed to keep confidential. Otherwise, much of the common practice of 5 journalism and documentary film-making would be rendered tortious, or even criminal, since journalists regularly receive and publish information of public interest regardless of whether their sources might owe duties of confidentiality to third parties. Indeed, the U.S. Supreme Court has held that such receipt and publication of information by the press is protected by the First Amendment. Finally, the DVDs were properly considered by the Appellate Division because it is undisputed that they are accurate copies of the ABC News Broadcasts. That was all they purported to be, and they were submitted because the original Broadcast is referenced in the Complaint and the DVDs of the Broadcasts constitute the only extrinsic material relevant to the Appellants’ claims against ABC News. STATEMENT OF FACTS A. The NY Med Documentary At Issue 1. NY Med is an Award-Winning Medical Documentary Series Defendant-Respondent American Broadcasting Companies, Inc., (“ABC”) operates ABC News. Among the many public affairs programs it offers, ABC News has for more than a decade produced and broadcast medical documentary programs that portray medical treatment at some of the nation’s most prestigious hospitals. These have included programs filmed at Johns Hopkins Hospital in Baltimore (the subject of Hopkins 24/7), Massachusetts General, Brigham and 6 Women’s and Children’s Hospitals in Boston (Boston Med), New York Presbyterian Hospital and University Hospital, Newark, NJ in the Greater New York City area (NY Med). As the Appellants note, these programs have been produced with the permission of all of these leading medical institutions. Br. at 5, 15, 35. NY Med, like its predecessors, gave viewers insight into how a hospital treats a wide variety of medical conditions. The eight-part documentary series portrayed the scientific details of medical care administered by doctors and nurses to their patients, as well as the alternating human moments of hopefulness, camaraderie, relief, and anxiety that take place in the course of administering care in a modern hospital. The medical personnel portrayed included interns, residents, nurses, and experienced physicians. R. 48. This combination of science and storytelling earned NY Med widespread critical acclaim. For example, The New York Times noted that, “NY Med is shot in a vérité style without any apparent manipulation or staging, and with an evident seriousness of purpose.”2 Newsday described NY Med as “unscripted storytelling at its best… not just uplifting TV but very nearly inspirational as well…. Grade 2 Mike Hale, Ready for a Close-Up on the Operating Table, N.Y. Times (July 9, 2012), available at http://tv.nytimes.com/2012/07/10/arts/television/ny-med-on-abc-produced-by-terence- wrong.html?_r=0. This and other critical reviews noted here were cited in ABC’s Reply Memorandum of law in the court below. 7 A+.”3 David Zurawik, a long-time media critic and contributor to CNN’s news media criticism program “Reliable Sources”, wrote: I did not think I’d ever see a better medical documentary series than the Emmy-Award-winning “Hopkins 24/7” that aired in 2000 or its sequel, “Hopkins,” which won a Peabody Award in 2008 . . . But with “NY Med,” which premieres at 10 p.m. Tuesday, [ABC News Producer Terence] Wrong surpasses his earlier work in terms of prime-time storytelling without sacrificing any of the cultural seriousness or grand reach of the Hopkins series.4 NY Med also won a 2013 documentary award from The Christophers, a religious organization that presents annual awards to media programs that “affirm[] the highest values of the human spirit.5 2. The Broadcast The episode at issue here (the “Broadcast”) was aired only once in its original form, on August 21, 2012. R. 31. It focused on the treatment of about a half-dozen patients with different medical conditions, including a heart defect in a 3 Verne Gay, “N.Y. Med” with Dr. Oz: Beautiful and Moving, Newsday (July 10, 2012), available at http://www.newsday.com/entertainment/tv/reality-tv/ny-med-with-dr-oz-beautiful- and-moving-1.3827283. 4 David Zurawik, ABC News Comes to Prime Time with Some Real Life-and-Death Drama This Week, Baltimore Sun (July 8, 2012), available at http://articles.baltimoresun.com/2012-07- 08/entertainment/bal-nymed-abc-news-20120706_1_hopkins-surgeon-hopkins-series-hopkins- culture. 5 Other winners included a 60 Minutes program that traveled to the Congo to show the world’s only all-African symphony orchestra, a PBS series about midwifery in the 1950s, an HBO documentary about the work of nuns at an abbey in Connecticut, and an AETN documentary about the singer Paul Simon’s work in South Africa. Press Release, Christopher Award Winners Highlight the Power of Love, God, Community, Sports and Music, April 9, 2013, available at http://www.christophers.org/release---awards-2013. 8 newborn, an arm injury suffered by a young athlete, and complications from stomach cancer. It included interviews with several doctors that communicated substantive information about diseases and treatment. The Broadcast also showed how young doctors and nurses cope with the stresses associated with the hospital as a workplace environment. A segment towards the end of the Broadcast showed the treatment of an unidentified pedestrian who had been struck by a truck and rushed to the emergency room. R. 48 at 38:12-39:29; 41:43-43:23. The Broadcast depicted how the emergency room physicians and supporting personnel tried to save his life and contemplated several different treatment options, none of which succeeded. The Broadcast never identified or showed the patient, and it electronically blurred both the patient and the area close to the gurney where he was. Id. At one point, a muffled voice can be heard saying “Did you speak to my wife?” Id. at 38:51-53. The unidentified patient was Mark Chanko, who was treated in April 2011, about a year and a half before the Broadcast aired. None of the Appellants were present in the emergency room. Viewers of the Broadcast then heard Respondent Dr. Schubl, a surgery resident who was involved with treating the patient, expressing his sorrow over being unable to save him and preparing to tell his family the sad news. He is then heard saying, off camera, “I did everything I possibly could, but unfortunately he 9 did not survive, I’m sorry.” R. 48 at 43:05-15. None of Mr. Chanko’s family members – including any of the Appellants - are shown, named, or heard. R. 48. 3. Appellant Anita Chanko Watches the Broadcast Appellant Anita Chanko, who is Mark Chanko’s widow, was a regular viewer of NY Med, because she found that it depicted “a series of interesting little stories.” R. 64. To make sure she did not miss each program, she recorded the series on her DVR, and watched a recording of the Broadcast after it aired. Id. Despite ABC’s efforts to obscure the accident victim’s identity, she was able to determine that the events depicted were about the death of her husband fourteen months earlier. R. 63-64. According to Mrs. Chanko, watching it caused her to re-live the experience and also to learn additional details about her husband’s treatment and death that she had not previously known. R. 64-65. She contacted the other Appellants to tell them about what she had seen on the program. R. 65. The four other Appellants then chose to watch the program after Anita Chanko warned them about what it contained. R. 69, 74, 79, 83. 4. ABC Removes The Segment In Deference to the Chanko Family As the trial court’s opinion accurately sets forth, one or more family members complained to ABC News and the Hospital about the segment concerning Mark Chanko’s treatment. In deference to their concerns, ABC News 10 promptly removed the entire Broadcast from its website, as well as from any other online television portals and on-demand services. R. 7, 31. ABC News then re- edited the program to remove all portions relating to the treatment of the accident victim (Compare R. 48 (the original episode) to R. 49 (the re-edited episode). Ever since, only the re-edited version of the Broadcast has been available to the public. R. 31, 147-49.6 The Complaint therefore concerns only the initial Broadcast of the episode, which has not been disseminated since August 2012. B. The Intentional Infliction of Emotional Distress Claim Against ABC Appellants filed the Second Verified Amended Complaint (“Complaint”) on April 18, 2013. The Complaint asserted the same five causes of action against ABC, the Hospital, Dr. Shubl, and two other physicians present when Mark Chanko was treated. Specifically, it asserted causes of action for (1) a violation of Civil Rights Law §§ 50 and 51 (R. 39 at ¶ 35); (2) two claims for common-law invasion of privacy (R. 40-41 at ¶¶ 41-42, 46); (3) a violation of physician-patient confidentiality (R. 42 at ¶ 51); and (4) the intentional infliction of emotional 6 Appellants pointed out below that ABC News did not also change the online caption describing the program when it changed its video content. This caption still said that Dr. Schubl “tries to save the day when a critically injured pedestrian struck by a vehicle is brought to the ER”, even though the program the caption refers to no longer contained this scene. R. 56, 146.1. Appellants were right to point out this mistake, but it had no relevance to this case because the caption standing alone contained nothing that would connect Mark Chanko or his family to its generic reference to an injured pedestrian. 11 distress (R. 43-44 at ¶¶ 55-58). Different Appellants asserted different causes of action, depending on that nature of their complaint. With respect to the intentional infliction of emotional distress claim, identified as the Fifth Cause of Action, that claim is asserted by five of the members of the Chanko family on behalf of themselves. The Complaint’s theory of that cause of action is that ABC “broadcast and disseminate[d] the videotape of the final moments of [Mark Chanko’s] life and the moment of his death”, and that the other Defendants permitted ABC to broadcast that footage. R. 43 at ¶ 54. The Complaint alleges that the Appellants were “shocked and upset by what they saw” when they “watched the said videotape on their televisions.” Id. at ¶ 55. Indeed, Appellants’ Brief accurately summarizes the theory of the Fifth Cause of Action as actually pled in the Complaint: The Fifth Cause of Action alleged that without the knowledge, permission, or consent of Mark Chanko and the plaintiffs, the defendants allowed, permitted and caused ABC “to broadcast and disseminate the videotape of the final moments of his life and the moment of his death.” Plaintiffs were shocked when they saw the broadcast. Br. at 8 (citations omitted). In fact, this is the only theory of a claim for intentional infliction of emotional distress that the five Appellants could all logically try to plead, because watching the Broadcast is the only action alleged in the Complaint in which they all participated (for example, one of them was never at the hospital at all, R. 83). 12 C. The Proceedings Below 1. The Proceedings in the Trial Court a. ABC’s Motion to Dismiss ABC, the Hospital and Dr. Schubl, and the other two defendant doctors all filed motions to dismiss. Appellants now argue as if the motions were submitted only pursuant to CPLR § 3211(a)(1), but in fact they were submitted pursuant to both CPLR § 3211(a)(1) and (a)(7), and the trial court’s decision applied both provisions. R. 6, 9, 28. Similarly, in support of the motion under both prongs of CPLR § 3211(a) (R. 30 at ¶ 1), ABC submitted DVD copies of both the NY Med episode as it aired on August 21, 2012, R. 48, and the version with Mr. Chanko’s segment edited out that has been distributed ever since that date. R. 49. In their opposition to the motions in the trial court, Appellants raised no objection to the DVDs, nor did they argue they were insufficient documentary evidence if considered under CPLR § 3211(a)(1). To the contrary, the Appellants’ arguments in opposition to the motion to dismiss themselves relied extensively upon the DVDs, R. 51-53, and Appellants supplemented them with an additional 88 pages of documents and witness affidavits, R. 61-146.2. Substantively, in addition to arguing that ABC should be liable for its own torts, in their opposition papers Appellants also introduced the alternative theory that all defendants were jointly liable because they had allegedly formed “a joint venture or partnership 13 formed for the purpose of producing a television show.” R. 60. No claim that ABC aided and abetted torts allegedly committed by any other defendants was ever raised. R. 50-60. b. The Trial Court’s Decision With respect to ABC, the Court dismissed the first four causes of action against it in a Decision and Order entered on January 17, 2014. R. 6. That decision included the dismissal of the fourth cause of action for breach of physician-patient confidentiality with respect to ABC, on the grounds that ABC News owes no such duty of confidentiality because it is not a medical provider. R. 9. With respect to the fifth cause of action for intentional infliction of emotional distress, the Court simply recited the four elements of the tort and stated, without explanation, that “Plaintiffs have stated a potentially meritorious cause of action for the infliction of emotional distress against ABC.” Id. 2. The Proceedings in the Appellate Division ABC appealed only that portion of the trial court’s Order that denied its motion to dismiss as to the Complaint’s Fifth Cause of Action for the intentional infliction of emotional distress. R. 14. The Hospital Defendants appealed only that portion of the Order that denied their motion to dismiss the Fourth and Fifth Causes of Action. R. 26. The Appellants did not cross-appeal any of the portions 14 of the trial court’s Order which granted the motions to dismiss the other claims alleged in the Complaint. As a result, Appellants never contended in the Appellate Division that there was any error with respect to the dismissal of the breach of patient confidentiality claim against ABC. In fact, Appellants’ own formulation of the Questions Presented in that Court limited that claim to the one asserted against the Hospital Defendants that had survived in the trial court. Plaintiffs-Appellees’ App. Div. Br. at 1. Appellants also never contended that the trial court erred by considering the DVD of the Broadcast, but rather again relied extensively on that DVD for their own purposes. Id. at 3, 6-7. Finally, with respect to the claim for intentional infliction of emotional distress, consistent with the theory pled in the Complaint, Appellants argued that the content of the Broadcast rendered all the defendants liable for that cause of action. Id. at 12-13. No argument that ABC had aided and abetted the Hospital Defendants’ independent commission of that or any other tort was raised. On November 18, 2014, the Appellate Division reversed those portions of the trial court’s order appealed from, thus dismissing the case in its entirety. With respect to ABC, the Appellate Division held that “Defendants’ conduct in producing and televising a show depicting the medical care provided at defendant hospital that included a pixilated image of plaintiff’ decedent, who was not 15 identified, was not so extreme and outrageous as to support a claim for intentional infliction of emotional distress.” R. 253. Subsequently, the Appellate Division granted Appellants’ motion for leave to appeal to this Court and certified the following question: “Was the order of this Court, which unanimously reversed the order of the Supreme Court, properly made?” R. 251. ARGUMENT POINT I THE APPELLATE DIVISION CORRECTLY DISMISSED THE CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST ABC NEWS BECAUSE THE NY MED BROADCAST WAS NOT EXTREME AND OUTRAGEOUS Appellants contend that ABC is directly liable to them because “its own broadcast of this ill-gotten information constituted its own infliction of emotional distress on the plaintiffs.” Br. at 46. To ABC’s knowledge, no appellate court in the country has ever held that the dissemination of a public affairs article or program could potentially support a claim for the intentional infliction of emotional distress, and certainly none in New York. The Appellate Division correctly concluded that this case is no exception. To survive a motion to dismiss, a claim for intentional infliction of emotional distress must allege facts that could establish: “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of 16 causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.” Howell v. N.Y. Post Co., 81 N.Y.2d 115, 121 (1993). To satisfy the first element a plaintiff must allege conduct that is “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.” Sheila C. v. Povich, 11 A.D.3d 120, 130-31 (1st Dep’t 2004) (internal marks and citations omitted). This element is “susceptible to determination as a matter of law.” Howell, 81 N.Y.2d at 121. The “‘requirements of the rule are rigorous, and difficult to satisfy.’” Id. at 122 (quoting Prosser and Keeton, Torts § 12, at 60-61 (5th ed)). See also Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303 (1983) (describing the standard as “strict”). In fact, this Court’s observation more than twenty years ago that “of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous” remains true today. Howell, 81 N.Y.2d at 122. See also Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Cmty. Synagogue, 11 N.Y.3d 15, 22-23 (2008); Kasachkoff v. City of N.Y., 68 N.Y.2d 654, 657 (1986); Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143-44 (1985); Burlew v. Am. Mut. Ins. Co., 63 N.Y.2d 412, 417-18 (1984); Murphy, 58 N.Y.2d at 303; Fischer v. Maloney, 43 N.Y.2d 553, 557 (1978). The Appellate Division has also noted that “[c]ourts are reluctant to 17 allow recovery under the banner of intentional infliction of emotional distress absent a “‘deliberate and malicious campaign of harassment or intimidation.’” Cohn-Frankel v. United Synagogue of Conservative Judaism, 246 A.D.2d 332, 332-33 (1st Dep’t 1998) (citation omitted). See also Margrabe v. Sexter & Warmflash, P.C., 353 F. App’x 547, 550 (2d Cir. 2009). Appellants’ claim against ABC News does not satisfy this strict standard, and indeed the trial court’s decision did not attempt to provide any explanation as to how it could. In NY Med ABC News was invited by several major medical institutions to show the public how health care is provided, as ABC News has been doing for years in documentaries about prestigious hospitals around the country to widespread critical acclaim. ABC never targeted, harassed, or directed anything at all towards the Appellants, whose connection to its Broadcast resulted solely from the fact that Mr. Chanko was brought to the hospital for care on one of the days and during some of the hours that ABC News was present. The Broadcast never aired, and indeed affirmatively obscured, Mr. Chanko’s image and identifying details about him or his family. After Anita Chanko was nonetheless able to recognize her husband in this particular segment, ABC News responded immediately by taking decisive remedial measures. This is not conduct that is “beyond all possible bounds of decency” or “utterly intolerable in a civilized community.” 18 New York courts have repeatedly rejected the assertion that disseminating sensitive, arguably private information about a person by the press is extreme and outrageous, even where - unlike here – the plaintiff was a subject of the material at issue, no effort was made to obscure his or her identity, and the publisher was notified in advance that the plaintiff objected to its publication. For example, in Howell, this Court held that a newspaper’s publication of a photograph which showed that the plaintiff was a patient in a mental health facility, allegedly surreptitiously taken by a photographer trespassing on the hospital’s grounds, was not “extreme and outrageous” and could not support an infliction of emotional distress claim. 81 N.Y.2d at 125-26. Moreover, this Court reached that conclusion even though the director of the facility called the newspaper before publication to ask that the pictures not be used, so the newspaper was on notice that publication of an unobscured photograph would cause the plaintiff distress. See Howell v. N.Y. Post Co., 1990 WL 10587771 (Sup. Ct. N.Y. Cty. Apr. 12, 1990). The case law from this Court and lower New York courts addressing intentional infliction of emotional distress claims against news organizations has consistently reached the same result as Howell. See, e.g., Freihofer, 65 N.Y.2d at 143-44 (publication of three articles revealing private details of plaintiff’s divorce from confidential court records was not extreme and outrageous); Sarwer v. Conde Nast Publ’ns, 237 A.D.2d 191, 191-92 (1st Dep’t 1997) (identification of plaintiff 19 as victim of child abuse); see also Preston v. Martin Bregman Prods., Inc., 765 F. Supp. 116, 120 (S.D.N.Y. 1991) (“[m]erely publicizing private, personal facts [about a person] does not amount to such a claim” for intentional infliction of emotional distress). Other decisions not involving the content of a media publication likewise show a consistent reluctance to find “extreme and outrageous” conduct even where no conceivable public interest is implicated. See, e.g., Anderson v. Abodeen, 29 A.D.3d 431, 432 (1st Dep’t 2006) (supervisor maliciously displaying to his coworkers nude photos of an employee for “no reason other than to ridicule and harass” is not sufficiently outrageous for an intentional infliction of emotional distress claim); Stauber v. NYC Transit Auth., 10 A.D.3d 280, 281-82 (1st Dep’t 2004) (bus driver shouting profanities at and refusing to help individual in wheelchair not extreme and outrageous, “objectionable as it may be”); Sheila C., 11 A.D.3d at 130-31 (instructing a minor girl to act provocatively and introducing her to a purported rapist is not extreme and outrageous so as to support a claim). The First Department’s decision in Doe v. American Broadcasting Cos., 152 A.D.2d 482 (1st Dep’t 1989) is particularly noteworthy, because it rejected a claim for intentional infliction of emotional distress even though the facts there showed much less sensitivity to the plaintiffs once they expressed objections than ABC News’ response did here. In Doe, a local television station affiliated with ABC 20 interviewed several rape victims for a local news report and promised them they would not be identifiable. The victims included at least one who had never told her family that she had been raped. However, the station revealed facial features and other identifying information when it first began to air excerpts from the interviews, and one of the victims and her friends recognized her. Id. at 483-84. The victim complained to the television station, who in turn assured her and the other interviewees that they would be unidentifiable in future broadcasts. But nothing was done, so when the station aired its next story they were all recognized. Despite this, the Court still found that the television station’s actions “did not constitute the intentional, deliberate, and outrageous conduct necessary” to support an intentional infliction of emotional distress claim. Id. at 483.7 More recently, in Foster v. Svenson, 128 A.D.3d 150 (1st Dep’t 2015) a photographer surreptitiously took pictures of the plaintiff children inside their apartment and displayed the photographs in a public museum exhibit. The children’s mother complained, but the photographer declined to remove all of the photographs. The First Department nonetheless affirmed the dismissal of the 7 Notably, even the dissenting judges in Doe thought the claim should have been allowed to proceed only because the station had failed to take remedial measures to “further steps to disguise” the plaintiffs after receiving “actual notice” from them of the problem. Id. at 484. Applying even that minority standard, ABC News’ Broadcast was not extreme and outrageous because it took immediate and comprehensive remedial measures to remove entirely the offending portions of the documentary as soon as it was notified that the family objected. 21 claims for statutory invasion of privacy and the intentional infliction of emotional distress, finding that although the alleged conduct was “more offensive than those of the defendant in Howell”, it did not satisfy the “high bar” for the extreme and outrageous conduct required to state a claim. Id. at 161-63. The only New York case Appellants cite that found a media broadcast to be potentially “extreme and outrageous” presents such a sharp contrast with the facts here that it further illustrates why the Appellate Division’s decision should be affirmed. In Roach v. Stern, 252 A.D.2d 488 (2nd Dep’t 1998) (cited at Br. at 44), “shock jock” Howard Stern physically tossed around and made fun of the cremated remains of a deceased topless dancer during his television program, and deliberately identified her by name on the air. Stern and another host held up pieces of her cremated bone fragments on television and joked about whether they were holding “ a piece of skull . . . a piece of her teeth . . . [t]his looks like the breast, oh wait, here’s her tooth.” Id. at 490. They even simulated tasting some of her remains, proclaiming that they “taste[] like Cracker Jacks, maybe there’s a prize in the bottom.” Id. at 489. Moreover, Stern deliberately aired the program even after the deceased’s family called up before the broadcast and asked him not to air it. Id. at 488. And the point of the Stern routine was purely personal ridicule that had no relationship to any topic of public interest. Even on those facts the Second Department’s 22 decision in Roach was not unanimous. But even assuming arguendo that Roach was correctly decided, neither the critically-acclaimed NY Med Broadcast nor the segment at issue here is remotely comparable to that program. POINT II ALTERNATIVELY, THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM AGAINST ABC FAILS ON SEVERAL OTHER GROUNDS Since the Appellate Division correctly decided that the alleged conduct by ABC News was not “extreme or outrageous”, its decision to dismiss the intentional infliction of emotional distress claim should be affirmed on that basis alone. However, this Court may also affirm on any other ground that was raised below. Town of Massena v. Niagara Mohawk Power Corp., 45 N.Y.2d 482, 488 (1978). There are several additional reasons why, pursuant to both New York law and the First Amendment, a broadcast of this nature about a matter of public concern cannot support a claim for the intentional infliction of emotional distress. A. NY Med Was Not Intentionally or Recklessly Directed at the Chanko Family Roach involved the deliberate public humiliation of its subject in the media, which points to another reason why the fifth cause of action alleged here was correctly dismissed. The premise of an intentional infliction of emotional distress claim is that the “conduct must also be intentionally directed at the plaintiff and lack any reasonable justification.” Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d 23 Cir. 1985); Smukler v. 12 Lofts Realty, Inc., 156 A.D.2d 161, 163 (1st Dep’t 1989) (same); see also Green v. Leibowitz, 118 A.D.2d 756, 757 (2d Dep’t 1986) (“gravamen of a cause of action for the intentional infliction of emotional distress is that the conduct complained of ‘is especially calculated to cause, and does cause, mental distress of a very serious kind’” (citation omitted)). Courts typically discern whether there is such purposeful direction by assessing whether “severe mental pain or anguish is inflicted through a deliberate and malicious campaign of harassment or intimidation.” Owen v. Leventritt, 174 A.D.2d 471, 472 (1st Dep’t 1991) (internal marks and citations omitted) (threats to kill pregnant plaintiff if she did not drop lawsuit were not “made directly” to plaintiff, and thus not grounds for an intentional infliction of emotional distress claim); see also Herlihy v. Metro. Museum of Art, 214 A.D.2d 250, 263 (1st Dep’t 1995) (citing Nader v. Gen. Motors Corp., 25 N.Y.2d 560, 569 (1970)). A plaintiff may also proceed on a theory of recklessness, see Howell, 81 N.Y.2d at 121, but that too requires establishing that ABC acted “in deliberate disregard of a high degree of probability that the emotional distress will follow.” Restatement (Second) of Torts § 46 cmt. i. The Complaint here pleads no such facts, but rather merely recites in conclusory fashion that ABC News acted intentionally or recklessly to inflict emotional distress on the family. R. 43 at ¶¶ 56-57. As a matter of law such conclusory allegations are insufficient to withstand a motion to dismiss. V. 24 Groppa Pools, Inc. v Massello, 106 A.D.3d 722, 723 (2d Dep’t 2013). Moreover, based on what the Complaint does allege “it strains credulity to think, even had Plaintiff so alleged, that Defendants purposefully engineered” this circumstance “in order to intentionally [or recklessly] cause the Plaintiff mental distress.” Semper v. N.Y. Methodist Hosp., 786 F. Supp. 2d 566, 588 (E.D.N.Y. 2011). The few minutes of the initial broadcast of NY Med that depicted the treatment and death of an unidentified accident victim were not directed at his family. To the contrary, ABC News deliberately undertook measures not to reveal their identities. The point of the segment was to show the general public how doctors dealt with treating a trauma patient and their inability to save his life. The purpose was clearly not to inflict distress on the accident victim’s family. Cf. Preston, 765 F. Supp. at 120 (where a “‘defendant’s primary purpose was to advance its own business interests, and any conduct that harmed plaintiff was incidental, defendant has not committed the New York tort of intentional infliction of emotional distress.’” (citation omitted)). See also Fleischer v. NYP Holdings, Inc., 104 A.D.3d 536, 539 (1st Dep’t 2013) (affirming the dismissal of an intentional infliction of emotional distress claim against a media defendant where “the record undermines any allegation that the challenged articles and postings were published solely for malevolent purposes”). In fact, some of Appellants’ arguments with regard to the breach of physician-patient confidentiality claim 25 recognize that the Broadcast took care to minimize the disclosure of what they contend was confidential information. Br. at 3-4. But that is not consistent with the contention that ABC intentionally or recklessly inflicted emotional distress on them. Indeed, if this claim could proceed against a publication or broadcast intended for the general public, without the required element of deliberately or recklessly targeting the specific plaintiff for the purpose of inflicting emotional distress, the range of potential plaintiffs would be unbounded. In this case, for example, the five Appellants include Mark Chanko’s widow, R. 61, two sons, R. 67, 83, a daughter, R. 77, and a daughter-in-law, R. 73. Under Appellants’ theory, anyone else who watched the program at Mrs. Chanko’s suggestion and felt distressed by it would also potentially have a claim. This is not the law, and indeed Appellants’ expansive theory exemplifies why courts have imposed strict standards to cabin what would otherwise be an almost limitless tort. See Howell, 81 N.Y.2d at 122. B. The NY Med Broadcast Is Privileged As a Matter of New York Law In Howell, this Court held that a claim for intentional infliction of emotional distress may not be predicated upon the publication of “newsworthy” information, because such a publication is privileged as a matter of law. 81 N.Y.2d at 126. As a result, no New York appellate court has ever found that a claim for intentional 26 infliction of emotional distress predicated on a publication relating to a matter of the public interest is actionable. See, e.g., Freihofer, 65 N.Y.2d at 143-144; Fleischer, 104 A.D.3d at 539; Sarwer, 237 A.D. 2d at 191-92. New York courts have construed what is “newsworthy” very broadly to include anything related to “matters of public interest” regardless of the nature of the program in which it is conveyed. Howell, 81 N.Y.2d at 123. Thus, in a variety of contexts the concept has included traditional news reports as in Howell, a sexual advice column, see Messenger ex. rel. Messenger v. Gruner + Jahr Printing & Publ’g, 94 N.Y.2d 436, 444-45 (2000), the broadcast of an NFL football game, see Gautier v. Pro-Football, Inc., 304 N.Y. 354, 360 (1952), entertainment programs like Saturday Night Live and The Tonight Show with Jay Leno, see Walter v. NBC Television Network, Inc., 27 A.D.3d 1069, 1070-71 (4th Dep’t 2006); Frank v. NBC, 119 A.D.2d 252, 257-62 (2d Dep’t 1986), reality-style movies such as Borat, Lemerond v. Twentieth Century Fox Film Corp., 2008 WL 918579, at *2-3 (S.D.N.Y. Mar. 31, 2008), and even a guide to nude beaches, Creel v. Crown Publ’g, 115 A.D.2d 414, 415-16 (1st Dep’t 1985) . There can be no serious dispute that ABC News’ NY Med concerned matters of public interest, and that the portions of the program involving the treatment of the accident victim related to those matters. The Broadcast depicted how a broad range of medical conditions are treated, including traumatic injuries such as those 27 experienced by an accident victim, and it documented the challenges facing the professionals who provide that care. Throughout these proceedings Appellants have tried to label the Broadcast disparagingly as not “an educational documentary series” but rather “a reality television show” (R. 59), or as “voyeurism” (R. 56). For example, they object that in one of its written descriptions of the series, ABC News light-heartedly noted that Dr. Shubl and some other physicians and nurses were physically attractive. R. 65, 69-70. Numerous respected television critics disagree with Appellants’ characterization of the program, but in any event such labels are irrelevant to whether the subject-matter of the program concerns a matter of public interest. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952) (“The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.”); Winters v. New York, 333 U.S. 507, 510 (1948) (“[t]he line between the informing and the entertaining is too elusive for the protection of that basic right [of a free press]…What is one man's amusement, teaches another's doctrine.”). Indeed, many critics lauded NY Med precisely because, in their view, its combination of “prime-time storytelling” and “cultural seriousness” successfully conveyed far more about medical care to a lay audience than would a scholarly report in a medical journal. Accordingly, under New York law ABC News’ conduct at issue is privileged. 28 C. The First Amendment Bars The Intentional Infliction Of Emotional Distress Claim Against ABC Since the Appellate Division’s decision may be affirmed on any one of several state-law grounds, this Court need not address the constitutional arguments that ABC also raised below. Immuno AG. v Moor-Jankowski, 77 N.Y.2d 235, 264 (1991) (“The proper sequence is to analyze the state’s law, including its constitutional law, before reaching a federal constitutional claim.” (citations omitted)). Nonetheless, if the Court were to find that the decision below cannot be sustained under New York law, the First Amendment independently requires that it be affirmed. In Howell, this Court’s holding that the publication of newsworthy material is privileged relied in part upon precedent from the United States Supreme Court holding that public figures may not seek damages for emotional distress predicated on speech without satisfying the constitutional requirements of defamation claims. 81 N.Y.2d at 126 (citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)). Recently, the Supreme Court significantly extended this doctrine to make it clear that the First Amendment bars a claim for intentional infliction of emotional distress related to speech about a matter of public concern that is asserted by anyone, including private figures. And that remains so regardless of whether a jury might find it to be “extreme and outrageous.” Snyder v. Phelps, 131 29 S. Ct. 1207, 1219 (2011). In effect, Snyder held that the result this Court reached in Howell as a matter of New York law is required by the First Amendment. In Snyder, the defendants were members of a church who believe that America’s social and political ills all stem from tolerance of equality regardless of sexual orientation. The church members picketed the funeral of a soldier who had been killed in Iraq, and held up signs such “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Semper Fi Fags,” and “God Hates You”, which also attracted media attention and were shown on news reports about the funeral. Id. at 1213, 1216-17. The deceased soldier’s parents sued the picketers for intentional infliction of emotional distress and invasion of privacy and obtained a $10 million jury verdict. The Supreme Court reversed, holding that the intentional infliction of emotional distress and privacy claims were barred by the First Amendment because the speech at issue related to a matter of public concern. It defined “public concern” broadly to including anything “‘relating to any matter of political, social, or other concern to the community.’” Id. at 1216 (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). It noted that “[t]he arguably ‘inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.’” Id. (quoting Rankin v. McPherson, 483 U.S. 378, 387 (1987)). 30 The Court further noted that the church members had violated no law and committed no tort simply by the act of picketing, and plaintiffs’ distress about their offensive speech and presence near the funeral could not be bootstrapped into converting lawful picketing into a tort. As a result, no claim for intentional infliction of emotional distress could lie because “‘[o]utrageousness[]’ . . . is a highly malleable standard with ‘an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views . . .’” Id. at 1219 (citation omitted). Snyder was consistent with prior Supreme Court precedent holding that the publication of lawfully-obtained information about a matter of public concern may not be subject to civil liability, absent a state interest of the “highest order.” Bartnicki v. Vopper, 532 U.S. 514, 545 (2001); Fla. Star v. B.J.F., 491 U.S. 524, 533 (1989); Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979). Multiple jurisdictions have since applied Snyder to dismiss claims for the intentional infliction of emotional distress asserted by private figures, including claims involving actual “reality television” programs. See, e.g., Dumas v. Koebel, 841 N.W.2d 319, 326-29 (Wis. Ct. App. 2013) ), cert. denied, 354 Wis. 2d 863 (2014); Sexual Minorities Uganda v. Lively, 960 F. Supp. 2d 304, 328 (D. Mass. 2013); Best v. Berard, 776 F. Supp. 2d 752, 758 (N.D.Ill. 2011) (“The status of Female Forces as an entertainment program, as opposed to a pure news broadcast, 31 does not alter the First Amendment analysis.”). In this case, ABC News’s broadcast of NY Med was not remotely comparable to the egregious, deliberate targeting of a deceased soldier’s parents on the day of his funeral that was at issue in Snyder. If that speech was constitutionally protected, then NY Med surely is. And ABC News violated no law by being in the hospital or recording the administration of medical care with the Hospital’s permission. Thus, the intentional infliction of emotional distress claim alleged here is barred by the First Amendment. POINT III THE REMAING ISSUES APPELLANTS RAISE WITH RESPECT TO ABC ARE NOT PROPERLY BEFORE THIS COURT In addition to the claim that ABC inflicted emotional distress on them, Appellants raise several new arguments that relate wholly or in part to their claim against ABC. They contend that ABC aided and abetted the torts allegedly committed by the Hospital Respondents, Br. at 45-46, and that the courts below erred by considering DVDs of the Broadcasts that ABC submitted in support of its motion to dismiss. Br. at 38-42. None of those arguments are properly the subject of this appeal. 32 A. This Court Lacks Jurisdiction to Review the Trial Court’s Decision to Dismiss the Physician-Patient Confidentiality Claim Against ABC Appellants argue that ABC could be secondarily liable for a breach of physician-patient confidentiality on the theory that it aided and abetted the Hospital Respondents’ alleged breach. Br. at 45. This Court does not have jurisdiction to consider that argument because Appellants never appealed the trial court’s dismissal of the breach of physician-patient confidentiality cause of action as to ABC. The trial court granted ABC’s motion to dismiss the breach of physical- patient confidentiality claim against it. R. 9-10. Appellants never appealed or cross-appealed that ruling. Nor did Appellants even attempt to raise in the Appellate Division any claim that the trial court erred by granting ABC’s motion to dismiss the breach of patient confidentiality claim. Chanko’s App. Div. Br. at 1. And the First Department’s decision did not review that aspect of the decision below. Appellants are, in effect, now attempting to cross-appeal for the first time that portion of the trial court’s order which dismissed the breach of physician- patient confidentiality claim against ABC, by asserting a new aiding and abetting theory for the same cause of action. They may not do so. An appellate court’s jurisdiction is limited to the specific part of a judgment or order that is specified in a notice of appeal “and that aggrieve the appealing party.” Hecht v. City of N.Y., 33 60 N.Y.2d 57, 61 (1983). See also Little Joseph Realty, Inc. v. Town of Babylon, 41 N.Y.2d 738, 746 (1977). An appellate court has no jurisdiction to grant relief to a non-appealing party, except for the rare occasion where doing so is necessary to provide complete relief to the party which has appealed. Hecht, 60 N.Y.2d at 62. That exception does not apply here, since the Appellants are the appealing party and ABC is not seeking any relief. Therefore, Appellants cannot now seek the reversal of those portions of the trial court’s order that granted relief to ABC. In re Harmon, 73 A.D.3d 1059, 1062 (2d Dep’t 2010) (“Since the petitioner did not cross-appeal, we do not reach her contention that the Surrogate's Court should have awarded prejudgment interest on the distribution to her”); Zeman v. Falconer Elecs. Inc., 55 A.D.3d 1240, 1241 (4th Dep’t 2008) (“because defendant did not take a cross appeal from the order, its contentions concerning those parts of the order granting the motion in part are not before us”); Mazzu v. Benderson Dev. Co., 224 A.D.2d 1009, 1011-12 (4th Dep’t 1996) (party who did not cross-appeal waived its right to seek relief from portions of trial court’s summary judgment decision). B. Appellants May Not Assert New Theories of Aiding and Abetting That Were Neither Pled in the Complaint Nor Raised Below In addition, the Complaint does not allege, nor did Appellants contend in the courts below, that ABC could alternatively be liable for any alleged torts on an 34 aiding and abetting theory. Those arguments are therefore not properly within the scope of this appeal for this reason as well. As the Appellants’ Brief acknowledges, the Complaint alleged that the Defendants were liable for intentional infliction of emotional distress because ABC aired its Broadcast and the other Defendants permitted and caused ABC to broadcast it. R. 43 at ¶ 54; Br. at 8. The Complaint did not allege that ABC “aided and abetted” someone else’s intentional infliction of emotional distress, nor would that make any sense because the conduct that allegedly caused the distress was ABC’s own Broadcast (which the other Respondents in any event had nothing to do with editing). Nor did Appellants raise any aiding and abetting theory in the Appellate Division. As a result, they may not advance these new theories for the first time in their appeal to this Court. Misicki v. Caradonna, 12 N.Y.3d 511, 518- 19 (2009); Collucci v. Collucci, 58 N.Y.2d 834, 836-37 (1983) (appellee may not assert theory of equitable lien when only theory advanced below was for a constructive trust). C. Appellants Waived Any Objection to the Trial Court’s Consideration of the DVDs of the Broadcasts Appellants also now argue that the DVD of the Broadcast submitted by ABC is not “documentary evidence” under CPLR § 3211(a)(1). They maintain the Appellate Division therefore erred in relying on it in dismissing the Complaint. Br. at 38-42. Here again, Appellants never objected in either the trial court or the 35 Appellate Division to the introduction of the DVDs or argue they were not “documentary evidence” for purposes of § 3211(a)(1). To the contrary, Appellants affirmatively relied on the DVDs in both courts below to support their arguments. This objection is therefore not preserved for appellate review. Harvey v. Mazal Am. Partners, 79 N.Y.2d 218, 225 (1992); Colton v. Roccobono, 67 N.Y.2d 571, 575-76 (1986). POINT IV THE THEORIES APPELLANTS RAISE FOR THE FIRST TIME IN THIS COURT LACK MERIT Even if this Court were to consider any of Appellants’ new arguments, it would make no difference because they fail on the merits. Their aiding and abetting theories posit that journalists who publish newsworthy information become joint tortfeasors with their sources if the sources were allegedly supposed to keep the information confidential. That theory would effectively negate much of investigative journalism, because journalists routinely receive and even request information from sources who are alleged to have had a legal duty not to disclose that information. But it is well-settled that as long as a journalist is not himself or herself directly violating any law, the First Amendment protects the journalist’s receipt and publication of information about a matter of public concern regardless of whether the source allegedly had a legal or contractual duty to maintain its 36 confidence. Finally, the DVDs were properly considered to assess ABC’s broadcasts, which is the only purpose for which they were submitted. A. Appellants State No Claim that ABC News Aided and Abetted a Breach of Physician-Patient Confidentiality Appellants argue that ABC lent “substantial assistance” to the alleged breach of patient confidentiality by the Hospital Respondents, citing a case about the participation of law and accounting firms in their clients’ securities fraud. Br. at 45 (citing Oster v. Kirschner, 77 A.D. 3d 51, 55 (1st Dep’t 2010)). As a threshold matter the Appellate Division’s dismissal of the claim for a breach of physician- patient confidentiality by the Hospital Respondents should be affirmed for the reasons set forth in those Respondents’ Brief, which would also moot any claim of secondary liability. Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 57 (1999). But even if that portion of the Appellate Division’s order were reversed, Appellants’ aiding and abetting theory with respect to ABC fails as a matter of New York law and the First Amendment. The U.S. Supreme Court has repeatedly held that it is not the press’ role to discern any alleged confidentiality obligations of its sources of news. Thus, the First Amendment bars the state from civilly or criminally sanctioning the press for reporting information obtained from sources who were allegedly under a legal duty not to disclose it. For example, in Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978) , the Court held that a Virginia statute criminalizing the 37 publication of information about judicial disciplinary proceedings could not constitutionally be applied to a newspaper who obtained the name of a judge from a confidential source. In Smith, the Court reached the same conclusion with respect to a statute barring the publication of juvenile offenders’ names. 443 U.S. 97. And in Bartnicki, the Court held that provisions of federal and state wiretap statutes that bar the disclosure of illegal recordings could not be constitutionally applied to a radio station that broadcast material from a telephone call that a source apparently taped illegally, even if the station “kn[e]w—or at least had reason to know—that the interception was unlawful.” 532 U.S. at 517-18. The underlying principle articulated in these decisions is that “if a newspaper [or other media entity] lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order.” Id. at 528 (internal marks and citations omitted). Implicit in this principle is the recognition that the press “lawfully obtains” information regardless of whether a reporter might be deemed to have in some sense “assisted” a source’s act of disclosure. For example, in Landmark Communications the defendant newspaper apparently obtained information by promising its source confidentiality, which arguably could constitute “substantial assistance” under traditional state law principles of concerted action. 435 U.S. 38 829. Yet that made no difference to the outcome of the case. Indeed, far from rendering such communications tortious, New York law protects them by recognizing an absolute privilege for reporter-source communications that applies regardless of whether a source may have violated confidentiality duties. See Civ. Rights Law § 79-h(b). Accordingly, courts in New York and elsewhere have consistently rejected claims that journalists become joint tortfeasors because they allegedly facilitated the disclosure of confidential information by their sources. For example, in Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007), the First Circuit held that the First Amendment protected the Internet posting of an audio and video recording of an arrest and warrantless search of a private residence, even though the person who posted it was alleged to have been in “active collaboration” with the source who illegally recorded the tape. Id. at 32. Jean further noted that Bartnicki implicitly presumed that facilitating the disclosure of allegedly protected information would not constitute criminally aiding and abetting a source. Id. at 33. Many other courts have likewise held that the press cannot be held secondarily liable for a source’s alleged breach of confidence. See, e.g., United States v. Morison, 844 F.2d 1057, 1085 (4th Cir. 1988) (Wilkinson, J., concurring) (expressing doubt that the press could ever be prosecuted under the Espionage Act on a theory that it facilitated a leak of classified information by a government 39 source); Zerilli v. Evening News Ass’n, 628 F.2d 217, 222-24 (D.C. Cir. 1980) (no Bivens claim lay against a newspaper reporter who allegedly conspired with federal officials to procure confidential transcripts of illegal wiretaps); Rain CII Carbon, LLC v. Kurczy, 2012 WL 3577534, at *6 (E.D. La. Aug. 20, 2012) (allegation that defendant journalist knew source was breaching a duty to keep trade secrets confidential was insufficient to vitiate First Amendment protections); Gawker Media, LLC v. Bollea, 129 So. 3d 1196, 1202-03 (Fla. Dist. Ct. App. 2014) (fact that source may have illegally recorded and disclosed sex tape to journalists did not vitiate news site’s right to publish it as a matter of public concern); Seminole Tribe of Fla. v. Times Publ’g Co., 780 So. 2d 310, 315 (Fla. Dist. Ct. App. 2001) (dismissing tortious interference claim that reporters solicited the disclosure of confidential proprietary documents because that “is not the type of conduct” that is properly the subject of interference theories); Nicholson v. McClatchy Newspapers, 223 Cal. Rptr. 58, 64 (Cal. Ct. App. 1986) (holding that the First Amendment precludes tort claims against the press for “soliciting, inquiring, requesting and persuading agents, employees and members of the State Bar to engage in the unauthorized and unlawful disclosure of information”). As the D.C. Circuit observed in rejecting the contention that a reporter shares liability for a source’s alleged breach of confidence, “finding the newspaper liable in the present case would amount to holding a newspaper liable in damages for uncovering and 40 publishing information that it deems newsworthy. The values served by a free and vigilant press militate against such a result.” Zerilli, 628 F.2d at 224. Notably, one New York trial court has previously rejected claims that the press should be held liable for alleged breaches of medical confidentiality duties. In Ava v. NYP Holdings, Inc., 20 Misc. 3d 1108(A), 2008 WL 2522631 (Sup. Ct. N.Y. Cty. June 24, 2008), aff’d as modified by 64 A.D.3d 407 (1st Dep’t 2009), the court dismissed claims that a newspaper had “maliciously obtained and published confidential medical records” because state and federal medical privacy laws are inapplicable to the news media. Id. at *4.8 For the same reasons, two trial courts dismissed claims that a television talk show could be liable for tortiously inducing a breach of confidence because the host urged a guest to disclose details of a confidential divorce settlement in an interview. See Huggins v. Povitch, 1996 WL 515498, at *8-9 (Sup. Ct. N.Y. Cty. Apr. 19, 1996); Huggins v. Whitney, 24 Med. L. Rep. 1088 (Sup. Ct. N.Y. Cty. Aug. 28, 1995) (for the Court’s convenience this decision is appended as an Addendum hereto). To be sure, the press is not immune from liability for torts or crimes committed during the course of newsgathering. But such liability must be predicated on the commission of an independent tort in which a journalist 8 See also Cruz v. Latin News Impacto Newspaper, 216 A.D.2d 50, 51 (1st Dep’t 1995) (noting that state and federal medical confidentiality laws “apply to health care providers and certain others, not the news media.”). 41 participates, like assault, trespass or the physical theft of tangible property. See, e.g., FMC Corp. v. Capital Cities/ABC, Inc., 915 F.2d 300, 306 (7th Cir. 1990); Gallela v. Onassis, 487 F.2d 986 (2d Cir. 1973); LeMistral Inc. v. CBS, 61 A.D.2d 491, 493-95 (1st Dep’t 1978). It may not be accomplished by transforming the receipt of information itself into a tort. Fla. Star, 491 U.S. at 536 (“[n]or does the fact that the Department apparently failed to fulfill its obligation under ... [the non- disclosure statute] make the newspaper's ensuing receipt of this information unlawful.”); Bowley v. City of Uniontown Police Dep’t, 404 F.3d 783, 787 (3d Cir. 2005); FMC Corp., 915 F.2d at 303-06 (news network that obtained original corporate confidential documents could be liable for converting the documents, but not for misappropriating the information they contained). But that is exactly what Appellants’ aiding and abetting theory attempts to do. There was nothing independently tortious about ABC’s using news cameras with the permission of a prestigious hospital. In fact, the Complaint alleged that such filming was in itself a tortious invasion of common-law privacy, but the trial court properly dismissed those claims and Appellants did not appeal that ruling. R. 8. As a result, New York law would not recognize a theory of aiding and abetting an alleged breach of patient confidentiality predicated on a journalist watching or documenting medical treatment with a physician’s consent. Moreover, that 42 theory, at least on the facts alleged in this Complaint, would be barred by the First Amendment and the New York Constitution. B. Appellants Do Not State a Claim that ABC News Aided and Abetted any Alleged Intentional Infliction of Emotional Distress By the Hospital Respondents Appellants also now contend that in addition to being directly liable for its Broadcast, ABC News may be sued for aiding and abetting some distinct infliction of emotional distress by the Hospital Respondents. Br. at 45-46. Here too, since for the reasons stated in the Hospital Respondents’ Brief the Appellate Division correctly held that no claim for the intentional infliction of emotional distress is stated against them, no theory of secondary liability may be pled against ABC. Small, 94 N.Y.2d at 57. The claim also fails on its own merits. Not only is this theory new, it is essentially the inverse of the claim actually pled in the Complaint and addressed in the courts below, which was that the Hospital Respondents allegedly shared responsibility with ABC for the content of the Broadcast by “permitting” or “causing” ABC to air it (though the Hospital Respondents had no role at all in selecting or editing the content of an ABC News Broadcast). R. 43 at ¶¶ 54-55. It is difficult to discern what exactly Appellants now allege the Hospital Respondents did to inflict distress on them that ABC supposedly aided and abetted. It would appear that this theory essentially 43 duplicates their aiding and abetting a breach of patient confidentiality claim, and thus fails for the same reasons as that does. Whatever Appellants’ theory may now be, the Complaint cannot support a claim for aiding and abetting the intentional infliction of emotional distress. ABC has found no authority in New York that has ever discussed a theory of aiding and abetting another’s intentional infliction of emotional distress, let alone sustained one. Even assuming that it exists, ABC News’ recording cannot support this novel theory for the same reasons that it cannot be held directly liable. First, ABC did not aid or abet any extreme or outrageous conduct by the Hospital Respondents as there was none. The video-taping and audio recording at issue here was a very small part of a larger-scale project to produce a critically acclaimed documentary program with the consent of a major medical institution. Filming the administration of medical care in those circumstances is not remotely comparable to surreptitiously recording every woman who uses a restroom for purposes of sexual voyeurism as in Sawicka v. Catena, 79 A.D.3d 848 (2d Dep’t 2010) (cited at Br. 44). Moreover, none of the Appellants were in the emergency room and no “confidential medical information” of theirs was allegedly recorded, so Mark Chanko’s alleged claim for the breach of patient confidentiality cannot be bootstrapped into a claim that the Hospital Respondents inflicted emotional distress on any member of his family, aided by ABC. Br. at 43. 44 Second, aiding and abetting liability also requires actual knowledge of the underlying tort, and “a plaintiff may not merely rely on conclusory and sparse allegations that the aider or abettor knew or should have known about the primary breach . . .” Global Minerals & Metals Corp. v Holme, 35 A.D.3d 93, 101-02 (1st Dep’t 2006). The Complaint pleads no facts suggesting that ABC News knew the Hospital Respondents supposedly intended to inflict emotional distress on the Appellants and consciously set out to help them to accomplish that. To the contrary, ABC News obtained the same access to this hospital that many other of the world’s leading medical institutions had provided to it for its previous medical documentaries, for the purpose of documenting the administration of medical care. Finally, this Court has long questioned whether “the doctrine of liability for intentional infliction of extreme emotional distress should be applicable where the conduct complained of falls well within the ambit of other traditional tort liability.” Fischer, 43 N.Y.2d at 557-58. Lower courts therefore reject intentional infliction of emotional distress claims that “fall[] within the ambit of other traditional tort liability.” Herlihy, 214 A.D.2d at 263; Rall v. Hellman, 284 A.D.2d 113, 115 (1st Dep’t 2001); see also Butler v. Del. Otsego Corp., 203 A.D.2d 783, 784-85 (3rd Dep’t 1994). As previously noted, in the trial court the Appellants claimed that the video recording was independently tortious by pleading claims for the common-law tort 45 of intrusion. R. 40-41; see, e.g. R. 41 at ¶ 46 (alleging that the defendants’ “intruded upon private conversations between them and physicians.”). Those claims were properly dismissed because New York does not recognize common- law privacy theories. R. 8; see also Howell, 81 N.Y.2d at 123-24; Wojtowicz v. Delacorte Press, 43 N.Y.2d 858, 859-60 (1978). Appellants’ aiding and abetting theory in this appeal is essentially an effort to revive their intrusion claim through the guise of the intentional infliction of emotional distress tort. Recognizing such a claim here would thus undermine New York’s policy limiting claims for invasion of privacy to the statutory cause of action provided by Civil Rights Law §§ 50-51. C. The Appellate Division Properly Considered The DVD Of The Broadcast To Dismiss The Intentional Infliction Of Emotional Distress Claim Against ABC Finally, Appellants argue that the DVDs of the ABC Broadcasts are not “documentary evidence” for purposes of CPRL § 3211(a)(1) because television broadcasts are edited and do not contain everything the cameraman saw. R. 38-42. This is a straw man argument, because ABC never represented that the DVDs contained everything that was filmed that day at the hospital. Rather, ABC submitted the DVDs as accurate copies of two Broadcasts: the first that aired once on August 21, 2012, and a second that was edited to delete the segment in the emergency room. R. 31 at ¶¶ 4-5. Appellants acknowledge that the DVDs are “unambiguous, authentic, and undeniable”, and indeed unedited, copies of those 46 Broadcasts. Br. at 40 (quoting Sunset Café, Inc. v. Mett’s Surf & Sports Corp., 103 A.D.3d 707, 708-09 (2d Dep’t 2013)). That resolves the issue. ABC submitted the Broadcasts because at least two of the causes of action pled in the Complaint – for the intentional infliction of emotional distress and a violation of Civil Rights Law § 51- were expressly based on what was Broadcast. R. 38-39 at ¶¶ 33-34; R. 43 at ¶¶ 54-55. The DVDs therefore were properly considered because they “conclusively establish[ed]” that the original Broadcast was not extreme or outrageous and that it related to a matter of public concern, which were among the grounds ABC argued required the dismissal of those causes of action. See Held v. Kaufman, 91 N.Y.2d 425, 430-31 (1998). By contrast, none of ABC’s arguments for dismissing the Complaint was dependent on the raw footage of everything filmed in the emergency room.9 Finally, Appellants’ arguments are also beside the point because it does not matter whether the DVDs are “documentary evidence” for purposes of Section 3211(a)(1) . ABC’s motion to dismiss was brought pursuant to both Sections 3211(a)(1) and 3211(a)(7), but Appellants’ argument is directed only to the first prong of the statute and ignores the second. The DVDs were submitted in support of both, R. 30 at ¶ 1, and were properly considered under either prong since they 9 As the trial court held, the Second and Third Causes of Action failed as a matter of law because New York law recognizes no claim for common-law invasion of privacy and the Fourth failed because ABC owed no duty of physician-patient confidentiality since it is not a health care provider. R. 8-9. The raw footage is irrelevant to those rulings. 47 “establish conclusively” that Appellants had no claim against ABC. Rovello v. Orofino Reality Co., 40 N.Y.2d 633, 636 (1976). Moreover, both the trial court and the Appellate Division considered the DVDs without making any distinction as to which prong of Section 3211(a) they supposedly related. R. 9-10; R. 252-54. In fact, since virtually all media broadcasts or publications are edited prior to publication, the logic of Appellants’ position is that a court may never consider such publications for purposes of a motion to dismiss if the plaintiff, as here, did not attach the allegedly offending publication as an exhibit to the complaint. That result would upend decades of jurisprudence, since this Court and numerous lower New York courts routinely consider the allegedly offending publication in defamation, privacy, and other cases attacking media content, including for purposes of motions to dismiss under Section 3211(a)(7). See, e.g., Howell, 81 N.Y.2d at 119 (affirming dismissal of intentional infliction of emotional distress claim pursuant to 3211(a)(7) after considering newspaper’s article and photograph); Cohn v. NBC, 50 N.Y.2d 885, 887 (1980) (affirming dismissal of defamation claim pursuant to 3211(a)(7) after considering the television program at issue); Wojtowicz, 43 N.Y.2d 858, 859-60 (affirming dismissal of privacy claims after considering the movies and books at issue); Moran v. Hearst Corp., 40 N.Y.2d 1071, 1072 (1076) (affirming dismissal of defamation claim after considering magazine article). Appellants' position would enable anyone suing the press to avoid the preliminary dismissal of a meritless case merely by withholding the allegedly offending publication from the complaint. That result would be wholly contrary to New York's established policy of favoring the early disposition of cases implicating First Amendment freedoms where that result is warranted, see ,e.g., Frechtman v. Gutterman, 115 A.D.3d 102 (lst Dep't 2014), a policy that was correctly applied by the Appellate Division in this case. CONCLUSION F or the foregoing reasons, the decision of the Appellate Division dismissing the Complaint as to ABC should be affirmed. Dated: August 10,2015 Respectfully submitted, LEVINE SULLIVAN KOCH & SCHULZ, LLP By:~d Nathan Siegel U 321 West 44th Street, Suite 1000 New York, NY 10036 (212) 850-6100 Counsel for Defendant-Appellee American Broadcasting Companies, Inc. 48 -~- Bloomberg BNA Media Law Reporter -Bl SoUI'OI: Medlll Law Rlportar CIHI '" NIIw yorte '" HUlllllnl v. Whltn..,., 24 MIId.L.Rptr. 1088 (N.Y. SUp. 0:. 1995) 24 M..:I.L.Rpb'. 1" Hugiliin. Y. Whltn., N_ York Suprwn. Court, JI_ York County nty No. 127882,194 August 211, 1995 CHARLI!S HUCICiIINS AND ANN!!! THOMAS Y. JAIiiIII! WHITNEY AND RIVl!R TOWI!R PRODUCTIONS Headnote. eClULATlON OF MI!DIA. 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Derl!nrlllntl _ to dismiss the ampllolnt an the graundlthllt the ampllint dOi!li nat adequltely pIeId publlr8tlDn d the llleged libel Ind thllt the tartloullnteo reo entl! dllm II mertt:less ....... _ .. _ .. 1, T" , ~_ .. '"*" ••