Decided July 21, 2011.
Rachel Strom, Esq., Hogan Hartson LLP, New York, NY, Plaintiff's Attorney.
Steven Winn, Esq., Monsour Winn, Kurland Warner, LLP, Lake Success, New York, Defendant's Attorney.
The court shall grant defendants' motion for summary judgment dismissing the complaint in this action.
By his complaint, plaintiff Gamal Ibrahim ("Ibrahim"), a security officer of the United Nations ("UN") Canine Unit, alleges that defendants Fox Television Stations, Inc. and journalist John Deutzman ("Deutzman") made slanderous remarks during an October 2, 2007 television news program. The news report focused on an investigation by the UN into allegations of certain UN employees that their co-worker plaintiff Ibrahim physically abused his canine partner, Buddy.
Plaintiff's complaint alleges that defendants published statements on their television program and website that were false, defamatory, malicious, and libelous. Among the statements cited in the complaint as false and defamatory were that "[plaintiff was] turned in by his colleagues for possibly mistreating his canine partner"; "[plaintiff was] raising his hand in a threatening manner to the dog and the dog cowering down, [was] a sign of possible abuse,"; "[a]ccording to State Police, a veterinarian who examined Buddy concluded that Buddy had injuries consistent with trauma"; and "what the UN investigation found was bad enough for the State police to take custody of Buddy and the UN to take Sergeant Ibrahim off canine duties."
In support of their summary judgment motion, the defendants submit an affidavit of Deutzman, the investigative reporter for defendant Fox Television Stations, Inc., the television station, who submitted the story. Defendants contend that plaintiff himself has conceded that the news report of the investigation is true, and that the plaintiff has failed to set forth any facts in admissible form to establish that such broadcast is false. Defendants argue that the attorney affirmation submitted as plaintiff's opposition papers to the motion provide no evidence that demonstrates that there are any issues of material fact that require a trial.
The court finds that defendants established their defense "sufficiently to warrant the court as a matter of law in directing judgment' in [their] favor (CPLR 3212, subd [b])", having tendered sufficient evidentiary proof in admissible form. See Friends of Animals, Inc. v Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067 (1979).
The defendants attach a letter dated January 12, 2009 addressed to plaintiff from the UN's Deputy Secretary-General, and a copy of the 2008 Joint Disciplinary Committee ("JDC") Report. In that letter, the Deputy Secretary-General wrote that based on the 2008 JDC Report, which after a hearing found inadequate evidence, the UN's Secretary-General decided to drop the charge leveled against plaintiff. That letter and the JDC Report provide evidence that is not refuted that the investigation of the UN's Department of Safety and Security Internal Affairs Unit ("IAU") that resulted in the charge against plaintiff, had been completed on September 12, 2007. Such investigation was completed in advance of the of the airing of the October 2, 2007 broadcast. Plaintiff's contention that the UN investigation was not the source of defendants' newscast is therefore unsupported.
Defendants are correct that plaintiff may not maintain this defamation action as the challenged broadcast, as an accurate and true report of an official proceeding, enjoys absolute immunity pursuant to Civil Rights Law § 74. The court disagrees with plaintiff's argument that the investigation conducted by DSS IAU, which was the basis of the news story, did not constitute an official proceeding, but only the JDC hearing did. Apposite is the decision of the appellate court in Freeze Right Refrigeration and Air Conditioning Services, Inc. v. New York Times, 101 AD2d 175 (1st Dept 1984), which held that a New York Times article, as an accurate and true report of a New York City Department of Consumer Affairs investigation, fell within the protection of § 74. See also Murphy v News Syndicate Co, 12 NY2d 1092 (1963). Likewise here, the investigation at bar constituted an official proceeding pursuant to § 74. Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 198 (1975), which involved a defamation action brought by a public school teacher who challenged the accuracy of a newspaper account of his arrest for unlawful possession of a hypodermic needle and heroin, also commands summary judgment dismissing the complaint at bar. In Chapadeau, the Court of Appeals outlined the history of libel law jurisprudence in New York State, citing "the landmark decision" in New York Times Co. v Sullivan ( 376 US 254), which "brought the law of libel within the ambit of the constitutional protections" of the First Amendment by holding that "a public official cannot recover for a defamatory statement about his official conduct in the absence of proof of malice." The Chapadeau court described how the constitutional privilege was extended "to publishers of libelous statements concerning private individuals who are involved in matters of public interest".
In applying the precedent, the court in Chapadeau reasoned that
where the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition, the party defamed may recover; however to warrant such recovery he must establish, by a preponderance of evidence, that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties. 38 NY2d at 199.
Examining the "nature of the offending communication", the Chapadeau court found that the article concerning the arrest of Chapadeau, a public school teacher, for felony possession of heroin and unlawful possession of a hypodermic needle fell "within the sphere of public concern". It held that the fact of Chapadeau's occupation, which involved instructing youth, coupled with the issue of heroin addiction clearly established the information in the article as matters of public concern.
Here the "nature of the offending communication" relates to the plaintiff and his responsibilities as employee of the Canine Unit within the UN's Department of Safety and Security, the department that provides security to the landmark headquarters of this world known international organization. The communication specifically reported about allegations that plaintiff mistreated the bomb-sniffing dog supplied him. As such, the broadcast involved a matter of public concern. Thus, as in Chapadeau, the question becomes "whether the [plaintiff] submitted evidence sufficient to raise an issue of fact as to the newspaper's culpability." 38 NY2d at 200.
In the affidavit submitted by defendants, Deutzman describes the professional efforts that he undertook to corroborate the factual issues in his news report, including but not limited to talking with various UN security officers who worked with plaintiff and receiving descriptions of their observations of the plaintiff with his dog. In addition, since the dog was among those on loan to the UN from the New York State Police Department ("NYSPD"), Deutzman spoke with an employee of the NYSPD, which took custody of the dog several days after the UN began its investigation.
Deutschman's description of his coverage of the UN's investigation establishes defendants' prima facie defense that they acted responsibly in telecasting the story.
Plaintiff's opposition papers fail to offer any evidence that defendants were grossly irresponsible in publishing the story about plaintiff. Plaintiff's claim that his co-worker accusers made their claims against him in retaliation for his own reports of misconduct on the part of such co-workers does not constitute evidence of actual malice on the part of the defendants. See Friends of Animals, Inc., supra, 46 NY2d at 1067-1068.
Accordingly, it is
ORDERED that the defendants' motion for summary judgment dismissing the complaint is GRANTED; and it is further
ORDERED and ADJUDGED that the Clerk is directed to enter judgment DISMISSING the action.
This is the decision and order of the court.