The following papers were considered in connection with this motion by defendant for an Order pursuant to CPLR 3211(a)(1) and (a)(7) dismissing plaintiff's complaint and granting such other and further relief as this Court deems appropriate:

On July 13, 2012, Spitzer appeared on "The Closing Bell with Maria Bartiromo" (the "July 13, 2012 Interview"). Greenberg alleges that, during said interview, Spitzer made false statements regarding Greenberg. Bartiromo began the interview by noting that during Spitzer's time as Attorney General of the State of New York, he brought nine claims against Greenberg. She added that of those nine claims, only two remain today. Spitzer interrupted and said:

Spitzer continued:

In response to Bartiromo's assertion that Spitzer's use of the word "fraud" was not supported by any evidence, Spitzer stated:

Later, Bartiromo referenced 2005, when Spitzer went on television and said Greenberg had committed fraud. Bartiromo stated that "we have no evidence of this so many years later, still. [Greenberg's] camp say[s] you [Spitzer] destroyed his reputation and caused the collapse of AIG" (id.). Spitzer responded by stating that his 2005 television statements had been proven correct over time. In support, and to reveal what he said on that television appearance, Spitzer recited a portion of the transcript. His recitation of what he said was as follows:

After his recitation, Spitzer said "[e]very piece of that statement was accurate, and has been proven" (id.). Again, Bartiromo took issue with Spitzer's use of the word "fraud" and asserted that there were no charges of fraud. Spitzer replied:

In response, Spitzer allegedly falsely asserted that a federal judge had found that Greenberg "is a conspirator whose actions began the conspiracy" (id. at ¶29). Bartiromo responded, "[n]o, no it does not. It does not say Hank Greenberg committed fraud. You said it, you continue to say it, and you say it all the time, and I want to just get to the facts here" (id.).

Greenberg alleges that the July 13, 2012 Statements are false and defamatory in that: (1) Greenberg was not "thrown out" or "removed" by AIG's board; (2) Greenberg did not engage in fraud at AIG with respect to AIG's accounting or otherwise; (3) Greenberg did not pay a fine of $1.6 billion; and (4) AIG did not admit that anyone at AIG engaged in fraud (id. at ¶34). Greenberg also asserts that there have been no final court determinations that he engaged in any wrongdoing during his tenure at AIG, nor have there been any rulings establishing that such misconduct constituted fraud (id.). Furthermore, neither Spitzer, nor any other party, ever brought criminal charges against Greenberg (id.).

Subsequently, during Spitzer's appearance on "Viewpoint," he asserted that "[e]very statement I have made about Hank Greenberg's role in these frauds has been proven true and accurate" (id. at §36). This statement, along with the republication of the July 13, 2012 allegedly defamatory statements, constitute the July 16, 2012 allegedly defamatory statements (id.).

Greenberg alleges that the July 16, 2012 Statements are false and defamatory in the same manner as are the July 13, 2012 statements, to wit: (1) Greenberg was not "thrown out" or "removed" by AIG's board; (2) Greenberg did not engage in fraud at AIG with respect to AIG's accounting or otherwise; (3) Greenberg did not pay a fine of $1.6 billion; and (4) AIG did not admit that anyone at AIG engaged in fraud. Greenberg also asserts that there have been no final court determinations that he engaged in any wrongdoing during his tenure at AIG, nor have there been any rulings establishing that such misconduct constituted fraud. Furthermore, neither Spitzer, nor any other party, ever brought criminal charges against Greenberg (id. at ¶42).

Greenberg alleges that, in addition to republishing his prior defamatory statements, Spitzer made additional false and misleading statements about Greenberg in Spitzer's book, "Protecting Capitalism" (id. at ¶45).

First, Spitzer wrote: "AIG and Hank Greenberg were charged by the New York Attorney General's office—when I was Attorney General—with civil fraud and deceptive accounting practices, as well as a raft of other abuses" (id. at ¶46).

Second, Spitzer allegedly misleadingly quoted from an article published in The New York Times regarding AIG's 2006 settlement with regulatory authorities. Specifically, Spitzer wrote: "Under the settlement reached with the Justice Department, the Securities and Exchange Commission, the New York attorney general's office, and the New York State Insurance Department, AIG acknowledged that it had deceived the investing public and regulators" (id. at ¶47).

Third, Spitzer allegedly falsely stated that Greenberg had been removed as CEO by AIG's board and that a federal judge had found that Greenberg had initiated a "conspiracy" to "deceive investors," as evinced by the following passage:

Greenberg further alleges that Spitzer either knew or recklessly disregarded the fact that the statements he republished from "The New York Times" and "Bloomberg News" contained inaccuracies and false statements (id. at ¶62). Greenberg claims that Spitzer either knew or recklessly disregarded the fact that his selective quotation of a judicial opinion in the federal [*4]criminal prosecution did not constitute a fair and true report of the federal criminal proceedings (id. at ¶63).

Fourth, Spitzer allegedly misleadingly stated that Greenberg had invoked his fifth Amendment privilege when the former wrote: "Perhaps that is why Greenberg invoked his Fifth Amendment right to avoid answering questions when we invited him to explain these transactions" (id. at ¶48).Fifth, Spitzer allegedly falsely stated that Greenberg was charged by the Department of Justice: "And perhaps that is why after the SEC and the Justice Department charged him in 2009 for the actions relating to these same transactions; he settled for $15 million" (id. at ¶51).

Sixth, Greenberg takes issue with Spitzer's statement that "Greenberg was deemed to be an unindicted co-conspirator by federal prosecutors, invoked his Fifth Amendment right to avoid answering questions and was removed by his own board of directors after the accounting at AIG was deemed to be unreliable. Our case against him was rock solid" (id. at ¶50). Greenberg alleges that Spitzer either knew or recklessly disregarded the fact that his selective quotation of a judicial opinion in the federal criminal prosecution did not constitute a fair and true report of the federal criminal proceedings (id. at ¶63).

Seventh, Greenberg alleges that Spitzer stated that Greenberg and his son, Jeffrey Greenberg, were akin to an organized crime family, analogizing them to the Gambino crime family (id. at ¶52). In this regard, the passage from Spitzer's book reads as follows:

Greenberg claims that Spitzer's only bases for analogizing Greenberg and his son to an organized crime family were Spitzer's actual malice and personal animus against Greenberg, Spitzer's desire to damage Greenberg's reputation and career, and Spitzer's desire to continue his personal vendetta against Greenberg in order to restore Spitzer's tarnished political reputation as he seeks to return to elected office (id. at ¶64).Eighth, Greenberg alleges that Spitzer falsely suggested that Greenberg breached corporate governance rules and failed to independently perform his duties as a director on the New York Stock Exchange ("NYSE") Board of Directors (id. at ¶53). These allegedly defamatory suggestions are contained in a chapter of Spitzer's book entitled "Failure of corporate governance," which also concerns Richard Grasso, the former Chairman and CEO of the NYSE. In relevant part, Spitzer wrote:

Spitzer included a table listing the members of the 2001 NYSE Committee and their respective interest. Spitzer then continued:

In addition, Greenberg alleges that Spitzer falsely asserted that Grasso assisted Greenberg in efforts to "prop up" AIG's stock price:

In sum, Spitzer's allegedly defamatory statements at issue consist of the following:

(1)The Removal Statements. Spitzer asserted that Greenberg was "removed" and "thrown out [of AIG] by his own board;"

(2)The Co-Conspirator Statements. Spitzer stated:

(3)The Fifth Amendment Privilege Statement. Spitzer asserted that Greenberg "invoked his Fifth Amendment right to avoid answering questions" about allegedly fraudulent AIG transactions;

(4)The Paid Fine Statement. Spitzer allegedly falsely stated that Greenberg "paid a fine of 1.6 billion [*7]dollars;"

(5)The DOJ Charges Statement. Spitzer allegedly falsely asserted that the "Justice Department charged" Greenberg in connection with AIG transactions;

(6)The Organized Crime Statement. Spitzer "analogized the behavior of the organized crime families to the behavior of" Greenberg and one of his sons;

(7)The NYSE Board of Directors Statements. Spitzer asserted that Greenberg breached corporate governance rules and failed to independently perform his duties as a director on the NYSE Board of Directors.

(8)The Fraudulent Accounting Statements. Spitzer repeatedly stated that Greenberg committed fraud by:

Spitzer now moves to dismiss the amended complaint pursuant to CPLR 3211(a)(1) and (7).

Put differently,

Furthermore, "to be considered documentary,' evidence must be unambiguous and of undisputed authenticity" (id. at 86)[internal citation omitted]). "From the cases that exist, it is clear that judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable,' would qualify as documentary evidence' in the proper case" (id. at 84-85 [internal citation omitted]).

CPLR 3211(a)(7)

(Sokol v Leader, 74 AD3d 1180, 1180-81 [2d Dept 2010]).

Defamation

At the outset, Defendant argues that Plaintiff has not adequately pleaded and cannot prove the requisite degree of fault as a matter of law. As a public figure, Plaintiff may not recover damages for defamation unless he proves that the offending statement was made with " actual malice—that is, with knowledge that it was false or with reckless disregard of whether it was false or not'" (Freeman v Johnston, 84 NY2d 52, 56 [1994] [internal citation omitted]). "It is a subjective inquiry, focusing upon the state of mind of the publisher of the allegedly libelous statements at the time of publication'" (Stepanov, 2014 NY Slip Op 03940, 2014 WL 2208921, *4 [internal citation omitted]).

Accepting the facts as alleged in the amended complaint as true, and according Plaintiff the benefit of every possible favorable inference (Sokol, 74 AD3d at 1180-81), the Court concludes that Greenberg has adequately pleaded actual malice (see Alianza Dominicana, Inc. v Luna, 229 AD2d 328, 329-30 [1st Dept 1996]; Arts4All, Ltd. v Hancock, 5 AD3d 106, 109-11 [1st Dept 2004]; Shaw v Club Managers Ass'n of Am., Inc., 84 AD3d 928, 930-31 [2d Dept 2011]).

Next, Spitzer contends that the Removal Statements, the Fraudulent Accounting Statements, the Co-Conspirator Statements, and the Fifth Amendment Privilege Statements are all substantially true and/or privileged pursuant to Civil Rights Law §74. With respect to the Paid Fine Statements and the DOJ Charges Statements, Spitzer contends that each are substantially true, and even if inaccurate, cannot have caused Greenberg any injury as a matter of law.

Substantial Truth

The test is whether the statement "as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced. When the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel, no legal harm has been done'" (Fleckenstein v Friedman, 266 NY 19, 23 [1934] [internal citation omitted]; see also Love v Morrow & Co., 193 AD2d 586, 587-88 [2d Dept 1993]).

Civil Rights Law §74

Upon application of the law herein above and otherwise herein below noted, the Court hereby rules as follows with respect to each category of challenged statements.

The Removal Statements

To establish a defense, Spitzer relies on the following:

(1)a copy of the excerpted transcript of Greenberg's testimony from American International Group, Inc. v Starr International Co., Inc., (S.D.NY June 16, 2009)(Syed aff, exhibit UU); and

(2)a copy of relevant excerpts from Greenberg's book, "The AIG Story," by Maurice R. Greenberg and Lawrence A. Cunningham (Syed aff, exhibit N).

The Court accepts the copy of the excerpted transcript of Greenberg's testimony as "documentary evidence" pursuant to CPLR 3211(a)(1)(see Fontanetta, 73 AD3d at 84-85 [judicial records qualify as documentary evidence under CPLR 3211(a)(1)]). In pertinent part, Greenberg testified as follows:

In light of the above, the Court finds that Spitzer's statements in this regard were substantially true. Greenberg's reliance upon Fontanetta in arguing that trial testimony does not qualify as documentary evidence is unpersuasive (see Warshaw Burnstein Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536, 537 [1st Dept 2013]). "To some extent, the term documentary evidence' is a fuzzy" term, and what is documentary evidence for one purpose might not be documentary evidence for another" (Fontanetta, 73 AD3d at 84).

Fontanetta deals with documents which can best be characterized as letters, emails, etc. Here, Spitzer has submitted Greenberg's sworn testimony, which utterly refutes Greenberg's allegation that any of Spitzer's verbal formulations in this regard are false (see Warshaw, 106 AD3d at 537). Furthermore, there is nothing before the Court to question the authenticity or accuracy of the transcript.

In any event, the Court finds that Spitzer's statements are privileged pursuant to Civil Rights Law §74, since they constitute a substantially fair and accurate report of a judicial proceeding (see McDonald v East Hampton Star, 10 AD3d 639, 639-640 [2d Dept 2004]). Accordingly, the Court need not consider the excerpts from Greenberg's book.

As such, the Court finds that Spitzer has conclusively established that the Removal Statements are substantially true and, in any event, privileged pursuant to Civil Rights Law §74.

The Co-Conspirator Statements

In support of his contention that his statements are substantially true and/or privileged pursuant to Civil Rights Law §74, Spitzer relies on:

(1)United States v. Ferguson, 553 F.Supp.2d 145 (D. Conn. 2008) ("Ferguson 1"); and

(2)United States v. Ferguson, 676 F.3d 260 (2d. Cir. 2011) ("Ferguson 2").

The Court finds that each qualifies as documentary evidence (CPLR 3211[a][1]). Furthermore, the Court is persuaded that said documentary evidence conclusively establishes that the Co-Conspirator Statements are substantially true. Moreover, said statements are also privileged (Civil Rights Law §74).

In United States v. Ferguson, 553 F.Supp.2d 145 (D. Conn. 2008), Judge Droney, in relevant part, opined as follows:

As the excerpts from the appellate court's decision make abundantly clear, Judge Droney's finding in "Ferguson 1" regarding the conspiracy was affirmed.

Thus, the Court finds that Spitzer has conclusively established that the Co-Conspirator Statements are substantially true and, in any event, privileged (Civil Rights Law §74).The Fifth Amendment Privilege Statements

In support of his argument that his statements are substantially true and/or privileged pursuant to Civil Rights Law [*12]§74, Spitzer refers to the following documents:

(1)a copy of a letter to the editor titled, "The Case of Hank Greenberg," published in The Wall Street Journal (April 2, 2005) (which, upon Defendant's information and belief, was authored by David Boies, counsel of record in the instant action) (Syed aff, exhibit U); and

(2)a copy of the Opinion in People of the State of New York v. Greenberg (Sup Ct, New York County 2010) (Syed aff, exhibit FF).

The Court rejects the copy of the letter to the editor of the Wall Street Journal as documentary evidence (see Fontanetta, 73 AD3d 78). However, the Opinion in People of the State of New York v. Greenberg, (2010 NY Slip Op 33216(U) [Sup Ct, New York County 2010][Syed aff, exhibit FF at 7]) constitutes documentary evidence pursuant to CPLR 3211(a)(1) (see Fontanetta, 73 AD3d at 87). To the extent Spitzer relies upon the Opinion, the Court finds that it conclusively establishes that Spitzer's statement was true. In said Opinion, Justice Ramos wrote, in pertinent part:

Although it appears that Justice Ramos referred to the letter relied upon by Spitzer, the Court cannot conclude that Justice Ramos was referring to the same letter. In any event, the Court finds that Spitzer's statement is privileged (Civil Rights Law §74). In addition, the Court is not persuaded that Spitzer's assertion that Greenberg invoked his Fifth Amendment privilege "to avoid answering questions" is reasonably susceptible of a defamatory connotation (see Stepanov, 2014 NY Slip Op 03940, 2014 WL 2208921, *2).

Based upon the foregoing, this category of challenged statements, namely, the Fifth Amendment Privilege Statements, are not actionable.

Spitzer contends that the Paid Fine Statements and the DOJ Charges Statements are substantially true, and even if inaccurate, [*13]cannot have caused Greenberg any injury as a matter of law.

The Paid Fine Statement

Spitzer does not cite to any exhibits to refute the allegations in the amended complaint or to establish a defense to Greenberg's claim regarding the Paid Fine statements. Rather, Spitzer concedes that during his July 13, 2012 interview, he mistakenly said that Greenberg (as opposed to AIG) paid the $1.6 billion fine. Nevertheless, Spitzer asserts that said mistake constitutes a minor inaccuracy that, when considered in the context of the July 13, 2012 interview, is excusable pursuant to the doctrine of substantial truth.

The Court concludes that Spitzer's statement would not have "a different effect on the mind of the reader from that which the pleaded truth would have produced" (Love, 193 AD2d at 588). According to Greenberg's amended complaint, Spitzer, in the July 13, 2012 interview, stated that "[h]is (Greenberg's) company paid 1.6 billion dollars in a settlement..." Subsequently, and in the same interview, Spitzer stated that "AIG was being led by a CEO whose accounting was fraudulent. That's why the board removed him. He paid a fine of 1.6 billion dollars" (amended complaint ¶26).

Since Spitzer accurately stated that it was AIG that paid $1.6 billion prior to mistakenly saying that Greenberg paid $1.6 billion, in conjunction with the fact that Spitzer made the mistake only once throughout the course of the entire interview, the Court is not persuaded that a reasonable viewer would have inferred that Greenberg also paid a $1.6 billion fine (see Love, 193 AD2d at 587 ["Provided that the defamatory material on which the action is based is substantially true (minor inaccuracies are acceptable), the claim to recover damages for libel must fail"]). In any event, the Court is not persuaded that the statement is reasonably susceptible of a defamatory connotation (see Stepanov, 2014 NY Slip Op 03940, 2014 WL 2208921, *2).

As such, the Court concludes that the Paid Fine Statement is not actionable.

As with the Paid Fine Statement, Spitzer concedes that he was mistaken when he wrote in his book that the Justice Department joined with the SEC to bring claims against Greenberg when, in fact, only the SEC was a party. However, Spitzer argues that this mistake "cannot have produced a discernibly different impact on reader than the (demonstrably) true statement that the SEC in fact [*14]brought those claims against Greenberg" (Spitzer's Memorandum of Law in Support of his Motion to Dismiss the Amended Complaint at 40-41).

Accepting Greenberg's allegation that Spitzer's statement was false and defamatory, the Court finds that Spitzer's mistake would have "a different effect on the mind of the reader from that which the pleaded truth would have produced" (Love, 193 AD2d at 588). Charges brought by the SEC pertain to civil liability, whereas charges brought by the DOJ pertain to criminal liability. By stating that the DOJ brought charges against Greenberg, a reasonable listener or viewer would be inclined to believe that the person charged engaged in some sort of criminal misconduct. Thus, the Court is persuaded that the statement is reasonably susceptible of a defamatory connotation (see Stepanov, 2014 NY Slip Op 03940, 2014 WL 2208921, *2).Therefore, the Court finds that the DOJ Charges Statement is actionable.

The Organized Crime Statement

Upon review of the statement, while "consider[ing] the words in the entire context of the publication, and according to their ordinary meaning" (Aronson v. Weirsma, 65 NY2d 592, 594 [1985]), the Court is not persuaded that Spitzer's statement is reasonably susceptible of a defamatory connotation (see Armstrong v Simon & Schuster, 85 NY2d at 380 [1995]; Golub v Enquirer/Star Grp., Inc., 89 NY2d 1074 [1997]; Stepanov v Dow Jones & Co., Inc., 2014 NY Slip Op 03940 [1st Dept May 29, 2014]).

As such, the Court concludes that the Organized Crime Statement is not actionable.The NYSE Board of Directors Statements

Spitzer argues that no reasonable person could infer from his criticism of the NYSE and its chairman that Greenberg breached his fiduciary duty to the NYSE. Furthermore, Spitzer contends that even if a reasonable reader could draw such an inference from his statements, the statements nevertheless constitute non-actionable opinion based on disclosed facts.

To the extent that Greenberg alleges that Spitzer falsely suggests that Greenberg failed to independently perform his duties as a director on the NYSE Board of Directors, the Court is persuaded that the challenged statement is properly considered nonactionable opinion (see Brian, 87 NY2d at 51). In any event, [*15]the Court is not persuaded that Spitzer's statements regarding the structure of the NYSE's Board of Directors and/or the compensation committee are reasonably susceptible of a defamatory connotation (see Armstrong v Simon & Schuster, 85 NY2d 373, 380 [1995]; Stepanov v Dow Jones & Co., Inc., 2014 NY Slip Op 03940 [1st Dept May 29, 2014]).

Spitzer merely presented the argument that the NYSE permitted its chairman to select a compensation committee without sufficiently independent directors. This argument was surrounded by disclosed facts, including a chart naming all eight members of the 2001 NYSE compensation committee (see amended complaint ¶53). Since Spitzer's chart includes all the members of the compensation committee, not just Greenberg, the Court is not persuaded that Spitzer was attempting to accuse Greenberg of violating his fiduciary duty to the NYSE.

As such, the Court finds that this allegedly defamatory aspect of the NYSE Board of Directors Statements, namely, that Spitzer falsely suggests that Greenberg failed to independently perform his duties as a director on the NYSE Board of Directors, constitutes nonactionable opinion.

At the outset, the Court notes that Spitzer has not submitted any proof in admissible form that utterly refutes Greenberg's allegation. Upon consideration of the factors used in determining whether this statement constitutes an assertion of fact or nonactionable opinion (see Brian, 87 NY2d at 51), the Court concludes that this statement is properly considered an assertion of fact that is reasonably susceptible of a defamatory connotation, namely, that Greenberg abused the power afforded to him by virtue [*16]of his position on the NYSE (see Armstrong v Simon & Schuster, 85 NY2d 373, 380 [1995]; see also Stepanov v Dow Jones & Co., Inc., 2014 NY Slip Op 03940 [1st Dept May 29, 2014]).

Therefore, the Court finds that this allegedly defamatory aspect of the NYSE Board of Directors Statements, namely, that Spitzer falsely asserted that Grasso assisted Greenberg in efforts to "prop up" AIG's stock price, is actionable.

Spitzer refers to the following documentary evidence:

(1)a copy of the complaint filed in Securities and Exchange Commission v. American International Group, Inc., 1:04-cv-02070-GK (D.D.C. Nov. 30, 2004) ("2004 SEC Complaint") (Syed aff, exhibit G);

(2)a copy of the Final Judgment as to Defendant American International Group, Inc. filed in Securities and Exchange Commission v. American International Group, Inc., 04-cv-020270-GK (D.D.C. Dec. 7, 2004) ("2004 SEC AIG Final Judgment") (Syed aff, exhibit I);

(3)a copy of AIG's Annual Report on Form 10-K for the fiscal year ending December 31, 2004 ("2004 Annual SEC Filing") (Syed aff, exhibit Q);

(4)a copy of the signature pages from AIG's Annual Report on Form 10-K for the fiscal years ending December 31, 2000; December 31, 2001; December 31, 2002 ("2000-2003 Signature Pages") (Syed aff, exhibit R);

(5)a copy of the complaint filed in Securities and Exchange Commission v. American International Group, Inc., No. 1-06-cv-1000-LAP (S.D.NY Feb. 9, 2006) ("2006 SEC Complaint) (Syed aff, exhibit X);

(6)a copy of the press release issued by the Securities and Exchange Commission on February 9, 2006 ("2006 SEC Press Release") (Syed aff, exhibit Z);

(7)a copy of a letter agreement between the Department of Justice, Fraud Section, Criminal Division and American International Group, dated February 7, 2006 ("2006 DOJ Letter Agreement") (Syed aff, exhibit AA);

(8)a copy of the complaint filed by the SEC in Securities [*17]and Exchange Commission v. Maurice R. Greenberg and Howard I. Smith, No. 09-cv-06939-LAP (S.D.NY Aug. 6, 2009) ("2009 SEC Complaint") (Syed aff, exhibit BB); and

(9)a copy of the Final Consent Judgment as to Defendant Maurice R. Greenberg in Securities and Exchange Commission v. Maurice R. Greenberg and Howard I. Smith, No. 09-cv-06939-LAP (S.D.NY Aug. 7, 2009)("2009 SEC Greenberg Consent Judgment") (Syed aff, exhibit CC);

Various exhibits submitted by Spitzer in connection with this aspect of his motion constitute "documentary evidence" within the meaning of CPLR 3211(a)(1), while others do not.

The Court rejects the 2004 Annual SEC Filing as documentary evidence. The information contained therein consists of conclusions reached by AIG's independent auditors. In essence, it is a summary (albeit lengthy) and, therefore, is not properly considered "documentary" for the purpose of CPLR 3211(a)(1) (see Fontanetta, 73 AD3d at 87). The Court reaches the same conclusion regarding the 2000-2003 Signature Pages, since they are part and parcel of the 2004 Annual SEC Filing (id.). In any event, the Court is not persuaded that the 2004 Annual SEC filing conclusively establishes a defense as a matter of law.

The 2006 SEC Press Release, which is approximately three pages, summarizes the action brought by the SEC against AIG in February 2006. Due to the 2006 SEC Press Release's summary form, the Court finds that same does not qualify as documentary evidence pursuant to CPLR 3211(a)(1) (id.). Moreover, said Press Release, standing alone, does not conclusively establish a defense as a matter of law. The Press Release characterizes the 2006 SEC action's resolution as a "settlement," which does not indicate that there was a determination of AIG's liability, much less Greenberg's. Lastly, the 2006 DOJ Letter Agreement qualifies as documentary evidence (CPLR 3211[a][1]). Even though it is characterized as a letter, it "reflects an out-of-court transaction,'" thereby rendering it sufficient for the purpose of CPLR 3211(a)(1) (see Fontanetta, 73 AD3d at 84). Nonetheless, the Court finds that the document does not conclusively establish a defense as a matter of law.

With respect to the 2004 SEC Complaint and the 2004 SEC AIG Final Judgment, the Court finds that each comes within the purview of CPLR 3211(a)(1). However, said document does not conclusively establish a defense as a matter of law. The 2004 SEC AIG Final Judgment reveals that AIG "consented to entry of this Final Judgment...without admitting or denying the allegations of the [*18]Complaint..." (Syed aff, exhibit I at 1).

In regards to the 2006 SEC Complaint, the Court accepts its purported sufficiency as documentary evidence pursuant to CPLR 3211(a)(1). However, it does not conclusively establish a defense as a matter of law.With respect to the 2009 SEC Complaint and the 2009 SEC Greenberg Consent Judgment, the Court finds that each falls within the intendment of CPLR 3211(a)(1) (see Fontanetta, 73 AD3d at 84-85). Nevertheless, the Court is not persuaded that either document conclusively establishes a defense as a matter of law. The 2009 SEC Complaint reveals that Greenberg "consented to entry of this Final Judgment without admitting or denying the allegations of the Complaint..." (Syed aff, exhibit CC at 1).Spitzer's argument that the distinction between common law fraud and fraud as contemplated by the Martin Act should be considered in connection with the Court's determination of this category of statements is not persuasive at this preliminary stage of the proceeding.

To the extent the Court has found that certain exhibits submitted by Spitzer in relation to the Fraudulent Accounting Statements constitute documentary evidence (CPLR 3211[a][1]), none of them, when standing alone, conclusively establish a defense as a matter of law (see Fontanetta, 73 AD3d 78). "[CPLR 3211(a)(1)] was intended only as a backup when the defendant has a document which seems all by itself to defeat the plaintiff's claim but eludes any of the more specific dismissal grounds listed in CPLR 3211(a)" (221 Siegel's Prac. Rev. 2)[emphasis added]).

The Court reaches the same determination even when undertaking the task of considering them in the aggregate.

Although Spitzer's submissions may very well be considered at trial or upon a motion for summary judgment, the Court is not yet presented with these circumstances, and has not elected to treat this CPLR 3211 motion as one for summary judgment in connection with this or any other issue raised herein (see CPLR 3211[c]).^[FN1]

Based upon the foregoing, and there being no merit to any other aspect of defendant's motion, it is hereby

ORDERED, that, the Court hereby grants those aspects of defendant's motion to dismiss this defamation action which are based upon the "Removal Statements", the "Co-Conspirator Statements", the "Fifth Amendment Privilege Statements", the "Paid Fine Statements," the "Organized Crime Statement," and that aspect of the "New York Stock Exchange Board of Directors Statements" alleging that Spitzer falsely suggests that Greenberg failed to independently perform his duties as a director on the NYSE Board of Directors; and, it is further

ORDERED, that, the motion to dismiss is denied to the extent that it relates to the "Fraudulent Accounting Statements", the "DOJ Charges Statement", and that aspect of the "New York Stock Exchange Board of Directors Statements" alleging that Spitzer falsely asserted that Grasso assisted Greenberg in efforts to "prop up" AIG's stock price; and, it is further

ORDERED, that, defendant shall serve his answer to the amended complaint within twenty-one days of the date hereof; and, it is further

ORDERED, that, the motion is denied to any further extent; and, it is further

ORDERED, that, the parties shall appear before the Court at 9:30 A.M. on August 25, 2014, for a Preliminary Conference on the surviving aspects of the action.

The foregoing constitutes the Decision and Order of this Court.

June 24, 2014

HON. LEWIS J. LUBELL, J.S.C.