Supreme Court, Clinton County, May 6, 2021

Finnerty, Osterreicher & Abdulla, Buffalo (Joseph M. Finnerty and Karim A. Abdulla of counsel), for Plattsburgh Press-Republican, defendant.

Alan P. Weinraub for plaintiffs.

On April 11, 2018, defendant Plattsburgh Press-Republican (hereinafter defendant) published a newspaper article entitled "Legal Aid: Gray Gables should be shut down." The article contained a sub-headline which further informed the reader "APARTMENTS: Tenants suing owner; owner says damage was caused by residents." As the headline and sub-headline indicate, the article concerned an apartment building named{**72 Misc 3d at 481} "Gray Gables," owned by plaintiffs Frederick and Cecile Reus (hereinafter plaintiffs). The article can be fairly summarized as a description of lawsuits brought by the Legal Aid Society of Northeastern New York against plaintiffs, the Town of Chazy and Clinton County on behalf of former tenants of Gray Gables; the reasons the lawsuits were brought; and what Legal Aid hoped to accomplish through the litigation. A brief history of the historic building is provided, as are details of what caused Legal Aid and defendant ETC Housing Corporation to become involved in what became a years long dispute over the habitability of the property. Former tenants of Gray Gables are quoted at length in the article wherein they described various deficiencies with Gray Gables, to include collapsed ceilings, water leaks and water damage, and a lack of an appropriate or reliable heat source. Plaintiff Frederick Reus is also quoted throughout the article, the general thrust of his comments being that the tenants were the root cause of the issues at Gray Gables and that but for the conditions caused by the tenants, the building was otherwise perfectly sound. The article [*2]concludes by quoting a representative of Legal Aid, who indicates that the organization's primary goal is to get the Town of Chazy to "shut down" Gray Gables owing to the building's purported unfitness for occupancy. The article was accompanied by a photo of the exterior of Gray Gables which can be accurately described as unflattering, with various pieces of junk and debris strewn about the outside of the building.

On November 19, 2018, plaintiffs filed a verified complaint requesting declaratory relief and alleging that defendant Plattsburgh Press-Republican engaged in (1) tortious interference with business relationship; (2) libel per se; (3) trespass; (4) fraud and misrepresentation; and (5) intentional infliction of emotional distress. By stipulation dated August 16, 2019, plaintiffs' causes of action sounding in trespass, fraud and misrepresentation, and intentional infliction of emotional distress were withdrawn, with prejudice, as against defendant.

By notice of motion dated February 12, 2021, defendant moved this court for an order: (1) pursuant to CPLR 3212 granting dismissal of plaintiffs' complaint on the merits and with prejudice; (2) granting costs and fees to the movant; and (3) granting such other and further relief as the court deems just and proper—to include relief pursuant to Civil Rights Law §§ 70-a and 76-a, CPLR 3211 (g) and CPLR 3212 (h).

In support of their motion, defendant submitted: (1) an affidavit of Joseph Finnerty, Esq., sworn to on February 12, 2021;{**72 Misc 3d at 482} (2) an affidavit of McKenzie Delisle, sworn to on February 11, 2021; (3) an affidavit of Suzanne Moore, sworn to on February 11, 2021; (4) an affidavit of Lois Clermont, sworn to on February 10, 2021; (5) a memorandum of law dated February 12, 2021; and (6) a statement of material facts dated February 12, 2021. In opposition, plaintiffs submitted: (1) a memorandum of law dated March 15, 2021; (2) an affidavit of Alan Weinraub, Esq., of even date; and (3) an affidavit of plaintiff Frederick Reus, of even date. In reply, defendant submitted a reply memorandum of law dated March 22, 2021, and a reply affidavit of Joseph Finnerty, Esq., of even date.

The court dismisses the complaint against defendant in its entirety and awards defendant actual costs and reasonable attorney fees in connection with this action. The court is granting defendant's motion for summary judgment and dismissing the cause of action based upon alleged tortious interference with business relationship because (1) pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.8-g, all the allegations made by defendant were deemed admitted, and upon those admitted facts, dismissal is required; and (2) plaintiffs have not contested (or even referenced) defendant's summary judgment motion with respect to this cause of action. The court is granting defendant's motion for summary judgment and dismissing the cause of action sounding in libel per se because (1) pursuant to 22 NYCRR 202.8-g, defendant's allegations are deemed true and upon these admitted facts, defendant is entitled to summary judgment; (2) the court finds the alleged libelous statements to be substantially true; (3) defendant is entitled to summary judgment pursuant to Civil Rights Law § 74; and (4) defendant is entitled to summary judgment pursuant to Civil Rights Law § 76-a. The court is granting defendant's request for an award of actual costs and reasonable attorney's fees in connection with this action pursuant to Civil Rights Law § 70-a.

Uniform Rules for Trial Courts (22 NYCRR) § 202.8-g provides:

"(a) Upon any motion for summary judgment, other than a motion made pursuant to [*3]CPLR 3213, there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be{**72 Misc 3d at 483} tried.

"(b) In such a case, the papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party and, if necessary, additional paragraphs containing a separate short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.

"(c) Each numbered paragraph in the statement of material facts required to be served by the moving party will be deemed to be admitted unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.

"(d) Each statement of material fact by the movant or opponent pursuant to subdivision (a) or (b), including each statement controverting any statement of material fact, must be followed by citation to evidence submitted in support of or in opposition to the motion." (Emphasis added.)

In compliance with the foregoing, defendant submitted a "Statement of Material Facts" with paragraphs numbered 1-80. Each non-introductory paragraph sets forth facts which defendant asserts entitles it to judgment as a matter of law. Although plaintiffs submitted an affidavit of Frederick Reus "in [o]pposition to the Statement of Materials Facts," said affidavit, in contravention of the above rule, does not contain a "correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party." (22 NYCRR 202.8-g [b].) More problematic, plaintiffs' submission is rife with conclusory, unsupported, or irrelevant and immaterial responses, including, but certainly not limited to: that the April 11, 2018 newspaper article at issue was a "hit piece" and repeated references to defendant having been negligent in its investigation and publication without further explanation. Thus, each and every response of this or a similar nature fails to comply with 22 NYCRR 202.8-g (b). Finally, with three exceptions, each of the paragraphs in plaintiffs' responsive submission which disputes a material fact asserted by defendant utterly fails to comply with 22 NYCRR 202.8-g (d) insofar as plaintiffs do not provide citations to support the purportedly disputed material fact. Accordingly, pursuant to the mandate of 22 NYCRR 202.8-g (c), the court finds that each and every statement in defendant's statement of material facts is deemed{**72 Misc 3d at 484} admitted by plaintiffs insofar as plaintiffs' submission fails to comply with Uniform Rules for Trial Courts (22 NYCRR) § 202.8-g (b) and (d). On review of said material facts, the court concludes the defendant is entitled to summary judgment.

[1] If the court, like the plaintiffs, were to ignore 22 NYCRR 202.8-g, the court would reach the same conclusion. "The award of summary judgment in libel actions . . . is appropriate where there are no material triable issues of fact." (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 384 [1977] [citations omitted]; see also CPLR 3212; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 200 [1975].) Generally, to establish a claim for defamation, it must be shown that defendant made "a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se." (Hope v Hadley-Luzerne Pub. Lib., 169 AD3d 1276, 1277 [3d Dept 2019] [citations omitted].) In contrast to the usually restrained application of CPLR 3212, in libel cases, summary judgment is favored by New York courts. (Khan v New York Times Co., 269 AD2d 74, 77 [1st Dept 2000]; see also CPLR 3212 [h].)

Truth is an absolute defense to a libel action. (Hope v Hadley-Luzerne Pub. Lib., 169 AD3d at 1277.) The defendant has provided voluminous evidence which indicates that the article in question is substantially true and that "the substance, the gist, the sting, of the libelous charge [is] justified." (Masson v New Yorker Magazine, Inc., 501 US 496, 517 [1991].) Defendant, in meticulous fashion, provides a comparison of the reporter's source material versus what was actually written in the article, parsing in minute detail what was learned by defendant during its investigation and then what was reported and published. A review reveals that the article accurately reflects the pleadings or statements made to the reporter in the course of information gathering. To the extent that plaintiffs argue there are errors in the article, they are few, minor, or immaterial, and do not affect the substantial accuracy of the article in view of the source material upon which it was based. To the extent that plaintiffs perceive the article to be a one-sided portrayal of circumstances surrounding Gray Gables, the court notes that Mr. Reus is quoted at length in the article and "there is 'no requirement that [a] publication {**72 Misc 3d at 485}report the plaintiff's side of the controversy.' " (Tenney v Press-Republican, 75 AD3d 868, 869 [3d Dept 2010].) Thus, summary judgment is appropriate on the grounds that the article is substantially true and plaintiffs have not come forward with material facts showing its falsity.

Civil Rights Law § 74 states: "[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published." To be applicable, a published report must (1) concern judicial, legislative, or other official proceeding and (2) be a fair and true report. (Saleh v New York Post, 78 AD3d 1149, 1151-1152 [2d Dept 2010].) Courts construe the first element broadly, and the report or article need not stem directly from a judicial proceeding, but rather, can be about a judicial proceeding, such as comments that "essentially summarize or restate the allegations of a pleading." (Lacher v Engel, 33 AD3d 10, 17 [1st Dept 2006].) As to the "fair and true" element, courts again take a broad view, with the Court of Appeals noting that for a report to be characterized as fair and true, "it is enough that the substance of the article [is] substantially accurate." (Holy Spirit Assn. for Unification of World Christianity v New York Times Co., 49 NY2d 63, 67 [1979].) Minor inaccuracies will not remove the article from the ambit of the statute. (Saleh v New York Post, 78 AD3d at 1153.)

The article at issue clearly concerned a judicial proceeding as it was primarily about three lawsuits being filed by Legal Aid Society of Northeastern New York against the Town of Chazy, Mr. Reus and Clinton County on behalf of former tenants of Gray Gables. As noted above, there is no doubt that the article is substantially true. Thus, defendant is entitled to the protection of the statute and summary judgment is appropriate.

In pertinent part, Civil Rights Law § 76-a, as amended in November of 2020, provides:^[FN*]

"1. For purposes of this section:

"(a) An 'action involving public petition and participation' is a claim based upon:

"(1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or

"(2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition . . .

"(d) 'Public interest' shall be construed broadly, and shall mean any subject other than a purely private matter.

"2. In an action involving public petition and participation, damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue." (Emphasis added; see also New York Times Co. v Sullivan, 376 US 254, 280 [1964].)

The term "public interest" as used in Civil Rights Law § 76-a (1) (a) (1) is "construed broadly, and shall mean any subject other than a purely private matter." (Civil Rights Law § 76-a [1] [d].) Given the subject matter of defendant's article, the article clearly involved a "public interest" as it concerns the fate of the Gray Gables building which has been a matter of public concern for decades. Moreover, as defendant notes, courts, for obvious reasons, are deferential to editors in terms of what is of interest to the public and thus what is newsworthy. (See Gaeta v New York News, 62 NY2d 340, 349 [1984].)

As defendant correctly notes, in libel claims against members of the press, due to concerns surrounding the chilling of free speech and the fundamental liberty interests at stake, the standard which a plaintiff is required to meet is heightened beyond{**72 Misc 3d at 487} that of ordinary negligence. Under Civil Rights Law § 76-a, the standard applicable to the instant case is commonly referred to as "actual malice." Specifically, the statute requires that a plaintiff demonstrate that the defendant made the statement with knowledge of its falsity or a reckless disregard of whether it was false.

As noted above, defendant, in a meticulous manner, recites the newsgathering process, interviews, meetings, editing and rounds of review that went into the article's production. While plaintiffs may raise various nonmaterial claims regarding the newsgathering process and alleged instances of negligence—such as the query of why defendant did not interview plaintiffs' [*5]counsel with regards to Gray Gables—there is no evidence that defendant acted with actual malice in its publication of the April 11, 2018 article. Plaintiffs cite to no facts which would argue in favor of the conclusion that defendant published a news article with knowledge of its falsity or reckless disregard thereof. Accordingly, defendant met their burden on summary judgment. (See Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].)

[2] Turning now to defendant's request for costs and attorney fees pursuant to Civil Rights Law § 70-a, the court notes that Civil Rights Law § 70-a provides:

"1. A defendant in an action involving public petition and participation, as defined in [Civil Rights Law § 76-a], may maintain an action, claim, cross claim or counterclaim to recover damages, including costs and attorney's fees, from any person who commenced or continued such action; provided that:

"(a) costs and attorney's fees shall be recovered upon a demonstration, including an adjudication pursuant to [CPLR 3211 (g)] or [CPLR 3212 (h)], that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law." (Emphasis added.)

Pursuant to Civil Rights Law § 70-a (1) (a) and CPLR 3212 (h), the court finds that this action was commenced and continued without a substantial basis in fact and law and could not be {**72 Misc 3d at 488}supported by a substantial argument for extension, modification or reversal of existing law. Plaintiffs knew or should have known long ago of the non-meritorious and futile nature of the instant litigation. The conduct is especially egregious where, as here, the defendant is a news media organization exercising the fundamental rights of a free press, which New York courts have long and zealously guarded. Owing simply to the exercise of their constitutional rights, defendants have been forced to suffer this litigation. Under the circumstances, the award of costs and attorney fees is mandatory. (Civil Rights Law § 70-a [1] [a].) Accordingly, the court grants the motion for costs and reasonable attorney fees as against plaintiffs personally, but reserves on the specific amount pending the submission of papers in support of costs and fees actually incurred. If the award of costs and attorney fees were discretionary, the court would still grant the request.

Accordingly, it is hereby ordered that the notice of motion dated February 12, 2021, is hereby granted; and it is further ordered, the complaint dated November 15, 2018, is hereby dismissed with prejudice against defendant Plattsburgh Press-Republican pursuant to CPLR 3212 (h); and it is further adjudged that defendant Plattsburgh Press-Republican is hereby awarded actual costs and reasonable attorney fees in connection with this action pursuant to Civil Rights Law § 70-a; and it is further ordered that within 10 days from the entry of this order, Finnerty, Osterreicher & Abdulla shall file and serve on all parties an itemized bill fully detailing their actual costs and attorney's fees associated with this action; the truthfulness and accuracy of which shall be affirmed by an attorney of said firm who is fully familiar with the facts and circumstances of the instant matter; and it is further ordered, if plaintiffs dispute the accuracy or reasonableness of the costs and [*6]attorney's fees incurred by defendant, within 10 days from service of the itemized bill referenced above, they must file and serve on all parties a sworn statement setting forth their basis for disputing the accuracy or reasonableness of said costs and fees.