IRIZARRY v. ZELAYA (2025)

Order, Supreme Court, New York County (Anar Rathod Patel, J.), entered on or about July 18, 2024, which, insofar as appealed from as limited by the briefs, granted defendants Ariana Zelaya, Betty Lugo, Betty Lugo for Judge, and Raymond Cline's motions to dismiss the complaint and for attorneys' fees, unanimously modified, on the law, to deny the motions as to the defamation claim in part in accordance with this order, vacate the award of attorneys' fees, and otherwise affirmed, without costs.

Plaintiff opposed defendant Betty Lugo in the June 2021 Democratic primary election for the office of Judge of the Civil Court of the City of New York. Defendant Raymond Cline is a political consultant who was hired by Lugo. Defendant Ariana Zelaya was a volunteer for the Lugo campaign.  Zelaya alleged that while standing on a public sidewalk in Manhattan, petitioning for Lugo, plaintiff “walked up to [Zelaya], stood very closely to her and aggressively grabbed the petition board from [Zelaya's] hands with force placing her in imminent fear of harm” and also “aggressively yelled at [Zelaya's] in a menacing and intimidating manner with the intent to cause intimidation, harm and fear.”  Zelaya initiated two actions against plaintiff, both of which were dismissed.  Zelaya also filed a complaint with the police, which was dismissed as well.  Plaintiff commenced this action for defamation and conspiracy to defame based upon allegedly false statements, made in a campaign flyer and in tweets posted by Zelaya, accusing plaintiff of assaulting or harassing Zelaya and of abusing women more generally.

It is undisputed that this is “an action involving public petition and participation” within the meaning of New York's anti-strategic lawsuits against public participation law (see Civil Rights Law § 76–a[1][a]).  The motions to dismiss therefore “shall be granted unless the party responding to the motion demonstrates that the cause of action has a substantial basis in law ․”  (CPLR 3211[g][1];  see Black v. Ganieva, 236 A.D.3d 427, 428, 228 N.Y.S.3d 91 [1st Dept. 2025];  Reeves v. Associated Newspapers, Ltd., 232 A.D.3d 10, 20–24, 218 N.Y.S.3d 19 [1st Dept. 2024], lv dismissed 44 N.Y.3d 990, 241 N.Y.S.3d 902, 268 N.E.3d 1006 [2025]).

The conspiracy to defame claim was properly dismissed because “New York does not recognize a substantive tort of conspiracy” (Jebran v. LaSalle Bus. Credit, LLC, 33 A.D.3d 424, 425, 824 N.Y.S.2d 224 [1st Dept. 2006]).  The defamation claim should, however, be reinstated in part.

The statements that plaintiff is a “deadbeat misogynist,” who “is not fit to sit” and “lacks ethics and morals,” and that he worked for politicians who were “corrupt” lack a precise meaning and would be understood, especially in the context of a contested election, as nonactionable opinion (see Davis v. Boeheim, 24 N.Y.3d 262, 268–270, 998 N.Y.S.2d 131, 22 N.E.3d 999 [2014]).  However, the remaining statements – that plaintiff “attack[ed]” and “harass[ed]” Zelaya, that a police report was filed about this incident at the 7th precinct in March, and that plaintiff is “an abuser of women” who has “harassed women, verbally abused women, threatened women to benefit himself” and who “worked and campaigned for corrupt politician[s] while a government employee and earning your tax dollars” and “worked for corrupt politicians Hiram Monserrate and Vito Lopez who were convicted for abusing women, sexual harassment and mail fraud” – have clear, readily understood meanings and are capable of being proven true or false.

While some of these remaining statements are undisputedly true, plaintiff has presented sufficient proof at this stage to support the falsity of the statements that plaintiff “attack[ed]” and “harass[ed]” Zelaya, that plaintiff is “an abuser of women” who has “harassed women, verbally abused women, threatened women to benefit himself,” and that plaintiff “worked and campaigned for corrupt politician[s] while a government employee and earning your tax dollars.”  This proof includes the allegations of the complaint, statements in plaintiff's February 1 and September 11, 2023 affidavits, which, contrary to defendants' contention, were not stricken by this Court in prior motion practice;  Zelaya's prior, inconsistent police report;  and the purported transcript of the audio recording of a conversation between plaintiff and Cline.  Although the uncertified police report and “transcript” (unaccompanied by the audio recording itself) may not be admissible at trial, they may be considered, together with the admissible evidence, in opposition to defendants' motion to dismiss pursuant to CPLR 3211(g) (cf.  Black, 236 A.D.3d at 428, 228 N.Y.S.3d 91;  Reeves, 232 A.D.3d at 23–24, 218 N.Y.S.3d 19 [equating substantial basis standard with summary judgment standard];  Kovach v. PJA, LLC, 128 A.D.3d 445, 446, 11 N.Y.S.3d 2 [1st Dept. 2015] [allowing consideration of evidence not in admissible form, including uncertified police report, in opposition to motion for summary judgment, so long as it is not the only evidence submitted]).

Plaintiff has also presented sufficient proof to support the conclusion that the reprinting of the summons with notice in a related litigation falls within the malicious litigation exception to the fair report privilege (see Civil Rights Law § 74;  Gottwald v. Sebert, 40 N.Y.3d 240, 255, 197 N.Y.S.3d 694, 220 N.E.3d 621 [2023];  RCI Hospitality Holdings, Inc. v. White, 220 A.D.3d 430, 430, 197 N.Y.S.3d 144 [1st Dept. 2023]).

Plaintiff has not alleged, in a nonconclusory fashion, that anyone other than Zelaya was involved in the creation of the subject tweets.  Accordingly, any claims based on the tweets should be dismissed as against Lugo, Betty Lugo for Judge, and Cline.  Plaintiff has, however, presented sufficient proof to support the conclusion that Lugo/Betty Lugo for Judge, and Cline were involved in the creation and/or dissemination of the subject flyer (and of the underlying police report and civil litigation) and that they acted with actual malice.

Plaintiff was not required to plead special damages because the alleged defamatory statements amount to libel per se insofar as they “tend[ ] to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community” (Geraci v. Probst, 15 N.Y.3d 336, 344, 912 N.Y.S.2d 484, 938 N.E.2d 917 [2010] [internal quotation marks omitted];  see Matherson v. Marchello, 100 A.D.2d 233, 235–237, 473 N.Y.S.2d 998 [2d Dept. 1984], overruled on other grounds Laguerre v. Maurice, 192 A.D.3d 44, 52–53, 138 N.Y.S.3d 123 [2d Dept. 2020]).

Whether plaintiff made comparable statements about Lugo in his own campaign materials is of no moment.  Plaintiff also sufficiently alleged “to whom” the alleged defamatory statements were made, notwithstanding that he did not identify every recipient of the flyer or reader of the tweets (see generally Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1 [1st Dept. 1999]).

Given the reinstatement of some of plaintiff's claims, the award of attorneys' fees pursuant to Civil Rights Law § 70–a(1)(a) should be vacated.