GILLESPIE v. KLING (2023)

Order, Supreme Court, New York County (Mary V. Rosado, J.), entered on or about November 3, 2022, in index No. 158959/2021, which, granted defendant Grace Kling a/k/a Grace Aki's motion to dismiss plaintiff Damon J. Gillespie's complaint and awarded Kling costs and attorneys’ fees pursuant to Civil Rights Law § 70–a, unanimously affirmed, with costs.  Appeal from order, same court and Justice, entered on or about November 3, 2022, in index No. 151076/2022, which, to the extent appealed from as limited by the briefs, sua sponte dismissed Kling's complaint and Gillespie's counterclaim on res judicata grounds, unanimously dismissed, without costs.

Gillespie commenced this defamation action based on statements Kling made on a podcast regarding the domestic violence Kling experienced during her marriage to Gillespie, and her related mental health issues.  The court correctly dismissed Gillespie's claim for defamation (index No. 158959/21), as the allegedly defamatory statements fell within the protection of New York's amended anti-strategic lawsuit against public participation (anti-SLAPP) law (see CPLR 3211[g];  Civil Rights Law § 76–a, as amended by L 2020, ch 250).

When a defamation action involves statements made in a public forum, and concerns an issue of public interest, a plaintiff must show by clear and convincing evidence that the statements were false, and made with either knowledge of their falsity, or reckless disregard of whether the statements were false (Civil Rights Law § 76–a).  A podcast is a public forum within the meaning of Civil Rights Law § 76–a (1)(a)(1).  Further, “public interest” is construed broadly as “any subject other than a purely private matter” (Civil Rights Law § 76–a [1][d]).  The statements Kling made regarding the domestic violence she experienced during her marriage to Gillespie and the attendant mental health issues she suffered concerned “an issue of public interest” rather than a “purely private matter” (Civil Rights Law § 76–a[1][a][1];  see Aristocrat Plastic Surgery P.C. v. Silva, 206 A.D.3d 26, 29–30, 169 N.Y.S.3d 272 [1st Dept. 2022]).

Further, Gillespie failed to demonstrate that Kling's statements were false, or made with knowledge of their falsity or with reckless disregard of whether they were false (Civil Rights Law § 76–a [2]).  While Kling submitted affidavits from witnesses and other evidence corroborating her accounts of Gillespie's abusive conduct, Gillespie proffered only a conclusory and self-serving affidavit denying Kling's statements (see CPLR 3211[g][2]).  Because Gillespie's action constituted a SLAPP suit, the motion court properly awarded Kling costs and attorneys’ fees under Civil Rights Law § 70–a (see Aristocrat Plastic Surgery, 206 A.D.3d at 32, 169 N.Y.S.3d 272).

Gillespie's breach of contract claim, premised on a non-disparagement clause in the parties’ marital separation agreement, was also correctly dismissed.  The marital separation agreement was merged into the judgment of divorce that was entered in the Superior Court of New Jersey and, thus, ceased to exist as a separately enforceable contract (see Customers Bank v. Reitnour Investment Props., LP, 453 N.J. Super. 338, 350, 181 A.3d 1038, 1045–1046 [App.Div.2018]).  In any event, under New Jersey's entire controversy doctrine, Gillespie was required to bring his breach of contract claim during the divorce proceedings, since he had knowledge of Kling's statements before entering into the marital separation agreement (see Brennan v. Orban, 145 N.J. 282, 290, 678 A.2d 667, 671 [Sup. Ct. 1996];  B.P. v. G.P., 222 N.J. Super. 101, 106–107, 536 A.2d 271, 274 [App.Div.1987];  see also Tammera v. Folger, 198 A.D.2d 34, 35, 603 N.Y.S.2d 119 [1st Dept. 1993]).

Gillespie's appeal from the order dismissing Kling's action to recover damages and legal fees pursuant to Civil Rights Law § 70–a and Gillepie's counterclaim for defamation on res judicata grounds (index No. 151076/2022) is dismissed because a sua sponte order is not appealable as of right (see Unanue v. Rennert, 39 A.D.3d 289, 290, 831 N.Y.S.2d 904 [1st Dept. 2007]).  In any event, that order has been superseded by a subsequent order entered April 24, 2023, which granted Kling's and Gillespie's motion and cross-motion to reargue and, upon reargument, reinstated Kling's complaint and dismissed Gillespie's counterclaim on the merits (see Espinoza v. Fowler–Daley Owners, Inc., 154 A.D.3d 405, 405–406, 60 N.Y.S.3d 807 [1st Dept. 2017]).  Gillespie has not filed a notice of appeal from the April 2023 order, and we decline to review it pursuant to CPLR 5517(b) since the order and underlying motion papers are not included in the record on appeal.