CAREY v. RIPP (2018)

The motion and case at bar is another illustration of the modern phenomena of the abuse and limits of the Constitutional right to freedom of speech in the context of narcissistic defamatory statements, fueled by the ease of public dissemination and compulsive amplification to the world, of unfiltered, angry thoughts and feelings in spaces created by ubiquitous social media such as Facebook.

Plaintiff moves by order to show cause pursuant to CPLR §§ 6301 and 6311 for an order granting the plaintiff a preliminary injunction (a) enjoining defendant Robert Ripp from any further dissemination of defamtory information about the plaintiff, Stanley J. Carey, and (b) directing the destruction, deletion and/or removal of any defamatory information in defendant's possession, custody and control, including two posts on defendant Ripp's Facebook page from June 2, 2017, and July 22, 2017, containing defamatory information regarding the plaintiff, who has been the Superintendent of the Massapequa Water District (hearafter “MWD”) for over seven years. The plaintiff is not an elected public official, but was selected to be the Superintendent of MWD from a Nassau County Civil Service list after passing an competitive civil service examination open to the public at large. The plaintiff does not have the authority to approve contracts or bids on projects, or professional service contracts, since this is within the purview of the authority of the Board of Commissioners.

The plaintiff must demonstrate three elements for the issuance of a preliminary injunction against the defendant: (1) irreparable harm to the plaintiff if the injunction is not granted, (2) plaintiff's likelihood of success on the merits, and (3) a balancing of the equities for the issuance of an injunction tips in his favor. Plaintiff claims that he has suffered irreparable harm to his reputation, and has no adequate remedy at law. This court agrees, and finds that the plaintiff has satisfied all three elements.

Defamation is a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace ( Davis v. Boeheim, 24 N.Y.3d 262, 268, 998 N.Y.S.2d 131, 22 N.E.3d 999). In establishing liability, the plaintiff must demonstrate that this false statement was published without a statutory or common law privilege or the authorization to a third person, constituting fault and causing harm to the plaintiff, or constituting defamation per se (Epifani v. Johnson, 65 A.D.3d 224, 233–234, 882 N.Y.S.2d 234). Determining whether the subject statements made are false, or opinion, is a question of law (see, Mann v. Abel, 10 N.Y.3d 271, 276, 856 N.Y.S.2d 31, 885 N.E.2d 884; see also 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139, 589 N.Y.S.2d 825, 603 N.E.2d 930). The Court must consider the over-all context of a communication, its tone and apparent purpose, and determine whether the reasonable reader would believe whether the challenged statements conveyed facts about the plaintiff (Davis v. Boeheim, supra at 269–270, 998 N.Y.S.2d 131, 22 N.E.3d 999; Mann v. Abel, supra).

After applying these principles and appellate court precedent, the Court finds that the following statements made by defendant Ripp about the plaintiff on June 2, 2017, which were posted on Facebook and YouTube via video are defamatory: (1) “SUPERINTENDENT STANLEY CAREY THE CORRUPTION RUNS DEEP!!!”; (2) “Mr. Carey is willingly violating it [NYS General Municipal Services Law Section 103] ․and everyone else involved in the NO BID CONTRACTS”; and (3) “STANLEY CAREY IS ONE OF THE RESPONSIBLE PARTIES WHO ALLOW IT [corrupt patronage] TO HAPPEN.” The Court further finds the following statements made and posted by defendant Ripp about the plaintiff on July 22, 2017, to be defamatory: (1) “Stan Carey is responsible for approving decades of no show no bid contracts for corrupt T.O.B. Officials and contractors”; (2) “Carey routinely approves a 32k retainer․ every year to Greg Carman's law firm”; (3) Carey approved decades of ‘accounting consultant contracts’ ”; and (4)“ Carey regularly approves anything Sidney Bowne partner and recently indicted T.O.B. contractor Frank Anetomaso tells him to." The Court notes that the July 22 statements were posted on Facebook and Newsday's website as comments pertaining to a published article that day in which the plaintiff was quoted; Newsday eventually removed those comments. However, the foregoing defamatory statements have remained on defendant's Facebook page. The statements cited above suggest that the plaintiff regularly engages in professional misconduct and the improper performance of his duties, and were tendered to impute criminal activity on the part of the plaintiff and to reflect negatively on the plaintiff in his profession and particular employment (compare, Gurtler v. Union Parts Mfg. Co., 285 App. Div. 643, 645, 140 N.Y.S.2d 254, affd, 1 N.Y.2d 5, 150 N.Y.S.2d 4, 132 N.E.2d 889).

Accordingly, the motion by the plaintiff for an order granting a preliminary injunction in favor of the plaintiff and enjoining the defendant from publishing and posting further defamatory remarks about the plaintiff, and directing the defendant to remove/and or delete the aforementioned statements posted on June 2 and Ju;y 22, 2017, on his Facebook page is granted (see, Sachs v. Matano, 50 Misc. 3d 420, 22 N.Y.S.3d 310)

The plaintiff's attorneys shall submit a proposed order to the Court, and plaintiff shall post a bond in the sum of $10,000.00 within ten days after the entry of that proposed order. The parties' attorneys shall appear for a Preliminary Conference to schedule all discovery on August 15, 2018. A copy of this order shall be served on the Clerk of Case Management.

The foregoing constitutes the decision and order of this Court.

Antonio I. Brandveen, J.