DONNELL v. DAILY NEWS (2022)

In this defamation action, pro se plaintiff, Donnell Baines (plaintiff), seeks to recover damages for alleged defamatory statements made by defendant Jane Doe, identified by the fictitious name “Barbara” (Barbara), and subsequently reported in an October 25, 2012, newspaper article written and edited by defendants, Janon Fisher, Tracey Connor, and Sarah Ryley, and published by defendant, Daily News (collectively, the Daily News defendants). The Daily News defendants now move for summary dismissal of the complaint. Plaintiff now cross-moves ¹ pursuant to CPLR 3212 for summary judgment on his claims and to compel the disclosure of Barbara's identity. For the reasons stated below, the Daily News defendants’ summary judgment motion is granted, plaintiff's cross-motion for summary judgment is denied, and plaintiff's motion to compel and preclude is denied as moot.

FACTUAL BACKGROUND

The relevant facts are drawn largely from the affidavits and exhibits submitted in support of plaintiff and the Daily News defendants’ summary judgment motions. On July 15, 2010, plaintiff was arrested while attending a court proceeding in New York County Criminal Court after a woman notified a court officer that plaintiff was holding her against her will after she responded to an internet ad seeking models to work in Manhattan (Ryley aff., ex 3, press release from New York County District Attorney [the DANY]). In a November 2012 press release about plaintiff's arrest and indictment for numerous charges, including rape, criminal sexual assault, sex trafficking, promoting prostitution, assault, sexual abuse, unlawful imprisonment, and coercion, the DANY stated that three more women with similar accusations had come forward after plaintiff's arrest. The DANY urged any additional victims to come forward as well. In October 2012, the DANY commenced a criminal prosecution against plaintiff.

On October 23, 2012, while plaintiff's criminal trial was ongoing, the Daily News tip line received a call from a woman using the alias “Barbara” who claimed that she was also a victim of plaintiff and that she had been working with the district attorney's office for two years providing them with information to assist with the prosecution (Janon Fisher aff. ¶¶ 4, 6; Sarah Ryley aff. ¶ 6). Barbara told the Daily News Courts and Transit Editor, Sarah Ryley, that she did not testify at plaintiff's trial because the prosecutor had other victims and did not need Barbara's testimony (Ryley aff. ¶ 7). Unlike the other victims, “Barbara” was not trafficked or forced into prostitution (id. ¶ 7). Ryley asked Janon Fisher, a criminal court reporter for the Daily News who had sporadically attended plaintiff's criminal trial, to interview Barbara (Fisher aff. ¶¶ 2, 5; Ryley aff ¶ 9). Ryley told Fisher that he needed to confirm with the DANY that it had been working with Barbara because if that turned out not to be true then, they could not take her word for anything else (Ryley aff., ex 6). Ryley states that she asked for confirmation from the DANY as part of her due diligence as an editor to confirm what Barbara told her was true and that she was credible (id. ¶ 18). Ryley compiled press reports, press releases, and other documents related to plaintiff's criminal trial, asked the Daily News librarian to run a background report, news clip search, and court history report on plaintiff, and obtained a copy of what were believed to be plaintiff's criminal records from Connecticut, all of which she forwarded to Fisher for the article (id. ¶¶ 13-14; ex 4).

When Fisher met Barbara to conduct an interview, Fisher recognized her as the same person he had seen speaking with the prosecutors in the hallway of the courthouse during plaintiff's criminal trial (Fisher aff. ¶ 6). Fisher states that during the interview, Barbara stated that she had been raped, assaulted, and tortured at gunpoint by plaintiff on March 13, 2007 (id. ¶ 7). As part of his reporting, Fisher reviewed the press release from the DANY about plaintiff's indictment, an article about plaintiff's arrest, plaintiff's criminal history, several documents related to plaintiff's criminal trial, including the indictment and list of exhibits, and other background information about plaintiff (Fisher aff. ¶¶ 9, 21, ex 5; Ryley aff. ¶ 13). He also spoke with plaintiff's defense attorney who told him that plaintiff denied knowing Barbara (Fisher aff. ¶ 11).

Although he would not reveal the identity of the person or the substance of the communication, pursuant to Civil Rights Law § 79-h, the “Shield Law,” Fisher stated that he contacted a confidential source at the DANY who confirmed Barbara's account of her contact with prosecutors (id. ¶ 16). Ryley states that she was satisfied with what Fisher relayed to her about his conversation with the confidential source and that she would not have let the story go forward if she had any doubts that Barbara had been working with the DANY (Ryley aff. ¶ 19). Fisher also ran a background check on Barbara and asked her to provide any proof that she had been cooperating with the prosecutor (Fisher aff. ¶¶ 17, 19). Fisher states that Barbara indicated that she had numerous emails between herself and the prosecutor in the criminal case against plaintiff dating back to November 2007 and provided an email chain that reflected that the prosecutor had been providing her with updates on the status of the criminal trial (Fisher aff., ex 2). In an email exchange beginning on October 3, 2012, Barbara thanked the prosecutor for responding to her email inquiries and updating her on the trial “because I will never get my day in court,” to which the prosecutor replied that “you might get your day in court. I'm thinking about it and whether I may be able to get you on” (id.; Fisher aff. ¶ 17). According to Fisher, this email “confirmed [his] belief that Barbara was working with the District Attorney's Office and was credible” (id.). Fisher further states that neither he, nor anyone at the Daily News ever doubted the veracity of Barbara's claims in light of the charges against plaintiff, his observations during the trial, plaintiff's ultimate conviction on the charges, his observations of Barbara's interactions with the prosecutor and her demeanor after the verdict, the emails between Barbara and the prosecutor, and his communications with confidential sources (Fisher aff. ¶ 33).

Ryley assigned fellow journalist, Tracey Connor, to write the actual article instead of Fisher—a common practice at the newspaper. Ryley explained to Conor that Barbara had been providing information to the DANY for two years and that she had attended plaintiff's trial (Ryley aff., ex 5). Fisher provided his notes and the other information he had obtained to Connor and informed her that the statute of limitations on the crimes alleged by Barbara had already expired, however Fisher could not recall where he learned that information (Fisher aff. ¶¶ 20, 22-24; Ryley aff. ¶ 15). Fisher reviewed several drafts of the article, all of which seemed accurate (Fisher aff. ¶¶ 25-26). Although another editor, Peggy Ackerman, emailed Fisher on October 24, 2012, stating that she needed to discuss the article, Ackerman never responded to Fisher's follow-up email and the Daily News published the story without that discussion occurring (id. ¶¶ 27-28).

On October 24, 2012, a jury found plaintiff guilty of promoting prostitution in the second and third degrees, two counts of assault in the second degree, three counts of sex trafficking, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, unlawful imprisonment in the second degree, and coercion in the first degree. The DANY's press office provided Fisher with additional documents from plaintiff's trial (Fisher aff., ex 5). The article was published in the Daily News on October 25, 2012 (id. ex 11). Following publication, the DANY sent an email to Fisher stating that the story was “really, really great” (Fisher aff. ¶ 29; ex 11), and congratulating him for getting plaintiff's additional victim to talk to him.

Fisher refuted plaintiff's claims that Fisher and Connor were in the courtroom with Barbara, and that they were present for a colloquy during plaintiff's trial wherein the prosecutor stated that Barbara's allegations “did not ‘check out” and the judge told the Daily News not to publish anything false about plaintiff (Fisher aff. ¶¶ 31-32). The transcript of the court proceedings for the date that this colloquy purportedly happened does not reflect that any such exchange occurred between the court and the prosecutor (Brounell aff., ex 32, transcript of October 24, 2012 proceedings).

PROCEDURAL HISTORY

Plaintiff commenced this action on October 13, 2013, alleging that the October 25, 2012, article and a second Daily News article published in 2013, when plaintiff was sentenced, were defamatory. The Daily News defendants moved to dismiss on virtually the same grounds raised in its summary judgment motion, and that motion was granted in part by another justice of this court, finding that the 2013 article concerning plaintiff's sentencing, and the portions of the October 25, 2012 article that reported on plaintiff's criminal trial and conviction, were fair and accurate reports of a judicial proceeding that were privileged under Civil Rights Law § 74. The court denied the motion with respect to the portions of the October 25, 2012 article that concerned the allegations made by Barbara, on the ground that the Daily News defendants had failed to provide sufficient documentary evidence in its moving papers to establish that they had not acted with gross irresponsibility or that plaintiff did not suffer any harm.

Plaintiff amended the complaint in May 2018 to include Barbara and Ryley as defendants and sought to enjoin the Daily News defendants from publishing any further defamatory statements about him and force them to issue a corrected article and an apology. The amended complaint now contains one cause of action for defamation against Barbara, and one cause of action for defamation against the Daily News defendants. Following discovery, both parties moved for summary judgment. Both motions are opposed.

Plaintiff's summary judgment motion seeks a finding as a matter of law that the statements in the article were false, and that the Daily News defendants acted in a grossly irresponsible manner in reporting and publishing the article without sufficiently verifying the facts. Plaintiff also moves to compel disclosure of Barbara's identity and that of the reporter's confidential source, or, alternatively, for preclusion of the Daily News defendants’ ability to rely on the confidential source in its defense of this action.

The Daily News defendants argue that plaintiff has not established that “Barbara's” allegations were false, and even if they were false, the Daily News defendants are entitled to summary judgment because they followed ordinary journalistic standards and did not act in a grossly irresponsible manner. Furthermore, according to the Daily News defendants, given plaintiff's vast criminal history and the multiple counts of sex trafficking, rape, criminal sexual act, and promoting prostitution charges for which plaintiff was convicted, plaintiff is libel-proof because his reputation could not be tarnished any further by the publication of this article, and any harm suffered was incremental at best, and did not warrant the recovery of any compensatory damages. Daily News defendants further argue that plaintiff is not entitled to punitive damages as he is unable to show that they acted with actual or common law malice.

DISCUSSION

On a motion for summary judgment, the movant carries the initial burden of tendering admissible evidence sufficient to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant meets its initial burden, the burden shifts to the opposing party to “show facts sufficient to require a trial of any issue of fact” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Summary judgment may be granted upon a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence sufficient to eliminate material issues of fact (CPLR 3212 [b]; Alvarez, 68 NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Libel is a form of defamation that concerns an injury to an individual's reputation from statements made in a written publication that are presented as facts rather than as opinion (Thomas H. v Paul B., 18 NY3d 580, 584 [2012]). The essence of a libel claim is that the written statement is false and defamatory (Brian v. Richardson, 87 NY2d 46, 51 [1995]; Dillon v City of New York, 261 AD2d 34, 37-38 [1st Dept 1999]) A false statement is defamatory only if it exposed the plaintiff “to public contempt, ridicule, aversion, or disgrace, or an evil opinion” of him that deprives him of “friendly intercourse in society (Foster v Churchill, 87 NY2d 744, 751 [1996], quoting Rinaldi v Holt, Reinhart & Winston, 42 NY2d 369, 379 [1977]). Some statements, such as alleging that a person engaged in serious crimes, are of such an inflammatory nature that they are considered per se libelous and do not require the plaintiff to plead and prove special damages (Nolan v State, 158 AD3d 186, 195 [1st Dept 2018]; Harris v Hirsch, 228 AD2d 206, 208 [1st Dept 1996]). Here, the allegations made by Barbara fall into the serious crime category and thus, if false, would constitute libel per se.

On the issue of falsity, the Daily News defendants concede that the part of the October 25, 2012 article stating that plaintiff was not prosecuted for the crimes against Barbara because the statute of limitations had expired is at least partially false. The statute of limitations did not bar prosecution of the rape allegation, and, in any event, there was no evidence that the statute of limitations was the reason the district attorney did not prosecute those claims. Yet, the article gave the impression that the prosecutor would have pursued Barbara's claims if not for the limitations period, rather than that the prosecutor chose not to include Barbara in the prosecution. This false statement is misleading, but on its own would not be enough to support a defamation claim if the underlying allegations are true.

Plaintiff denied knowing Barbara, both through his attorney when asked by the reporter outside his trial and again in this action, and maintains that her claims that plaintiff abducted, raped, sodomized, and assaulted her at gun and knife point are false (pla mtn ¶¶ 17, 19, 23, 25), but those bare assertions of falsity are insufficient to warrant summary judgment as a matter of law. Beyond these denials, plaintiff has presented no proof that Barbara's allegations are not true. Plaintiff's assertions that the prosecutor did not allow Barbara to testify because her claims “did not check out” or because the DANY did not think that she was credible are without a basis in fact and simply are not supported by the record.

The email exchange between the prosecutor and Barbara demonstrates that on October 4, 2012, only a few days before testimony in plaintiff's criminal trial was set to begin, the prosecutor was still considering whether to let Barbara testify, telling Barbara that she “might get [her] day in court.” It is unlikely that the DANY had not investigated the veracity of Barbara's claims prior to this time or that the prosecutor would have considered calling Barbara as a witness if the DANY did not believe that Barbara was telling the truth. These emails as well as Fisher's observations of the prosecutor speaking and interacting with Barbara outside the courtroom during the trial, while not sufficient to establish that Barbara's claims are true, certainly lend a level of credence to Barbara's story.

Moreover, the Daily News defendants obtained documents from the New York City Police Department, which show that on the date that Barbara alleged that she was held and raped by plaintiff, the police were called to the building where plaintiff was known to live by a neighbor who reported that they heard loud arguing and a woman crying (Brounell aff. ex 18). This tends to corroborate what Barbara told Ryley during their initial conversation—that the police came to plaintiff's apartment but left without further action because plaintiff forced Barbara to say that she was fine (Ryley aff. ¶ 6). As the Daily News defendants have presented evidence that raises a genuine issue of fact as to whether the article was false, the plaintiff's motion for summary judgment on the issue of falsity is denied.

Turning to the Daily News defendants’ motion for summary judgment, they contend that the action against them should be dismissed because plaintiff has failed to plead and prove that they acted with the requisite level of fault. The standard applied in a defamation case is governed by whether the plaintiff is a private individual or a public figure or official, and whether the alleged defamatory statements were about a matter of public or private concern.

Prior to the United States Supreme Court's ruling in New York Times Co. v Sullivan (376 US 254 [1964]), defamation was a strict liability tort, which meant that a plaintiff could recover damages for a defamatory statement unless the publisher of the statement could prove that the statement was true. In Sullivan, the Court recognized that requiring a publisher “to guarantee the truth of all his factual assertions,” also carried the potential to deter speech protected by the First Amendment, therefore the plaintiff, who was a public official, could not recover damages on a state law defamation claim without establishing that the false statement was made with actual malice (id. at 279-280). The Court extended that actual malice requirement to defamation suits brought by public figures in Curtis Publishing Co. v Butts (388 US 130, 163 [1967]).

When it came to private citizens who were the subject of defamatory statements about a matter of public concern, however, the Court held in Gertz v Robert Welch, Inc. (418 US 323 [1974]), that a showing of actual malice was not required, as private citizens have not thrust themselves into the public sphere and would not expect to be subject to the same scrutiny as public officials and figures. The Court recognized that states have a “strong and legitimate” interest in protecting private individuals, thus state law could set a different fault standard that allowed private individuals to recover for any actual damages suffered as a result of the defamation (id. at 348-349).

The Court of Appeals established the standard for New York in Chapadeau v Utica Observer-Dispatch (38 NY2d 196, 199 [1975]), holding that where the claimed defamation involved a matter of legitimate public concern, a private individual “must establish, by a preponderance of the evidence, that the publisher acted in a ‘grossly irresponsible’ manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” The alleged defamatory statements at issue here, which involve crime and the criminal legal process, are matters of public concern (see Weiner v Doubleday & Co., 74 NY2d 586, 595 [1989]; Karaduman v Newsday, Inc., 51 NY2d 531, 539 [1980]). Indeed, plaintiff conceded as much in his opposition to another motion filed in this matter (Baines v Daily News L.P., 59 Misc 3d 1207[A] [Sup Ct, New York County 2018] [“plaintiff further concedes in opposition to their motion that their articles reported on issues of legitimate public concern, so that, even to be liable for an untrue report, defendants must be grossly irresponsible in their reporting. Crime, the legal process, and the penalties imposed on crimes through that legal process legitimately concern the public and warrant public exposition”]). Accordingly, the only issue to resolve is whether plaintiff raised triable issues that the Daily News defendants acted with gross irresponsibility.

While not as exacting a standard as actual malice, for a professional media publisher, the gross irresponsibility standard requires more than a showing of ordinary negligence (Simonsen v Malone Evening Tel., 98 AD2d 905, 905 [3d Dept 1983]). To defeat a defamation claim on gross irresponsibility grounds “demands no more than that a publisher utilize methods of verification that are reasonably calculated to produce accurate copy” (id. at 549). “[A] publisher is privileged to publish information received from a dependable source of news unless he had, or should have had, substantial reasons to question the accuracy of the information or the bona fides of his source” (Ortiz v Valdescastilla, 102 AD2d 513, 519 [1st Dept 1984]).

The record does not raise any genuine issues that the Daily News defendants had any substantial doubts about the accuracy of Barbara's story. Fisher and Ryley both assert that they believed that the article was accurate and would not have published the article if they thought that it was false. They were convinced that Barbara's claim that she was working with the prosecutor was credible and that the prosecutor felt her claims were credible because of Fisher's observations of her speaking to the prosecutor at the courthouse and the emails showing that the prosecutor was considering calling Barbara as a witness at plaintiff's criminal trial.

Plaintiff contends that Ryley's email to Fisher asking that he verify that “Barbara” had been working with the DANY was an “expression of serious doubt” about Barbara's claims (Baines mtn ¶ 40). However, Ryley explained that she did not harbor any such doubts and she was merely doing her due diligence as an editor by asking for verification. Similarly, plaintiff's claims that Barbara's incorrect information about the statute of limitations barring prosecution should have caused the Daily News defendants to have serious doubts about her credibility is devoid of merit. Nothing in the record establishes that Barbara was the source of that information about the limitations period—Fisher stated that he did not recall where he got it—and at the time of the article's publication, Fisher had a good faith belief that the statute of limitations had in fact expired. While the Daily News defendants did not address in their motion what questions Fisher's editor, Peggy Ackerman, wanted to ask him about the article before publication, nothing in the record indicates that those questions were about Barbara's credibility or the accuracy of the article that would be sufficient to raise an issue of fact.

The court is also unpersuaded by plaintiff's argument that because the Daily News defendants will not reveal the identity of the confidential source at the district attorney's office “it should be presumed that no such source exists” (Baines mtn at 13), as maintaining the confidentiality of sources is a common journalistic practice protected by state law. There is no evidence in the record to cast doubt on Fisher's assertion that he spoke with someone at the DANY, and it was reasonable for Ryley to rely on Fisher's representations that he spoke with the confidential source (Karaduman, 51 NY2d at 542-543 [“If a newspaper is to function with a modicum of efficiency its editors must feel reasonably free to rely upon the trustworthiness and integrity of their reporters, at least in the absence of any indication that the reporters in question are not to be trusted”]). That said, plaintiff is correct that if the Daily News defendants rely on the “Shield Law” to protect the identity of their confidential source at the DANY, then they cannot also use that confidential source as proof that it did not act with gross irresponsibility (Oak Beach Inn Corp v Babylon Beacon, Inc., 92 AD2d 102, 104 [2d Dept 1983]; Greenberg v CBS Inc., 69 AD2d 693, 709 [2d Dept 1979]). The absence of this information does not, however, create an issue of fact on the issue of gross irresponsibility, as the other confirmatory details are sufficient to show that the Daily News defendants had no reason to doubt the veracity of Barbara's claims.

The various steps taken to verify Barbara's credibility and the accuracy of the story, including having the story reviewed by multiple people before publication, demonstrate that the Daily News defendants were not acting in a grossly irresponsible manner (see e.g., Chapadeau, 38 NY2d at 200 [newspaper's failure to catch the error did not constitute gross irresponsibility because it consulted two authoritative sources prior to publication and at least two persons other than the writer checked the article for accuracy]; Matovick v Times Beacon Record Newspapers, 108 AD3d 511, 512 [2d Dept 2013] [where a news article falsely reported information obtained from an anonymous source, the court found that the reporter did not act in a grossly irresponsible manner where he verified the report with several people]; Grobe v Three Village Herald, 69 AD2d 175, 176 [2d Dept 1979] [reporter was not grossly irresponsible where he checked with father of victim, who was a police officer, and called court to get information about case prior to publishing article]). Dattner v Pokoik (81 AD2d 572, 573-574 [2d Dept 1981]), is particularly instructive. In Dattner, the defendant newspaper reported that the plaintiff had solicited a bribe. In reporting the story, the newspaper spoke to the plaintiff and published his response in the article. The newspaper also got confirmation from the local district attorney's office that a complaint had been filed against the plaintiff by the person he had solicited. The court determined that these two investigative measures taken by the newspaper were “far from grossly irresponsible” (id. at 574). Like in Dattner, where the court determined that the newspaper's investigative measures, including publishing the plaintiff's response to the story and confirmation from the district attorney's office concerning the charges, were not grossly irresponsible, the Daily News defendants were not grossly irresponsible in that Fisher spoke to plaintiff's counsel and included in the article that plaintiff said that he did not know Barbara and he obtained documentary evidence that Barbara was working with the prosecutor.

The determination that the Daily News defendants did not act in a grossly irresponsible manner renders resolution of the remaining issues unnecessary. Plaintiff's motions to compel disclosure of Barbara's and the confidential source's identities or to preclude use of any evidence obtained from them are likewise academic and are denied as moot.

Accordingly, it is hereby

ORDERED that the branches plaintiff's cross-motion for summary judgment and to compel are denied; and it is further

ORDERED that the motion for summary dismissal of the amended complaint pursuant to CPLR 3212 by Janon Fisher, Tracey Connor, and Sarah Ryley, and Daily News is granted, and the complaint is dismissed against those defendants; and it is further

ORDERED that the Clerk shall enter judgment accordingly; and it is further

ORDERED that the Daily News defendants shall serve a copy of this decision and order upon all parties, with notice of entry, within twenty (20) days of entry.

This constitutes the decision and order of the Court.

FOOTNOTES

1.   Plaintiff does not identify his motion as a cross-motion. As his motion was filed under motion sequence 012 and after the Daily New defendants filed their motion, the court treats plaintiff's motion as a cross-motion.

Dakota D. Ramseur, J.