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Comic Strip Promotions, Inc., Plaintiff, v. Envivo LLC, Planck, LLC, D/B/A PATCH MEDIA, MICHAEL AQUILIA, NICK GARBER, JULIE MENIN, Defendant.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 34, 35 were read on this motion to/for DISMISS.
For the reasons set forth below, plaintiff's complaint is dismissed as against defendant Councilmember Julie Menin.
This defamation action arises out of the publication of two communications made by defendant Councilmember Julie Menin about plaintiff Comic Strip Promotions, Inc. (plaintiff), the entity that purportedly runs a comedy club on New York City's Upper East Side. On January 9, 2021, plaintiff published an Instagram post regarding various governmental COVID-19 vaccine mandates, which read:
GOD BLESS AMERICA No.USA #America #starsandstripes #redwhiteandblue #freedom#freedomofchoice #firstandlastdonoharm #Fmandates #nurenberg 1 [sic] #starspangledbanner #enoughalready. Defendant's Exhibit B, NYSCEF doc. no. 24 (emphasis added).
Subsequently, the website "UpperEastSite" published an article entitled "Iconic Comic Strip Club Posts Anti-Semitic, Anti-Vax message on Instagram," which referred to plaintiff's Instagram post as anti-semitic and included several individuals' opinions about the post. See Defendant's Exhibit D, NYSCEF doc. no. 26.
In response, New York City Councilmember Menin, who represents the Upper East Side, posted a tweet that said:
This post is deeply offensive. As a daughter of a Holocaust survivor, I cannot condemn this strongly enough. No one should draw false equivalencies between COVID-19 mandates and the Holocaust. We must immediately call out hate speech and anti-Semitism. Defendant's Exhibit E, NYSCEF doc. no. 27.
The tweet also included a link to UpperEastSite's article. Id. Councilmember Menin then wrote a letter to plaintiff on official City Council letterhead, including the official New York State seal and her position as a Councilmember for the 5th Council District. See Defendant's Exhibit F, NYSCEF doc. no. 28. The letter, addressed to plaintiff's general manager, Tommy Latsch, reads in full:
Dear Mr. Latsch,
I write on behalf of our constituents within my New York City Council District, who are dismayed by the antisemitic sentiments expressed in your latest Instagram posting. I am disappointed in Comic Strip Live's decision to condone hatred and division in our community and call on you to issue a formal apology condemning the toxic comparisons between COVID-19 mandates and the atrocities of the Holocaust. We must reject messaging that co-opts violence and animosity towards our neighbors.
The Holocaust was an intentional, coordinated, state-sponsored persecution and murder of over six million Jews, and numerous disabled persons, LGBTQ+ individuals, prisoners of war, and others. As the daughter of a Holocaust survivor, the sins of these atrocities will never be a distant historical memory, and comparisons open fresh wounds. Condoning antisemitism leads to more hatred and violence.
Many comedians from different backgrounds have graced the stage at Comic Strip Live. As a longstanding establishment within our neighborhood, I urge you to apologize and lead community solidarity against hate and persecution.
Thanking you in advance for your courtesy and cooperation in regard to this matter.
Council Member Julie Menin
5th Council District
New York City Council
Plaintiff claims that Councilmember Menin provided her letter to UpperEastSite for publication but that she did not send the letter directly to Mr. Latsch.
Plaintiff contends that the statements in Councilmember Menin's tweet and letter constitute defamation, and it brings this action for defamation, defamation per se, trade libel and/or injurious falsehoods, declaratory judgment, and permanent injunction. Councilmember Menin now moves to dismiss all causes of action against her on the grounds that her comments are purely opinion and cannot form the basis for a claim of defamation or defamation per se, that the claim of trade libel and/or injurious falsehoods is duplicative of the defamation claim, and that no basis exists to grant a declaratory judgment or permanent injunction in this matter.
Plaintiff opposes the motion, arguing that the contents of the letter are actionable statements of fact rather than opinion. Plaintiff maintains that as Councilmember Menin's letter was written on official letterhead, worded in a way to incite deliberate hatred at plaintiff, and sent to a website for publication rather than to plaintiff directly, the statements in the letter constitute defamation.
Defamation and Defamation Per Se
The New York State Constitution adopts a more expansive protection of free speech than that of its federal counterpart. See Dua v New York City Dept. of Parks and Recreation, 176 AD3d 91, 102 (1st Dept 2019); citing Immuno AG. v Moor-Jankowski, 77 NY2d 235, 249 (1991). Under the New York State constitution, "[e]very citizen may freely speak, write and publish his sentiments on all subjects." NY Constitution, Article I, § 8. This language, which has been " unchanged since the adoption of the constitutional provision in 1821, reflect the deliberate choice of the New York State Constitutional Convention not to follow the language of the First Amendment, ratified 30 years earlier, but instead to set forth our basic democratic ideal of liberty of the press in strong affirmative terms." Immuno AG. v Moor-Jankowski, 77 NY2d 235, 249 (1991), on remand from 497 US 1021 (1990).
Out of this backdrop arises New York's defamation jurisprudence. New York Courts have attempted to strike a balance between the State's protection for freedom of expression and protection for an individual's reputation. See Immuno AG. v Moor-Jankowski, 77 NY2d 235, 245 (1991). To be successful on a defamation claim, a plaintiff must prove that defendant made "a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se." Epifani v Johnson, 65 AD3d 224, 233 (2009) (internal quotations and citations omitted). A defamatory statement is libelous per se "if the statement tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society." Matovcik v Times Beacon Record Newspapers, 46 AD3d 636, 637 (2007) (internal quotations and citations omitted). The touchstone of legal sufficiency of a complaint with regard to alleged defamatory statements is whether a reasonable reader or listener could have concluded that the statements made were conveying facts about the plaintiff. See Gross v New York Times Co., 82 NY2d 146 (1993).
Expressions of opinion are not actionable, while assertions of fact may form the basis of a viable libel claim. See Gross v New York Times Co., 82 NY2d 146, 151 (1993). The state constitution provides for absolute constitutional protection of pure opinion. See Immuno A.G. v Moor-Jankowski, 77 NY2d 235 (1991); accord Gross, 82 NY2d at 152. "Whether a particular statement constitutes fact or opinion is a question of law." Rinaldi v Hold, Rinehart & Winston, 42 NY2d 369, 381 (1977). To determine whether a statement is an alleged statement of fact or protected opinion pursuant to the New York State Constitution, the New York Court of Appeals has enumerated four-factors to consider:
(1) an assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous; (2) a determination of whether the statement is capable of being objectively characterized as true or false; (3) an examination of the full context of the communication in which the statement appears; and (4) a consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which might signal to readers or listeners that what is being read or heard is likely to be opinion, not fact. Steinhilber v Alphonse, 68 NY2d 283, 292 (1986), citing Ollman v Evans, 750 F2d 970, 978-984 (DC Cir 1984).
In determining whether a particular communication is actionable, a distinction is recognized between a statement of opinion that implies an undisclosed factual basis and an opinion that is accompanied by the recitation of facts on which it is based. See Gross, 82 NY2d at 153.
At the outset, the Court notes that plaintiff quotes in its complaint Councilmember Menin's
tweet in full but only quotes part of the letter. Although the complaint does not quote the entire letter, the hard printed copy of the letter was made part of the original complaint as an exhibit. See Summons and Complaint, Exhibit I, NYSCEF doc. no. 10. Therefore, the entire letter may be considered by the Court. Cf. Penn Warranty Corp. v DiGiovanni, 10 Misc 3d 998, 1002 (Sup Ct, NY County 2005).2
Review of the Steinhilber (68 NY2d 283) factors leads to the conclusion that the Councilmember's statements sound in opinion. In her tweet and letter, Councilmember Menin expressed her opinion, and that of her constituents, that plaintiff's tweet amounted to anti-semitic language. There is no precise meaning of what constitutes anti-semitism or "condoning hatred and division" (Defendant's Exhibit F) nor can those statements be characterized as true or false. Moreover, the tenor of the content, tone, and purpose of the letter all demonstrate that Councilmember Menin intended to express her opinion and those of her constituents. Considering the overall context in which the communications were made, interpretation of plaintiff's tweet on public online forums, Councilmember Menin's statements are not actionable. See DeRicco v Maidman, 2022 NY Slip Op 05921 (1st Dept 2022).3 Further, numerous cases have held that interpretations of statements as racist or anti-semitic are non-actionable opinion. See e.g. Bacon v Nygard, 2019 NY Slip Op 32103(U), 18 (Sup Ct, NY County 2019), affd 189 AD3d 530 (1st Dept 2020) ("When defendants disclose the facts upon which the characterization is based, their characterizing the plaintiff as racist is usually found to be a protected expression of opinion" [citations omitted]); Rubenstein v Transp. Workers' Union, Local 100, 2005 U.S. Dist. LEXIS 19969 (US Dist Ct, SD NY 2005); Russell v Davies, 97 AD3d 649 (2d Dept 2021); Silverman v Daily News, L.P., 129 AD3d 1054 (2d Dept 2015).
Here, a reasonable reader could not have concluded that Councilmember Menin's statements in either her tweet or her letter conveyed facts about the plaintiff. Councilmember Menin in her tweet stated that she found plaintiff's vague reference to Nuremberg in relation to COVID vaccines to be "deeply offensive," and in her letter stated that she was "disappointed" and her constituents "dismayed" by plaintiff's reference to Nuremberg while discussing COVID vaccine mandates. See Defendant's Exhibits E, F. Both the tweet and the letter are carefully couched to express Councilmember Menin and her constituent's interpretation of plaintiff's tweet. Councilmember Menin explained that this was an especially personal issue for her, in light of her own status as the daughter of a Holocaust survivor. Id. She "condemn[ed] the toxic comparisons between COVID-19 mandates and the atrocities of the Holocaust" as condoning anti-semitism and expressing anti-semitic sentiments. See Exhibit F.
Moreover, notably, Councilmember Menin's tweet references plaintiff's Instagram post, and her letter explicitly cites to same. Plaintiff does not deny posting the subject tweet, which is the basis of the Councilmember's opinion. Councilmember Menin's tweet and letter are plainly accompanied by the facts on which her opinion is based and are, therefore, non-actionable. See Eros Intl., PLC v Mangrove Partners, 191 AD3d 465 (1st Dept 2021) (holding that "statements accompanied by a recitation of facts on which they were based" are non-actionable opinion); Gross, 82 NY2d 146.
Plaintiff's argument that the statements in the subject tweet and letter are facts, because Councilmember Menin wrote a letter on her letterhead in her official capacity, which was subsequently published, is unavailing. These factors do not convert the Councilmember's statements from opinion to fact. In fact, these considerations weigh in favor of Councilmember Menin's right to free speech. To label her statements as defamatory would be contrary to New York State's protections of freedom of speech and may serve to chill an elected public official from weighing in on matters of public, and personal, concern.
In short, the context of the tweet and the letter are such that a reasonable reader would have concluded that he or she was reading opinions, and not facts, about the plaintiff. Moreover, in both instances, the defendants made the statements with express reference to plaintiff's tweet. Thus, Councilmember Menin's statements of opinion are non-actionable on the basis that there was full disclosure of the facts supporting the opinions. Consequently, plaintiff's defamation claims are dismissed.
Trade Libel and/or Injurious Falsehoods
Plaintiff also pleads a claim of trade libel, arguing that Councilmember Menin's tweet and letter were intended to deprive plaintiff of patrons and to harm the business by associating it with white supremacists, Nazis, or other hate groups. Councilmember Menin argues that the trade libel claim is duplicative, as it is based on the same theories of liability as the defamation and defamation per se claims.
Trade libel is "the knowing publication of false and derogatory material regarding another's business, that is calculated to prevent others from doing business with the defamed party or otherwise interferes with its business relationships." Penn Warranty Corp. v DiGiovanni, 10 Misc 3d 998, 1003 (Sup Ct, NY County 2005). The party alleging trade libel must establish that the "publication of the false material was a substantial factor in inducing others not to have business dealings with it." Id.
Here, plaintiff did not plead any facts to support his allegation that publication of the allegedly false material was a substantial factor in inducing others to not have business dealings with it. Specifically, plaintiff has not pointed to any actual calculated losses and has failed to point to special damages pled in his complaint, which requires dismissal. See Waste Distillation Tech., Inc. v Blasland & Bouck Engrs, P.C.,136 AD2d 633, 634 (2d Dept 1988); Cedeno v Pacelli, 192 AD3d 533, 534 (1st Dept 2021). Therefore, plaintiff's claim for trade libel is not sufficiently pled and is dismissed.
Declaratory and Injunctive Relief
Plaintiff requests that this Court issue a declaratory judgment that plaintiff's reference to Nuremberg in conjunction with vaccine mandates is, as a matter of law, not anti-semitic and to issue a permanent injunction against Councilmember Menin to prevent her from publicly disagreeing with that position. As the allegedly offending comments are protected opinion, no such relief is warranted. Moreover, the requested ruling is unsupported by relevant precedent. See Rombom v Weberman, 309 AD2d 844, 845 (2d Dept 2003); Arvanitakis v Lester, 145 AD3d 650, 653 (2d Dept 2016). As such, plaintiff's claims for a declaratory judgment and permanent injunction are dismissed.
Accordingly, it is
ORDERED that the motion of defendant Councilmember Julie Menin to dismiss the complaint herein is granted and the complaint is dismissed in its entirety as against said defendant, with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further
ORDERED that the action is severed and continued against the remaining defendants; and it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further
ORDERED that this action, including any pending motions, is transferred to a general IAS Part, as Corporation Counsel no longer represents any parties to this action, and it is further
ORDERED that, within 30 days, counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the Court's records to reflect the change in the caption herein; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh).
The foregoing constitutes the decision and order of the Court.
1. The Court notes that "nurenberg" is likely a misspelled reference to "Nuremberg." Plaintiff does not argue that "nurenberg" was intended to have any alternative meaning. Additionally, the Court takes judicial notice that the Nuremberg Code was a set of research ethics principles for human experimentation created by the United States military court in Nuremberg, Germany to ensure that the unethical medical experimentation the Nazis committed upon Jews would never occur again. See Kristine M. Severyn, Book Review, The Nazi Doctors and the Nuremberg Code, 4 J Pharmacy & L 167 (1995).
2. The Court declines, however, to review any follow-up tweets referenced in plaintiff's affirmation in opposition that are not quoted, referenced, or annexed in plaintiff's complaints.
3. In DeRicco v Maidman 2022 NY Slip Op 05921 (1st Dept 2022), the First Department, Appellate Division recently reversed the motion court's denial of the defendants' motion to dismiss. The DeRicco court held that, although the subject communication contained elements of both fact and opinion, the overall context in which the communication was made would lead a reasonable reader to understand it to be pure opinion.
Leslie A. Stroth, J.
Response sent, thank you
Docket No: Index No. 150484/2022
Decided: October 31, 2022
Court: Supreme Court, New York County, New York.
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