The following papers having been read on this motion: Notice of Motion, Affidavits, & Exhibits 1, 2, 3 Answering Affidavits 4, 5, 6 Replying Affidavits 7, 8, 9 Briefs: Plaintiff’s / Petitioner’s Defendant’s / Respondent’s 10, 11 UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motions are decided as follows: The defendant moves (sequence 1) for an order pursuant to CPLR 3211(a)(1) and (7) dismissing the complaint. The plaintiff moves (sequence 2) for an order pursuant to CPLR 1001(a) to add Newsday LLC as a party defendant. The defendant also moves (sequence 3) for an order staying all discovery until the Court rules on the defendant’s motion (sequence 1) for an order pursuant to CPLR 3211(a)(1) and (7) dismissing the complaint. This is an action by the plaintiff to recover damages from the defendant as a result of its publication of allegedly defamatory statements and negligent supervision. The defendant asserts that it published in its daily newspaper, Newsday, a nine-page article reporting on a Long Island political scandal that culminated in an arrest and subsequent subpoena of non-party Randy White, an individual who gathered signatures for a state political candidate’s campaign for Nassau County Executive. The Nassau County Democratic Party filed a lawsuit seeking to bar that political candidate’s campaign for Nassau County Executive from the ballot. The defendant contends that Randy White was a key witness in the case against that political candidate, and testified in court. The defendant notes that the Nassau County Police Department arrested Randy White, and that the plaintiff subsequently served Randy White with a subpoena drafted by the political candidate’s attorneys. The defendant claims that Randy White filed a complaint with the Nassau County District Attorney’s Office after his release from police custody, that the Nassau County District Attorney’s Office conducted an investigation into Randy White’s complaint and issued its findings by letter to the County Executive, including a conclusion regarding the plaintiff’s conduct. The defendant notes that Randy White subsequently settled the case, along with the plaintiff as one of the signatories to the settlement agreement. The plaintiff claims that a reader of the subject article may draw an inference that the plaintiff was involved in the physical act in the arrest of Randy White. The plaintiff maintains that the article defamed the plaintiff’s character, and damaged the plaintiff’s standing in the community beyond repair. The plaintiff also asserts a cause of action sounding in “negligent supervision” by the defendant, incorrectly sued as Newsday Media Group. The defendant argues that the State of New York and appellate precedent does not recognize a claim for negligent publication about a matter of public concern, particularly where the plaintiff is a public official. Here, the plaintiff asserts that the defendant’s motion is premature. However, the plaintiff failed to raise issues justifying discovery, pursuant to CPLR 3212(f), rather mere hope and speculation that discovery might lead to relevant evidence sufficient to defeat the defense motion (see Torres v. Beth Israel Med. Ctr., 134 AD3d 1097 [2d Dept 2015]). The defendant maintains that the plaintiff does not contest the accuracy of certain statements, but rather focused on one line from that article which characterized the plaintiff’s undisputed role as “central” to the scandal. The defendant points out that the plaintiff cannot sufficiently allege the most basic elements of a defamation claim: that are the statements at issue are materially false. The defense maintains that the plaintiff cannot make the rigorous showing required for defamation to the extent that the plaintiff’s claim rests on the alleged implications the plaintiff found in the article. Furthermore, the defendant asserts that the article is a fair and accurate report of an official proceeding, and is absolutely privileged under the Civil Rights Law §74. The defense maintains the plaintiff failed to plead actual malice, which is the state of mind required to sustain this defamation claim by a public official, a police officer (Malerba v. Newsday, 64 AD2d 623 [2d Dept 1978]). “The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se. In addition, where, as here, the plaintiff is a public figure, the plaintiff is required to prove, by clear and convincing evidence, that the defamatory statements were published with actual malice [citation omitted]“ (Greenberg v. Spitzer, 155 AD3d 27, 41 [2d Dept 2017]). The Second Department added, “‘Truth is an absolute defense to an action based on defamation.’ The test to determine whether a statement is substantially true ‘is whether [the statement] as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced’” [citation omitted] (Greenberg v. Spitzer, 155 AD3d supra, at 41). “In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the pleaded facts are accepted as true and given every favorable inference. The court must determine whether the factual allegations taken from the four corners of the complaint manifest any cognizable cause of action” [citation omitted] (Klepetko v. Reisman, 41 AD3d 551, 551 [2d Dept 2007]). “‘A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding,’ and the privilege applies to reports about legal pleadings” (Civil Rights Law §74; Greenberg v. Spitzer, 155 AD3d 27, 42-43 [2d Dept 2017] quoting Martin v. Daily News L.P., 121 AD3d 90 [1st Dept 2014]). Here, this Court finds that the defendant has satisfied its burden to dismiss the complaint(Civil Rights Law §74; CPLR 3211[a][1] and [7]). The defendant has made a sufficient showing that the gist of the reporting constituted fair and true reports, and that the article at issue is protected by the absolute privilege afforded by Civil Rights Law §74. The defendant proffers documentary evidence regarding the issue before the Court. Moreover, this case implicates the defendant’s right to report news, and exercise its First Amendment freedom (see Freeze Right Refrig. and A.C. Services, Inc. v. City of New York, 101 AD2d 175 [1st Dept 1984]). In addition, even when liberally construed in the light most favorable to the plaintiff and all the plaintiff’s allegations accepted as true, the plaintiff failed to adequately plead that any of the alleged statements regarding the governmental proceedings were materially false (see McDonald v. E. Hampton Star, 10 AD3d 639 [2d Dept 2004]; see also Am. Preferred Prescription, Inc. v. Health Mgt., Inc., 252 AD2d 414 [1st Dept 1998]. Moreover, of critical importance here in applying the law of defamation to the facts and allegations in this case, is the fact that the plaintiff, a retired police sergeant, is considered to have been a ” ‘public official’ within the New York Times Co. v. Sullivan (376 US 254)” (Malerba v. Newsday, 64 AD2d 623 [2d Dept 1978]) at the time of the alleged issue. The plaintiff does not make a rigorous showing that the language here of the news reporting as a whole can be reasonably read both to give a defamatory inference and to affirmatively suggest the defendant intended or endorsed that inference (Stepanov v. Dow Jones & Co., Inc., 120 AD3d 28 [1st Dept 2014]). The plaintiff does not plead that the defendant acted with the requisite state of mind with knowledge the statements were false or with reckless disregard of whether the statements were false or not, that is whether the defendant acted with actual malice (see Goldblatt v. Seaman, 225 AD2d 585 [2d Dept 1996]). The plaintiff’s claim for negligent supervision fails as a matter of law (see generally Butler v. Delaware Otsego Corp., 203 AD2d 783 [3d Dept 1994]). The plaintiff does not allege any employee of the defendant had a propensity for injury causing behavior, and does not state the defendant knew about any such conduct prior to the plaintiff’s alleged injury (see Well v. Rambam, 300 AD2d 580 [2d Dept 2002]). The plaintiff’s complaint lacks, even when liberally construed in the light most favorable to the plaintiff and all the plaintiff’s allegations accepted as true, a claim for negligent supervision that is cognizable at law (CPLR 3211[a][7]). Accordingly, it is ORDERED, ADJUDGED and DECREED that the defense motion (sequence 1) is GRANTED to dismiss the complaint with prejudice against the plaintiff, and it is also, ORDERED that the plaintiff’s motion (sequence 2) is GRANTED to add Newsday LLC as a party defendant, and it is further, ORDERED that the defense motion (sequence 3) is DENIED as moot. The foregoing constitutes the decision and order of the Court. All applications not specifically addressed are denied. Dated: September 13, 2019 FINAL DISPOSITION
