| Farber v Jefferys |
| 2013 NY Slip Op 01044 [103 AD3d 514] |
| February 19, 2013 |
| Appellate Division, First Department |
| Celia Farber, Appellant, v Richard Jefferys,Respondent, et al., Defendants. |
—[*1] Gibson, Dunn & Crutcher, LLP, New York (Joseph Evall of counsel), forrespondent.
Order, Supreme Court, New York County (Louis B. York, J.), entered November 9,2011, which granted defendant Richard Jefferys' motion for summary judgmentdismissing the complaint as against him, unanimously affirmed, with costs.
Supreme Court properly determined that plaintiff was a limited public figurebecause, through her publication of countless articles, she voluntarily injected herselfinto the controversial debate on whether HIV causes AIDS with a view towardinfluencing the debate (see Krauss v Globe Intl., 251 AD2d 191, 192 [1st Dept1998]), and "project[ed] [her] name and personality before . . . readers ofnationally distributed magazines . . . to establish [her] reputation as aleading authority" in this area (Maule v NYM Corp., 54 NY2d 880, 882-883[1981]). The court also properly concluded that the subjects of HIV/AIDS, plaintiff'sjournalism, and her receipt of an award for her journalism fell "within the sphere oflegitimate public concern" (Chapadeau v Utica Observer-Dispatch, 38 NY2d196, 199 [1975]). Indeed, the record established that plaintiff was a contentious figurewithin the traditional HIV/AIDS community.
Jefferys met his burden of demonstrating that plaintiff could not show by clear andconvincing evidence that he made the challenged statements with actual malice or withgross irresponsibility (see Huggins v Moore, 94 NY2d 296 [1999];Chapadeau v Utica Observer-Dispatch, 38 NY2d 196 [1975], supra). Therecord was devoid of evidence that Jefferys acted with knowledge that his statementswere false or with reckless disregard for the truth, or that he did not follow the standardsof information gathering employed by reasonable persons. Jefferys sufficiently explainedthat his statement about plaintiff's journalism was based on his expertise and research onHIV/AIDS for many years, on an article signed by prominent experts in the field, as wellas on the many articles in the record which critiqued plaintiff's 2006 article as beingfilled with misquotes or misrepresentations. Jefferys also provided documentation tosupport why he believed what he wrote about the plaintiff was true and compared indetail plaintiff's journalism to the articles and studies she cited and explained why hebelieved her work to contain misrepresentations.[*2]
In opposition, plaintiff failed to raise a triableissue of fact. Her effort to establish that her work does not contain misquotes ormisrepresentations is immaterial because even if plaintiff were correct about her work,she can point to no evidence that would establish actual malice or gross irresponsibility(Mahoney v Adirondack Publ. Co., 71 NY2d 31, 39 [1987] ["(f)alsity and actualmalice are distinct concepts"]). Similarly, plaintiff's assertion that Jefferys was biasedagainst her or bore her ill will does not aid her cause (see Harte-HanksCommunications, Inc. v Connaughton, 491 US 657, 666 [1989]). Moreover, there isno reason to offer less protection to the contested statement because it was made via anInternet communication (seeSandals Resorts Intl. Ltd. v Google, Inc., 86 AD3d 32, 43-44 [1st Dept 2011]).
Supreme Court was also correct in finding that the use of the word "liar" in thecontested statement was not actionable (see Ram v Moritt, 205 AD2d 516 [2dDept 1994]; see also Steinhilber v Alphonse, 68 NY2d 283, 294 [1986]). Thefull content of the statement, including its tone and apparent purpose, and the broadercontext of the statement and surrounding circumstances leads to the conclusion that whatwas being read was "likely to be opinion, not fact" (see Thomas H. v Paul B., 18 NY3d 580, 584 [2012][internal quotation marks omitted]; see Immuno AG. v Moor-Jankowski, 77NY2d 235, 254 [1991], cert denied 500 US 954 [1991]).
Supreme Court appropriately resolved the case through summary judgment becausethe issues can be determined by the objective proof in the record (see Kipper v NYP Holdings Co.,Inc., 12 NY3d 348, 354 [2009]; Karaduman v Newsday, Inc., 51NY2d 531, 545 [1980]), and no additional discovery was necessary or warranted toresolve the motion.
We have considered plaintiff's remaining contentions and find them unavailing.Concur—Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ.[Prior Case History: 33 Misc 3d 1218(A), 2011 NY Slip Op 51966(U).]