| Humane League of Phila., Inc. v Berman & Co. |
| 2013 NY Slip Op 04989 [108 AD3d 417] |
| July 2, 2013 |
| Appellate Division, First Department |
| The Humane League of Philadelphia, Inc.,Respondent, v Berman and Company et al., Appellants, et al.Defendant. |
—[*1] Bryan W. Pease, Liverpool, for respondent.
Order, Supreme Court, New York County (Lucy Billings, J.), entered March 7, 2013,which, to the extent appealed from, denied so much of defendants' motion for summaryjudgment as sought to dismiss the amended complaint as against defendants Berman andCompany, Center for Consumer Freedom, Richard Berman and David Martosko (theCCF defendants), unanimously reversed, on the law, without costs, and the motiongranted. The Clerk is directed to enter judgment dismissing the amended complaint.
At issue is an advertisement that the CCF defendants created and placed in the NewYork Times in December 2008 to alert the public that a Humane Society of the UnitedStates (HSUS) vice-president would speak at plaintiff's holiday fundraiser. The ad wascaptioned, "Why is [HSUS] Helping a Terrorist Group Raise Money?" Plaintiff allegeslibel based on the ad's statements that plaintiff, in its purported prior incarnation asSHAC Philly and Hugs For Puppies, had ties to SHAC USA (an animal rightsorganization whose leaders undisputedly were convicted of, among other things,conspiracy to violate the Animal Enterprise Protection Act); that plaintiff's organizershave been involved in violence; and that the media had reported that plaintiff's leader,Nicholas Cooney, threatened to kill the child of a pharmaceutical company that workswith Huntingdon Life Sciences, an animal research lab targeted by SHAC USA for itsanimal testing practices.
The court should have dismissed the amended complaint as against all of thedefendants. Contrary to plaintiff's contention, it is a public figure (see James vGannett Co., 40 NY2d 415, 422 [1976]). It thrust itself to the forefront of the publiccontroversy on animal cruelty and sought to influence public action on this issue.Accordingly, as a public figure, plaintiff must show by clear and convincing evidencethat defendants published the ad at issue with actual malice in order to prevail on anyclaim of libel (Kipper v NYPHoldings Co., Inc., 12 NY3d 348, 353-354 [2009]).
"[A] libel defendant's burden in support of summary judgment is not. . . to prove as a [*2]matter of law that itdid not publish with actual malice, but to point to deficiencies in the record that willprevent plaintiff from proving that fact by clear and convincing evidence" (id. at354). Here, defendants were entitled to summary judgment because they citeddeficiencies in the record that prevent plaintiff from proving actual malice (i.e., thatdefendants "entertained serious doubts as to the truth of [its] publication or acted with ahigh degree of awareness of . . . probable falsity . . . at thetime of publication") by clear and convincing evidence (see Kipper, 12 NY3d at354-355 [internal quotation marks omitted]). Indeed, defendant David Martosko wrotethe ad and stated his belief in the veracity of the statements therein, and submitteddocumentation corroborating his beliefs. The motion court largely credited the veracityof those statements as of 2007. The court, however, focusing on the lack of evidence ofmisconduct in 2008, during which restraining orders were in place against plaintiff andCooney, erred in suggesting that the statements were no longer accurate as of 2008.Contrary to the motion court's conclusion, defendants' failure to mention or address thelack of violent acts during this period does not raise a triable issue of fact as to whetherthey printed the ad with actual malice. Indeed, defendants never even mentioned anymisconduct in 2007, and the 2008 events mentioned are undisputedly accurate. Further,the court and plaintiff cite no facts suggesting that defendants had serious doubts aboutthe truth of any of the statements, in 2008 or any other year.
Plaintiff cites to Martosko's conduct in other cases and urges this Court to discredithis affidavit, asserting that he and defendants are likely to knowingly publish a falseadvertisement. However, given defendants' detailed and far more specific documentaryevidence and testimony, plaintiff's claims are too vague and speculative to defeatdefendants' motion. Moreover, a plaintiff's assertions that a jury "might, and legallycould, disbelieve the defendant's denial . . . of legal malice are not enough"to defeat a summary judgment motion (Khan v New York Times Co., 269 AD2d74, 79 [1st Dept 2000] [internal quotation marks omitted]; Kipper, 12 NY3d at357; see also Bose Corp. v Consumers Union of United States, Inc., 466 US 485,512 [1984]). Further, Martosko's good faith reliance on newspaper articles precludes afinding of actual malice (see Liberty Lobby, Inc. v Dow Jones & Co., Inc., 838F2d 1287, 1297 [DC Cir 1988], cert denied 488 US 825 [1988]). Plaintiff'salleged denials and warnings regarding the truth of the statements in the ad are alsoinsufficient to raise an issue of fact (see Edwards v National Audubon Socy.,Inc., 556 F2d 113, 120-121 [2d Cir 1977], cert denied 434 US 1002 [1977]).
Given the foregoing determination, we need not decide whether plaintiff has raised atriable issue of fact regarding the falsity of the statements at issue in the ad.Concur—Friedman, J.P., Sweeny, DeGrasse, Richter and Feinman, JJ. [PriorCase History: 2013 NY Slip Op 30408(U).]