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August 30, 1994

PETER E. TORRES, d/b/a Visa Lottery, Inc. d/b/a Immigration Law Office of Peter E. Torres, Esquire, Plaintiff, against CBS NEWS, ROSEANNE COLLETTI, ERNIE ANASTOS, BEATRICE GRUBER, "JOHN DOE" DOE" being a fictitious name of a CBS undercover cameraman, CONGRESSMAN CHARLES E. SCHUMER, ELIZABETH AVIARS, and THE CITY OF NEW YORK, Defendants.

SHARON E. GRUBIN, United States Magistrate Judge. HONORABLE KIMBA M. WOOD

The opinion of the court was delivered by: SHARON E. GRUBIN


SHARON E. GRUBIN, United States Magistrate Judge:

 Pending are the motion of defendant Congressman Charles E. Schumer to dismiss this case pursuant to Fed. R. Civ. P. 12 or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56 and the motion of plaintiff for summary judgment on the first two of his four claims against Congressman Schumer. I respectfully recommend that Congressman Schumer's motion be granted and plaintiff's motion denied. I further recommend that this case then be remanded to the New York State Supreme Court from which it was removed by Congressman Schumer. *fn1"


 In May 1992 plaintiff prepared a booklet entitled "Visa Lottery Informational Booklet" intended to aid immigrants applying for visas for permanent United States residency under the upcoming 1993 visa lottery program. Plaintiff sold the booklet for $ 50 and, in addition, offered to do the application and related work for $ 150. In soliciting orders, plaintiff used the name "Visa Lottery, Inc.," obtained a Post Office box to receive orders and had available three telephone lines 24 hours a day to provide free information. Believing that many immigrants would contact their Congressional representatives concerning the lottery, plaintiff sent a letter by fax to all Congresspeople in New York and elsewhere regarding his booklet and the other services he offered. Congressman Schumer, the Ranking Member of the Immigration Subcommittee of the Committee on the Judiciary, issued a one-page press release on July 29, 1992 which, in essence, warned illegal aliens to beware of "scam artists" who portrayed themselves as consultants and offered for a fee to complete the lottery application process which, according to the Congressman, was simple enough for anyone to do her or himself. The press release referred specifically to Visa Lottery, Inc. as an example of "one company looking to make a quick buck off of aliens" and said, "In Brooklyn, we have a word for something like that -- chutzpah."

 The complaint charges in its first two claims that the references to "plaintiff" *fn2" as a "scam artist" and "one company looking to make a quick buck off of aliens" and "calling plaintiff: 'Chutzpah'" were false and defamatory and that Congressman Schumer, in publishing this matter, failed to take proper steps to ascertain its accuracy, acting in a grossly irresponsible manner and with reckless disregard of the truth. The first claim is for libel and the second alleges a "breach" of "a duty of care" owed to plaintiff. Both allege injury to plaintiff's professional character and reputation, mental anguish and loss of business in the sum of $ 100 million dollars and also seek punitive damages.

 The third claim in the complaint, for slander, and fourth claim, again for "breach" of "a duty of care," are based on allegations all "on information and belief" that on, about, or after July 29, 1992, defendant Schumer held a press conference with the television and broadcast media regarding the defamatory matter of and concerning plaintiff" and "in the presence of the television and broadcasting media spoke of and concerning the plaintiff false and defamatory words and/or statements mentioned in his [press release]." These claims seek precisely the same damages for precisely the same injuries as the first two claims.

 The additional eight state-law claims against the other defendants -- CBS Inc., Ernie Anastos, Roseanne Colletti, Beatrice Gruber, "John Doe" (a CBS cameraman), and the City of New York and Director of the Mayor's Office for Immigrant Affairs, Elizabeth Aivars -- are based on allegations that they reported or made false and defamatory statements about plaintiff on a "Trouble Shooter" television program broadcast by CBS stations and affiliates on August 26, 1992. Because the facts alleged in the complaint against these defendants will be relevant to the discussion below, a brief description is necessary. *fn3"

 According to plaintiff, on August 23, 1992 defendant Gruber (a CBS employee but not identified as such at that time to plaintiff), relying on the press release published by defendant Schumer, called plaintiff's office and made an appointment to see him and obtain a booklet, but she did not appear for the appointment. On August 25 she called again to obtain one of the booklets. When plaintiff's secretary told Ms. Gruber it was too late to be mailed the information because the lottery entry had to be submitted by August 28, Ms. Gruber said she would come to the office to pick it up. That day Ms. Gruber went to plaintiff's office with "John Doe" (a CBS undercover cameraman), and they introduced themselves as immigrants who wanted to apply to the lottery for themselves and their relatives. Plaintiff answered their questions and discussed his booklet's information with them for one-half hour, and Ms. Gruber bought one for $ 50. John Doe, through a concealed camera, had videotaped the visit. The following day, August 26, when plaintiff arrived at his office he found defendant Roseanne Colletti (a CBS reporter) with defendants Gruber, John Doe and a television camera waiting outside the office to interview plaintiff regarding his booklet. Plaintiff refused to appear on television because he was not dressed in a suit and informed Ms. Colletti that he had not committed any wrongdoing in connection with his booklet. Ms. Colletti, however, as plaintiff was being filmed, informed him that he was going to appear on that night's broadcast and that her report was based on the press release of Congressman Schumer. When plaintiff informed Ms. Colletti that he was not aware of the press release, she gave him a copy. That evening CBS News aired a "Trouble Shooter" piece on its nationwide network of stations and affiliates showing segments of plaintiff's discussions with defendants Gruber and Colletti and portraying plaintiff as though committing a crime. During its local airing, defendants Colletti and anchorperson Ernie Anastos made additional comments about plaintiff's services. It is alleged the broadcast and the comments were false and defamatory. The City of New York and Elizabeth Aivars, Director of the Mayor's Office for Immigrant Affairs, are named as defendants because during the broadcast Aivars, shown with a copy of plaintiff's booklet, also made false and defamatory comments about it.

 The eight claims against these defendants are not pleaded against Congressman Schumer. While the factual allegations contain four references to Congressman Schumer's press release, *fn4" the complaint does not state or imply that defendant Schumer made any statement or utterance concerning plaintiff apart from those in the press release and press conference on which the first four claims are based or played any role in the broadcast or the events leading up to it, other than the fact that the issuance of the press release was what brought plaintiff to the attention of the CBS defendants.


 I. Standards on a motion to dismiss and on a motion for summary judgment

 On a motion to dismiss the court accepts all factual allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff. See Leatherman v. Tarrant County Narcotics Intelligence & Coord. Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1161 (1993); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992), cert. denied, 122 L. Ed. 2d 762, 113 S. Ct. 1387 (1993) and 113 S. Ct. 1412 (1993). A complaint should not be dismissed unless, "after viewing plaintiff's allegations in this favorable light, 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Walker v. City of New York, 974 F.2d at 298 (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)).

 Under Rule 56(c) of the Federal Rules of Civil Procedure a motion for summary judgment must be granted if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact, which can be done merely by pointing out that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmoving party then must meet a burden of coming forward with "specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett 477 U.S. at 322. The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). But the court is to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Knight v. U.S. Fire Ins. Co., 804 F.2d at 12, 15; Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986), cert. denied, 479 U.S. 1088, 94 L. Ed. 2d 151, 107 S. Ct. 1295 (1987). To determine whether the nonmoving party has met his or her burden, the court must focus on both the materiality and the genuineness of the factual issues raised by the nonmovant. As to materiality, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs," and a dispute over irrelevant or unnecessary facts will not preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248.

 II. The applicable limitations period for all four claims against Congressman Schumer is one year

 Under New York law an action for libel or slander must be commenced within "one year from the date that the defamatory statement is made available or published, in the case of libel, and one year from the date of utterance in the case of slander." Johnson v. Shearson Loeb Rhoades, Inc., LEXIS GENFED Library, DIST File, No. 83 Civ. 3937 (JFK), 1984 WL 1028 at *5 (S.D.N.Y. Oct. 18, 1984) (also available on LEXIS). See also Shamley v. ITT Corp., 869 F.2d 167, 172 (2d Cir. 1989); Stockley v. AT&T Info. Sys., 687 F. Supp. 764, 768 (E.D.N.Y. 1988); Karam v. First American Bank, 190 A.D.2d 1017, 1018, 593 N.Y.S.2d 640, 642 (4th Dep't 1993); Rand v. New York Times Co., 75 A.D.2d 417, 424, 430 N.Y.S.2d 271, 275 (1st Dep't 1980); N.Y. Civ. Prac. L. & R. 215(3) (McKinney 1990). Because this action was commenced on August 24, 1993, any claim for relief based on an allegedly defamatory publication made available or published, or an allegedly slanderous statement uttered, before August 24, 1992 is time-barred.

 As indicated above, the first and third claims in the complaint are for libel and slander, respectively, and the second and fourth are for "breach" of "a duty of care." However, the paragraphs of the complaint setting forth the second and fourth claims do not differ in any material respect from the corresponding paragraphs of the first and third claims. In apparent response to the contention made in Congressman Schumer's motion papers that the second and fourth claims are simply superfluous defamation claims for statute of limitations purposes, plaintiff offhandedly now mentions in his 3(g) statement and memoranda of law that they are claims for negligence. *fn5" Neither the complaint nor his submissions make any attempt, however, to explain the nature of the alleged "duty of care," and no relationship between Congressman Schumer and plaintiff is alleged to give rise to any special duty of care.

 New York courts have been alert to attempts to circumvent the one-year period for defamation actions by characterizing the claim or injury as something else, e.g., as negligence, intentional or negligent interference with reputation or prospective contractual relationships, intentional infliction of emotional harm or prima facie tort. "We look for the reality, and the essence of the action and not its mere name." Morrison v. NBC, 19 N.Y.2d 453, 459, 280 N.Y.S.2d 641, 644, 227 N.E.2d 572 (1967) (quotation omitted). See also Gallagher v. Metro North Commuter R.R. Co., 846 F. Supp. 291, 293 (S.D.N.Y. 1994). "Any other rule would allow a plaintiff to evade the strictures of limitations statutes simply by clever characterization of claims." Korry v. IT&T Corp., 444 F. Supp. 193, 195 (S.D.N.Y. 1978). The four claims against Congressman Schumer all involve the same allegedly false and defamatory statements, and all seek damages for injury to reputation, the gravamen of an action in defamation. In similar situations, this court as well as the state courts have made it clear that regardless of the terms in which a cause of action may be cast, the one-year limitations period for libel and slander applies. See, e.g., Korry v. IT&T Corp., 444 F. Supp. at 195 ("In applying statutes of limitations, we look to the essence of plaintiff's claim, not the label he chooses to tag onto it.... Since, in the instant case, all claims are for redress of injury to reputation, we ...

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