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United States District Court, S.D. New York

September 6, 2005.


The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge




  Plaintiff Fredric G. Rubenstein ("Rubenstein") brings this action against defendants Transport Workers' Union of Greater New York, Local 100 ("Local 100") and Roger Toussaint ("Toussaint"), alleging, inter alia, violations of Title VII of the Civil Rights Act of 1964. Toussaint filed a counter-claim against Rubenstein, alleging defamation, in violation of New York common law. Before the Court is Rubenstein's application, made pursuant to Fed.R.Civ.P. 56, for summary judgment with respect to the defamation counter-claim. The defendants oppose the application. It is addressed below.


  Rubenstein was employed by Local 100 as a staff representative and organizer, beginning in August 1996. Local 100 is a labor union that represents certain employees of the New York City Transit Authority ("NYCTA"), and the Manhattan and Bronx Surface Transit Operating Authority ("MABSTOA"). Toussaint was elected president of Local 100 in December 2000, defeating the incumbent president. Soon after taking office on January 1, 2001, Toussaint dismissed a number of Local 100 staff members who, he contends, were loyal to the previous president and hired new staff members to replace them.

  One of the newly hired staff members was Robert Ortiz ("Ortiz"), who had previously been dismissed by NYCTA following an arbitration panel's determination that Ortiz had engaged in misconduct while in NYCTA's employ. In a letter to Toussaint, dated January 29, 2001 ("letter"), Rubenstein objected to the hiring of Ortiz. The letter stated, in pertinent part:

Dear President Toussaint:
You hired Robert "Tito" Ortiz onto the Local 100 staff. As you know, New York City Transit dismissed Mr. Ortiz for making anti-Semitic slurs against another employee. Ortiz's discharge was sustained at arbitration (copy supplied).
Specifically, Ortiz called a Jewish employee a "fucking Jew." This and other anti-Semitic remarks spoken by Ortiz terrorized the employee who was a victim of religious persecution before escaping the Communist Ukraine. Ortiz also threatened to "bury" this individual. During the arbitration, Ortiz confessed. In upholding his dismissal, the Arbitrator emphasized that Ortiz showed absolutely no remorse.
The Transport Workers Union has always maintained a zero tolerance policy concerning such conduct and never tolerated hatred. The hiring of Robert Ortiz desecrates TWU's achievements in the areas of human dignity and civil rights. It will irreparably damage Local 100's credibility and negatively affect our membership.
Roger, I am a Jew. I remember well my grandparents telling of how the Nazis murdered members of our family during the Holocaust. I am deeply offended and pained knowing you hired an anti-Semite. By your action, Local 100 has endorsed and rewarded a confessed bigot and that is horribly wrong. I respectfully demand that you revisit your decision to employ Ortiz. I expect your timely reply.
Letter, at 1.

  A copy of the above-referenced arbitration decision was attached to the letter. Rubenstein sent copies of the letter to: (1) Gil Rodriguez, the union official in charge of the MABSTOA division of Local 100, in which Rubenstein was employed; (2) employees of two newspapers, the New York Daily News ("Daily News") and the Chief-Leader ("Chief').

  According to the arbitration decision, NYCTA charged, inter alia, that Ortiz "became insubordinate and used biased language in that he made the following disparaging statements against [a supervisor], `What am I, gefilte fish? Why don't you give me gloves?' [and] later stated `Look, he is a typical fucking Jew who has a guilty conscience.'" The arbitration panel heard testimony from Ortiz, from the supervisor, and others, and found that Ortiz had, in fact, made the charged statements. Ortiz maintained that he had used the phrase "chopped liver" instead of "gefilte fish," and the phrase "Typical Jewish guilt" rather than the second statement attributed to him by NYCTA and the supervisor.

  On February 1, 2001, the Daily News published an article about the objection raised by Rubenstein to the decision to hire Ortiz. The article quoted a portion of Rubenstein's letter. Thereafter, on or about February 2, 2001, Toussaint dismissed Rubenstein.

  On February 3, 2001, the Daily News published a second article, in which it reported Rubenstein's dismissal. The article also stated that Rubenstein had, prior to his dismissal, criticized Toussaint's decision to hire Ortiz. The article also quoted Rubenstein as saying that he was the victim of "anti-Semitic retaliation," and quoted Toussaint as saying that the charges against Ortiz were unfounded.

  On February 9, 2001, the Chief published an article that reported Rubenstein's objection to the decision to hire Ortiz, as well as Toussaint's defense of that decision. According to the article, Rubenstein, referring to his dismissal by Toussaint, stated: "As far as I'm concerned, it's a blatant manifestation of anti-Semitic retaliation by the president of the local." The article also quoted the portion of Rubenstein's letter that stated, "I am deeply offended and pained knowing you hired an anti-Semite. . . . The hiring of Robert Ortiz desecrates TWU's achievements in the areas of human dignity and civil rights." According to the article, Toussaint stated that he dismissed Rubenstein as part of a series of routine staff changes that were the natural consequence of new leadership assuming control of Local 100 and that Rubenstein's letter was part of "a last-ditch attempt to blackmail me into keeping him." The article also described, in detail, various individuals' accounts of the circumstances of Ortiz's dismissal by NYCTA.

  Rubenstein commenced the instant action, alleging that his dismissal violated, inter alia, Title VII. Rubenstein filed the complaint on February 7, 2002, and, according to affidavits of service filed by Rubenstein, the complaint was served upon the defendants on February 14, 2002. Thereafter, Toussaint filed the instant counter-claim. In it, he alleges that Rubenstein defamed him by publishing the January 29, 2001 letter — in particular by the letter's statements that Toussaint had: (i) "endorsed and rewarded a confessed bigot"; (ii) "desecrate[d] TWU's achievements in the areas of human dignity and civil rights"; and (iii) "irreparably damage[d] Local 100's credibility." Toussaint also claims that Rubenstein defamed him by stating: (a) as quoted in the February 3, 2001 Daily News article, that Rubenstein was the victim of "anti-Semetic retaliation;" and (b) as quoted in the February 9, 2001 Chief article, that Rubenstein's dismissal was a "blatant manifestation of anti-Semitic retaliation by the president of the local."*fn1

  In support of the instant application, Rubenstein contends that: (1) the allegedly defamatory statements are constitutionally protected statements of opinion; (2) there is no evidence that Rubenstein made the statements with the actual malice requisite to a claim of defamation made by a public figure; (3) there is no evidence that Toussaint suffered any injury as a result of the statements; and (4) the counter-claim is time-barred.

  In opposition to the instant application, the defendants contend that: (1) the statements in question are defamatory because they allege that Toussaint is anti-Semitic and purport to state a factual basis for that allegation; (ii) Toussaint is not a public figure, and so no showing of actual malice is required; (iii) even if a showing of actual malice is required, the evidence supports such a finding; (iv) the statements in question are defamatory per se, and so no evidence of injury is required; and (v) the counter-claim is not time-barred.

  The parties have submitted, inter alia, a copy of Rubenstein's letter, the arbitration decision attached thereto, the deposition testimony of Rubenstein and Toussaint, and copies of the three above-referenced newspaper articles. III. DISCUSSION

  Summary Judgment

  Summary Judgment may be granted in favor of the moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). When considering a motion for summary judgment, "the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 [1986]).

  The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 2553 (quoting Fed.R.Civ.P. 56[c]).

  Once the moving party has satisfied its burden, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511 (1986). In order to meet this burden, the non-moving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S. Ct. at 1355. "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510. The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Id. at 256, 2514. A genuine issue of material fact exists only if a rational trier of fact could find in favor of the non-moving party. See Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356.

  Time Bar

  The parties appear to agree that New York law governs Toussaint's claim of defamation. Under New York law, in order to be actionable, an action for defamation must be commenced within one year of its accrual. See New York Civil Practice Law and Rules ("CPLR") § 215(3). "For the purpose of computing the running of the one-year Statute of Limitations, the causes of action accrue on the day the statement at issue was originally published." Bassim v. Hassett, 184 A.D.2d 908, 910, 585 N.Y.S.2d 566, 568 (App.Div. 3d Dep't 1992). A counter-claim for defamation is not time-barred


if it was not barred at the time the claims asserted in the complaint were interposed, except that if the defense or counterclaim arose from the transactions, occurrences, or series of transactions or occurrences, upon which a claim asserted in the complaint depends, it is not barred to the extent of the demand in the complaint notwithstanding that it was barred at the time the claims asserted in the complaint were interposed.
CPLR § 203(d).

  Rubenstein published his letter on January 29, 2001, which was more than one year prior to February 7, 2002, the date on which the complaint was filed. The defendants contend that when "a series of defamatory remarks has been alleged, the date of the most recent statement is the one that starts the clock running for statute of limitations purposes." Defendants' Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment, at 20. However, the New York decisional law that the defendants cite for this proposition does not support it. In Rand v. New York Times Co., 75 A.D.2d 417, 424, 430 N.Y.S.2d 271, 275 (App.Div. 1st Dep't 1980), and Seymour v. New York State Elec. & Gas, 215 A.D.2d 971, 972, 627 N.Y.S.2d 466, 468 (App.Div. 3d Dep't 1995), New York appellate courts stated, in dicta, that each repetition of an allegedly defamatory utterance gives rise to a distinct cause of action. Rand and Seymour also note that the limitations period for a defamation action commences upon publication of the challenged statements, not the date upon which the party bringing the claim discovers the statements. Rand, 75 A.D.2d at 424, 430 N.Y.S.2d at 275; Seymour, 215 A.D.2d at 972, 627 N.Y.S.2d at 468.

  In this action, there is no evidence that Rubenstein re-published his letter after January 29, 2001, and so there are no subsequent repetitions of the challenged statements therein. Although the parties appear to assume that republication of Rubenstein's statements by the Daily News and the Chief restart the limitations periods for those statements, that assumption is incorrect. See Bassim, 184 A.D.2d at 910, 585 N.Y.S.2d at 568 ("[L]ater republications of the allegedly defamatory statements by a third party do not revive the causes of action against defendant from the original publication."); see also Clark v. New York Telephone Co., 52 A.D.2d 1030, 384 N.Y.S.2d 562, 563 (App.Div. 4th Dep't 1976) ("republication of the [allegedly defamatory] statement by another within the one-year period did not save the cause of action in defamation against defendant on the original publication."). In light of the foregoing, the counter-claim is time-barred with respect to the statements contained in Rubenstein's January 29, 2001 letter.

  Rubenstein spoke with the Daily News prior to February 3, 2001, and thus made the first "anti-Semitic retaliation" statement more than one year before the complaint was filed. However, Rubenstein repeated that remark when speaking with the Chief, and the evidence in the record does not make it clear when the latter utterance of the remark occurred. Accordingly, there is no basis upon which to conclude that the counter-claim is time-barred with respect to that remark.

  However, the defamation claim and the claims brought by Rubenstein arise out of the same transactions and occurrences; both the claims and the counter-claim concern allegations that Toussaint was motivated by religious animus in making employment decisions. Accordingly, under CPLR § 203(d), the defamation counter-claim is not time-barred to the extent of the demand made by Rubenstein in the complaint, and summary judgment on the ground of time-bar is not appropriate.

  Accordingly, the Court will address next the merits of the counter-claim.


  Under New York law, a libel plaintiff must, in general, prove five elements: "(1) a written defamatory statement of fact regarding the plaintiff; (2) published to a third party by the defendant; (3) defendant's fault, varying in degree depending on whether plaintiff is a private or public party; (4) falsity of the defamatory statement;" Meloff v. New York Life Ins. Co., 240 F.3d 138, 145 (2d Cir. 2001), and "(5) special damages or per se actionability (defamatory on its face)," Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 176 (2d Cir. 2000). A. Fact or Opinion

  "It is a settled rule that expressions of an opinion false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions." Steinhilber v. Alphonse, 68 N.Y.2d 283, 286, 508 N.Y.S.2d 901 (1986). The New York Court of Appeals explained:

An expression of pure opinion is not actionable. It receives the Federal constitutional protection accorded to the expression of ideas, no matter how vituperative or unreasonable it may be. A "pure opinion" is a statement of opinion which is accompanied by a recitation of the facts upon which it is based. An opinion not accompanied by such a factual recitation may, nevertheless, be "pure opinion" if it does not imply that it is based upon undisclosed facts. When, however, the statement of opinion implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, it is a "mixed opinion" and is actionable. The actionable element of a "mixed opinion" is not the false opinion itself — it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking.
Steinhilber, 68 N.Y.2d at 289-90, 508 N.Y.S.2d at 903-04 (citations omitted).

  The second paragraph of Rubenstein's letter describes statements made by Ortiz to another employee of NYCTA that evidence hostility to Jewish people. Rubenstein attached to the letter a copy of the written decision of an arbitration panel that found that Ortiz had made such statements. The third paragraph of Rubenstein's letter states that Local 100 had previously "maintained a zero-tolerance policy concerning such conduct and never tolerated hatred." These portions of the letter, as well as the attached decision of the arbitration panel, recite the factual basis for the allegedly defamatory statements Rubenstein made about Toussaint elsewhere in the letter. Accordingly, Rubenstein's statements — that Toussaint "endorsed and rewarded a confessed bigot," "desecrate[d] TWU's achievements in the areas of human dignity and civil rights," and "irreparably damage[d] Local 100's credibility" — are pure opinion, under Steinhilber. Consequently, defamatory or not, those statements are not actionable.

  The other two allegedly defamatory statements — to the effect that Toussaint's decision to dismiss him was "anti-Semitic retaliation" — were made to the staff of two newspapers, who were aware of the factual basis for the statements, as they had previously received Rubenstein's letter and the attached arbitration decision. Indeed, each newspaper article's quotation of Rubenstein's statement was accompanied by an account of the dispute about Ortiz's remarks, Toussaint's decision to hire Ortiz, Rubenstein's public objection thereto, and Toussaint's subsequent termination of Rubenstein. In that context, Rubenstein's allegations of "anti-Semitic retaliation" were statements of pure opinion. They are not actionable.*fn2

  B. Actual Malice

  "Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures . . . may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth." Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997, 3008 (1974). That is, a public figure must prove actual malice. Public figures are those who "have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment." Id. at 345, 3009. Union members have been found by courts to be public figures for purposes of union business in instances where the union member's position is one of prominence or where his or her activities place the union member in a controversy that invites scrutiny. See, e.g., Miller v. Transamerican Press, Inc., 621 F.2d 721, 724 (5th Cir. 1980); Argentine v. United Steel Workers Association, 23 F.Supp. 2d 808, 820 (S.D. Ohio 1998); Henry v. National Association of Air Traffic Specialists, Inc., 836 F. Supp. 1204, 1206 n. 3 (D. Md. 1993).

  At the time the challenged statements were made, Toussaint was the president of Local 100, a labor union representing public employees. According to Toussaint's deposition testimony, he is personally involved in the legislative and political affairs of his union, and meets periodically with prominent elected officials. Affidavit of Daniel R. Bright, Exh. 6, Deposition Testimony of Roger Toussaint, at 71-73. Moreover, with respect to the subject matter of the challenged statements by Rubenstein, Toussaint's activities have placed him in a controversy that attracted the scrutiny of two newspapers, which together published three articles on the events that gave rise to this action and sought Toussaint's comment for each article. Consequently, Toussaint is a public figure, at least for the limited purpose of the instant defamation claim, and clear and convincing proof of actual malice is a prerequisite to his recovery. Toussaint has not adduced evidence that would permit a reasonable trier of fact to conclude that Rubenstein knew the challenged statements to be false or made the statements with reckless disregard for the truth. Toussaint's memorandum of law contains a number of statements about motives Rubenstein might have had to make the challenged statements. However, none of those statements points to evidence that Rubenstein knew the challenged statements to be false. Toussaint also contends that Ortiz was not a "confessed bigot," because Ortiz did not concede that he made the remarks that he was accused of making. However, even if Ortiz's version of events is true, whether Ortiz's use of the phrase "typical Jewish guilt" constituted bigotry is a matter of opinion; it is not a factual matter that Rubenstein could have "known" to be true or false. Consequently, no reasonable trier of fact could conclude, on this basis, that Rubenstein acted with actual malice in making the statements contained in his January 29, 2001 letter.

  C. Injury or Per Se Actionability

  The fifth element of a claim of defamation, injury, is presumed if the allegedly "defamatory statement falls within a category of libel per se." Meloff, 240 F.3d at 145.

  Rubenstein contends that the challenged statements in this action are not defamatory per se, and that Toussaint has not offered any evidence of actual damages. Under New York law, however, an allegation of anti-Semitism in the performance of one's business dealings constitutes defamation per se. See Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 261, 633 N.Y.S.2d 106, 113 (App.Div. 1st Dep't 1995); Stuart v. Anti-Defamation League of B'nai B'rith, 127 N.Y.S.2d 362, 363-364 (N.Y. Sup. Ct., N.Y. Cty. 1953). Accordingly, Toussaint can satisfy this element of his defamation claim. IV. RECOMMENDATION

  For the reasons set forth above, the plaintiff's motion for partial summary judgment, made pursuant to Fed.R.Civ.P. 56, should be granted.


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, United States District Judge, 40 Centre Street, Room 410, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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