For Plaintiff Christopher Kelly Esq. Reppert Kelly, LLC
For Defendants Elizabeth A. McNamara Esq. Davis Wright Tremaine LLP
DECISION AND ORDER
LUCY BILLINGS, J.S.C.
Plaintiff sues defendants to recover damages for libel and infliction of emotional distress based on an article published by defendants in the September 2010 issue of the well known magazine Vanity Fair, revealing plaintiff's relationship with her deceased husband, fashion designer Oleg Cassini. Defendants move to dismiss plaintiff's complaint on the grounds that plaintiff failed to serve it timely; her claims are time barred; the complaint, even as amended, fails to state a claim; and she failed to obtain personal jurisdiction over defendants by her untimely service. C.P.L.R. §§..306-b, 3211(a)(5), (7), and (8). Plaintiff cross-moves to extend the time to serve defendants. C.P.L.R. § 306-b. For the reasons explained below, the court grants defendants' motion and denies plaintiff's cross-motion.
II. DEFENDANTS' MOTION TO DISMISS THE COMPLAINT
Plaintiff served an amended complaint with her motion to extend time to serve the summons and complaint. Since defendants never answered plaintiff's original complaint, her time to amend her complaint has not expired. C.P.L.R. § 3025(a). Therefore the court considers defendants' motion to dismiss this action based on its failure to state a claim as addressed to the claims for libel and infliction of emotional distress pleaded in the amended complaint.
Libel is an injury to a person's reputation through a written publication. See Gross v. New York Times Co., 82 N.Y.2d 146, 156 (1993) . To recover for libel, plaintiff must establish that defendants made (1) an unprivileged statement of fact, Shulman v. Hunderfund. 12 N.Y.3d 143, 146-47 (2009); Steinhilber v. Alphonse, 68 N.Y.2d 283, 289-90 (1986); St. David's School v. Hume, 101 A.D.3d 582, 583 (1st Dep't 2012); Sprewell v. NYP Holdings. Inc., 43 A.D.3d 16, 21 (1st Dep't 2007), (2) concerning plaintiff, Smith v. Catsimatidis, 95 A.D.3d 737 (1st Dep't 2012); Prince v. Fox Tel. Stas., Inc., 93 A.D.3d 614 (1st Dep't 2012), (3) with the requisite degree of fault, (4) that is false and defamatory, Brian v. Richardson, 87 N.Y.2d 46, 51 (1995); Omansky v. Penning, 101 A.D.3d 514, 515 (1st Dep't 2012); Amaranth LLC v. J, P. Morgan Chase & Co., 100 A.D.3d 573, 574 (1st Dep't 2012); Konrad v. Brown, 91 A.D.3d 545, 546 (1st Dep't 2012), and (5) that damaged plaintiff. E.g., Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 379 (1977); Sandals Resort Intl. Ltd. v. Google, Inc., 86 A.D.3d 32, 38 (1st Dep't 2011). The requisite fault on defendants' part may depend on the subject of their publication. Since the subject of the article was of legitimate public concern warranting public exposition, plaintiff was required to plead defendants' gross irresponsibility in investigating the accuracy of their reporting. Weiner v. Doubledav & Co., 74 N.Y.2d 586, 595-96 (1989); Sarwer v. Conde Nast Pubis., 237 A.D.2d 191, 192 (1st Dep't 1997). The article was of public concern and warranted public exposition because it showed the difficulties in distributing a well known designer's estate, complicated by a little known marriage, his numerous romantic relationships, and internal family conflict. See Huggins v. Moore, 94 N.Y.2d 296, 304-305 (1999); Krauss v. Globe Intl., 251 A.D.2d 191, 193-94 (1st Dep't 1998); Lewis v. Newsday, Inc., 246 A.D.2d 434, 435 (1st Dep't 1998).
A statement is defamatory only if it (a) is false and (b) exposes plaintiff "to public contempt, ridicule, aversion or disgrace, or induce an evil opinion" of her and deprive her of "friendly intercourse in society." Dillon v. City of New York, 261 A.D.2d 34, 37-38 (1st Dep't 1999) (citations omitted). See Sandals Resort Intl. Ltd. v. Google, Inc., 86 A.D.3d at 38; Bement v. N.Y.P, Holdings, 307 A.D.2d 86, 92 (1st Dep't 2003). Upon a motion to dismiss a complaint, the court determines statements' defamatory connotation. James v. Gannett Co., 40 N.Y.2d 415, 419 (1976); Ava v. NYP Holdings, Inc., 64 A.D.3d 407, 412 (1st Dep't 2009).
The amended complaint specifies various statements in defendants' article as defamatory. Defendants reported that plaintiff's stepdaughter, Tina, stated plaintiff laughed when Tina complained she was unhappy. Plaintiff claims defendants' report was malicious and false, but does not describe how it was malicious and false or deny that Tina made the statement. While plaintiff claims defendants failed to investigate adequately, she alleges neither that defendants inaccurately reported Tina's statement, see Weiner v. Doubleday & Co., 74 N.Y.2d at 596, nor that they knew Tina's statement was false, Hellenic Wiring Contr. Corp. v. Petracca & Sons, 307 A.D.2d 822, 823 (1st Dep't 2003), nor any other facts allowing an inference of defendants' gross irresponsibility. Ramos v. Madison Sq. Garden Corp., 257 A.D.2d 492, 493 (1st Dep't 1999). To the contrary, the complaint alleges that defendant Orth, the article's author, sought to interview plaintiff for the article, but she declined. Sprewell v. NYP Holdings, Inc., 43 A.D.3d at 21.
The article's statement that plaintiff did not "figure into the equation, " Aff. of Christopher Kelly Ex. A ¶ 22, and suggestion that she was a "nobody, " because she merely was available if Oleg Cassini and his mistress and editor "needed pencils sharpened, " id., are incapable of verification and thus opinion, which does not furnish a basis for a defamation claim. Mann v. Abel, 10 N.Y.3d 271, 277 (2008); Mercado v, Shustek, 309 A.D.2d 646, 647 (1st Dep't 2003). See Guererro v. Carva, 10 A.D.3d 105, 111 (1st Dep't 2004). The article discloses the source of the statement and does not suggest that it is premised on any undisclosed facts. Brian v. Richardson, 87 N.Y.2d 53-54; Shchecrol v. Rabinovich, 30 A.D.3d 311 (1st Dep't 2006); Mercado v. Shustek, 309 A.D.2d at 647. See Guerrero v. Carva, 10 A.D.3d at 114. In fact, this characterization is consistent with plaintiff's public image portrayed in the article, which plaintiff does not challenge.
Plaintiff claims defendants' further characterization of her and her sisters throwing parties for wealthy older men "looking for action, " Kelly Aff. Ex. A ¶¶ 19-20, was libel per se because the statements suggest she was a prostitute. In the context of the whole article, which relates to plaintiff's marriage to her renowned fashion designer husband, however, the statement does not suggest her unchaste behavior. James v. Gannett Co., 40 N.Y.2d at 420-21; Ava v. NYP Holdings, Inc., 64 A.D.3d at 413. The article's depiction of plaintiff being in the couple's house while her husband was with a mistress likewise does not connote any unchaste behavior by her or assail her morality. Ava v. NYP Holdings, Inc., 64 A.D.3d at 414. Finally, plaintiff alleges that defendants' defamation caused her to lose business opportunities. While damages are presumed for libel tending to injure plaintiff's business or profession, Geraci v. Probst, 15 N.Y.3d 336, 344 (2010), plaintiff ...