plaintiff: Jay R. Butterman, Esq. Butterman & Kahn, LLP
defendants: Lawrence S. Rosen, Esq., Patrick McPartland,
Esq., Larocca Hornik Rosen, et al.
Barbara Jaffe, J.
sues defendants to recover damages for alleged defamation.
Defendants move pursuant to CPLR 3211 (a) (7) for an order
dismissing the complaint for failure to state a cause of
action. Plaintiff opposes.
otherwise indicated, the following facts are taken from
plaintiff's complaint, and are accepted as true for
purposes of this motion.
is a "political strategist and public relations
consultant" and a frequent commentator on television
news channels and other media outlets, offering
"political opinion and analysis from the Republican
perspective." (NYSCEF 19, Exh. A, ¶¶ 9-11).
Defendant Donald J. Trump was at all relevant times a
candidate for the 2016 Republican nomination for the
Presidency of the United States. (Id., ¶ 13).
Defendant Donald J. Trump for President, Inc., was the
campaign organization for Trump's presidential candidacy.
(Id., ¶ 14). Defendant Lewandowski was the
Trump organization's campaign manager. (Id.,
about May 18, 2015, plaintiff received a message from
nonparty Jim Dornan, then working for the campaign, asking if
she would be interested in becoming the campaign's
communications director. (Id., ¶ 22). The
following day, plaintiff met with Dornan and Lewandowski, and
according to plaintiff, they expressed interest in working
with her, with Lewandowski asking for her salary
requirements. (Id., ¶¶ 24, 27). Later that
day, Dornan sent a message to plaintiff, stating that
Lewandowski wanted to meet with her again. By email to
Lewandowski, plaintiff provided her salary requirements and
indicated her interest in a position with the campaign.
(Id., ¶¶ 28, 29).
9, 2015, plaintiff met with Dornan and Lewandowski for a
second time. (Id., ¶ 30). At this meeting,
during a discussion about communications issues, Lewandowski
became agitated, loud, and rude, exclaiming that the FOX
television network would do whatever the campaign wanted, and
telling plaintiff that she had no idea how FOX works.
(Id., ¶ 31). As Lewandowski's agitation
mounted, Dornan left the meeting, and, soon after, plaintiff
also excused herself. (Id., ¶ 32). According to
plaintiff, she then decided that she could not work for
Lewandowski, and shortly thereafter, in reply to a text from
Dornan, advised him that working with Lewandowski would be
too difficult. (Id., ¶¶ 33, 34). No
further discussions about a position with the campaign were
held with Lewandowski, or with Dornan, who subsequently
stopped working for the campaign. (Id., ¶¶
35, 36). Plaintiff pursued the position no further, nor was
she offered it.
16, 2015, Trump formally announced his candidacy for
President. In the months following his announcement,
plaintiff frequently appeared on television as a commentator,
and posted comments on social media sites, including Twitter,
both defending and criticizing Trump. (Id.,
January 26, 2016, plaintiff appeared on a CNN cable
television show to discuss Trump's threat to boycott one
of the Republican presidential primary debates unless FOX
removed Megyn Kelly as a moderator. (Id.,
¶¶ 45-46). During her appearance, plaintiff
characterized Trump as a "bad debater" and stated
that he "comes off like a third grader faking his way
through an oral report on current affairs" and was using
the Megyn Kelly dispute with FOX as an excuse for avoiding
the debate. (Id., ¶ 46). The next day, during
an on-air telephone call with the host of MSNBC's Morning
Joe program, Lewandowski referenced plaintiff's comments
about Trump, stating that "[t]his is the same person...
who came to the office on multiple occasions trying to get a
job from the Trump campaign, and when she wasn't hired
clearly she went off and was upset by that."
(Id., ¶ 49).
February 2, 2016, plaintiff again appeared on CNN along with
a Trump supporter to discuss Trump's claims that his
campaign was self-funded and CNN's investigation finding
that one-third of his campaign funds came from other sources.
(Id., ¶ 50). Plaintiff remarked on the show
that "there had been a Trump Super PAC, [that] the
campaign lied about it, and then shut it down, " as was
reported in the news. (Id.). She also said that the
campaign had approached several Republican billionaire
donors, all of whom had declined to donate money to Trump.
that night, Trump posted the following on Twitter:
"Great job on @donlemon tonight
@kayleighmcenany @cherijacobus begged
us for a job. We said no and she went hostile. A real dummy!
@CNN." (Id., ¶ 50). A day
later, on February 3, 2016, plaintiff's then lawyer sent
Trump a cease and desist letter. (Id., ¶ 52).
Two days after that, on February 5, 2016, Trump posted the
following tweet about plaintiff: "Really dumb
@CheriJacobus. Begged my people for a job. Turned
her down twice and she went hostile. Major loser, zero
Trump's numerous Twitter followers responded to his
tweets by attacking plaintiff with demeaning, sometimes
sexually charged, comments and graphics, including insults
aimed at her professional conduct, experience,
qualifications, and her purported rejection by Trump. Also
tweeted was an image of plaintiff with a grossly disfigured
face, and a depiction of her in a gas chamber with Trump
standing nearby ready to push a button marked
commenced this action in April 2016, alleging that
Lewandowski's and Trump's statements as set forth
above defamed her, and that they constitute libel per
se, as they accuse her of unprofessional conduct, and
were intended to, and did, injure her reputation in her field
and caused her to lose professional opportunities.
(Id., ¶ 61).
well settled that "[i]n assessing the adequacy of a
complaint under CPLR 3211(a) (7), the court must give the
pleading a liberal construction, accept the facts alleged in
the complaint to be true and afford the plaintiff 'the
benefit of every possible favorable inference.'"
(JP Morgan Sec. Inc. v Vigilant Ins. Co., 21 N.Y.3d
324, 334  [citation omitted]; see AG Capital
Funding Partners, L.P. v State St. Bank & Trust Co.,
5 N.Y.3d 582, 591 ; Leon v Martinez, 84 N.Y.2d
83, 87 ). "The motion must be denied if from the
pleadings' four corners 'factual allegations are
discerned which taken together manifest any cause of action
cognizable at law.'" (511 W. 232nd Owners Corp.
v Jennifer Realty Co., 98 N.Y.2d 144, 152 
[citations omitted]; see Polonetsky v Better Homes Depot,
Inc., 97 N.Y.2d 46, 54 ; Guggenheimer v
Ginzburg, 43 N.Y.2d 268, 275 ).