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Akassy v. New York Daily News

United States District Court, S.D. New York

January 23, 2017



          LAURA TAYLOR SWAIN United States District Judge

         Plaintiff Hugues-Denver Akassy ("Plaintiff"), proceeding pro se, asserts a defamation claim against The New York Daily News (“Daily News”) and Shayna Jacobs (collectively, “Defendants”). The Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1332.

         Plaintiff alleges that the Daily News and several of its employees published articles containing false and defamatory content regarding Plaintiff. He seeks damages for “negligence and intentional distortion.” (“Compl., ” Docket Entry No. 1.) On July 31, 2015, after having given Plaintiff notice and an opportunity to be heard, the Court dismissed plaintiff's claims, other than those relating to an August 27, 2013, article, titled “Wacko rapist: I'm the victim, ” (hereinafter the “2013 Article”), as untimely. (Docket Entry No. 20.)

         Defendants moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the remainder of plaintiff's claims. Because Defendants' motion was supported by a declaration and various court filings and other documents relating to plaintiff's criminal charges and conviction, the Court directed Defendants to send Plaintiff a notice pursuant to S.D.N.Y. Local Civil Rule 12.1, instructing him regarding the provisions of Federal Rule of Civil Procedure 56.1 and the risks attendant to failure to tender evidence in opposition to Defendants' motion. plaintiff's opposition papers include a lengthy affirmation and exhibits in addition to argumentative material. The Court has considered the supplemental materials proffered by the parties, treating the motion as one for summary judgment. For the following reasons, the motion is granted in its entirety. This Memorandum Opinion and Order also addresses plaintiff's Omnibus Motion for reconsideration of this Court's April 25, 2016, order and for other relief.


         The following material facts are undisputed. On November 7, 2011, Plaintiff, who alleges that he is a well-reputed French journalist, was convicted in New York state court of rape in the first degree, three counts of aggravated harassment in the second degree, and two counts of stalking in the third degree. (Matthew Leish Dec. Supp. Df. Mot. Dismiss (“Leish Dec.”), Ex. B (People v. Akassy, 45 Misc.3d 1211(A) (Sup. Ct. N.Y. Co. Oct. 3, 2014)), Ex. F (District Attorney Press Release), April 26, 2016, Docket Entry No. 47.) Plaintiff filed a 212-page motion to vacate his rape, aggravated harassment, and stalking convictions on July 29, 2013, in the Supreme Court of New York, New York County (Shayna Jacobs Aff. Supp. Df. Mot. Dismiss (“Jacobs Aff.”), Ex. B, Docket Entry No. 46).

         Defendant Daily News published the 2013 Article, which was written by Defendant Jacobs, on August 27, 2013, following plaintiff's filing of his motion to vacate his convictions. In his motion Plaintiff contended, among other things, that his prosecution and convictions were the product of conspiratorial activity among the police, prosecutors, alleged victims and the courts, stemming from personal jealousy, xenophobia and racism. Plaintiff alleges that the following phrases regarding Plaintiff in the 2013 Article were false and defamatory:

• “Wacko rapist: I'm the victim;”
• “A homeless, ascot-wearing sex fiend who claimed to be a French TV reporter to pick up women is blaming everyone but himself;”
• “He reportedly lured women with his pleasant face, strong French accent, talk of wine and cheese picnics and overt come-ons;” and
• “with creepy, obsessive campaigns - pursuits that began with smooth-talking and charm but ended with scary and persistent communication.”

(Compl. ¶¶ 35-38.)

         In her affidavit in support of Defendants' motion, Jacobs proffers that the article was prepared based on plaintiff's own motion papers, court documents relating to the charges, statements by prosecutors that she personally heard in court during the course of the investigation, prosecution, trial and sentencing, and a press release issued by the District Attorney's office following plaintiff's conviction. (Jacobs Aff.) Jacobs proffers, and Plaintiff does not deny, that prosecutors asserted in open court that Plaintiff was homeless and that he falsely claimed to be a French television journalist and had plagiarized articles he claimed to have written. (Id. ¶ 5-6.) Copies of plaintiff's affidavit in support of his motion to vacate, the 2014 state trial court decision denying the motion to vacate, a 2015 state appellate court decision affirming plaintiff's convictions, sentence and the denial of the motion to vacate, the grand jury indictment charging Plaintiff with the relevant crimes, a pre-trial prosecution court filing seeking permission to inquire about certain prior bad acts, the November 7, 2011, press release by the Manhattan District Attorney's Office concerning plaintiff's convictions, and a portion of the trial transcript of the prosecution's opening statement at plaintiff's criminal trial are among the documents proffered by Defendants in support of their motion. (See Notice of Motion (Docket Entry No. 44), and affidavits and exhibits thereto.)

         In his affirmation in opposition to the motion, Plaintiff asserts, inter alia, that he is a legitimate journalist, that the investigation and prosecution of the charges against him were the products of improper and illegal conspiratorial activity, that the accusations underlying his conviction are false and that the indictment upon which he was convicted was itself a forgery, and that the trial judge perjured herself in the decision denying his motion to vacate the conviction. (See Akassy Aff. In Opp., Docket Entry No. 58.) In both the Complaint and his Affirmation in Opposition to the Defendants' Motion to Dismiss (Aff. Opp. Df. Mot. Dismiss (“plaintiff's Opp.”), Docket Entry No. 58), Plaintiff further alleges that the statements in the 2013 Article are false and defamatory, in part because Defendants were involved in a conspiracy which lead to plaintiff's allegedly false convictions during his 2011 trial described above. (Compl. ¶ 5, plaintiff's Opp. ¶¶ 4-10.) As a result, Plaintiff claims, statements regarding his rape, harassment, and stalking convictions are false and defamatory. (Id.) The 2013 Article reported in part on prosecutors' ...

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