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New Yorker Hotel Management Co., Inc. v. District Council No. 9 N.Y. Iupat

Supreme Court, New York County

January 27, 2017

New Yorker Hotel Management Co., Inc., Plaintiff,
v.
District Council No. 9 New York IUPAT, Defendant.

          Attorneys for Plaintiff: Venable LLP by Michael J. Volpe, Esq. and Nicholas M. Reiter, Esq.

          Attorneys for Defendant: Barnes, Iaccarino & Shepherd LLP by Steven H. Kern, Esq. and Lauren M. Kugielska, Esq.

          RICHARD F. BRAUN, J.S.C.

         This is an action for defamation seeking damages, and preliminary and permanent injunctive relief, arising out of the giving out of handbills by defendant District Council No. 9 New York IUPAT outside of the premises of plaintiff New Yorker Hotel. Defendant is a union representing painters. The three versions of the handbills in question all begin in large bold print:

         NOTICE TO THE PUBLIC

         THE New Yorker HOTEL - INFESTED WITH BED BUGS

         In somewhat smaller type size in the very next line of each handbill, but all still in large bold print, the handbills state:

THE WORD (sic) BED BUG IS DEFINED AS ONE WHO SUCKS THE FINANCIAL BLOOD FROM ITS WORKERS.

         The handbills went on to explain that painters who were hired to paint the hotel were not being paid wages and benefits that have been established by defendant's workers for the area. One set of handbills further requested:

PLEASE HELP U.S. SEND A MESSAGE TO THE NEW YORKER & CAULDWELL WINGATE LETS (sic) TELL THEM THAT IF THEY CONTINUE TO DO BUSINESS IN THIS MANNER, WE (THE RESIDENTS OF NEW YORK CITY) ARE ALL IN DANGER OF OUR LIVING STANDARDS BEING ERODED BY BIG FAT BED BUGS!

         In other versions of the handbill, the substance was the same, except that they were addressed not to plaintiff, Cauldwell Wingate, and a painting company but only to plaintiff and the latter, and the wording was only slightly different. All of the handbills included photos or drawings of bed bugs.

         Defendant moves for summary judgment dismissing the complaint. Defendant contends that the handbills as a whole make clear that the use of bed bugs is figurative, that plaintiff has not shown actual malice, and that intemperate rhetoric is protected speech in the context of labor disputes. Plaintiff counters that there are issues of fact that exist as to whether the handbill maliciously sought to create a false impression that plaintiff's hotel was infested with bed bugs, which harmed plaintiff's business reputation.

         A party moving for summary judgment must show prima facie an entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Friends of Thayer Lake LLC v Brown., 27 N.Y.3d 1039, 1043 [2016]; Pokoik v Pokoik, 115 A.D.3d 428');">115 A.D.3d 428 [1st Dept 2014]; CPLR 3212 [b]). To defeat summary judgment, the party opposing the motion has to show that there is a material question(s) of fact that requires a trial (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; Kershaw v Hospital for Special Surgery, 114 A.D.3d 75, 82 [1st Dept 2013]; see Hoover v New Holland N. Am., Inc., 23 N.Y.3d 41, 56 [2014]). Conclusory allegations are inadequate in opposition to a summary judgment motion (Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231 [1978]; Ruggiero v Cardella Trucking Co., 16 A.D.3d 342, 344 [1st Dept 2005]).

         Defamation grows out of the making of a false statement that "tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society." (Sydney v MacFadden Newspaper Publ. Corp., 242 NY 208, 211-212 [1926].) CPLR 3016 (a) requires that in a defamation action, "the particular words complained of... be set forth in the complaint." The complaint has to "allege the time, place, and manner of the false statement and specify to whom it was made (Arsenault v Forquer, 197 ...


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