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.
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
TO THE PUBLIC
New Yorker HOTEL - INFESTED WITH BED BUGS
somewhat smaller type size in the very next line of each
handbill, but all still in large bold print, the handbills
THE WORD (sic) BED BUG IS DEFINED AS ONE
WHO SUCKS THE FINANCIAL BLOOD FROM ITS WORKERS.
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!
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.
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.
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 ; 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 ; 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
). Conclusory allegations are inadequate in opposition
to a summary judgment motion (Rotuba Extruders v
Ceppos, 46 N.Y.2d 223, 231 ; Ruggiero v
Cardella Trucking Co., 16 A.D.3d 342, 344 [1st Dept
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
.) 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 ...