11 F. Supp. 3d 209
N.D.N.Y.2014Background
- Defendants ESPN, Mark Schwarz, and Arthur Berko move for judgment on the pleadings under Rule 12(c) seeking dismissal or §74 immunity on portions of Laurie Fine’s defamation claim.
- Plaintiff Laurie Fine alleges defamation in two ESPN articles and a video about alleged sexual abuse by her husband Bernie Fine; the publication references a Tape and related police investigations.
- Defendants rely on Law Enforcement Records (Tape, SPD reports, Fitzpatrick transcript, warrant application) to argue the statements are protected under NY Civil Rights Law §74 as reports of official proceedings.
- The court previously dismissed some §74-based claims under Rule 12(b)(6) and now must determine if the challenged portions are “of” an official proceeding and whether they were fair and true.
- The court cannot consider the Tape Copy or Law Enforcement Records for truth at this stage, and thus cannot assess the “fair and true” standard, denying §74 dismissal to the extent challenged on that basis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the SPD Investigation is an official proceeding under §74 | SPD investigation is not an official proceeding | SPD investigation is an official proceeding | SPD Investigation constitutes an official proceeding |
| Whether the Warrant Application constitutes an official proceeding under §74 | Acknowledged as potentially covered by §74 | Warrant application is an official proceeding | Warrant Application constitutes an official proceeding |
| Whether the challenged publications are “of” an official proceeding and thus protected | Publications do not report on SPD conclusions or witness statements | Publications are reports of the SPD investigation and related proceedings | Some Publication portions are reports, but Court cannot determine fair and true without Tape/Records; §74 dismissal denied on this basis |
| Whether the publications meet the fair and true (substantial accuracy) standard | Tape/records are unreliable; cannot evaluate accuracy | Publications are fair and true reports | Court cannot determine fair and true without considering Tape and Law Enforcement Records; §74 dismissal denied on this ground |
| Whether gross irresponsibility bars liability | N/A beyond standard issues; potential inaccuracy of sources | Publications not grossly irresponsible | Denied to the extent based on lack of determination of gross irresponsibility; issues remain for trial |
Key Cases Cited
- Holy Spirit Ass’n for Unification of World Christianity v. New York Times Co., 49 N.Y.2d 63 (N.Y. 1979) (substantial accuracy as standard for §74 protection)
- Freeze Right Refrigeration & Air Conditioning Servs., Inc. v. New York, 475 N.Y.S.2d 383 (N.Y. Sup. Ct. 1984) (official proceeding privilege extended to investigations)
- Easton v. Public Citizens, Inc., 969 F.2d 1043 (2d Cir. 1992) (broad construction of official proceedings, connection to report)
- Daniels v. Commissioner of Social Security, 456 Fed.Appx. 40 (2d Cir. 2012) (integration of documents into pleadings for 12(c) analysis; evidentiary context)
- Baumann v. Newspaper Enters., 270 A.D.2d 825, 60 N.Y.S.2d 185 (N.Y. App. Div. 1996) (context of official proceeding reporting; background material)