103 A.D.3d 202
N.Y. App. Div.2012Background
- Plaintiff sues for defamation over allegedly defamatory statements posted on a local blog and a newspaper site about the horse-head incident.
- Hawkins posted the statements at the Skinner defendants' direction; Skinner defendants are alleged to control the postings via agency.
- Original complaint named Hawkins and John Doe profiles; Skinner defendants later identified as defendants in an amended complaint.
- Alleged posts on August 29, 2007 and October 6, 2007 (first two causes) and October 30, 2007 (third and fourth causes) form the basis of the claims.
- Issues focus on statute of limitations, relation-back, defamation per se, and whether certain statements were opinion.
- Supreme Court granted partial summary judgment dismissing third and fourth causes and time-barred first two against some defendants; on appeal, court modifies for defamation per se and agency issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the first two causes were timely against Skinner | LeBlanc argues timely service identified Skinner as defendant. | Skinner contends time-barred against Karen; timely against Wayne. | First two against Wayne timely; relation-back issues with Karen. |
| Whether Karen Skinner is united in interest with Hawkins for relation-back | Hawkins acted as Skinner defendants' agent; unity established. | No unity; Hawkins’ actions separate; no relation-back for Karen. | Triable issue on unity; summary judgment denied for third coworkers' action. |
| Whether the third cause is actionable as defamation per se | Statements alleged defamation per se; damages need not be pled. | Per se defamation not established; damages must be pleaded or excluded. | Defamation per se established for the horse-head allegation; damages not required to be pled. |
| Whether the fourth cause (terrorist and cross-reference) is actionable | Both statements actionable; not mere opinion. | Statement about terrorist is opinion; cross-reference duplicative. | Third cause remains; fourth cause dismissed as duplicative/nonactionable. |
| Whether Hawkins' conduct can bind Skinner defendants via vicarious liability | Agency relationship supports vicarious liability for defamation. | Agency remains to be proven; limits on liability until trial. | Evidence raises triable issues; summary judgment inappropriate on agency. |
Key Cases Cited
- Brock v. Bua, 83 AD2d 61 (1981) (unity of interest for relation-back requires same conduct and notice)
- CPLR §203(b) relation-back doctrine, — (1981) (against united defendants for timely service and relation-back)
- Donati v. Queens Ledger Newspaper Group, 240 AD2d 696 (1997) (defamation per se does not require pleading special damages)
- Liberman v. Gelstein, 80 NY2d 429 (1992) (per se defamation damages presumed)
- Rinaldi v. Holt, Rinehart & Winston, 42 NY2d 369 (1977) (defamation per se requires no damages pleading)