645 F. App'x 7
2d Cir.2016Background
- Plaintiff Joseph Tacopina sued reporter Timothy Parlatore and the Daily News for defamation and abuse of process based on statements in an affidavit and articles about alleged cocaine use.
- Parlatore filed an affidavit in court on behalf of a client; Tacopina alleges Parlatore also gave a copy to the Daily News before filing.
- The Daily News published an October 15 article (and an October 17 follow-up) recounting allegations that Tacopina had come under scrutiny for cocaine; an Editor’s Note corrected a source attribution.
- Tacopina alleged the reporting and the affidavit falsely implicated him and sought damages for defamation; he also asserted abuse of process.
- The district court dismissed the defamation and abuse-of-process claims; Tacopina appealed.
- The Second Circuit considered absolute privilege for litigation statements, New York’s fair reporting privilege, and pleading requirements for abuse of process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Parlatore’s affidavit statements are actionable defamation | Parlatore’s statements (and sharing them) defamed Tacopina | Statements made in litigation (and pertinent to anticipated litigation) are absolutely privileged | Dismissed: Absolute privilege protects Parlatore’s statements; Tacopina failed to show they were not pertinent to anticipated litigation |
| Whether Daily News articles are actionable defamation | Articles were false and materially harmed reputation | Publications are protected by NY Civil Rights Law § 74 if they are fair and substantially accurate reports of judicial proceedings | Dismissed: Fair reporting privilege applies; inaccuracies were minor and would not change reader perception |
| Whether Editor’s Note and October 17 article lose privilege due to inaccuracies | Corrections and legal terms were misleading and defamatory | Minor inaccuracies and imperfect legal terminology do not defeat the fair report privilege | Dismissed: Privilege still applies; minor inaccuracies do not alter the effect on readers |
| Whether abuse of process was sufficiently pleaded | Abuse of process alleged based on defendants’ conduct | District court: plaintiff failed to plead special damages and collateral-objective abuse; failure to contest latter waived on appeal | Dismissed: Claim affirmed dismissed for failure to plead special damages; collateral-objective failure waived by Tacopina |
Key Cases Cited
- Front, Inc. v. Khalil, 24 N.Y.3d 713 (N.Y. 2015) (statements made in litigation are absolutely privileged; privilege covers statements made in anticipation of litigation if pertinent)
- Karedes v. Ackerley Grp. Inc., 423 F.3d 107 (2d Cir. 2005) (fair-reporting privilege protects substantially accurate newspaper reports of judicial proceedings)
- Holy Spirit Ass’n for Unification of World Christianity v. N.Y. Times Co., 399 N.E.2d 1185 (N.Y. 1979) (courts should give liberality to newspaper accounts; articles are condensed and reflect subjective viewpoint)
- Zerman v. Sullivan & Cromwell, 677 F. Supp. 1316 (S.D.N.Y. 1988) (defines "substantially accurate" standard for fair reporting privilege)
- Becher v. Troy Publ’g Co., Inc., 183 A.D.2d 230 (N.Y. App. Div. 1992) (news outlets are not strictly accountable for imperfect use of legal terms of art)