Three Amigos SJL Rest., Inc. v. CBS News Inc.
2015 NY Slip Op 06409
N.Y. App. Div.2015Background
- Defendants CBS News reported that Cheetah’s was allegedly run by the Mafia and central to an immigration-trafficking operation; the raid occurred November 30, 2011, and involved Operation Dancing Brides.
- Plaintiffs include Times Square Restaurant No. 1, Inc. and Times Square Restaurant Group (vendors to Cheetah’s) and individual managers (Dominica O’Neill, Shawn Callahan, Philip Stein); Cheetah’s owner Selim Zherka is a nonparty.
- Plaintiffs allege the broadcasts were false, misleading, and disparaging, imputing Mafia ties and human trafficking involvement to them.
- Plaintiffs filed a four-count complaint (defamation per quod, defamation per se, injurious falsehood, respondeat superior) on April 27, 2012.
- Defendants moved to dismiss under CPLR 3211(a)(1) and (7), arguing the reports were not ‘of and concerning’ the plaintiffs as a matter of law.
- The trial court granted the motion; on appeal the majority affirmed the dismissal, while a dissent would allow at least some claims to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the individual plaintiffs are ‘of and concerning’ the broadcasts. | O’Neill, Callahan, Stein alleged extrinsic facts showing they ran Cheetah’s and were identifiable. | CBS News broadcast referred to Cheetah’s generally, not to individuals. | Majority: not ‘of and concerning’; claims dismissed. |
| Whether the Times Square plaintiffs are ‘of and concerning’ the statements. | Times Square entities were affected economically and should be identifiable. | Statements targeted Cheetah’s, not the Times Square entities. | Majority: not ‘of and concerning’; claims dismissed. |
| Whether pleading stage shows sufficient connection between plaintiffs and defamation. | Extrinsic facts establish linkage to individuals running Cheetah’s. | Linkage not sufficiently shown; statements about Cheetah’s not individuals. | Majority: connection not shown; affirm dismissal. |
Key Cases Cited
- Carlucci v Poughkeepsie Newspapers, 88 A.D.2d 608 (N.Y. App. Div. 2d Dept. 1982) (defamation public-interest exception applies to true reporting of public concerns)
- Julian v American Bus. Consultants, 2 N.Y.2d 1 (N.Y. 1956) (whether an article is ‘of and concerning’ depends on court’s determination of meaning)
- Chicherchia v Cleary, 207 A.D.2d 855 (N.Y. App. Div. 2d Dept. 1994) (burden on unnamed plaintiff relying on extrinsic facts to show ‘of and concerning’)
- Geisler v Petrocelli, 616 F.2d 636 (2d Cir. 1980) (burden to show reasonable knowledge by readers of extrinsic facts)
- Stern v News Corp., 2010 WL 5158635 (S.D.N.Y. 2010) (group defamation; innuendo limits)
- Brady v Ottaway Newspapers, 84 A.D.2d 226 (N.Y. App. Div. 2d Dept. 1981) (intensity of suspicion test for group defamation; size and context matter)
- Gross v Cantor, 270 N.Y. 93 (N.Y. 1936) (all/indeterminate-class defamation rule; referent group size affects liability)
- Neiman-Marcus v Lait, 13 FRD 311 (S.D.N.Y. 1952) (group defamation considerations for unnamed members)