Order, Supreme Court, New York County (Walter B. Tolub, J.), entered June 26, 2008, which, to the extent appealed from, denied that portion of the motion by defendants NYP Holdings, Inc. doing business as New York Post, Dareh Gregorian, Lucy Carne, Peter Cox, and Michelle Gotthelf sued herein as Gotthielf to dismiss the first cause of action insofar as it alleges libel regarding a purported sexual fantasy, and denied plaintiffs cross motion to seal certain court records, unanimously modified, on the law, that portion of the Post defendants’ motion seeking dismissal of the first cause of action premised on libel regarding a purported sexual fantasy granted, and otherwise affirmed, without costs.
In October 2007, plaintiff
Several days before plaintiff commenced the action against Epstein, defendant New York Post ran a story about the allegations in the complaint. The front page of the paper contained a picture of plaintiff with the headline “Teen Model: My kinky sex with billionaire. Bombshell Lawsuit.” On page seven, a picture appeared of plaintiff sitting on the lap of her friend and
On October 23, 2007, the New York Post published another story regarding plaintiff’s lawsuit against Epstein. The article was entitled “GENDER-BEND SHOCKER, Kinky-sex suit gal is a man,” and featured two pictures of plaintiff, one of Epstein and one of the front page of the prior edition of the New York Post that first reported on the Cordero v Epstein lawsuit. The article reads:
“The stunning model wannabe who says she was pressured into a hush-hush affair with billionaire Jeffrey Epstein when she was only 16 has an even bigger secret—she’s a man.
“Maximilia Cordero, who stepped forward last week with a lawsuit claiming she’d engaged in ‘bizarre and unnatural sex acts’ with Epstein while in her teens, was born Maximillian Cordero in 1983, records show.
“He was dressing up as a girl by age 12, and has been living as a female since his early teens, sources close to Cordero told The Post. Cordero has had cosmetic work done and has taken hormone treatments for almost a decade to look more like a woman, one source said.
“On one of at least three MySpace pages featuring her pictures, she lists her gender as ‘male.’
“She is listed as female on the other two. On one, she gives a graphic depiction of a ‘masturbatory fantasy’ she has of being with multiple men and then multiple women, and on the other, the 23-year-old describes herself as ‘a 17 year old model from New York City.’
“ ‘I’m a spoiled bitch and really mean,’ the page says.
“ T love to have fun, hang out and party! Oh and I’m a junk head (pills, designer substances. . . .)’
“While her suit says she was too ‘disabled as a result of severe mental disease and defect’ to bring a suit against Epstein earlier than seven years after he allegedly sexually abused her, her purported MySpace page indicates she’s been able to live a productive life. ‘I’m currently attending F.I.T. part time (because of modeling) to earn my fashion degree,’ her page says.“Epstein’s spokesman, Howard Rubenstein, called the revelations ‘shocking,’ and said Cordero’s claims of being victimized by Epstein should not be believed.
“Epstein, 54, is expected to plead guilty in the next month and serve 18 months in jail for allegedly having sex with an underage prostitute at his Florida estate. Investigators in Palm Beach had claimed he’d had numerous liaisons with underage— and troubled—girls there. Rubenstein said that’s made him an easy target ‘for money-seeking lawyers and their women.’
“Epstein lawyer Gerald Lefcourt said there haven’t been any allegations of his client trysting with underage boys.
“ ‘He’s never been accused of that,’ he said, calling Cordero’s suit ‘ridiculous.’
“Cordero’s lawyer, roommate and ex-boyfriend, William Unroch, 57, denied she’s a he.
“She’s female, and she’s always been a female. I may also be a female. I’m checking with my doctors,’ he said.
“He did acknowledge that she’s had problems with drugs. ‘Everybody knows that,’ he said. ‘She’s mentally unwell and on medication for her psychosis.’
“Unroch had acknowledged being in a romantic relationship with Cordero last year, when The Post did a story on a dispute they were having with one of their neighbors, but says now they’re just ‘friends’ and he’s her ‘landlord.’
“When approached by a reporter last week, Cordero looked sickly and didn’t want to talk about her past.
“ ‘I’m deeply hurt by what I went through,’ she said.
“Lefcourt said he’s girding for more craziness with people trying to go after his client’s money.
“ ‘It wouldn’t surprise me if the next claim was from the Loch Ness monster,’ he said.”2
Shortly after the October 23 article was published, plaintiff
The Post defendants moved under CPLR 3211 (a) (7) to dismiss the causes of action asserted against them, and plaintiff cross-moved to seal the record in the action. Supreme Court granted the motion to the extent of dismissing all of the claims asserted against the Post defendants except for that aspect of the libel claim premised on the alleged implication in the article that plaintiff is “a promiscuous slut.” The court denied plaintiffs cross motion to seal the record in the case, finding no reason to do so because plaintiff disclosed “the details of her life” in her court filings in her action against Epstein, and Unroch, her original attorney in the action against the Post defendants, spoke to the media about that lawsuit. The Post defendants appeal from that portion of Supreme Court’s order that denied their motion to dismiss the libel claim in its entirety, and plaintiff cross appeals from that portion of the order that denied her cross motion to seal certain portions of the record in this action.
Defamation, the making of a false statement about a person that “tends to expose the p[erson] to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him [or her] in the minds of right-thinking persons, and to deprive him [or her] of their friendly intercourse in society” (Rinaldi v Holt, Rinehart & Winston,
Plaintiffs libel cause of action is predicated on the theory that the October 23 article was libelous per se because the statement that “[o]n one [of the MySpace pages], [plaintiff] gives a graphic depiction of a ‘masturbatory fantasy’ she has of being with multiple men and then multiple women” implies that she is “a promiscuous slut.” Obviously enough, plaintiff can only recover damages on her libel cause of action if she can establish that the article was in fact defamatory—“tend[ing] to expose [her] to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of [her] in the minds of right-thinking persons, and to deprive [her] of their friendly intercourse in society” (Rinaldi,
On a motion to dismiss a claim for libel on the ground that the offending statement is not defamatory, the court must determine “whether the contested statements are reasonably susceptible of a defamatory connotation” (Armstrong v Simon
A communication that states or implies that a person is promiscuous is defamatory (James,
The October 23 article reported on an unusual lawsuit commenced by a transgender individual who sued a well-known, well-connected billionaire, claiming that the billionaire had sexually exploited her when she was a minor. The article was a follow-up piece to an article that had appeared in the Post approximately one week earlier that described plaintiffs sexually charged suit against Epstein. The initial article did not indicate or suggest that plaintiff was a transgender individual; instead, it was based on the premise that plaintiff was a biological female. The Post defendants apparently learned that plaintiff was a biological male after running the initial piece and, after learning that information, decided to run another story about the lawsuit. Thus, reading the alleged defamatory words against the background of their issuance (James,
The references to the MySpace pages merely served to highlight the ambiguity regarding the sexual identity of the person who sued the billionaire, an ambiguity that lay at the heart of the October 23 article. Thus, the article stated:
“On one of at least three MySpace pages featuring her pictures, she lists her gender as ‘male.’
“She is listed as female on the other two. On one, she gives a graphic depiction of a ‘masturbatory fantasy’ she has of being with multiple men and then multiple women, and on the other, the 23-year-old describes herself as ‘a 17 year old model from New York City.’ ”
The words plaintiff complains of—“On one [of the MySpace pages], [plaintiff] gives a graphic depiction of a ‘masturbatory fantasy’ she has of being with multiple men and then multiple women”—do no more than report that plaintiff described on an Internet page a “masturbatory fantasy” she had involving multiple men and women. Nothing in that sentence or elsewhere in the article supports the inference that plaintiff in fact was promiscuous (see generally James,
At bottom, plaintiffs claim of defamation rests on the contention that the average reader reasonably would infer that someone with such a lewd fantasy also is in fact sexually promiscuous. That some readers might draw this inference does not render it reasonable. In light of the context in which the allegedly defamatory words appeared, those words, as a matter of law, are not reasonably susceptible of a defamatory connotation (see James, supra; see also Morrow v Wiley,
This case must be contrasted with Rejent v Liberation Publs, (supra). In Rejent, a photograph of the plaintiff, a male model, was used in an advertising campaign in the Advocate, a magazine advocating homosexuality and featuring sexually oriented material. The advertising campaign promoted a book published by the publisher of the Advocate. That book, entitled “Lust— The Body Politic,” was “a collection of photographs of naked, sexually aroused men engaged in explicit and auto-erotic acts”
“A PHOTO SHOWCASE FROM THE EDITORS OF THE ADVOCATE
“Lust is swirling and seething, lithe and languid, omnipresent and omnipotent.
“Lust in the 90’s—tough, humorous, unrelenting and romantic.
“LUST—THE BODY POLITIC is 128 pages of the most exquisite color and black-and-white photographs from the world’s hottest and newest photographers with an introduction by one of America’s most controversial authors, Dennis Cooper. Flawlessly printed on 11 X 15 heavyweight paper, LUST—THE BODY POLITIC is the perfect gift. Order now to guarantee delivery for yourself, for a friend. LUST—when a body is much more than a work of art” (id. [brackets omitted]).
The plaintiff commenced an action against the publisher, alleging, among other things, that the advertisement implied that he was sexually lustful and promiscuous, and was therefore defamatory. The publisher moved to dismiss the defamation claim on the ground that the advertisement was not susceptible of the defamatory meaning the plaintiff ascribed to it. Supreme Court denied the motion and we affirmed.
Writing for the majority, Justice Sullivan stated that
“[t]he allegations of the complaint are . . . sufficient to state a cause of action for defamation based on the publication of plaintiffs picture in a sexually suggestive manner allegedly falsely implying that he is sexually lustful and promiscuous, that he advertises erotic photographs and that he endorses and subscribes to the sexual attitudes and views expressed in [the publisher]’s publications. The sexual overtones of his photograph are underscored by the text of the advertisement, which, in part, states, ‘Lust is swirling and seething, lithe and languid, omnipresent and omnipotent’ and ‘LUST—when a body is much more than a work of art.’
“In this context, the word lust carries a negative overtone of sexual promiscuity. Given the strong implication of the language used, the suggestive nature of plaintiff’s picture and the obviously provocative collection of photographs his picture was exploited to advertise, [the publisher’s advertisement is reasonably susceptible of the defamatory connotation that plaintiff islustful and sexually promiscuous” (id. at 243 [footnote omitted]).
Justice Sullivan also stressed that the advertisement had to be considered in the context of the entire edition of the magazine in which it appeared (id.). Thus, he observed that “plaintiffs picture was surrounded by innumerable other suggestive advertisements of live sex videos, telephone sex talk, erotic devices and sexual literature. Several of the advertisements depict naked men with unzipped pants grasping their genitals and often contain provocative language . . . The context in which plaintiffs picture appears in The Advocate, in the midst of these other advertisements, only heightens the allegedly false and defamatory impression that plaintiff is sexually lustful and promiscuous” (id. at 243-244).
Unlike the defamatory material in Rejent, which appeared in a publication that featured sexually oriented material, the October 23 article appeared in a daily newspaper. The defamatory material in Rejent, i.e., the advertisement, included a picture of the plaintiff in a sexually provocative pose, and the magazine in which the advertisement appeared contained numerous other sexually provocative pictures and advertisements. The allegedly defamatory statement in the October 23 article, however, was not accompanied by any sexually suggestive photographs of plaintiff and there is no suggestion that material elsewhere in that day’s edition of the Post contained any sexually suggestive material. Moreover, the defamatory material in Rejent was an advertisement that was itself sexually suggestive and promoted a product that was sexually provocative. Here, the allegedly defamatory material was part of a newspaper article providing a follow-up report to a prior article discussing an unusual lawsuit.
Finally, the court providently exercised its discretion in refusing to seal those portions of the record containing certain of plaintiffs medical records. Plaintiff failed to demonstrate that “good cause” exists to seal the record (see 22 NYCRR 216.1). Notably, plaintiff herself made her medical records public by filing them in court in her action against Epstein without requesting that they be filed under seal. Concur—Gonzalez, PJ., Tom, Friedman, McGuire and Acosta, JJ. [See
Notes
. Plaintiff was born a biological male but has been diagnosed with “gender identity disorder” and identifies herself as a female (see generally Matter of Brian L. v Administration for Children’s Servs.,
. A third article regarding the Cordero v Epstein action appeared in the New York Post on December 15, 2007, shortly after the action giving rise to this appeal was commenced. Entitled “Kinky suit’s romp & circumstances,” the article recounted the basis of plaintiffs suit against Epstein (and emotional and mental injuries that Epstein’s conduct allegedly caused) and reported that Epstein was seeking dismissal of the suit on the grounds that plaintiff was not credible and that the suit was time-barred. The article reported that plaintiff had brought another, similar action against another man, an “ex-lover,” claiming that he had an inappropriate sexual relationship with her when she was a minor, and that, according to Epstein’s lawyer, the prior lawsuit “vaporized after Cordero’s correct date of birth—revealing that she was not a minor— was brought to the attention of the court.” Finally, the article stated that plaintiff had commenced a defamation action against the New York Post—the (n. cont’d)
. Where the defamatory statement is libelous per se the plaintiff can recover damages without pleading and proving “special harm” (2 NY PJI2d 3:23, at 197-199, 3:24, at 275-276), i.e., “the loss, usually monetary, of some gain or advantage which would have come to the plaintiff but for the defamation” (3:23, at 198). If, however, the defamatory statement is libelous per quod, the plaintiff can only recover damages if she pleads and proves such harm (3:23, at 197-199, 3:24, at 275-276). As her brief makes plain, plaintiffs theory on her libel cause of action is that the October 23 article is libelous per se.