OPINION OF THE COURT
This lawsuit based, inter alia, оn allegations of defamation and conspiracy, is an outgrowth of the controversy over the treatment of New York City’s carriage horses, a controversy which ultimately resulted in the enactment of Local Laws, 1989, No. 89 of the City of New York. The law regulates the working conditions of these horses, requires drivers to take and successfully complete a training course on equine care and traffic laws and, in response to industry concerns of financial hardship by virtue of its requirements, provides for a 100% fare increase. In addition, horse-drawn carriages must now be covered by liability insurance.
Throughout the legislative process and for some years before, defendants, The Carriage Horse Action Committee (CHAC), organized in 1986 and dedicated to ending the abuse of carriage horses in New York City; Peggy Parker, its founder; Holly Cheever, an equine veterinarian and member of CHAC; The American Society for the Prevention of Cruelty to Animals (ASPCA), a not-for-profit corporation having enforcement responsibility of the animal protection laws in New York State, and John F. Kullberg, its рresident, lobbied in support of legislation to improve the living and working conditions of carriage horses in New York City. Their letters to public officials and the editors of various news publications and leaflets distributed to those on CHAC’s mailing list are the subject of this lawsuit. Plaintiffs Gloria McGill, Arthur "Buster” McGill and Chateau Stables, Inc., are carriage horse
The allegations of the complaint encompass six letters and one flyer. The first cause of action is based on an April 19, 1989 letter, eventually published in the New York Times, from Cheever to the editor, written in response to a letter published in the Times by a public relations consultant to the carriage horse industry. In the only specific reference to any of the plaintiffs, Dr. Cheever described the author of the original letter as "worth every penny that Chateau Stables pays him to promote its image.” The balance of the letter concerns Dr. Cheever’s credеntials and her detailed description of the unhealthy and inhumane conditions under which, according to her, carriage horses are forced to live. The sixth cause of action also involves the April 19, 1989 letter with a more expansive allegation of damages.
The second cause of action involves a January 4, 1989 letter from Dr. Cheever to Mr. Kullberg reporting her findings with respect to a December 27, 1988 inspection, her second, of three carriage horse stables, one of which was Chateau Stables. As to Chateau Stables, Dr. Cheever reported that the horses were housed in an area "completely unacceptable and unsuitable”, and accessible only by a "steep, narrow [and] dangerous ramp”; that the stalls and aisles were "filthy”; that the stalls were too narrow and short, with worn-away flooring, causing urine pooling, which resulted in urine scald and foot infection; that only 10 to 20% of the stalls had salt blocks; that the "[v]entilation was inadequate with excessive ammonia levels”; that there was "more overt ill-health with lack of proper care in this stable than in the [other] two”; that three horses were suffering from specifically identified veterinary maladies and that the stable presented "a serious fire hazard” with such poor ventilation and lack of cleanliness that the health of the horses was "severely compromised”, so as to constitute a clear "form of abuse.” There was no allegation that Mr. Kullberg took any action with respect to this letter other than to receive it. The third and fourth causes of action, respectively, allege that Dr. Cheever sent cоpies of the letter to Ms. Parker and to William Kapps, a nonparty not otherwise identified.
The fifth cause of action is based on a March 20, 1989 letter from Dr. Cheever to the editor of 7 Days, a weekly magazine, opposing the proposed "diaper” solution to the manure problem. The letter, which never appeared in the publication,
The seventh cause of action concerns a May 31, 1989 letter in support of the proposed Local Law from Dr. Cheever to the New York City Council extensively describing the poor conditions to which carriage horses are exposed in New York City.
The eighth cause of action is based on a March 14, 1989 letter, never published, from Ms. Parker to Diana DeRosa, the editor of Horse World USA, challenging the conditions found by DeRosa in her visits to " 'some’ ” New York City stables. In her letter, Ms. Parker suggested that Ms. DeRosa, whose inspection revealed conditions quite different from those she and Dr. Cheever witnessed, must have been "invited” to a " 'staged’ presentation”, most certainly by Chateau Stables since the McGills "have been very reliant on PR to defend their business.” Ms. Parker’s comments about the stable conditions in that letter are general in nature. The ninth cause of action repeats the allegations concerning the March 14, 1989 Parker letter with emphasis on the conspiracy to injure plaintiffs.
The tenth cause of action involves a June 12, 1989 letter from Ms. Parker to Henry J. Stern, the then Commissioner of the New York City Department of Parks and Recreation, with respect to the legislative hearings on the proposed Local Law No. 89. In it, Ms. Parker compared New York City’s carriage horse trade unfаvorably with that of Indianapolis, with which she was familiar. No mention is made of Chateau Stables but, again, plaintiffs repeat the same "of and concerning” allegation.
The eleventh cause of action charges "[defendants” with publicly distributing a flyer repeating the statements as to the deplorable conditions in which carriage horses are compelled to live and, in calling for restrictive legislation, accusing the carriage trade industry of "deport[ing] itself in an almost
Without answering, the CHAC defendants moved to dismiss the complaint for failure to state a cause of action, arguing, inter alia, that the statements at issue constitute protected opinion under State law or are not provably false and concern matters of public concern and, as such, are nonactionable and, on that and other grounds as well, constitutionally protected. The motion was supported by an affidavit from Dr. Cheever, in which she reviewed her qualifications and described her three inspеctions of Chateau Stables. Ms. Parker also submitted an affidavit in which she reviewed her efforts and those of CHAC in support of the passage of Local Law No. 89. Annexed to her affidavit was an extensive series of press excerpts, including editorials, letters to the editor and editorial cartoons, all commenting on the inhumane treatment of horses involved in the carriage trade and the disruption caused by the use of hansom cabs in city streets, the purpose of which was to show the issue as one of public interest. The ASPCA defendаnts cross-moved for the same relief, arguing, inter alia, that, with respect to Kullberg, plaintiffs failed to allege publication of the allegedly defamatory words in the January 4, 1989 letter sent to him and asserting this State’s proscription against civil actions for conspiracy, absent an allegation of an underlying tort committed by the conspirators. In support of the motion, they submitted an affidavit from Mr. Kullberg in which he described the activities of the ASPCA in the effort to obtain humane treatment for carriage horses and in support of Local Law No. 89.
Gloria MсGill submitted an affidavit in opposition, denying any abuse or mistreatment of Chateau Stables’ animals and describing defendants’ allegations as to the conditions found at six inspected stables as "lies” and part of a "campaign” to "destroy” the carriage horse trade in New York City. The affidavit is replete with claims of defendants’ personal animosity toward plaintiffs and other members of the carriage horse trade. Plaintiffs also submitted affidavits from two veterinarians, who, without disputing the conditions Dr. Cheever found in her inspection and from which she drew her conclusions, disagreed only with her assessment that the horses were inhumanely treated.
The IAS court denied the motions, noting, "[Assuming the allegations set forth [in the complaint] to be true * * * plaintiffs have stated viable causes of action against the
The standards in determining a CPLR 3211 (a) (7) motion for dismissal for failure to state a cause of action are well known. (See, e.g., 219 Broadway Corp. v Alexander’s, Inc.,
Applying that standard and without reference to extraneous facts, we find that at least some of plaintiffs’ claims should be rejected. The eleventh cause of action, for instance, cannot stand as an allegation of interference with business relationships to the extent it purports to do so, since it makes only a general allegation of interference with customers without any sufficiently particular allegation of interference with a specific contract or business relationship. What this cause of action does plead is the tort of civil conspiracy, which is not recognized in this State. (See, Pelton Co. v Moundsville Shopping Plaza,
While there is no such tort as a conspiracy to libel (Russo v Advance Publ.,
While none of the other issues raised by defendants can be resolved on the face of the complaint or indeed by reference to the extrinsic facts offered by plaintiffs in support of the complaint (see, Guggenheimer v Ginzburg, supra, 43 NY2d, supra, at 275), defendants’ CPLR 3211 (a) (7) motions can be converted to a request for summary judgment relief. Although the parties were never so notified by the IAS court, there is a recognized exception to the notice requirement "when both sides make it unequivocally clear that they are laying bare their proof and deliberately charting a summary judgment course”. (Four Seasons Hotels v Vinnik,
As to their constitutional arguments, defendants argue, inter alia, that their statements are communications on a matter of public interest and thus entitled to a qualified privilege under the First Amendment to the United States Constitution and constitute protected opinion under New York State law. As the record makes clear, the treatment of car
In order tо insure that debate on public issues remains "uninhibited, robust, and wide-open” (New York Times Co. v Sullivan,
In New York, at least in the case of a media defendant, where the content of a false and defamatory publication " 'is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition’ ”, a libel plaintiff may recover damages "only on a
The Supreme Court has yet to resolve the question whether the First Amendment provides different standards of protection for the institutional media from those provided for nonmedia defendants. (See, Philadelphia Newspapers v Hepps, 475 US, supra, at 779, n 4; Milkovich v Lorain Journal Co., 497 US, supra, at —, n 6, 110 S Ct, supra, at 2706.) There is no reason, however, why the Constitution should be construed to provide greater protection to the media in defamation suits than to others exercising their freedom of speech; "it makes no sense to give the most protection to those publishers who reach the most readers and therefore pollute the channels of communication with the most misinformation and do the most damage to private reputation” (Dun & Bradstreet v Greenmoss Bldrs.,
With respеct to the letters and leaflets at issue, except for a de minimis dispute over the adequacy of the stall dimensions, plaintiffs have offered nothing to disprove any of
The remaining statements alleged to be factually actionable, namely, the disputed assertions that water and veterinary care are not "sufficient” and that the horses are housed under "unsafe, unhealthy, and inhumane conditions”, constitute protected opinion under New York State law. In Immuno AG. v Moor-Jankowski (
In Immuno, which involved a letter written by the chairperson of an animal rights group to the editor of a scientific journal critical of a plan to establish a facility for hepatitis research using chimpanzees, the court noted that, by examining the context of the letter as a whole and the underlying controversy, "it would be plain to the reasonable reader * * * that [the writer of the letter] was voicing no more than a highly partisan point of view” and, by implication, was not making factual assertions. (77 NY2d, supra, at 255.)
The same analysis applies here. The reasonable reader of the allegedly defamatory statements — that the veterinary care was inadequate and that the horses were maintained under inhumane conditions — would recognize that they represented opinion, expressed as part of an ongoing controversy and designed primarily to persuade. No reasonable person reading the letters and leaflets in their entirety would find these conclusions to be anything other than highly partisan expressions of opinion by animal rights activists that the carriage horse trade was not providing adequate and humane treatment of its animals. Since, as Immuno noted, letters to the
Accordingly, since the writings at issue are, in part, constitutionally protected as assertions of fact on a matter of public concern, which have not been shown to be provably false, or, as to the remainder, protected opinion under New York State law, the entire complaint should be dismissed. Defendants raise other constitutional arguments, as well as other claims, regarding the sufficiency of the complaint, the merits of which we need not reach in light of the foregoing. The only other issue remaining for consideration is defendants’ request for sanctions, which the IAS сourt denied. In our view, sanctions are inappropriate in this case.
While sanctions for prosecuting a frivolous action are available to a defendant in a defamation action where application of the dispositive privilege is so obvious that the action is clearly without any basis in fact or law (Grosso v Mathew,
Defendants argue that sanctions are appropriate because
Accordingly, the order of the Supreme Court, Bronx County (Hansel McGee, J.), entered January 23, 1991, denying defendants’ motions to dismiss the complaint and for attorneys’ fees pursuant to CPLR 8303-a, should be modified, on the law, to grant the motion and cross motion to dismiss the complaint and, except as thus modified, affirmed, without costs or disbursements.
Milonas, Wallach, Kupferman and Asch, JJ., concur.
Order of the Supreme Court, Bronx County, entered January 23, 1991, which denied defendants-appellants’ motions to dismiss the complaint and for attorneys’ fees pursuant to CPLR 8303-a, is modified, on the law, to grant the motion and cross motion to dismiss the complaint and, except as thus modified, affirmed, without costs or disbursements.
Notes
. Dr. Cheever states that the letter constitutes a written copy of her oral testimony before the City Council and that a copy of the letter was submitted to each council member.
. [5] We reject defendants’ argument that plaintiffs are public figures because they have voluntarily involved themselves in an industry that is the subject of public controversy.
. Where an allegedly defamatory statement on a matter of public concern is made concerning a public official (New York Times Co. v Sullivan,
. According to Milkovich, a statement’s defamatory character does not turn on whether the statement is one of fact or opinion but, rather, whether the statement carries a defamatory factual connotation that is provably false. (497 US, supra, at —, 110 S Ct, supra, at 2707.)