645 F. App'x 7
2d Cir.
2016

Joseph TACOPINA, Plaintiff-Appellant, v. Michael O‘KEEFFE, Daily News L.P., & Timothy C. Parlatore, Defendants-Appellees.

No. 15-3003

United States Court of Appeals, Second Circuit

March 29, 2016.

Judd Burstein, Judd Burstein P.C., New York, NY, for Appellant.

Matthew A. Leish, Assistant General Counsel, Daily News, L.P., New York, NY, for Appellee Michael O‘Keeffe.

Timothy C. Parlatore, pro se, New York, NY, for Appellee Timothy C. Parlatore.

PRESENT: DENNIS JACOBS, PETER W. HALL, Circuit Judges, DENISE COTE,* District Judge.

Joseph Tacopina appeals from the judgment of the United States District Court for the Southern District of New York (Crotty, J.) dismissing his claims for defamation and abuse of process. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

1. Tacopina‘s defamation claim against Parlatore is premised on statements made in an affidavit Parlatore filed in court on behalf of a client. These statements are therefore privileged and cannot form the basis for a defamation claim. See Front, Inc. v. Khalil, 24 N.Y.3d 713, 718-20, 4 N.Y.S.3d 581, 28 N.E.3d 15 (N.Y. 2015) (“[I]t is well-settled that statements made in the course of litigation are entitled to absolute privilege ... we hold that statements made prior to the commencement of an anticipated litigation are privileged, and that the privilege is lost where a defendant proves that the statements were not pertinent to a good faith anticipated litigation.“). Even crediting Tacopina‘s allegation that Parlatore shared the affidavit with the Daily News before filing it in court, Tacopina has still not sustained his burden of showing that the statements were not pertinent to a good faith anticipated litigation. Given Tacopina‘s allegation that Parlatore tendered a carbon copy of the affidavit to the Daily News, such an argument is meritless.

2. As to Tacopina‘s defamation claims against the Daily News, New York Civil Rights Law § 74 (“fair reporting privilege“) prohibits civil actions “against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding.” “A publication is deemed ‘fair and true’ if it is ‘substantially accurate.‘” Karedes v. Ackerley Grp. Inc., 423 F.3d 107, 119 (2d Cir. 2005) (quoting Glendora v. Gannett Suburban Newspapers, 201 A.D.2d 620, 608 N.Y.S.2d 239, 240 (App. Div. 1994)). “‘A report is ‘substantially accurate’ if, despite minor inaccuracies, it does not produce a different effect on a reader than would a report containing the precise truth.” Id. (quoting Zerman v. Sullivan & Cromwell, 677 F. Supp. 1316, 1322 (S.D.N.Y. 1988)). In applying the fair reporting privilege, “newspaper accounts of legislative or other official proceedings must be accorded some degree of liberality.” Holy Spirit Ass‘n for Unification of World Christianity v. N.Y. Times Co., 49 N.Y.2d 63, 424 N.Y.S.2d 165, 399 N.E.2d 1185, 1187 (1979). “When determining whether an article constitutes a ‘fair and true’ report, the language used therein should not be dissected and analyzed with a lexicographer‘s precision. This is so because a newspaper article is, by its very nature, a condensed report of events which must, of necessity, reflect to some degree the subjective viewpoint of its author.” Id.

We conclude that the fair reporting privilege bars Tacopina‘s defamation claims against the Daily News. Although the October 15 Article misattributed the source of the cocaine allegations, this inaccuracy would not have impacted the effect on readers; it is unlikely that the fact that two former clients, instead of one, alleged that Tacopina abused drugs would have impacted the esteem in which Tacopina was held by the public. The Editor‘s Note to the October 15 Article is similarly shielded by the fair reporting privilege; it corrects the source of the cocaine allegations and the Article repeats verbatim what Parlatore proffered in the Jane Doe affirmation: that Tacopina had “come under public scrutiny” for cocaine allegations. Joint Appendix at 189. The same conclusion follows for the October 17 Article; the inaccuracies in the Article would not have meaningfully impacted reader perception, and stemmed simply from an inability to perfectly comprehend legalese. “Newspapers cannot be held to a standard of strict accountability for use of legal terms of art in a way that is not precisely or technically correct by every possible definition.” Becher v. Troy Publ‘g Co., Inc., 183 A.D.2d 230, 234, 589 N.Y.S.2d 644 (N.Y. App. Div. 1992) (quoting Gurda v. Orange Cnty. Publ‘ns. Div. of Ottaway Newspapers, 81 A.D.2d 120, 133, 439 N.Y.S.2d 417 (N.Y. App. Div. 1981)).

3. Tacopina argues that his abuse of process claim was improperly dismissed. The district court dismissed this claim for two reasons: (1) failure to plead special damages; and (2) failure to plead that process was abused in a perverted manner to obtain a collateral objective. Tacopina challenges only the first of these holdings in his main brief; his failure to contest the second holding waives this point. See JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005) (“We begin by observing that arguments not made in an appellant‘s opening brief are waived even if the appellant pursued these arguments in the district court or raised them in a reply brief.“). The district court‘s dismissal of the abuse of process claim is affirmed.

For the foregoing reasons, and finding no merit in Tacopina‘s other arguments, we hereby AFFIRM the judgment of the district court.

Notes

*
The Honorable Denise Cote, United States District Court for the Southern District of New York, sitting by designation.
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