[*1]

Decided on February 10, 2012 Supreme Court, New York County

Larry D. Martin, Plaintiff, against Daily News, L.P. and ERROL LOUIS, Defendants.

103129/11

Harold Lee Schwab, Esq. Lester Schwab Katz & Dwyer, LLP Attorneys for Plaintiff New York, NY Anne B. Carroll, Esq. Daily News, L.P. Attorneys for Defendants New York, NY

Laura R. Handman, Esq. Davis Wright Tremaine LLP Attorneys for Defendants Washington, D.C. Martin Shulman, J.

This matter arises in connection with the publication and/or republication of an article, originally written in 2007 by defendant Errol Louis ("Louis"), in The Daily News, a newspaper owned by defendant Daily News, L.P. ("DNLP"). The article in question was published in The Daily News print edition and on its website on February 8, 2007 (the "2007 Article"). The complaint herein alleges that the 2007 Article defamed plaintiff Larry D. Martin, a Justice of New York State Supreme Court, Kings County. In a related action also pending before this court entitled Martin v Daily News, L.P., et al, Index No. 100053/08 ("Action No. 1"), this [*2]court found [FN1] that the 2007 Article was capable of defamatory meaning and directed DNLP to answer the complaint based upon that article. On March 9, 2007, DNLP switched its website, nydailynews.com, to a new content management system ("CMS"). For technical reasons, material that appeared on the website prior to the switch could not be imported from the prior CMS to the new CMS. Rather, such material had to be imported from DNLP's print archives. Due to a delay in launching the new CMS, the 2007 Article and other articles published from January 1, 2007 to March 8, 2007 became unavailable on the DNLP website for an indeterminate period of time. In March of 2010, counsel for DNLP discovered that the 2007 Article was no longer posted on the DNLP website and requested that it be restored to the site. The motivation for this request was allegedly that counsel feared that the absence of the 2007 Article might be interpreted as an admission of liability or destruction of evidence in Action No. 1. In order to restore the 2007 Article, DNLP's Senior Multimedia Editor, Ethan Sacks, searched for the 2007 Article, cut and pasted it into a new template and updated the URL (Uniform Resource Locator) from 2007 to 2010. Sacks then added a byline credit to the 2007 Article manually, allegedly in order to prevent the 2007 Article from surfacing as a new article in The Daily News. The byline credit now identifies the 2007 Article as being written by a "Daily News Opinion Columnist." See Sacks

Affidavit at Exh. D to Motion. In this action ("Action No. 2") plaintiff complains that in rebuilding the 2007 Article and restoring it to the website, DNLP refused to correct or further research the false and defamatory statements they were aware of by virtue of Action No. 1. Accordingly, Action No. 2 identifies the activities in restoring the 2007 Article as a "republication" of defamatory material as a matter of law. Defendants now move pursuant to CPLR 3211 (a) (1) and 3211 (a) (7) to dismiss Action No. 2 based upon documentary evidence and for failure to state a cause of action. Defendants state that Action No. 2 is improperly brought as the activity undertaken to maintain The Daily News archives is not a republication, but rather falls within the scope of the "single publication rule."[FN2] As such, causes of action pertaining to the 2007 Article's restoration would be barred by the one-year statute of limitations applicable to defamation. Further, DNLP maintains that there can be no showing of actual malice, as required in a cause of action for defamation, and as such, the complaint should be dismissed. Discussion On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal [*3]construction (see CPLR 3026). The court must accept the facts as alleged in Action No. 2 as true and accord Judge Martin the benefit of every possible favorable inference. The objective here is not to address every possible determinant of republication, but only to assess whether Action No. 2 fits any cognizable legal theory of republication. See Morone v Morone, 50 NY2d 481, 484 (1980); Rovello v Orofino Realty Co., Inc., 40 NY2d 633, 634 (1976). Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law on all bases. See e.g. Heaney v Purdy, 29 NY2d 157 (1971); see generally Leon v Martinez, 84 NY2d 83, 87-88 (1994). As concisely explained in Rare 1 Corp. v Moshe Zwiebel Diamond Corp., 13 Misc 3d 279, 281 (Sup Ct, NY County 2006), under the single publication rule followed by New York courts, "the single publication of a defamatory comment, regardless of the number of copies the comment appears in or the range of the publication's distribution, constitutes only one publication and gives rise to only one cause of action (citations omitted)." New York's one year statute of limitations for defamation (CPLR 215[3]) "begins to accrue at the time of the first publication, which is defined as the earliest date on which the work was placed on sale or became generally available to the public.'" Lehman v Discovery Communications, Inc., 332 FSupp2d 534, 537 (EDNY 2004)(citation omitted). However, if a defamatory comment or writing is republished in a new format, the statute of limitations begins to run anew from the date of republication. As explained in Firth v State of New York, 98 NY2d 365, 371

(2002) ("Firth I"): Republication, retriggering the period of limitations, occurs upon a separate aggregate publication from the original, on a different occasion, which is not merely "a delayed circulation of the original edition" (Rinaldi v Viking Penguin, 52 NY2d at 435; Restatement [Second] of Torts 577A, Comment d, at 210, supra). Relevant to this inquiry is whether the subsequent publication is intended to and actually reaches a new audience. Id. Whether a particular event constitutes a republication giving rise to a new cause of action with a refreshed limitations period must be analyzed on a case-by-case basis. See Rinaldi v Viking Penguin, Inc., 73 AD2d 43, 45 (1st Dept 1980), affd 52 NY2d 422 (1981). Thus, for example, repetition of a defamatory statement in a later edition of a book, magazine or newspaper may give rise to a new cause of action (see Rinaldi, 52 NY2d at 433-435 [hard-cover and paperback editions of the same book]; Cook v Conners, 215 NY 175, 179 (1915) [morning and afternoon editions of newspapers owned and published by the same individual]). See also Gregoire v G.P. Putnam's Sons, 298 NY 119, 123 (1948)(book sales from stock are not republications); Lehman v Discovery Communications, Inc., supra (rebroadcast of television show is a republication intended to reach a new audience); Haefner v New York Media, LLC, 27 Misc 3d 1208(A), 2009 WL 6346547, at *6 (Sup. Ct. NY Co. 2009) ("digital Kindle Editions' of books . . . should be treated as merely a delayed circulation of the original edition,' rather than as a republication thereof"); Firth v State of New York, 306 AD2d 666, 667-668 (3d Dept 2003) ("Firth II") (allegation that defamatory material was relocated to a new directory on the same website sufficiently stated a cause of action where defendant failed to submit an affidavit of an individual with personal knowledge of facts surrounding the alleged republication). The purpose of the single publication rule is "to prevent a multiplicity of actions, leading [*4]to potential harassment and excessive liability, and draining of judicial resources." Firth I, 98 NY2d at 369-370. The rule also "reduces the possibility of hardship to plaintiffs by allowing the collection of all damages in one case commenced in a single jurisdiction." Id. at 371. Consistent with its purpose, the single publication rule applies to Internet publications and each viewing of defamatory material on the Internet is not deemed a new publication. Id. at 369. In support of his claim that the restored 2007 Article is a republication, plaintiff emphasizes that when the 2007 Article originally appeared on the DNLP website in 2007 it lacked "share buttons" permitting readers to share it on social media and networking sites such as Facebook and Twitter.[FN3] The restored 2007 Article now contains such sharing functions, thus plaintiff argues it can be circulated to a new audience on a potentially exponential basis.[FN4]

In response, DNLP cites Haefner v New York Media, LLC, 82 AD3d 481, 482 (1st Dept 2011), for the proposition that the inclusion of hyperlinks in an Internet publication does not give rise to republications. However, that broad statement is not dispositive here as the case at bar is factually distinguishable. Haefner involved an article containing a link to a previously published allegedly defamatory article. There, the hyperlink merely provided a new means of accessing the first article. Here, by contrast, the hyperlinks to social media and networking sites in the restored 2007 Article provide a new means for disseminating it. Nonetheless, this court does not agree with plaintiff that the 2007 Article, as restored to DNLP's website, was a separate republication. Notwithstanding the fact that hyperlinks to social media and networking sites arguably increase the number of people who may ultimately read the 2007 Article, DNLP's targeted audience consists of visitors to its website. This is not a new audience; rather, it is the same audience as when the 2007 Article first appeared on DNLP's website (Firth I, 98 NY2d at 371). Moreover, this audience has always had the capacity to share Internet news items by e-mail or by print and distribution to whomever they choose. DNLP's new CMS merely adds a technical enhancement providing website visitors additional ways to forward website content to others. Significantly, the creation of this purported "new audience" plaintiff attempts to identify depends not on DNLP's actions, but rather those of third-parties, to wit, DNLP's website visitors who forward website content to non-visitors, by whatever means. Against the foregoing backdrop, and given that only minor changes were made to the 2007 Article, its restoration to the DNLP website is akin to a delayed circulation of the original, rather than a republication. See Rinaldi v Viking Penguin, Inc., 52 NY2d at 435. DNLP submits an affidavit from Ethan Sacks, an individual having personal knowledge of the circumstances surrounding the 2007 Article's restoration to the DNLP website. This submission establishes that [*5]DNLP did not modify, change or repackage the 2007 Article in any significant or substantive way and in fact took specific steps to emphasize its original three (3) year old publication date and to place it so that it would not appear as a newly written column. Compare Firth II, supra. For the foregoing reasons, DNLP did not republish the 2007 Article as a matter of law. Accordingly, this action is time barred and must be dismissed. In light of this court's determination that DNLP's restoration of the 2007 Article to its website is not a republication and the complaint is time barred, it is unnecessary for this court to address defendants' remaining arguments. Nevertheless, the court is compelled to note that even if this action were not time barred, it would be subject to dismissal as to defendant Louis. The complaint makes only conclusory allegations as to Louis and the only statement pertaining to him is that he failed to provide a retraction of the

2007 Article. On the other hand, undisputed documentary evidence has been submitted as to exactly how the alleged republication was made, who instructed the activity, who carried it out and how. Louis was not implicated in any of the evidence and there is no plausible allegation that he participated or acquiesced in the claimed republication. See Karaduman v Newsday, Inc., 51 NY2d 531, 540-541 (1980) ("[i]nasmuch as the record is barren of any concrete evidence of the reporters' involvement in the republication of the newspaper series, we conclude that the causes of action against them must be dismissed"); see also Rinaldi, 52 NY2d at 435; Cerasani v Sony Corp., 991 F Supp 343 (SD NY 1998); Davis v Costa-Gavras, 580 F Supp 1082, 1099 (SD NY 1984) (creative control or authority for republished works must be proved to sustain claim against author); Folwell v Miller, 145 F 495, 497 (2d Cir 1906). Accordingly, it is hereby ORDERED that defendants Daily News, L.P. and Errol Louis' motion to dismiss the complaint is granted, with costs and disbursements to defendants as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of defendants. The foregoing constitutes this court's Decision and Order. Courtesy copies of this Decision and Order have been provided to counsel for the parties. Dated: New York, New York February 10, 2012 _________________________ Hon. Martin Shulman, J.S.C. Footnotes

Footnote 1:This court in Action No. 1 dismissed all claims related to a prior January 28, 2007 article also written by Louis. See Decision and Order dated July 14, 2009 in Martin v Daily News L.P., Index No. 100053/08. Footnote 2: As described in 577A (4) Restatement (Second) of Torts, "[a]s to any single publication, (a) only one action for damages can be maintained; (b) all damages suffered in all jurisdictions can be recovered in the one action; and (c) a judgment for or against the plaintiff upon the merits of any action for damages bars any other action for damages between the same parties in all jurisdictions."

Footnote 3: When the 2007 Article first appeared on the DNLP website it contained a function permitting readers to share the article by electronic mail. Footnote 4: Plaintiff submits an affirmation from Thomas A. Catalano, Esq. (Exh. 1 to Schwab Aff. in Opp.), who located the 2007 Article on the DNLP website and clicked the Facebook share function. Catalano goes on to explain the process whereby he shared the 2007 Article with his 107 Facebook "friends", who in turn have the capacity to share it with their "friends", and so forth.