Isaly v. Garde

1

2022 NY Slip Op 34108(U)

SAMUEL D. ISALY, Plaintiff, v. DAMIAN GARDE, DELILAH BURKE, Defendants.

Index No. 160699/2018, MOTION SEQ. No. 005

Supreme Court, New York County

December 6, 2022

Unpublished Opinion

MOTION DATE 10/17/2022

PRESENT: Hon. James E. d'Auguste, J.S.C. Justice

DECISION + ORDER ON MOTION

James E. d'Auguste Judge

The following e-filed documents, listed by NYSCEF document number (Motion 005) 134, 135, 136, 137, 138, 139, 140, 141, 142, 143 were read on this motion to/for REARGUMENT/RECONSIDERATION

Plaintiff moves for an order granting him leave to reargue this Court's decision and order dated July 11, 2022 (NYSCEF Doc. Nos. 128 and 129, and referred hereinafter as the "July Decision"), which dismissed the amended complaint in this defamation action based, in part, upon the Southern District of New York's holdings (and the Second Circuit's affirmance of them) in companion federal litigation. Upon reargument, plaintiff contends that defendants' motions to dismiss and for protective orders (Motion Seq. Nos. 003 and 004) should be denied and he should be granted leave to serve and file an amended complaint.^[1] Defendant Garde opposes in writing while reserving the right to argue that recent amendments to the 'Anti-SLAPP Law,' (2020 N.Y. Laws Ch. 250) are retroactive and applicable to the instant action, an issue pending before the Court of Appeals in another action.^[2] See, Gottwald v. Sebert, 2022 NY Slip Op 68019(U) (1^stDept. Jun. 28, 2022) granting lv. to app. 203 A.D.3d 488 (1^st Dept. Mar. 10, 2022).

As a threshold matter, there is little question that the instant action is "an action involving public petition and participation," as presently defined by the Anti-SLAPP Law, codified in relevant part as Civil Rights Law § 76-a(1)(a). July Decision, at 9. Pursuant to Chapter 250, §§ 1 and 3 (codified as Civil Rights Law § 70-a(1)(a) and CPLR 3211(g)), any such action "commenced or continued" after November 10, 2020 must have, at the pleadings stage, "a substantial basis in fact or law," or "a substantial argument for an extension modification or reversal of existing law." (emphasis added). Absent such a showing, a complaint alleging a claim involving public petition and participation is subject to mandatory dismissal and fee-shifting. Civil Rights Law § 70-a(1)(a); and CPLR 3211(g). However, the applicability of the Anti-SLAPP Law is very much in question after the First Department held, during the pendency of defendants' motions, that "[c]ontrary to the decision of the motion court and in other nonbinding decisions," Chapter 250 did not apply to actions (such as the instant action) that were commenced prior to November 10, 2020. Gottwald, 203 A.D.3d at 488 (citation omitted). The First Department subsequently denied reargument in Gottwald, but granted leave to appeal to the Court of Appeals. Gottwald, 2022 NY Slip Op 68019(U), supra.

After reviewing the parties' papers, this Court sought the parties' positions regarding a possible stay of this action pending the Court of Appeals' determination of Gottwald, and both parties responded with written supplemental arguments to each other's supplemental arguments. Plaintiff opposes a stay, while defendants consent to a stay.^[3] Upon the foregoing, the decision and order of the Court is as follows: Plaintiffs motion is granted in part and denied in part, to the extent of granting reargument, vacating the July Decision in part upon such rearugment, denying plaintiffs motion for leave to file a second amended complaint, and staying this action (including all discovery) pending a determination by the Court of Appeals in Gottwald.

1. Plaintiffs Motion for Leave to Reargue

A motion for leave to reargue is, pursuant to CPLR 2221(d), designed "to point out controlling principles of law or fact that the court may have overlooked," and which would change the outcome of the Court's prior decision. New York City Civilian Complaint Rev. Bd. v. Office of the Comptroller, 2016 NY Slip Op 30422(U), *2 (Sup. Ct, New York Co. 2016) (quotation and citation omitted). Beyond granting reargument pursuant to CPLR 2221, this Court is also "fully empowered to vacate or modify its own order," as "the court always retains the inherent power to set aside, correct or modify its own orders." Sayre v. Hoey, 113 A.D.3d 482, 482 (1^st Dept. 2014); and H.T. v. A.E., 57 Misc.3d 1023, 1026 (Sup. Ct, Richmond Co. 2017), quoting Halloran v. Halloran, 161 A.D.2d 562, 564 (2d Dept. 1990) (quotation marks omitted). Thus, given that the various elements of the parties' motions and cross-motions determined in the July Decision are inextricably linked, this Court will exercise its inherent power to revisit the whole of the July Decision beyond the narrow portions that plaintiff seeks leave to reargue. That plaintiff has noticed an appeal of the July Decision does not impact this Court's power to revisit its own decision. See, People v. Simmons, 86 Misc.2d 737, 739-740 (Sup. Ct., New York Co.), affd. for reasons stated below, 54 A.D.2d 624 (1^st Dept. 1976) (Supreme Court authorized to resettle order during pendency of appeal to promote judicial economy and efficiency); and People v. Green, 131 Misc.2d 641, 642-643 (Sup. Ct., Kings Co. 1986) (same, citing Simmons, supra.).

Defendants each moved separately to dismiss the amended complaint (Garde moving under Motion Seq. No. 003, and Burke under Motion Seq. No. 004), and for protective orders. In each motion, plaintiff cross-moved, pursuant to CPLR 3214(b), to lift the automatic stay of discovery imposed by defendants' motions to dismiss. Plaintiffs motion principally concerns the Court's application of res judicata and collateral estoppel effect of the federal courts' holdings in Isaly v. Boston Globe Media Partners, supra. Specifically, plaintiff alleges that the Court, in relying upon the federal courts' holdings, incorrectly applied the plausibility standard required in the federal courts to the amended complaint. (Mem. of Law in Supp., at 13-16). See, e.g., Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4^th 293, 306 (2d Cir. 2021), citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (discussing federal plausibility standard in pleading). Plaintiff also alleges that this Court overlooked alleged non-opinion statements by Burke. (Mem. of Law in Supp., at 22-23). Garde opposes, and this Court considers Garde's opposition in considering the reargument of both Garde and Burke's motions to dismiss "as a matter of discretion in the interest of judicial economy." See, Amelius v. Grand Imperial LLC, 57 Misc.3d 835, 843 (Sup. Ct., New York Co. 2017) (considering the City of New York's motion papers and determining the merits of affirmative defenses raised against City and its co-defendants). For ease of reference, this Court addresses defendants' motions to dismiss individually, and the parties' motions and cross-motions regarding discovery collectively, in turn.

2. Defendant Garde's Motion to Dismiss

Upon further consideration, the Court adheres to its prior decision in dismissing the amended complaint as against Garde pursuant to CPLR 3211(a)(7), vacates its prior decision denying dismissal pursuant to CPLR 3211(g), and stays Garde's application for fee-shifting. Plaintiffs argument that this Court misapprehended the preclusive effect of the federal courts' holdings in dismissing this action against Garde is without merit since this Court already considered plaintiffs amended complaint in the absence of preclusive effect. As this Court noted in the July Decision (at page 7):

"Even without the res judicata] and collateral estoppel effect of the related federal action, this Court, independent of the federal courts, similarly dismiss [es] the action as against Garde as plaintiff has not alleged facts from which a fact finder could properly infer that defendant Garde was grossly irresponsible in his reporting."

Even where the federal courts' decisions are not preclusive, they are persuasive. See, Jones v. Supt., Va. State Farm, 465 F.2d 1091, 1094 (4^th Cir. 1972) (noting "that any decision is by definition a precedent, and that we cannot deny litigants and the bar the right to urge upon us" what has previously been done); and Prince Hall Grand Lodge v. Supreme Council of United States, 32 Misc.2d 390, 399 (Sup. Ct., Kings Co. 1962) (even where decisions of other courts may not be entitled to res judicata effect, they may nevertheless be "persuasive, informative and most helpful to an understanding of what here has been litigated"). In particular, the Second Circuit's decision affirming dismissal was unequivocal in finding that plaintiff did not state a claim alleging gross irresponsibility, stating that "none of the allegations in the [complaint] and nothing in the transcript of the pre-publication interview suggest that what Garde witnessed that day was inconsistent with his sources' stories or even suggested that they might be untrue." Isaly v. Boston Globe Media Partners, 2022 U.S. App. LEXIS, at *3. If anything, plaintiffs choice to oppose Garde's motion to dismiss with evidence made the federal courts decisions more persuasive, as it waived plaintiffs ability (in contrast to the federal litigation) to stand upon the four corners of his pleading. See, id., at *3 n. 1 (finding that district court correctly considered documentary evidence relied upon by plaintiff in bringing suit in motion to dismiss). As the Westchester County Supreme Court recently explained:

"Where the plaintiff submits evidentiary material, the Court is required to determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one. On the other hand, a plaintiff may rest upon the matter asserted within the four corners of the complaint and

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