Jacobus v. Trump

55 Misc.3d 470

51 N.Y.S.3d 330

Cheryl JACOBUS, Plaintiff,

v.Donald J. TRUMP, Corey Lewandowski, and Donald J. Trump for President, Inc., Defendants.

Supreme Court, New York County, New York.

Jan. 9, 2017.

Jay R. Butterman, Esq., Butterman & Kahn, LLP, New York, for plaintiff.

Lawrence S. Rosen, Esq., Patrick McPartland, Esq., Larocca Hornik Rosen, et al., New York, for defendants.

BARBARA JAFFE, J.

Plaintiff sues defendants to recover damages for alleged defamation. Defendants move pursuant to CPLR 3211(a)(7) for an order dismissing the complaint for failure to state a cause of action. Plaintiff opposes.

I. BACKGROUND

Unless otherwise indicated, the following facts are taken from plaintiff's complaint, and are accepted as true for purposes of this motion.

Plaintiff is a "political strategist and public relations consultant" and a frequent commentator on television news channels and other media outlets, offering "political opinion and analysis from the Republican perspective." (NYSCEF 19, Exh. A, ¶¶ 9–11). Defendant Donald J. Trump was at all relevant times a candidate for the 2016 Republican nomination for the Presidency of the United States. (Id., ¶ 13). Defendant Donald J. Trump for President, Inc., was the campaign organization for Trump's presidential candidacy. (Id., ¶ 14). Defendant Lewandowski was the Trump organization's campaign manager. (Id., ¶ 12).

On or about May 18, 2015, plaintiff received a message from nonparty Jim Dornan, then working for the campaign, asking if she would be interested in becoming the campaign's communications director. (Id., ¶ 22). The following day, plaintiff met with Dornan and Lewandowski, and according to plaintiff, they expressed interest in working with her, with Lewandowski asking for her salary requirements. (Id., ¶¶ 24, 27). Later that day, Dornan sent a message to plaintiff, stating that Lewandowski wanted to meet with her again. By email to Lewandowski, plaintiff provided her salary requirements and indicated her interest in a position with the campaign. (Id., ¶¶ 28, 29).

On June 9, 2015, plaintiff met with Dornan and Lewandowski for a second time. (Id., ¶ 30). At this meeting, during a discussion about communications issues, Lewandowski became agitated, loud, and rude, exclaiming that the FOX television network would do whatever the campaign wanted, and telling plaintiff that she had no idea how FOX works. (Id., ¶ 31). As Lewandowski's agitation mounted, Dornan left the meeting, and, soon after, plaintiff also excused herself. (Id., ¶ 32). According to plaintiff, she then decided that she could not work for Lewandowski, and shortly thereafter, in reply to a text from Dornan, advised him that working with Lewandowski would be too difficult. (Id., ¶¶ 33, 34). No further discussions about a position with the campaign were held with Lewandowski, or with Dornan, who subsequently stopped working for the campaign. (Id., ¶¶ 35, 36). Plaintiff pursued the position no further, nor was she offered it.

On June 16, 2015, Trump formally announced his candidacy for President. In the months following his announcement, plaintiff frequently appeared on television as a commentator, and posted comments on social media sites, including Twitter, both defending and criticizing Trump. (Id., ¶¶ 37–39).

On January 26, 2016, plaintiff appeared on a CNN cable television show to discuss Trump's threat to boycott one of the Republican presidential primary debates unless FOX removed Megyn Kelly as a moderator. (Id., ¶¶ 45–46). During her appearance, plaintiff characterized Trump as a "bad debater" and stated that he "comes off like a third grader faking his way through an oral report on current affairs" and was using the Megyn Kelly dispute with FOX as an excuse for avoiding the debate. (Id., ¶ 46). The next day, during an on-air telephone call with the host of MSNBC's Morning Joe program, Lewandowski referenced plaintiff's comments about Trump, stating that "[t]his is the same person ... who came to the office on multiple occasions trying to get a job from the Trump campaign, and when she wasn't hired clearly she went off and was upset by that." (Id., ¶ 49).

On February 2, 2016, plaintiff again appeared on CNN along with a Trump supporter to discuss Trump's claims that his campaign was self-funded and CNN's investigation finding that one-third of his campaign funds came from other sources. (Id., ¶ 50). Plaintiff remarked on the show that "there had been a Trump Super PAC, [that] the campaign lied about it, and then shut it down," as was reported in the news. (Id. ). She also said that the campaign had approached several Republican billionaire donors, all of whom had declined to donate money to Trump. (Id. ).

Later that night, Trump posted the following on Twitter: "Great job on @donlemon tonight @kayleighmcenany @cherijacobus begged us for a job. We said no and she went hostile. A real dummy! @CNN." (Id., ¶ 50). A day later, on February 3, 2016, plaintiff's then lawyer sent Trump a cease and desist letter. (Id., ¶ 52). Two days after that, on February 5, 2016, Trump posted the following tweet about plaintiff: "Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility!" (Id. ).

Some of Trump's numerous Twitter followers responded to his tweets by attacking plaintiff with demeaning, sometimes sexually charged, comments and graphics, including insults aimed at her professional conduct, experience, qualifications, and her purported rejection by Trump. Also tweeted was an image of plaintiff with a grossly disfigured face, and a depiction of her in a gas chamber with Trump standing nearby ready to push a button marked "Gas." (Id. ).

Plaintiff commenced this action in April 2016, alleging that Lewandowski's and Trump's statements as set forth above defamed her, and that they constitute libel per se, as they accuse her of unprofessional conduct, and were intended to, and did, injure her reputation in her field and caused her to lose professional opportunities. (Id., ¶ 61).

II. DISCUSSION

It is well settled that "[i]n assessing the adequacy of a complaint under CPLR 3211(a)(7), the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff ‘the benefit of every possible favorable inference.’ " (JP Morgan Sec. Inc. v. Vigilant Ins. Co., 21 N.Y.3d 324, 334, 970 N.Y.S.2d 733, 992 N.E.2d 1076 [2013] [citation omitted]; see AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 N.Y.3d 582, 591, 808 N.Y.S.2d 573, 842 N.E.2d 471 [2005] ; Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). "The motion must be denied if from the pleadings' four corners ‘factual allegations are discerned which taken together manifest any cause of action cognizable at law.’ " (511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152, 746 N.Y.S.2d 131, 773 N.E.2d 496 [2002] [citations omitted]; see Polonetsky v. Better Homes Depot, Inc., 97 N.Y.2d 46, 54, 735 N.Y.S.2d 479, 760 N.E.2d 1274 [2001] ; Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977] ).

A. Defamation

1. General considerations

A defamatory statement is "a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace" (Thomas H. v. Paul B., 18 N.Y.3d 580, 584, 942 N.Y.S.2d 437, 965 N.E.2d 939 [2012] ; see Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 379, 397 N.Y.S.2d 943, 366 N.E.2d 1299 [1977], cert. denied 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 ), "or to induce an evil or unsavory opinion of him [or her] in the minds of a substantial number of the community" (Golub v. Enquirer/Star Group, Inc., 89 N.Y.2d 1074, 1076, 659 N.Y.S.2d 836, 681 N.E.2d 1282 [1997] [citation omitted]; see Foster v. Churchill, 87 N.Y.2d 744, 751, 642 N.Y.S.2d 583, 665 N.E.2d 153 [1996] ; Franklin v. Daily Holdings, Inc., 135 A.D.3d 87, 91, 21 N.Y.S.3d 6 [1st Dept.2015] ; see also Jewell v. NYP Holdings, Inc., 23 F.Supp.2d 348, 360–361 [S.D.N.Y.1998] ). To sustain a cause of action for defamation, the plaintiff must plead 1) a false statement, and 2) publication of it to a third party, 3) absent privilege or authorization, which 4) causes harm, unless the statement is defamatory per se, in which case harm is presumed. (Stepanov v. Dow Jones & Co., Inc., 120 A.D.3d 28, 34, 987 N.Y.S.2d 37 [1st Dept.2014] ; Frechtman v. Gutterman, 115 A.D.3d 102, 104, 979 N.Y.S.2d 58 [1st Dept.2014], citing Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1 [1st Dept.1999] ; see Franklin, 135 A.D.3d at 91, 21 N.Y.S.3d 6 ).

Whether particular words are defamatory constitutes "a legal question to be resolved by the court in the first instance." (Golub, 89 N.Y.2d at 1076, 659 N.Y.S.2d 836, 681 N.E.2d 1282 ; Armstrong v. Simon & Schuster, 85 N.Y.2d 373, 380, 625 N.Y.S.2d 477, 649 N.E.2d 825 [1995] ; Aronson v. Wiersma, 65 N.Y.2d 592, 593, 493 N.Y.S.2d 1006, 483 N.E.2d 1138 [1985] ; James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 353 N.E.2d 834 [1976] ). If the words are "not reasonably susceptible of a defamatory meaning, they are not actionable, and cannot be made so by a strained and artificial construction." (Golub, 89 N.Y.2d at 1076, 659 N.Y.S.2d 836, 681 N.E.2d 1282 ; Aronson, 65 N.Y.2d at 593–594, 493 N.Y.S.2d 1006, 483 N.E.2d 1138 ). Thus, the court must determine " ‘whether the contested statements are reasonably susceptible of a defamatory connotation, ... [and][i]f, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action.’ " (Davis v. Boeheim, 24 N.Y.3d 262, 268, 998 N.Y.S.2d 131, 22 N.E.3d 999 [2014] [citations omitted]; see Armstrong, 85 N.Y.2d at 380, 625 N.Y.S.2d 477, 649 N.E.2d 825 ; Silsdorf v. Levine, 59 N.Y.2d 8, 12, 462 N.Y.S.2d 822, 449 N.E.2d 716 [1983], cert. denied 464 U.S. 831, 104 S.Ct. 109...