Libel, Fire, Healing Chakras, and Real Housewives of New York

From Abitbol v. Rice, decided Monday by N.Y. trial court judge Mary Rosado; nothing special about the legal analysis, but with facts like these, how could I pass them up?

This action arises out of a fire and ensuing water damage at the condominium at 10 West End Avenue, New York, NY 10023 (the "Building"). Plaintiff resided in Apartment #14B in the Building and Defendant lived in Unit 12G. The morning of November 6, 2019, Plaintiff lit a candle to "cleanse energy and heal her Chakras." Plaintiff alleges she blew out the candle and took her son to school. Nonetheless, a fire somehow ignited, and the fire sprinkler systems were triggered. Defendant's unit sustained water damage.

Plaintiff alleges that sometime in July of 2022, Defendant told Fire Marshal Anthony Henry of the FDNY that Plaintiff deliberately started the fire to gain notoriety and be cast on "Real Housewives of New York." Plaintiff also alleges that in June of 2022, Defendant drafted and filed a civil complaint in Rice v. Abitbol (the "Parallel Action") alleging that Plaintiff deliberately caused the fire and sent the complaint to news media outlets, including I Love The Upper West Side ("ILTUWS"). Plaintiff claims Defendant made additional defamatory comments to the New York Post by asserting that the investigation into the fire was an "open arson investigation from what I have been told." Plaintiff alleges these statements constitute defamation per se because they accuse her of committing a criminal act. She also claims intentional infliction of emotional distress and seeks declaratory judgment….

The court granted Defendant Rice's motion to dismiss the case under New York's "anti-SLAPP law":

A fire breaking out in a large condominium building, and allegations of criminal conduct related to that fire, constitute matters of public interest. The statements made to the media publications I Love the Upper West Side and the New York Post are statements made in a public forum. As are the statements made to an FDNY fire investigator who was charged with investigating the cause and origin of the fire. This means [that under the anti-SLAPP law] the burden is on Plaintiff to show her defamation claim has a substantial basis in law, and there must be substantial evidence that Defendant made false statements with knowledge of their falsity or reckless disregard of their falsity….

Defendant's allegedly defamatory statements to the FDNY, made in July of 2022 are protected under the absolute litigation privilege…. [A]bsolute immunity from liability for defamation exists for oral or written statements made by a party in connection with a proceeding before a court when such words or writings are material and pertinent to the questions involved in the litigation. This privilege applies to out of court statements made to potential witnesses. Indeed, there is a deep-rooted, long-standing public policy in favor of a person's right to make statements during the course of court proceedings without penalty so long as the statements are pertinent to litigation.

The statements made to the FDNY, which Plaintiff alleges occurred in July of 2022, occurred during the pendency of Defendant's lawsuit for property damage from the fire, which was initiated in July of 2022. The statements were pertinent to the ongoing litigation since they pertain to the cause and origin of the fire which caused the damages Defendant seeks to recoup in the Parallel Action. As an FDNY fire marshal involved with investigating the fire, the allegedly defamatory statements were made to a potential witness related to issues involved in the Parallel Action. Thus, Defendant's July 2022 statements to the FDNY are absolutely privileged and non-actionable. There is no substantial basis in law to bring a defamation claim based on these statements….

The dissemination of Defendant's complaint in the parallel action to ILTUWS is protected by the fair reporting privilege. Civil Rights Law § 74 protects speakers from civil liability for the publication of a fair and true report of a judicial proceeding. The question is whether the reporting was an accurate description of the claims made in the proceeding.

Defendant's Complaint in the parallel action has survived a motion to dismiss and has not been shown to be a sham, and the issue of whether the fire was intentionally caused is being actively litigated. The article, which was published after Defendant's Complaint was filed, contains an accurate description of the allegations and is thus protected by the statutory fair reporting privilege. Specifically, the article notes that there are allegations that the fire either occurred negligently or intentionally, and that Defendant was seeking monetary compensation as a result of the fire. The article also documents Plaintiff's four failed attempts at appearing on the Real Housewives of New York, and the potentially circumstantial evidence that the fire was used as a publicity stunt as it occurred just one day prior to Plaintiff joining a talk show wherein she talked extensively about the fire.

To the extent Plaintiff argues only a qualified privilege exists, and there is substantial evidence of actual malice, the Court disagrees. There is ample evidence of Plaintiff attempting to gain notoriety from the fire by talking about it on talk shows and publicizing the fire on her Instagram.

Plaintiff was also featured in a New York Page Six article just three months prior to the fire as being someone who was "obsessed" with getting on Real Housewives of New York and had apparently failed four auditions. Defendant therefore had a good faith basis in alleging in his complaint and discussing with the press his belief that Plaintiff may have intentionally caused the fire to gain notoriety and publicity, and the draft complaint was circulated with the good faith anticipation that litigation would be forthcoming in the following weeks. The qualified privilege therefore applies, and there is no substantial basis in law for a defamation suit based on Defendant's circulation of a draft complaint to ILTUWS shortly prior to filing the complaint….

To the extent Defendant's inquiry via e-mail to the New York Post can even be considered defamatory, the Court finds Plaintiff has failed to show substantial evidence of actual malice to survive Defendant's CPLR 3211(g) motion to dismiss. [New York anti-SLAPP law requires a showing of actual malice in all libel cases on matters of public concern, whether or not the plaintiff is a public figure.-EV] The allegedly defamatory statements merely consist of Defendant inquiring why an arson investigation was not mentioned in the New York Post article and then stating that based on what he was told that there was an ongoing arson investigation. Defendant's inquiry, which appears to have been based on information (or misinformation) he had received from the FDNY, does not show the requisite actual malice needed to survive a CPLR 3211(g) motion to dismiss.

Here, Plaintiff has provided no evidence to show that Defendant's inquiry to the New York Post was made with knowledge of its falsity or reckless disregard. Nor has Plaintiff requested limited anti-SLAPP discovery to ascertain further information to oppose the motion. Plaintiff has not met her heightened burden under the anti-SLAPP law, and thus her defamation claims against Defendant are dismissed. Because Defendant has succeeded on his CPLR 3211(g) motion to dismiss, he is entitled to an award of attorneys' fees.