Photo: Jim Henderson via Wikimedia Commons

A New York state appeals court has ruled that a defamation lawsuit launched by Brooklyn criminal defense lawyer Bernard Udell and his wife, longtime Brooklyn Supreme Court Justice Bernadette Bayne, against the New York Post over an article published about Udell must be dismissed.

The lawyer and former judge's suit was lodged in 2014 against the Post after it published an article earlier that year about Udell using Bayne's judicial license plates to wrongfully park behind the Queens Supreme Court building.

Now, an Appellate Division, Second Department, panel has ruled that the suit over the Post article, titled “Judge's hubby takes space for prisoner van,” was properly tossed out by the lower court because “the article, read as a whole, is based upon nonactionable substantially true statements and statements of opinion.”

The article said that Udell was using Bayne's judicial plates to park in a specially designated area behind the Queens Supreme Court building reserved for police officers transporting prisoners, and the story quoted a Supreme Court officers' union president as saying that Udell's wrongful parking was putting public safety at risk.

The panel, in an opinion issued last week, pointed out that “Udell did not challenge [in his libel and defamation lawsuit] the accuracy of the quotation attributed to him where he admitted, in essence, that he parked where he should not have parked.”

The unanimous panel continued, “Specifically, he [Udell] stated, in sum and substance, that he usually asked for permission to park in the subject area but on that day, he did not receive permission because 'no one was around.'”

Udell, a Brooklyn-based lawyer who according to an Avvo listing has been licensed to practice law for 50 years, and who represented himself and his wife pro se in the appeal, couldn't be reached for comment for this story, and neither could Bayne.

The panel explained that Udell's and Bayne's libel and defamation suit, filed by Udell in 2014, contended in part that defendant NYP Holdings Inc., publisher of the New York Post, “published a false and defamatory article portraying both plaintiffs as having knowingly placed the public in danger for their own benefit when Udell, one day in late May 2014, parked a vehicle carrying judicial license plates in a 'special area' behind the Queens County Courthouse that was used for law enforcement vehicles transporting prisoners to and from the courthouse.”

Subsequently, NYP Holdings, Christina Carrega-Woodby, the writer of the article, and Ellis Kaplan, a photographer whose photo of Udell ran with the article, moved to dismiss the complaint as asserted against them by arguing that the article “was substantially true, that any alleged defamatory implications were contrived, and that the statements of the two sources cited in the article were nonactionable expressions of opinion.”

In April 2016, Queens Supreme Court Justice Valerie Brathwaite Nelson “in effect, granted that branch of the motion” that dismissed the complaint as asserted against those three defendants, the panel further wrote. The panel, in its decision, upheld Brathwaite Nelson's ruling.

In explaining its analysis of Udell's and Bayne's defamation lawsuit, the panel noted that “where the plaintiff is a private person [such as Udell], but the content of the article is arguably within the sphere of legitimate public concern, the publisher of the alleged defamatory statements cannot be held liable unless it 'acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties,'” quoting Stone v. Bloomberg.

Moreover, in explaining applicable defamation standards, the panel wrote that “a public official, such as a judge, cannot recover for a defamatory statement about his or her official conduct in the absence of proof of actual malice,” citing New York Times v. Sullivan, among other cases.

And “truth is an absolute defense to a defamation action, and the test to determine whether a statement is substantially true 'is whether [the statement] as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced,'” the panel wrote while quoting in part Greenberg v. Spitzer.

Then, in upholding Brathwaite Nelson's dismissal of the lawsuit against three Post defendants, the panel said that “in considering the article as a whole, the statements attributed to an unnamed source and to the president of the Supreme Court Officers' union [about the danger to the public caused by wrongful parking] were general statements about the judiciary such that a reasonable reader would have concluded that he or she was reading opinions, not facts, about the plaintiffs.”

The panel continued, “The article, read as a whole, is based upon nonactionable substantially true statements and statements of opinion. To the extent the plaintiffs contend that statements in the article impart defamatory inferences, the complaint fails to 'make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference,'” quoting Stepanov v. Dow Jones & Co.

Laura Handman, a partner at Davis Wright Tremaine, who represented the New York Post and related Post defendants, said in an email that she and her team were pleased with the panel's decision.