U.S. Court of Appeals for the Second Circuit U.S. Court of Appeals for the Second Circuit. Photo: ALM

The U.S. Court of Appeals for the Second Circuit has affirmed the dismissal of a defamation suit against the New York Post and its reporter who covered the headline-making divorce trial of former Mintz, Levin, Cohn, Ferris, Glovsky and Popeo associate Anthony Zappin.

One of a number of federal lawsuits brought by Zappin in the wake of his well-publicized divorce proceedings against former Weil, Gotshal & Manges associate Claire Comfort, the suit claimed Post reporter Julia Marsh's published accounts of the November 2015 matrimonial proceedings were false and defamatory.

The story, published Nov. 13, ran with the headline, “'Hostile' mega-lawyer accused of abusing pregnant wife.” In it, Marsh recounted court testimony with typical tabloid flare, including detailing testimony by Comfort's psychiatrist describing his client's accusations that Zappin physically abused her while she was 39 weeks pregnant.

In dismissing Zappin's complaint, U.S. District Judge Katherine Polk Failla of the Southern District of New York found Marsh's reporting to be a fair and true account of what happened during the custody hearing. Failla further found that collateral estoppel barred Zappin, who proceeded pro se, from challenging the truth of the abuse allegations.

In its summary order affirming Failla's decision, the Second Circuit panel—composed of Chief Judge Robert Katzmann and Judges John Walker Jr. and José Cabranes—found the district court properly concluded local New York City civil rights law protecting the reporting of judicial proceedings extended to matrimonial ones. While state law does protect matrimonial proceeding records, the story's account wasn't based on any sealed records. Rather, the judge overseeing the proceedings noted the presence of the press during the hearing and no attempt to remove them was made, providing a basis for privilege.

On the actual details of the proceedings, the panel agreed with the district court that the Post article was “substantially accurate.” The article reflected the allegations made in open court, and while Zappin took issue with some of the statements made, the panel found the argument “meritless” as the article's summary was accurate.

Zappin did note that the story incorrectly stated he had been fired by Quinn Emanuel Urquhart & Sullivan, when in fact he had left to join Mintz Levin, where he was later fired. The panel found this “small error—confusing from which firm Zappin had been fired—does not substantially undermine the article's overall accuracy.”

On the estoppel issue, Zappin challenged the district court's conclusion that he was collaterally estopped from challenging the truth of Comfort's abuse allegations because the matrimonial judge's decision had been affirmed on appeal.

The panel noted that it was the matrimonial court, not the appellate court, that actually litigated the abuse proceedings ahead of resolving the custody issue in favor of Comfort. While Zappin argued he lacked a full and fair opportunity to litigate because of bias on the part of the matrimonial judge, the panel found that was not the case. As such, the appellate court's decision affirming the custody award is entitled to “preclusive effect on the issue” of whether Zappin was abusive, the panel found.

When reached for comment by email, Zappin responded, saying, “The New York Law Journal, the tax-payer financed propaganda arm of the New York State Unified Court, is writing yet another smear piece about Anthony Zappin on behalf a fundamentally corrupt state court system and a federal court covering its tracks.”

He then stated that the “actual facts” would be provided via the Southern District's docket the following morning.

When asked in a follow-up email if he was currently employed at a law firm, Zappin responded with an obscenity.

The Post was represented on appeal by Davis Wright Tremaine partner Robert Balin. Neither he nor a Post spokeswoman immediately commented on the decision.

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