Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: Papers Numbered Defendants’ Notice of Motion to Dismiss, Affirmation, Memorandum of Law and exhibits 1 Plaintiff’s Opposition 2 Plaintiff’s Motion for Sanctions 3 Defendant’s Reply Memorandum and Opposition to Motion for Sanctions 4 DECISION AND ORDER In this defamation action, defendants move for dismissal of the complaint pursuant to CPLR §§3211(a)(1), (a)(7), and (g), and New York Civil Rights Law §§70-a and 76-a (motion sequence 1). Plaintiff has filed opposition and moves separately for an order imposing sanctions on defendants for conduct claimed to constitute a “waste of the court’s resources” (motion sequence 2). Plaintiff also requests that the court file be sealed to avoid harm to an individual who is not a party to this action. Defendants oppose both of plaintiff’s applications. The motions are consolidated herein for decision. Upon the above cited papers and for the reasons that follow, defendants’ motion to dismiss is granted and plaintiff’s request to seal court records and motion for sanctions is denied. Background Defendants Daily Mail and General Trust PLC (sued herein as “Daily Mail”) and Mail Media Inc. (collectively “defendants” or the “Daily Mail”) are alleged by plaintiff to have defamed her in the course of its ongoing coverage of former Governor Eliot Spitzer. As has been highly publicized by numerous media publications over the course of the last several years, the former Governor became embroiled in a series of scandals arising from claims that he regularly engaged escort services, and later, allegations of sexual assault perpetrated against plaintiff. Of relevance to this action is the description of plaintiff as a “prostitute” in an article published by the Daily Mail on January 24, 2022, entitled Former NY Governor Eliot Spitzer used alias, ‘George Fox’ at the hospital when he checked in on 25-year-old Russian prostitute lover he was accused of choking in $1,000-a-night Plaza hotel room in 2016 (Affidavit of Robert D. Balin, ex 22). Plaintiff contends that contrary to the Daily Mail’s coverage, she has never engaged in prostitution or similar occupation and that her involvement with former Governor Spitzer was limited to a legal dispute over the alleged sexual assault. Plaintiff claims further that the false descriptions of her made by defendants in the above article and on other unspecified occasions have caused damage to her “personal and financial affairs” (Endorsed Complaint). Defendants move, pre-answer, for dismissal of the complaint on the grounds that plaintiff cannot meet the heightened standard for defamation under New York’s recently amended anti-SLAPP (Strategic Lawsuit Against Public Participation) provisions. At the outset, defendants argue that because the Daily Mail’s coverage concerns matters of public interest, the anti-SLAPP provisions require plaintiff to show actual malice: that the allegedly defamatory statements where made with knowledge of their falsity or reckless disregard for whether they are false. Defendants also argue that in the context of their motion, the anti-SLAPP provisions place the burden on plaintiff to show a substantial basis for her claims in order to survive dismissal. In support, defendants have provided an article published October 7, 2014 on the online outlet Medium (Balin Aff, ex 2). Entitled Sex is Sex, but Money is Money and under the byline “Svetlana Z.,” the piece describes in detail the lifestyle and experiences of a high-end escort told from a first-person perspective. The author biography describes Svetlana Z. as “a 24-year-old former escort living in New York City” (id at 24). An additional credit note at the end of the Medium piece states, “This story was edited by Bobbie Johnson, fact-checked by Emily Loftis, and copy-edited by Lawrence Levi” (id.). Defendants have annexed images from online advertisements and reviews for escorts matching the personas described by plaintiff in the Medium article (Balin Aff, ex 4-7), and also contend based upon the reporting of another media outlet and review of court records that plaintiff was evicted from her apartment on Lexington Avenue in 2015 for engaging in prostitution (Balin Aff, ex 9). Defendants highlight the long history of coverage, by itself and other news outlets, of the former Governor’s alleged improprieties and his connection to plaintiff, including articles from DNAInfo.com, the New York Post, and the New York Times (Balin Aff, ex 9-11, 16-18, 21, 23). One such article, published on December 20, 2018 by the New York Post, reports on an “exclusive interview” with plaintiff in which she discusses her escort work and describes her relationship with former Governor Spitzer (Balin Aff, ex 11). Defendants also provided examples of the Daily Mail’s own coverage of the former Governor’s relationship with plaintiff from as far back as 2014 (Balin Aff, ex 4). Together, defendants argue, these exhibits demonstrate that plaintiff will be unable to establish the falsity of the statements at issue or that they were made with defendant’s knowledge or disregard of their probable falsity. In her opposition, plaintiff does not deny authoring the Medium article nor does she deny creating the websites and online listings. She instead asserts that her published work and other accounts describing life as an escort were part of an effort to build a career in writing and were entirely fictional. As for the websites and other internet advertisements cited by defendants, she claims that they were produced for the purpose of satisfying Medium’s “fact-checking” requirements and possibly promoting a future fictional web series on the topic (Opp at 1). Plaintiff does deny that she was ever evicted from her apartment for prostitution, averring that during the relevant time period her friend lived at the apartment rented under plaintiff’s name (id.). It was that friend, plaintiff contends, who apartment management sought to oust after she rejected advances from the building superintendent (Opp at 2). Plaintiff further asserts that it was impossible for plaintiff to have been engaging in prostitution in the apartment because she was traveling or living elsewhere during the relevant time period (id.). Supporting documents submitted by plaintiff include a letter from Steve Friedman, plaintiff’s “ghostwriter,” who attests to split of the proceeds for the Medium article and the general process of “ghostwriting” (plaintiff’s ex 1); a letter from the management at 776 Avenue of the Americas confirming that plaintiff’s friend was a resident there from 2013 to 2016 (plaintiff’s ex 2); and an order confirmation record from Tiffany & Co. relating to a $3,000 set of diamond earrings billed to “Mr. Eliot Spitzer” and to be shipped to “Svetlana Travis” at the Avenue of the Americas apartment dated January 21, 2015 (plaintiff’s ex 3). Plaintiff further requests that the court file for this action be sealed to “protect the privacy and the personal information of a third party,” whose reputation and mental health plaintiff contends would be harmed by publication of her name. Plaintiff separately seeks the imposition of sanctions upon defendants for filing a frivolous motion. Defendants oppose sealing and sanctions on the grounds that plaintiff has not provided sufficient bases for relief. Defendant’s Motion to Dismiss A party may move to dismiss a claim where the pleading fails to state a cause of action (CPLR §3211[a][7]) or where documentary evidence submitted “conclusively establishes” a defense to the cause of action asserted (CPLR §3211[a][1]). Generally, a court considering a motion brought pursuant to this provision “should accept as true the facts alleged in the complaint, accord plaintiff the benefit of every possible inference, and only determine whether the facts, as alleged, fit into any cognizable legal theory” (Frank v. DaimlerChrysler Corp, 292 AD2d 118, 121 [1st Dept 2002]). However, pursuant to the amended anti-SLAPP provisions, where the movant has demonstrated that the action is one “involving public petition and participation,” a motion to dismiss “shall be granted unless the party responding to the motion demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law” (CPLR §3211(g). Accordingly, a plaintiff opposing a motion to dismiss in such an action bears the burden to show by clear and convincing evidence a “substantial basis” in fact and law for their claim (see Sackler v. American Broadcasting Cos, Inc, 71 Misc3d 693 [Sup Ct, New York County 2021]). “An ‘action involving public petition and participation’ is a claim based upon: (1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition” (Civil Rights Law §76-a).”Public interest shall be construed broadly, and shall mean any subject other than a purely private matter” (Civil Rights Law §76-a[2][d]). Defendants assert that the reporting about plaintiff’s relationship with former Governor Spitzer is clearly a matter of public interest within the meaning of the above provision. The Court agrees. Defendants’ coverage of a former high-ranking elected official, the events surrounding his resignation, and other individuals involved is unquestionably of public interest to a readership comprising his former constituency (see Aristocrat Plastic Surgery, P.C. Silva, 206 AD3d 26, 29-30 [1st Dept 2022]["Matters of public concern include matters of political, social, or other concern to the community, even those that do not affect the general population"]). Additionally, courts have regularly found that accounts or allegations of sexual assault, harassment or other impropriety constitute matters of public interest (see, e.g. Coleman v. Grand, 523 F Supp 3d 244, 259 [EDNY 2021]); Shuman v. NY Mag, 72 Misc 3d 1211[A][Sup Ct, New York County 2021]; Isaly v. Garde, 2022 WL 2669242 [Sup Ct, New York County 2022]). As the instant action involves matters of public interest, plaintiff bears the burden to establish a substantial basis for her claim in order to survive dismissal. To establish a claim for defamation under New York law, a plaintiff must plead and ultimately prove that defendant made (1) a false statement regarding plaintiff (2) published to a third party (3) without privilege or authorization (4) made with the applicable level of fault (6) which causes special harm or falls within a category constituting defamation per se (Dillon v. City of New York, 261 AD2 34, 38 [1st Dept 1999]). Again, a heightened standard applies where a matter is found to be of public interest. In such matters, a plaintiff seeking to recover for defamation must show by clear and convincing evidence that the defendant acted with “actual malice,” i.e. “that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard whether it was false…” (Civil Rights Law §76-a[2]). As discussed above, this matter clearly involves a subject involving public interest and as such plaintiff must plead, and ultimately prove, that defendants acted with actual malice in order to recover. Defendants argue that the complaint must be dismissed because plaintiff cannot demonstrate a substantial basis for two necessary elements of her defamation claim, to wit: (1) that the statements published were materially false, and (2) that defendants acted with knowledge of the statements’ falsity or reckless disregard whether they were false. Plaintiff’s claim of material falsity rests on her contention that the Medium piece, online advertisements, and reviews were all part of an elaborate fiction with which she hoped to start a writing career. However, taking the sheer breadth of her online presence combined with corroboration from multiple media sources and plaintiff’s own statements, her position strains credulity. Further, as defendants observe, courts have routinely accepted that a statement made by the plaintiff herself may be accepted for its substantial truth (see, e.g. Leidig v. BuzzFeed, Inc., 371 F Supp 3d 134, 149 [SDNY 2018][finding a statement to be substantially true where supported by plaintiff's own words]). Plaintiff’s exhibits do not carry her burden to show falsity. Plaintiff’s account of the status of the apartment at 776 Avenue of the Americas is not particularly probative of the status of the Lexington Avenue apartment, and a receipt for an expensive gift from former Governor Spitzer simply corroborates a portion of her account published in the New York Post. Finally, the letter from Steve Friedman, the “ghostwriter,” does not indicate that her story was fabricated. Rather, the letter sets forth the standard ghostwriting protocol, consisting of interviewing the subject (in this case, plaintiff), and collecting the stories from the interview into a publishable format (in this case, an essay). Nowhere does he state that he believed her account was entirely fictional, simply that “it would not surprise” him if it came to light that the account had inaccuracies. This alone is not sufficient to carry plaintiff’s burden to establish that defendants’ statements are materially false. In any event, whether her current account of events is true is ultimately irrelevant because it remains that plaintiff cannot demonstrate that defendants acted with actual malice. As an initial matter, the Court notes that plaintiff did not plead the requisite level of fault in her complaint. Leaving aside any deficiency in pleading, however, nothing in plaintiff’s papers establishes a basis for believing that defendants either knew that the statements were false or acted in reckless disregard for whether they were false. The Medium piece is written from a first-person perspective and presents as a truthful account, and at no point in the piece or the credits following it is there an indication to the reader that the account is fictional. The piece itself signals exactly the opposite, as the contributor credits state to the reader that it was fact-checked by the staff and the author is explicitly described as a “former escort.” Indeed, it is difficult to fault a reporter who, seeking to verify an account of escort work, comes to believe in the account’s veracity based on websites, online advertisements, and a review site entry resembling precisely what is described in the account. Plaintiff has presented nothing in her papers that would give such a reporter reason to doubt that the account is true. Further weighing against plaintiff is the extent to which plaintiff’s status as an escort was referenced in the reporting of other news organizations. Of particular note is the exclusive interview published by the New York Post, which directly reports plaintiff’s own statements admitting to her work as an escort and to her relationship with former Governor Spitzer. Taken along with the fact that defendants have been publishing articles referencing plaintiff’s escort work from as far back as 2014 without opposition until very recently, there is no basis to support the claim that defendants knew or recklessly disregarded the possibility that plaintiff was lying. The Court therefore finds that plaintiff has failed to carry her burden to overcome dismissal of this action. As such, defendants’ motion is granted. Plaintiff’s Request to Seal Plaintiff includes in her opposition papers a request for the court records to be sealed. 22 NYCRR §216.1(a) provides that “[e]xcept where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof.” A court making such determination “shall consider the interests of the public as well as of the parties” (id.). “Restrictions on access to court records must be narrowly tailored because New York law broadly presumes that the public is entitled to access court records” (People by James v. Leasing Expenses Company LLC, 73 Misc 3d 1207[A] at*5 [Sup Ct, New York County 2021][internal citations omitted]). The burden to show good cause lies with the movant (id.) Here, plaintiff claims that failure to seal court records has a high probability of causing harm to a third party, who had previously “gone through stalking, harassment, and sexual trafficking” (Opp at 2). However, plaintiff never specifies this individual by name nor is this third party otherwise essential to this action, at least to any extent discernable by the Court. Plaintiff has not provided sufficient information to overcome the public policy of preserving open access to court records, and her request to seal is therefore denied. Plaintiff’s Motion for Sanctions Finally, plaintiff seeks an order imposing sanctions upon defendants for submitting “false evidence” in its moving papers and for other conduct she claims “wastes the court’s resources.” A court has the discretion to grant sanctions where a party or its attorney has engaged in “frivolous conduct” within the meaning of 22 NYCRR §130-1(a). Conduct is “frivolous” where: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” (22 NYCRR §130-1[c]). Here, the Court finds that defendants, simply by annexing supporting documentation and attesting to facts based upon personal knowledge or upon information and belief, have engaged in conduct that could be considered “frivolous” within the meaning of §130-1(a). Based on the foregoing conclusion that this complaint must be dismissed as a matter of law, defendants’ submissions have a clear basis in applicable law. Similarly, there is nothing in the record that indicates that defendants’ arguments are asserted primarily to harass or maliciously injure plaintiff, nor is there anything establishing that the material factual statements made therein are false. Accordingly, plaintiff’s motion for sanctions is denied. Conclusion Based on the foregoing, the Court has determined that the heightened burden to overcome dismissal imposed by the anti-SLAPP provisions applies to the instant matter, which concerns a topic of public interest. For the same reasons, plaintiff is required to show actual malice in order to sustain her defamation claim. Upon consideration of the parties’ submissions, the Court finds that plaintiff has failed to demonstrate a substantial basis for her defamation claim; namely, that the statements as issue are materially false or that defendants’ statements were made with knowledge of their falsity or reckless disregard for whether they were false. The Court further finds that plaintiff has not established a basis for sealing the court file or for the imposition of sanctions. Accordingly, it is hereby: ORDERED that defendant’s motion is granted in its entirety and this action is dismissed; and it is further ORDERED that plaintiff’s motion for sanctions and request to seal are denied; and it is further ORDERED that defendant shall serve a copy of this decision and order upon plaintiff with notice of entry within thirty days thereof. This constitutes the decision and order of this Court. Dated: March 31, 2023
