The following electronically filed papers were read upon this motion: Notice of Motion/Order to Show Cause 6-11 Answering Papers 14-15 Reply 17; 19 Decision/Order Plaintiff, appearing pro se, commenced this action on March 29, 2023 following the March 9, 2023 publication of his photograph in Newsday within an article about a federal criminal matter, specifically the sentencing of a Smithtown fishing boat caption who “deliberately destroyed and sank a vessel in the Atlantic Ocean to dodge the expense of having the damaged ship lawfully retired…” (Newsday article, NYSCEF Doc. No. 9). The individual who was sentenced by U.S. District Court Judge Joan Azrack (EDNY) is named Timothy Juettner. It is undisputed that the photograph published in Newsday in conjunction with the article depicts the plaintiff in this action, not Timothy Juettner. Furthermore, the photograph of the plaintiff is captioned “Timothy Juettner.” A correction was printed by Newsday in its online and print formats on March 30, 2023 and March 31, 2023, respectively. Plaintiff’s complaint alleges three causes of action sounding in defamation, special damages, and defamation per se. Defendant Newsday, LLC moves this Court for an Order dismissing the complaint with prejudice pursuant to CPLR §§3211 (a)(7), (g) and Civil Rights Law (CRL) §76-a. Newsday also seeks mandatory fees and costs pursuant to CRL §70-a. Plaintiff opposes the requested relief. In late 2020 the New York Legislature amended its “anti-SLAPP (strategic lawsuits against public participation)” law codified in CRL §§70-a and 76-a. These amendments broadened the definition of “[a]n ‘action involving public petition and participation’” applicable to “any communication in a place open to the public or a public forum in connection with an issue of public interest…”or any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest” (CRL §76-a [1][a][1],[a][ 2]). “[N]othing in the text of the amended statute indicates that the legislature intended for the statute to only apply to defamation cases involving… public figures” (Sackler v. American Broadcasting Companies, Inc., 71 Misc3d 693,698 [Sup Ct New York County 2021]). CRL §76-a (2) permits damages to be recovered if in addition to satisfying all other necessary elements, the plaintiff “shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue.” When deciding a motion to dismiss pursuant to CPLR §3211(a)(7), the court must afford the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiffs the benefit of every favorable inference (see Marcantonio v. Picozzi III, 70 AD3d 655 [2d Dept 2010]). The sole criterion on a motion to dismiss is “whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cognizable action at law a motion for dismissal will fail” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]; see also Miglino v. Bally Total Fitness of Greater New York, Inc., 20 NY3d, 342, 351 [2013]; Leon v. Martinez, 84 NY2d 83, 87-88, [1994]; Sokol v. Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]; Gershon v. Goldberg, 30 AD3d 372, 373 [2d Dept 2006]). CPLR §3211 (g), however, provides in relevant part that “[a] motion to dismiss based on paragraph seven of subdivision (a) of this section, in which the moving party has demonstrated that the action…is an action involving public petition and participation as defined in paragraph (a) of subdivision one of section seventy-six-a of the civil rights law, shall be granted unless the party responding to the motion demonstrates that the cause of action has a substantial basis in law…” This is a heightened pleading requirement that is more stringent than the “reasonable” standard that would usually apply (Sackler, supra at 700). Accordingly, the Court must first determine whether the anti-SLAPP law applies to this matter, then, if so, whether the plaintiff has demonstrated that his causes of action have a substantial basis in law. This Court finds that the anti-SLAPP law applies to this matter. Newsday’s coverage of the federal criminal matter involving Timothy Juettner is undeniably a matter of public interest, and the sentencing took place in a courtroom that was open to the public. According to the article, Juettner operated a fishing boat from Captree State Park and was an experienced fisherman who possessed a captain’s license. Further according to the article, he chose to intentionally sink the boat rather than pay to legally abandon the boat. He also apparently cajoled three other people to assist him in the sinking, putting them at risk of injury. This criminal activity undisputedly having taken place in the waters off Long Island is most certainly a matter of public interest as defined by CRL §76-a (1)(d) which provides that the term “‘[p]ublic interest’ shall be construed broadly, and shall mean any subject other than a purely private matter.” Juettner’s criminal prosecution was no “purely private matter.” Having determined that the anti-SLAPP law applies here, the Court is now required to examine the plaintiff’s pleadings to assess whether they satisfy the heightened standard imposed by CPLR §3211 (g). Pursuant to subdivision two of that statute, “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the action or defense is based.” “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…’” (Travis v. Daily Mail, 78 Misc3d 1218 [A] [Civ Ct New York County 2023]). “[P]laintiff must plead, and ultimately prove, that defendants acted with actual malice in order to recover” (Id.). “The amended Anti-SLAPP statute imposes a heightened pleading standard which shifts the traditional burden for a motion to dismiss from the defendant to the plaintiff. A plaintiff is now required to establish by ‘clear and convincing evidence’ that there is a substantial basis in fact and law for its claim” (Torres v. Marrero, 2022 NY Slip Op 32586 [U] [Sup Ct New York County 2022][internal citation omitted]). Allegations of actual malice that are entirely conclusory and unsupported by ‘clear and convincing evidence’ are insufficient to meet this burden (Zeitlin v. Cohan, 2022 NY Slip Op 32878 [U] [Sup Ct New York County 2022]; see also Torres, supra; Vaughn v. Xu, 2022 NY Misc. LEXIS 7820 [Sup Ct New York County 2022]; Sackler, supra). In support of its motion to dismiss, Newsday submits the affidavit of its reporter, Grant Parpan, who was present for the sentencing of Juettner with the freelance photographer named John Roca. Mr. Parpan explains, in essence, that the captioning of the photograph was a mistake. According to Parpan, photography is not permitted in federal court and he and the photographer did not have an entirely clear view of Juettner. The photographer had to exit the courtroom while Parpan remained in the courtroom to report on the proceedings. When the sentencing was concluded, Parpan and the photographer had to find Juettner in order to photograph him. Parpan explains in detail what occurred outside the courtroom and the observations of the individuals who Parpan and the photographer believed were Juettner and his wife. Further according to Parpan, plaintiff was also present on the date that the photograph was taken, and both plaintiff and Juettner were wearing black dress shirts. Parpan states that he “believed everything in [the article] to be true because Mr. Roca and I mistakenly believed that the photograph that accompanied the article was of Mr. Juettner.” On the other hand, plaintiff’s complaint, affidavit in opposition, plus his “sir reply” (sic), set forth nothing more than conclusory allegations of actual malice woven into a nearly incomprehensible narrative of an alleged conspiracy dating back to 2016 that did not involve any of the individually named defendants, and rampant speculation. Plaintiff also pleads that the defendants did not investigate or “check[ ] facial recognition.” While the mis-captioning of the photograph in the subject article is hardly the model of journalistic professionalism, based upon the submitted papers, it was a mistake, or at worst, negligence; however, a mistake and/or negligence is insufficient to demonstrate actual malice as a matter of law (Palin v. New York Times Co., 940 F3d 804, 815 [2d Cir 2019]; Kipper v. NYP Holdings Co., 12 NY3d 348, 355 [2009]; Sackler, supra at 700). There is no substantial basis of support in plaintiff’s complaint or in his opposition to the instant motion for any of his causes of action. Plaintiff fails to demonstrate that Newsday or any of the other defendants acted with knowledge that the photograph was not of Juettner or with reckless disregard of whether it was of Juettner. The plaintiff has not sustained the heightened burden placed upon him by CPLR §3211 (g), warranting dismissal of his complaint in its entirety. CRL §70-a provides that a “defendant in an action involving public petition and participation…may maintain an action, claim, cross claim or counterclaim to recover damages, including costs and attorney’s fees, from any person who commenced or continued such action provided that…costs and attorney’s fees shall be recovered upon a demonstration, including an adjudication pursuant to subdivision (g) of rule thirty-two hundred eleven…of the civil practice law and rules, that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law…” Here, defendant Newsday never interposed an answer asserting a standalone claim/counterclaim for the relief permitted by CRL §70-a. Newsday merely requested costs and attorney’s fees in its memorandum of law in support of its motion to dismiss; accordingly, its request for same is denied without prejudice to Newsday filing a separate action to recover those costs and fees (Lindell v. Mail Media Inc., 575 FSupp3d 479, 489 [SDNY 2021]). The foregoing constitutes the Decision and Order of this Court. FINAL DISPOSITION [ X ] NON-FINAL DISPOSITION [ ] Dated: September 7, 2023
