Sunday, September 1, 2019

No Liability For Reporting On Law Firm Travails

Litigation arising from the New York Post's reporting on the breakup of a high-profile class action plaintiffs law firm (and an affair between a partner and associate that spawned its own litigation) has led to this decision of the New York Appellate Division for the First Judicial Department.

From December 2014

Prominent Manhattan lawyer Paul Napoli would stop at nothing to continue his sordid affair with a pretty auburn-haired associate even after his wife uncovered their 18-month dalliance, court filings charge.

Vanessa Dennis, who once worked as a junior lawyer at the 9/11 firm Napoli Bern formally filed a defamation complaint against her ex-boss and lover, his wife and the law firm last week, demanding at least $11 million.

Dennis, 33, who claims she was harassed by Napoli’s wife, Marie, after she discovered their affair in April 2013, now claims Napoli refused to end their relationship...

Dennis’ allegations come amid the epic unraveling of a firm that made tens of millions of dollars in fees by representing some 10,000 sick and dying Ground Zero first responders.

Bern and partner Alan Ripka are now also waging messy court battles against Napoli.

Last month, a judge named a receiver to oversee the financial affairs of the firm.

Co-founder Bern accused Napoli of “financial irregularities” after he took over Napoli Bern’s operations when Napoli was diagnosed with leukemia in May.

Napoli attacked Bern by sending an e-mail around saying Bern patronized prostitutes and cajoled a receptionist into oral sex at a company Christmas party.

The Post walks

The court properly determined that the Post defendants' reporting of the contents of an email concerning third-party conversations mentioning plaintiff were not actionable (see generally Brian v Richardson, 87 NY2d 46, 51-52 [1995]). The court also properly found that the intentional infliction of emotional distress claim was duplicative since the underlying allegations fall within the ambit of the defamation causes of action (see Akpinar v Moran, 83 AD3d 458, 459 [1st Dept 2011], lv denied 17 NY3d 707 [2011]), and that plaintiff failed to allege that she was placed in physical danger or was caused to fear for her personal safety as a [*2]result of the Post defendants' conduct in support of her negligent infliction of emotional distress claim (see Ferreyr v Soros, 116 AD3d 407 [1st Dept 2014]).

But the defamation action against the former partner survives

The court in the Bern action properly determined that collateral estoppel does not apply to bar plaintiff's defamation claims against the Bern defendants. The issues raised in the Bern action, in which plaintiff claims that the Bern defendants made sham filings and circulated them to the press for the sole purpose of defamation, differ from those raised in the New York Post action, in which plaintiff alleges that the New York Post defamed her by reporting on those filings (see Ryan v New York Tel. Co., 62 NY2d 494, 500-501 [1984]). The court also properly determined that issues of fact remained as to whether the litigation privilege extended to the Bern defendants' court filings (see Flomenhaft v Finkelstein, 127 AD3d 634, 638 [1st Dept 2015]). The court properly sustained plaintiff's prima facie tort cause of action against the Bern defendants, pleaded in the alternative, which did not rest on the same facts and allegations supporting the alleged defamation (see generally Curiano v Suozzi, 63 NY2d 113, 118 [1984]). Furthermore, plaintiff's allegations that Marc Bern disclosed confidential information obtained in the course of his representation of her and disclosed documents in violation of the attorney-client privilege state a cause of action against him for breach of fiduciary duty (see Keller v Loews Corp., 69 AD3d 451 [1st Dept 2010]). The court correctly found that plaintiff's allegations, along with two affidavits supporting her claim that Bern represented her sufficiently pleaded the requisite elements of a breach of fiduciary duty claim (see Burry v Madison Park Owner LLC, 84 AD3d 699 [1st Dept 2011]).

(Mike Frisch)

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