Plaintiff commenced this action on April 22, 2015, asserting three causes of action for defamation, defamation per se, and intentional infliction of emotional distress (Mot. Wipper Aff., Exh. A). Plaintiff, is a professor of law at Georgetown University Law Center and the sole African-American on the National Adjudicatory Council (NAC). He was part of a panel that upheld a decision by the Financial Industry Regulatory Authority. Inc. ("FINRA"), issuing a lifetime ban from the security industry against two African-American stockbrokers: non-parties William Scholander and Talman Harris. NYG Capital LLC d/b/a New York Global Group (hereinafter referred to individually as "NYGG") is a U.S. and Asia based strategic market entry advisory, venture capital, and private equity investment group that services clients worldwide. FNL Media, LLC. is described in the Complaint as a division or subsidiary of NYGG, and the owner of TheBlot, a website and online digital magazine that claims to combine investigative journalism with reader-submitted opinions. According to the Complaint Benjamin Wey is the CEO of NYGG. a publisher and contributor to TheBlot (Mot. Wipper Aff., Exh. A).The Complaint alleges that almost a month after the NAC panel wrote the decision upholding the FINRA lifetime ban on non-parties William Scholander and Talman Harris. TheBlot. an on-line magazine. began publishing a series of articles defaming the plaintiff. The articles are described by plaintiff as falsely characterizing him as a "racist," an "Uncle Tom," as having an affair with a married woman, as being under investigation and implicated in fraud. Plaintiff also alleges that the defendants posted comments under a false identity and altered photographs of the plaintiff. Plaintiff claims that he is a private individual that had an excellent professional and personal reputation which has been damaged by the defendants' defamatory statements that resulted in the loss of work together with other damages (Mot. Wipper Aff .. Exh. A).
(BrokeAndBroker.com Blog, April 9, 2018)http://www.brokeandbroker.com/3912/brummer-finra-singer/
SIDE BAR: New York State Civil Practice Law and Rules ("CPLR") Rule 3101: Scope of Disclosure:. . .(c) Attorney's work product. The work product of an attorney shall not be obtainable.(d) Trial preparation.. . .2. Materials. Subject to the provisions of paragraph one of this subdivision, materials otherwise discoverable under subdivision (a) of this section and prepared in anticipation of litigation or for trial by or for another party, or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.
An in camera review of the documents reveals that they are first and foremost proposed strategies by a public relations firm APCO Worldwide and comments by plaintiff and FINRA on those strategies, for plaintiff and FINRA to counteract and thus mitigate damages from the defamatory statements concerning plaintiff on the internet, about which he sues. That defamation, not this litigation or its anticipated commencement, prompted this public relations campaign. Depending on defendants' future conduct, APCO Worldwide proposed as part of the campaign the creation of a new, readily searchable online text and images positively portraying plaintiff, unrelated to the litigation.
[D]efendants are entitled to this relevant information regarding plaintiff's efforts to mitigate the past and future effects of the claimed defamation and any communications that might reveal the impact of the defamation on plaintiff's reputation and his mental and emotional condition, whether minimal or severe . . ."
Leave to amend a complaint should be freely given absent prejudice or surprise so long as the proposed claims are not palpably insufficient or devoid of merit (see McGhee v Odell, 96 AD3d 449, 450 [1st Dept 2012]; CPLR 3025[b]). Here, the court should have granted plaintiff leave to file the second amended complaint to include the subsequent allegations of defamation (Gottwald v Sebert, 172 AD3d 445 [1st Dept 2019]; Pickholz v First Boston, 202 AD2d 277 [1st Dept 1994]). Further, the allegations of intentional infliction of emotional distress alleged in the proposed second amended complaint are "governed by the continuing tort doctrine, permitting the plaintiff to rely on wrongful conduct occurring more than one year" prior to seeking leave to amend (Shannon v MTA Metro-N. R.R., 269 AD2d 218, 219 [1st Dept 2000]; see Estreicher v Oner, 148 AD3d 867, 867-868 [2d Dept 2017]). The court improvidently exercised its discretion in denying leave to amend insofar as plaintiff sought to allege claims for assault and battery, which show the scope of defendants' alleged harassment and, as such, are inextricably interrelated to the intentional infliction of emotional distress claim.The information subpoena from nonparty Verizon Online LLC by plaintiff was not "utterly irrelevant" or obviously futile (Matter of Kapon v Koch, 23 NY3d 32, 34 ). In any event, the time period for which plaintiff sought the information is directly relevant to the updated allegations in the second amended complaint.We reject defendants' argument that the stipulation between them and FINRA compelled the latter to disclose records containing direct communications between it and plaintiff. Pursuant to the plain meaning of the stipulation, FINRA agreed only to produce communications between and among itself and other third parties to this litigation regarding plaintiff or the individual defendant. Since plaintiff is a party, direct communications with him are not covered.Securities Industry Commentator:
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