Defendant's Memorandum of Law in Support

FILED: NASSAU COUNTY CLERK 03/16/2017 11:47 AM INDEX NO.
008500/2016
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/16/2017
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NASSAU
AARON GLASER,
Plaintiff,
Index No. 16-008500
v.
JASMINE PIERCE,
Defendant.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT JASMINE PIERCES

MOTION TO DISMISS THE COMPLAINT
QUINN EMANUEL URQUHART &

SULLIVAN, LLP
Robert L. Raskopf
Todd Anten
Jeffrey Miller
51 Madison Avenue, 22nd Floor
New York, New York 10010
Tel.: (212) 849-7000
Fax: (212) 849-7100
Attorneys for Jasmine Pierce
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FILED: NASSAU COUNTY CLERK 03/16/2017 11:47 AM INDEX NO. 008500/2016
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .....................................................................................................1
STATEMENT OF FACTS..............................................................................................................3
ARGUMENT ..................................................................................................................................5
I. MOST OF THE COMPLAINTS ALLEGATIONS FAIL TO SATISFY THE

REQUISITE PLEADING STANDARD FOR DEFAMATION ........................................7
II. THE COURT MAY CONSIDER EXTRINSIC EVIDENCE IN ASSESSING

GLASERS CLAIMS ..........................................................................................................8
III. THE COMPLAINTS DEFAMATION CLAIM SHOULD BE DISMISSED.................10
A. The Complaint Does Not Sufficiently Allege That the Statements Were
Made With Actual Malice..................................................................................10
1. Glaser Must Establish Actual Malice Because He Is a Public

Figure.........................................................................................................11
2. Glaser Must Establish Actual Malice Because Pierces

Statements Were Made With a Qualified Privilege...................................12
3. Glaser Fails to Allege Sufficient Facts That Pierce Acted With

Actual Malice ............................................................................................16
B. The Complaint Does Not Sufficiently Allege That the Statements Were
Made With Gross Irresponsibility......................................................................18
1. The Rape Allegations Against Glaser and His Resulting Ban From
Comedy Venues Is a Legitimate Public Concern......................................19
2. Glaser Fails to Allege Sufficient Facts That Pierce Acted With

Gross Irresponsibility ................................................................................20
C. The Statements Are Non-Actionable Expressions of Opinion..............................21
D. Glaser Is Libel-Proof .............................................................................................23
IV. THE COMPLAINTS CLAIMS OF INTENTIONAL INFLICTION OF

EMOTIONAL DISTRESS AND PRIMA-FACIE TORT SHOULD BE
DISMISSED ......................................................................................................................24
CONCLUSION .............................................................................................................................25
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TABLE OF AUTHORITIES
Page
Cases
Arvanitakis v. Lester,
145 A.D.3d 650 (2d Dept 2016)...............................................................................................7
Bank of N.Y. Mellon Trust Co. v. Morgan Stanley Mortg. Capital, Inc.,
2011 WL 2610661 (S.D.N.Y. 2011) .........................................................................................9
Basis Yield Alpha Fund (Master) v. Goldman Sachs Grp., Inc.,

115 A.D.3d 128 (1st Dept 2014) ..............................................................................................9
Berger v. Temple Beth-El of Great Neck,

41 A.D.3d 626 (2d Dept 2007)...............................................................................................14
Biondi v. Beekman Hill House Apartment Corp.,

257 A.D.2d 76 (1st Dept 1999) ................................................................................................9
Brancaleone v. Mesagna,
290 A.D.2d 467 (2d Dept 2002).............................................................................................25
Brian v. Richardson,
87 N.Y.2d 46 (N.Y. 1995) .................................................................................................21, 22
Butler v. Delaware Otsego Corp.,

203 A.D.2d 783 (3d Dept 1994).............................................................................................24
Celle v. Filipino Reporter Enterprises Inc.,

209 F.3d 163 (2d Cir. 2000) ..............................................................................................11, 12
Chandok v. Klessig,
632 F.3d 803 (2d Cir. 2011) ....................................................................................................11
Chapadeau v. Utica Observer-Dispatch,
38 N.Y.2d 196 (N.Y. 1975) .........................................................................................18, 19, 20
Crucey v. Jackall,
275 A.D.2d 258 (1st Dept 2000) ............................................................................................20
Dillon v. City of N.Y.,

261 A.D.2d 34 (1st Dept 1999) ................................................................................................7
Doyle v. Clauss,
190 A.D. 838 (2d Dept 1920)...........................................................................................14, 15
Foley v. Mobil Chem. Co.,

214 A.D.2d 1003 (4th Dept 1995)..........................................................................................25
Frazier v. Socy of Stage Directors & Choreographers, Inc.,

244 A.D.2d 192 (1st Dept 1997) ......................................................................................13, 15
ii
3 of 32
Freihofer v. Hearst Corp.,

65 N.Y.2d 135 (N.Y. 1985) .....................................................................................................25
Friedman v. Rice,
47 Misc. 3d 944 (Nassau Sup. Ct. 2015).....................................................................14, 15, 17
Gaccione v. Scarpinato,
137 A.D.3d 857 (2d Dept 2016)...............................................................................................5
Gaeta v. N.Y. News, Inc.,

62 N.Y.2d 340 (N.Y. 1984) .....................................................................................................20
Galanova v. Safir,
138 A.D.3d 686 (2d Dept 2016).......................................................................................14, 15
Garson v. Hendlin,
141 A.D.2d 55 (2d Dept 1988).........................................................................................12, 13
Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974) ................................................................................................................16
Godfrey v. Spano,
13 N.Y.3d 358 (N.Y. 2009) .................................................................................................5, 20
Gross v. N.Y. Times Co.,

82 N.Y.2d 146 (N.Y. 1993) .....................................................................................................21
Guccione v. Hustler Magazine, Inc.,

800 F.2d 298 (2d Cir. 1986) ..............................................................................................23, 24
Huggins v. Moore,
94 N.Y.2d 296 (N.Y. 1999) ...................................................................................11, 16, 19, 20
James v. Gannett Co.,

40 N.Y.2d 415 (N.Y. 1976) ...............................................................................................11, 12
Jewell v. NYP Holdings, Inc.,

23 F. Supp. 2d 348 (S.D.N.Y. 1998) .......................................................................................24
Jimenez v. United Fedn of Teachers,

239 A.D.2d 265 (1st Dept 1997) ............................................................................................17
Kindred v. Colby,
54 Misc. 3d 1205(A) (Monroe Sup. Ct. 2015), affd, 42 N.Y.S.3d 906 (4th Dept 2016)......23
Konrad v. Brown,
91 A.D.3d 545 (1st Dept 2012) ..............................................................................................17
Kornsweig v. Urban Athletics Madison LLC,

13 Misc. 3d 1217(A) (N.Y. Sup. Ct. 2006) ............................................................................17
Lancaster v. Town of E. Hampton,

54 A.D.3d 906 (2d Dept 2008)...............................................................................................25
iii
4 of 32
LeBlanc v. Skinner,
103 A.D.3d 202 (2d Dept 2012).......................................................................................21, 23
Lemieux v. Fox,
135 A.D.3d 713 (2d Dept 2016)...............................................................................................7
Liberman v. Gelstein,
80 N.Y.2d 429 (N.Y. 1992) .......................................................................10, 11, 13, 14, 15, 16
Liberty Affordable Hous., Inc. v. Maple Court Apartments,

125 A.D.3d 85 (4th Dept 2015)................................................................................................9
Lore v. N.Y. Racing Assn. Inc.,

12 Misc. 3d 1159(A), 819 N.Y.S.2d 210 (Nassau Sup. Ct. 2006) ............................................9
Maloney v. Anton Cmty. Newspapers, Inc.,

16 A.D.3d 465 (2d Dept 2005)...............................................................................................20
Mann v. Abel,
10 N.Y.3d 271 (N.Y. 2008) .....................................................................................................21
McGill v. Parker,
179 A.D.2d 98 (1st Dept 1992) ........................................................................................16, 19
Minovici v. Belkin BV,

109 A.D.3d 520 (2d Dept 2013).............................................................................................17
Pollnow v. Poughkeepsie Newspapers, Inc.,

107 A.D.2d 10 (2d Dept 1985)...................................................................................16, 18, 19
Pontarelli v. Shapero,
231 A.D.2d 407 (1st Dept 1996) ............................................................................................17
Ramnarine v. Ariola,
262 A.D.2d 296 (2d Dept 1999).................................................................................13, 14, 15
Red Cap Valet, Ltd. v. Hotel Nikko (USA), Inc.,

273 A.D.2d 289 (2d Dept 2000).................................................................................11, 13, 17
Rosin v. Weinberg,
107 A.D.3d 682 (2d Dept 2013).............................................................................................10
Rovello v. Orofino Realty Co.,

40 N.Y.2d 633 (N.Y. 1976) .......................................................................................................9
Sachs v. Matano,
50 Misc. 3d 420 (Nassau Sup. Ct. 2015).................................................................................16
Sheridan v. Carter,
48 A.D.3d 447 (2d Dept 2008).........................................................................................19, 20
Steinhilber v. Alphonse,
68 N.Y.2d 283 (N.Y. 1986) ...............................................................................................22, 23
iv
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Toker v. Pollak,
44 N.Y.2d 211 (N.Y. 1978) ...............................................................................................12, 13
Trachtman v. Empire Blue Cross & Blue Shield,

251 A.D.2d 322 (2d Dept 1998).............................................................................................17
Statutes
C.P.L.R. 3211(a)(7) ........................................................................................................1, 5, 9, 10
C.P.L.R. 3016(a)...................................................................................................................6, 7, 8
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Defendant Jasmine Pierce (Pierce) respectfully submits this memorandum of law in
support of her motion to dismiss plaintiff Aaron Glasers (Glaser) Complaint pursuant to
C.P.L.R. 3211(a)(7).
PRELIMINARY STATEMENT
Glaser is a comedian who has performed at comedy venues throughout the New York
metropolitan area for over a decade. In or around August 2016, Glaser was banned from Upright
Citizens Brigade (UCB), an organization that runs multiple comedy venues in New York City
and Los Angeles, in response to allegations from two women that he had raped them. UCBs
decisionand the basis for itwas publicized, word quickly spread, and, overnight, Glaser was
shunned as a performer, in what he characterized as a witch-hunt. In commenting on the
controversy about Glaser, Rebecca A. Trent (Trent), the owner of another New York comedy
venue, posted on Facebook: If you have been banned from a comedy venue in NYC for rape,
you are also banned from my venue. I mean to keep the people I serve and work with safe I
will not participate in the creation of another Cosby And to be clear, your ass wasnt funny to
begin with. Trent concluded by commending UCBs decision: Hats off to UCB for making
the right call.
Pierce, a then 26-year old amateur comedian and part-time baby sitter, shared Trents
post on Facebook, accurately identifying the already-publicized Glaser as the subject of the
accusations and commenting: Aaron Glaser is a rapist, dont book him. The only place he
shouldnt be banned from is prison. (Shortly thereafter, Pierce added: Must suck when the
only thing worse than you being a rapist is your jokes.). Despite the clear indications that
Pierce was expressing her opinion and surmise, based on the facts reflected in Trents statement
that Glaser was banned from UCB for rape, for the purpose of informing and warning others of
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the potential threat posed by an accused rapist, Glaser nevertheless filed the Complaint against
Pierce, baselessly alleging without any support that Pierce defamed him maliciously and with
reckless disregard for the truth.
The Court should not allow this attempt to chill free speech on a matter of clear public
interest and should dismiss the Complaint on any number of alternate grounds. First, many of
the allegations fail to plead the allegedly defamatory statements with the required particularity
and must be dismissed. Second, Glasers cause of action for defamation should be dismissed
because: (1) he does not sufficiently allege that Pierces statements were made with the
applicable standard of fault, actual malice, which applies because Glaser is a public figure,
and, separately, because Pierces statements were made with a qualified privilege (meaning they
were made to those having a common interest in the subject and/or out of a moral or social duty);
(2) even if the actual malice standard of fault does not apply, Glaser does not sufficiently
allege that Pierces statements were made with gross irresponsibility; (3) Pierces statements
are facially non-actionable statements of opinion based on her own surmise of the reported facts;
and (4) Glaser is libel-proof because his reputation was already ruined and Pierces statements
could not realistically have impaired it further. Third, for the same reasons, Glasers claims for
intentional infliction of emotional distress and prima facie tort should be dismissed as duplicative
of the cause of action for defamation and, separately, as insufficiently pled.
Pierces motion to dismiss with prejudice should be granted in its entirety.
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STATEMENT OF FACTS
Glaser is a comedian who [f]or over a decade performed at comedy venues
throughout the New York metropolitan area. (Cmpl. [Miller Aff. Ex. 1] at 7.)1 Among these
venues was UCB and its theaters. (Miller Aff. Exs. 2, 5.) Glaser also promoted and hosted his
own comedy shows in New York, including at UCB. (Miller Aff. Exs. 3-5.)
In or around August 2016, Glaser was banned from UCB in response to allegations from
two women that he had raped them. (Miller Aff. Ex. 2.) UCBs decisionand the basis for it
was publicized, word spread, and Glaser was shunned as a performer, in what he characterized as
a witch-hunt. (Id.) In response, on August 13, 2016 at approximately 7:00 PM EST, Glaser
posted a statement on Facebook addressing the matter. (Id.) In it, he acknowledged that
[r]ecently, one or more women accused me of sexual misconduct, specifically that I raped
them. (Id. (emphasis added).) Glaser also labeled the accusers as two women. (Id.) Glaser
further acknowledged that UCB had listened to the women, and then banned me from their
theaters. (Id. (emphasis added).) Glaser also stated that after informing the [alleged victims]
of this, friends of the women released false press releases asking other women to come
forward by contacting UCBs counselor if they suffered a similar experience, publicizing the
decision that I sexually assaulted women. (Id. (emphasis added).) In response to this
publicity, Glaser acknowledged that I have been banned from other comedy clubs now and
[w]ord is spreading that I sexually assault women, and overnight I am being shunned as a
performer. (Id.) Glaser further claimed that UCBs over-the-top action had created a witch-
hunt, and today I am the witch. (Id.) Glaser protested his innocence, but addressed those that
1
A copy of the Complaint is attached as Ex. 1 to the February 16, 2017 Affirmation of
Jeffrey Miller (Miller Aff.). For ease of reference, all citations to the Complaint will be made
to the Complaint itself.
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have posted about this, stating that I understand that you are trying to serve the community
and I harbor no ill-will and understand the reaction this is getting. (Id. (emphasis added).)
Earlier that same day, at 1:36 PM EST (but reflected in Exhibit A to the Complaint as
10:36 AM), Trent, the owner of The Creek & The Cave, a comedy venue and restaurant in
Queens, NY, posted the following statement on Facebook:
If you have been banned from a comedy venue in NYC for rape, you are also
banned from my venue. I mean to keep the people I serve and work with safe. It
is my number one priority. I will not participate in the creation of another Cosby.
I will not protect you. I will not allow you on my stage. If you come by you
will be embarrassed and run off. Please leave town, leave the scene, leave
comedy and LEAVE WOMEN ALONE. Your kind is not wanted appreciated or
enjoyed. And to be clear, your ass wasnt funny to begin with.
Hats off to UCB for making the right call.
(Miller Aff. Ex. 6; Cmpl. Ex. A (emphasis added).) Within the context of the witch-hunt
alleged by Glaserwherein (1) the rape allegations and UCBs decision to ban Glaser were
publicized, (2) Glaser was banned from other comedy clubs, (3) word was spreading that he
sexually assault[s] women, and (4) overnight he was being shunned as a performerthere
is no dispute that Trents statement referred to Glaser, the rape allegations made against him, and
his subsequent ban from UCB. Indeed, Glaser was specifically identified as the subject of
Trents statement in a comment posted in response at 2:44 PM EST. (Miller Aff. Ex. 6).
Later that day, at 3:21 PM EST (but reflected in Exhibit A to the Complaint as 12:21
PM), Pierce shared Trents Facebook post and added her own commentary directly on top of
Trents statement. (Cmpl. Ex. A.) By sharing, Pierce reproduced Trents statement as part of
her own Facebook post. (The Complaint fails to reproduce the complete version of Trents
statement in Exhibit A, despite its facial incorporation into Pierces own statement). (Id.) In her
post, Pierce commented in reaction to Trents statement about the Glaser controversy: Aaron
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Glaser is a rapist, dont book him. The only place he shouldnt be banned from is prison. (Id.)
Pierces statement correctly identified Glaser as the subject of Trents post, as Glaser himself
confirmed in his own statement acknowledging that UCB listened to the women [who accused
him of rape], and then banned me from their theaters. (Miller Aff. Ex. 2.) Twelve minutes
later, Pierce separately posted on her Facebook page: Must suck when the only thing worse than
you being a rapist is your jokes. (Cmpl. Ex. A.) This post did not include Glasers name or
refer to any particular incident.
Pierces statements are expressions of opinion based on reported claims rationally taken
as true. Further, it is clear that Pierce, herself a member of the New York comedy community,
was reacting to Trents statement by alerting others to a perceived threatnamely, Glaser, who
had been accused of rape and banned from multiple comedy venues as a consequenceand
warning those in the community not to book that very threat. Four months later, despite Glasers
own statement to those that have posted about this that he harbor[s] no ill-will and
understand[s] the reaction this is getting, and understand[s] that you are trying to serve the
community, Glaser filed the present lawsuit against Pierce for $38 million.
ARGUMENT
The Complaint should be dismissed pursuant to C.P.L.R. 3211(a)(7) because the
pleading fails to state a cause of action. C.P.L.R. 3211(a)(7). The necessary elements for a
defamation cause of action are a false statement, published without privilege or authorization to
a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must
either cause special harm or constitute defamation per se. Gaccione v. Scarpinato, 137 A.D.3d
857, 859 (2d Dept 2016). Although on a motion to dismiss plaintiffs allegations are presumed
to be true and accorded every favorable inference, conclusory allegationsclaims consisting of
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bare legal conclusions with no factual specificityare insufficient to survive a motion to
dismiss. Godfrey v. Spano, 13 N.Y.3d 358, 373 (N.Y. 2009). The Complaint fails to satisfy the
elements of defamation in several ways:
First, the vast majority of the alleged statements fail to meet the particularity
requirements of C.P.L.R. 3016(a); the only statements that arguably satisfy the particularity
requirements are the two Facebook posts attached to the Complaint as Exhibit A.
Second, as to the standard of fault, Glaser fails to allege sufficient facts to demonstrate
actual malice, the applicable standard here because: (1) plaintiff is a public figure; and (2)
the allegedly defamatory statements were made with a qualified privilege. Either of these
alone is enough to require a pleading of facts demonstrating actual malice, but Glaser offers
nothing more than empty, conclusory assertions in place of any factual allegations.
Third, even if the Court does not apply an actual malice standard, the Complaint still fails
to allege sufficient facts to establish that Pierces statements were made with gross
irresponsibility, as her statements related to a matter of legitimate public concern.
Fourth, Pierces statements are non-actionable expressions of opinion, which, no matter
how offensive, cannot be the subject of a claim for defamation. Even accusations of criminality
are non-actionable where they can be regarded as the speakers hypothesis or personal surmise
based on facts set forth. This is particularly true for online communications, where statements
are likely to be perceived as rhetorical hyperbole or epithet, rather than defamatory.
Fifth, Glaser is libel-proof with respect to rape allegations, which Glasers own
statements support. Pierces statements could not have realistically caused further impairment to
Glasers already devastated reputation.
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Finally, regardless of whether the Court dismisses the cause of action for defamation, the
claims for intentional infliction of emotional distress and prima facie tort should be dismissed
because: (1) they are merely duplicative of the defamation claim; and (2) the Complaint fails to
allege requisite elements of those torts.
I. MOST OF THE COMPLAINTS ALLEGATIONS FAIL TO SATISFY THE

REQUISITE PLEADING STANDARD FOR DEFAMATION
C.P.L.R. 3016(a) requires that [i]n an action for libel or slander, the particular words
complained of shall be set forth in the complaint. Compliance with C.P.L.R. 3016(a) is strictly
enforced and [t]he complaint must set forth the particular words allegedly constituting
defamation and it must also allege the time, place, and manner of the false statement and specify
to whom it was made. Lemieux v. Fox, 135 A.D.3d 713, 714 (2d Dept 2016) (emphasis
added). Claims that do not meet this standard must be dismissed. Id. at 714-15 (dismissing
defamation claim that did not set forth the particular words complained of and alleged only that
the defendants made defamatory statements to the plaintiff[s] employer and others calling into
question his character and professionalism); see also Arvanitakis v. Lester, 145 A.D.3d 650,
651-52 (2d Dept 2016) (affirming dismissal of defamation claims based on allegations that
statements were made from September 2012 through the present as not sufficiently specific
with respect to time); Dillon v. City of New York, 261 A.D.2d 34, 39-40 (1st Dept 1999) (when
particular words giving rise to the [defamatory] implication are not set forth in any manner that
would support a defamation claim, leaving only a vague and conclusory allegation, dismissal of
claims arising from these alleged misstatements is required).
The vast majority of the Complaints allegations fail to set forth the particular words
allegedly constituting defamation, as well as the alleged time, place, manner, and recipient of the
alleged statements; instead, the Complaint relies on vague, general, and unsupported claims. At
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the outset, the Complaint defines Falsehoods as nothing more than accus[ations] of
reprehensible acts Glaser perpetrated (Cmpl. 24), without identifying the contents of the
accusations other than the two Facebook posts appended to the Complaint as Exhibit A. The
Complaint alleges that:
Defendant published these Falsehoods to third parties including, without limitation,

to groups on social media, the press, their social networking platforms, among
others. (Cmpl. 27.)
Defendant verbally spread the Falsehoods to anyone who would listen including,
without limitation, to members of the press. (Cmpl. 28.)
Defendant engaged in fabricating and dissemination of these Falsehoods verbally

and in print, to the media, and on social media. (Cmpl. 30.)
Defendant has reached out to media and others to further spread their lies about
Plaintiff. (Cmpl. 33.)
Defendant affirmatively promulgated these Falsehoods throughout the summer of

2016 in an effort to cyber-lynch Aaron. (Cmpl. 35.)
Defendant repeated their Falsehoods to anyone who would listen including, without
limitation, to the news media, and others within the comedy performance
community. (Cmpl. 43.)
Defendants statements (both written and verbal) exposed Aaron to devastating

public contempt. (Cmpl. 46.)
None of these conclusory allegations satisfy C.P.L.R. 3016(a); thus, any claim of defamation
based on any alleged statements other than the two specific Facebook posts made by Pierce on
August 13, 2016 must be dismissed as failing to satisfy C.P.L.R. 3016(a). (Cmpl. Ex. A.) The
remainder of this briefs references to Pierces statements are to those two Facebook posts.
II. THE COURT MAY CONSIDER EXTRINSIC EVIDENCE IN ASSESSING

GLASERS CLAIMS
The Complaint attaches screenshots of two allegedly defamatory statements as Exhibit A
(misrepresented as three statements in 25 of the Complaint). Glaser, however, neglects to
include a complete version of the statements as they were published. Instead, the Complaint
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attaches an incomplete version of Pierces first Facebook post, which fails to include the full text
of Trents earlier post, to which Pierce was responding. However, [i]n assessing the legal
sufficiency of a claim, the Court may consider documents attached as an exhibit [to the
complaint] or incorporated by reference and documents that are integral to the plaintiffs claims.
Lore v. N.Y. Racing Assn. Inc., 12 Misc. 3d 1159(A), at *3 (Nassau Sup. Ct. 2006) (collective
bargaining agreement submitted by defendant dispositive in dismissing plaintiffs claims); see
also Bank of N.Y. Mellon Trust Co. v. Morgan Stanley Mortg. Capital, Inc., 2011 WL 2610661,
at *3 (S.D.N.Y. 2011) (Plaintiffs failure to include matters of which as pleaders they had notice
and which were integral to their claimand that they apparently most wanted to avoidmay not
serve as a means of forestalling the district courts decision on the motion.). The Court should
consider Trents statement in assessing the sufficiency of the defamation claim because it was
incorporated by reference in the Complaint, attached as an exhibit thereto (in incomplete form),
and was an integral part of the allegedly defamatory statements (given that it was shared) by
Pierce.
In addition, the Court may consider the evidentiary materials submitted with this motion,
which are appropriate for consideration of a motion to dismiss under C.P.L.R. 3211(a)(7), to
remedy defects in the complaint or establish conclusively that plaintiff has no cause of
action. Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636 (N.Y. 1976); see also Basis Yield
Alpha Fund (Master) v. Goldman Sachs Grp., Inc., 115 A.D.3d 128, 135 (1st Dept 2014) (if
the defendants evidence establishes that the plaintiff has no cause of action (i.e., that a well-
pleaded cognizable claim is flatly rejected by the documentary evidence), dismissal would be
appropriate.); Biondi v. Beekman Hill House Apartment Corp., 257 A.D.2d 76, 81 (1st Dept
1999) (motion to dismiss should be granted where the essential facts have been negated beyond
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substantial question by the affidavits and evidentiary matter submitted); Liberty Affordable
Hous., Inc. v. Maple Court Apartments, 125 A.D.3d 85, 89 (4th Dept 2015) (dismissal should
result when the defendants evidentiary affidavits show that a material fact as claimed by the
pleader to be one is not a fact at all); Rosin v. Weinberg, 107 A.D.3d 682, 683-84, (2d Dept
2013) (affirming dismissal where evidentiary material submitted by the defendant in support of
his motion [to dismiss] demonstrated that the plaintiffs alleged unawareness of the source of the
settlement funds was not a fact at all). Pierces evidentiary materials, as discussed infra,
remedy defects in the Complaint and conclusively establish that Glaser has no cause of action for
defamation, and as such may be considered by the Court.
III. THE COMPLAINTS DEFAMATION CLAIM SHOULD BE DISMISSED
As to the only two statements for which Glaser arguably satisfied C.P.L.R. 3016(a)
the two Facebook posts in Exhibit Athe Complaint fails to sufficiently allege an actionable
claim for defamation for three independent reasons. First, the Complaint fails to sufficiently
allege that the statements were made with the requisite level of fault, actual malicethe
applicable standard because Glaser is a public figure and the statements were made with a
qualified privilege, each of which independently supports an actual malice standard. And even if
the actual malice standard didnt apply, the Complaint fails to sufficiently allege that the
statements were made with gross irresponsibility. Second, the statements are non-actionable
expressions of opinion. Third, Glaser is libel-proof.
A. The Complaint Does Not Sufficiently Allege That the Statements Were Made
With Actual Malice
The Complaint fails to allege sufficient facts to plead that Pierces statements were made
with the applicable standard of fault, actual malice, requiring dismissal of the defamation
claims. The actual malice standard applies where the plaintiff is a public figure or where the
10
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allegedly defamatory statements were made with a qualified privilege. Huggins v. Moore, 94
N.Y.2d 296, 301-02 (N.Y. 1999); Liberman v. Gelstein, 80 N.Y.2d 429, 437-38 (N.Y. 1992);
Chandok v. Klessig, 632 F.3d 803, 813-15 (2d Cir. 2011). Actual malice requires the plaintiff
to prove that the defendant made the statement with either knowledge that it was false or
reckless disregard for the truth. Huggins, 94 N.Y.2d at 301. A qualified privilege can also be
overcome if the plaintiff demonstrates that the defendant spoke with common law malice,
defined as spite or ill will. Liberman, 80 N.Y.2d at 437-38. Actual malice must be pleaded
with specific facts sufficient to allow an inference of actual malice; conclusory allegations are
insufficient. Red Cap Valet, Ltd. v. Hotel Nikko (USA), Inc., 273 A.D.2d 289, 290 (2d Dept
2000). The Complaint, however, relies on nothing more than conclusory allegations of actual
malice without any supporting facts, and therefore fails to state a cause of action for defamation.
1. Glaser Must Establish Actual Malice Because He Is a Public Figure
Glaser must establish that the statements were made with actual malice because he is a
public figure. Huggins, 94 N.Y.2d at 301-02. The category of public figures is of necessity
quite broad and includes without doubt, [] many types of public performers such as
professional athletes, nightclub and concert singers, television and movie actors, and recording
artists. James v. Gannett Co., 40 N.Y.2d 415, 422 (N.Y. 1976). For example, a belly dancer
has been found a public figure because the essential element underlying the category is that
the publicized person has taken an affirmative step to attract public attention. Id. The extent
to which one becomes a public figure is a matter of degree public figures may invite publicity
only with respect to a narrow area of interest. Id. at 423. Niche communities can still give rise
to public figures. In Celle v. Filipino Reporter Enterprises Inc., for example, the plaintiff was
determined to be a public figure after he characterized himself as a well known radio
commentator within the Metropolitan Filipino-American community. 209 F.3d 163, 177 (2d
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Cir. 2000) (applying New York law). Those who have voluntarily sought and attained
influence or prominence in matters of social concern are generally considered public figures.
Id. at 176.
Glaser, as a performer, has invite[d] publicity and taken an affirmative step to attract
public attention, even if only within a narrow area of interest. James, 40 N.Y.2d at 422-23.
Glaser alleges he had a performance career and [f]or over a decade performed at comedy
venues throughout the New York metropolitan area. (Cmpl. 4, 7, 9). Whereas the plaintiff
in Celle characterized himself as a radio personality in the metropolitan Filipino-American
community, Glaser characterizes himself as a public figure in the New York comedy community.
Glaser also hosted and promoted comedy shows, further inviting publicity. (Miller Aff. Ex. 3-5.)
As such, he is a public figure for the purposes of defamation.
2. Glaser Must Establish Actual Malice Because Pierces Statements

Were Made With a Qualified Privilege
Independently, the Complaint must establish that the statements were made with actual
malice because they are protected by a qualified privilege. New York law affords protection
to certain communications that although defamatory, cannot serve as the basis for the
imposition of liability in a defamation action. Toker v. Pollak, 44 N.Y.2d 211, 218 (N.Y.
1978). These communications are provided a qualified privilege that negate[s] any
presumption of implied malice flowing from a defamatory statement, and places the burden of
proof on this issue upon the plaintiff. Id. at 219. A communication is said to be qualifiedly
privileged where it is fairly made by a person in the discharge of some public or private duty,
legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned.
Id. The term duty further includes moral and social duties of imperfect obligation. Garson
v. Hendlin, 141 A.D.2d 55, 61 (2d Dept 1988). Qualified privilege also applies to statements
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shielded by the common interest privilege, which extends to a communication made by one
person to another upon a subject in which both have an interest, on the basis that the flow of
information between persons sharing a common interest should not be impeded. Liberman, 80
N.Y.2d at 437. As Toker explained, the protection afforded by a qualified privilege provides
an atmosphere in which a civic-minded citizen may, without fear, convey information which he
believes the disclosure of which will redound to the benefit of the public, and [o]nly those who
act out of malice, rather than public interest, need hesitate before speaking. 44 N.Y.2d at 221.
The reason for according protection to such defamatory communications is the common
convenience and welfare of society, that is, the recognition that on certain occasions the good
that may be accomplished by permitting an individual to make a defamatory statement without
fear of liability outweighs the harm that may be done to the reputation of others. Garson, 141
A.D.2d at 61. The Court can assess qualified privilege on a motion to dismiss. See e.g., Red
Cap Valet, Ltd., 273 A.D.2d at 290.
New York courts broadly apply the principle of qualified privilege in shielding
communications from claims for defamation, including accusations of criminal conduct,
accusations of rape, child molestation, and incest, allegedly defamatory statements made to
subscribers of a newsletter, statements disclosing and explaining basis for termination of
membership in a community, public allegations, statements to the media disclosing possession of
pornographic materials depicting rape, incest, and bestiality, and statements made to warn others
of a crime committed or threatened against their person or property. Liberman, 80 N.Y.2d
at 437 (allegations of landlord bribing police made by and to tenants-in-common protected by
qualified privilege); Ramnarine v. Ariola, 262 A.D.2d 296 (2d Dept 1999) (where accusations
of plaintiff having an illicit sexual relationship with his [own] niece were reported by a co-
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worker, the court found that [e]ven assuming that [defendant] referred to the plaintiff as a
rapist or child molester, any such statement was shielded by the common interest
privilege); Frazier v. Socy of Stage Dirs. & Choreographers, Inc., 244 A.D.2d 192, 192-93 (1st
Dept 1997) ([D]efendants statements were shielded by the common interest qualified
privilege, since the communication to subscribers involved in the industry was reasonable and
appropriate under the circumstances); Berger v. Temple Beth-El of Great Neck, 41 A.D.3d 626,
627 (2d Dept 2007) (statements explaining termination of membership were shielded by
qualified privilege where made in furtherance of a common interest of a religious
organization); Galanova v. Safir, 138 A.D.3d 686, 687 (2d Dept 2016) ([F]lyers posted in the
building lobby, which listed the apartment numbers of shareholders who allegedly owed arrears
and the amount of those arrears, were protected by the qualified common-interest privilege);
Friedman v. Rice, 47 Misc. 3d 944, 953 (Nassau Sup. Ct. 2015) (statements to the media
regarding plaintiffs possession of pornographic stories depicting child rape, incest and
bestiality were protected by the common interest privilege, which arises when a person makes
a bona fide communication upon a subject in which he or she has an interest, or a legal, moral, or
social duty to speak); Doyle v. Clauss, 190 A.D. 838, 839-40 (2d Dept 1920) (concerning a
letter written to plaintiffs employer addressing plaintiffs dishonesty and thievery, the court held
that warning others of a crime, committed or threatened, is regarded as the discharge of a
public or private duty, legal or moral, although one of imperfect obligation, and [i]nformation
of a crime committed or threatened need not be confined to officers of justice.).
Pierces statements on their face are protected by a qualified privilege because they were
made to personsnamely, the subscribers to her Facebook pagewith whom she shared a
common interest; specifically, the rape allegations against Glaser and the fact that at least one
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comedy venue found those allegations credible enough to ban him. As with the recipients in
Liberman and Ramnarine, the recipients of Pierces statementsher friends and colleagues in
the comedy communityindisputably have an interest in Glasers alleged criminal conduct. See
80 N.Y.2d at 437; 262 A.D.2d at 296. Specifically, Pierces friends and colleagues have an
interest in knowing that Glaser was subject to rape allegations because it means that Glaser is, at
a minimum, a potential threat to themeither as potential victims, as the friends of potential
victims, or as potential colleagues or employers of Glaser. Further, as with the subject
statements in Berger, Pierces statements are protected because they disclosed and explained the
termination of Glasers membership in a select community in furtherance of a common interest
of that community (again, identifying those subject to rape allegations deemed credible). 41
A.D.3d at 627. As in Galanova, that Pierces statements were made in a limited public forum
does not dissolve the common interest privilege. 138 A.D.3d at 687. Rather, like the newsletter
subscribers in Frazier, Pierce has a common interest with the subscribers of her Facebook page.
See 244 A.D.2d at 192-93.
In addition, Pierces statements are independently protected by a qualified privilege
because they were made out of the discharge of a legal, moral, or social duty to speak.
Friedman, 47 Misc. 3d at 953. Pierces effort to inform and warn others of a crime committed
or threatened against their person and property is protected by qualified privilege because such
an act is regarded as the discharge of a public or private duty, legal or moral, although one of
imperfect obligation. Doyle, 190 A.D. at 839-40. The privilege applies even where the speaker
is a volunteer and the information related is not confined to officers of justice but rather
addressed to those who suffered from the crime or [are] threatened by it for the purpose of
preventing a crime or apprehending the criminal. Id. at 839-41. Further, this Court has
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recognized that statements to the media borne out of a legal, moral, or social duty to speak
are qualifiedly privileged. See Friedman, 47 Misc. 3d at 953. And while Friedman relates to
statements in traditional media and Pierces statements were on Facebook, nonmedia individual
defendants who utilize a public medium are accorded the same constitutional privilege as the
medium itself. Pollnow v. Poughkeepsie Newspapers, Inc., 107 A.D.2d 10, 16 (2d Dept 1985);
see also McGill v. Parker, 179 A.D.2d 98, 108 (1st Dept 1992) (there is no reason why the
Constitution should be construed to provide greater protection to the media in defamation suits
than to others exercising their freedom of speech).
Sachs v. Matano is an illustrative example of an instance where statements were not
protected by qualified privilege. 50 Misc. 3d 420 (Nassau Sup. Ct. 2015). There, the court held
that statements on plaintiffs website, launched in the course of a medical malpractice action for
alleged negligent treatment of a diabetic foot ulcer, were not afforded a qualified privilege where
the websites comparison of Dr. Matano to Nazi doctor, Josef Mengele, and additional
unsupported conclusory allegations that Dr. Matano was anti-Semitic and kills, were found to
be reckless assertions in disregard to the truth. Id. at 421-22. Here, in stark contrast, Pierce has
not made bald, unsupported conclusory allegations regarding Glaserin fact, Pierce
incorporated the factual support for her claim into her own statements. (Cmpl. Ex. A; Miller Aff.
Ex. 6.)
3. Glaser Fails to Allege Sufficient Facts That Pierce Acted With Actual
Malice
The actual malice standard requires the plaintiff to establish that the defendant made
the statement with either knowledge that it was false or reckless disregard for the truth.
Huggins, 94 N.Y.2d at 301. Reckless disregard requires a high degree of awareness of
probable falsity, such that the defendant in fact entertained serious doubt as to the truth of his
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publication. Gertz v. Robert Welch, Inc., 418 U.S. 323, 332, 334 n. 6 (1974). Qualified
privilege can also be overcome by a showing that the defendant acted with spite or ill will.
Liberman, 80 N.Y.2d at 437-38. However, spite or ill will does not refer to defendants
general feelings about plaintiff, but to the speakers motivation for making the defamatory
statements [i]f the defendants statements were made to further the interest protected by the
privilege, it matters not that defendant also despised plaintiff. Id. at 439.
Conclusory allegations of malice, or the failure to allege facts in the complaint from
which malice can be inferred, warrants dismissal of the complaint for failure to state a cause of
action. Friedman, 47 Misc. 3d at 953-55 (plaintiffs allegations that defendants made
statements while knowing of their falsity, or having access to such facts that they should have
known of their falsity, and repeated those statements even after knowing they were false do
not sufficiently allege facts from which malice could be established or inferred); see also Red
Cap Valet, Ltd., 273 A.D.2d at 290 ([P]laintiff failed to allege any facts from which malice
could be inferred and its conclusory allegations of malice were insufficient to overcome the
[qualified] privilege); Trachtman v. Empire Blue Cross & Blue Shield, 251 A.D.2d 322, 323 (2d
Dept 1998) ([S]uch communications were protected by a qualified privilege not overcome by
the plaintiffs conclusory allegations of malice); Jimenez v. United Fedn of Teachers, 239
A.D.2d 265, 266 (1st Dept 1997) (finding that plaintiff, a public figure, must allege facts
sufficient to show actual malice with convincing clarity); Konrad v. Brown, 91 A.D.3d 545, 546
(1st Dept 2012) (finding that plaintiff, a public figure, failed to show malice where he made
conclusory allegations that defendants statements were actuated by ill will); compare
Kornsweig v. Urban Athletics Madison LLC, 13 Misc. 3d 1217(A) at 2 (N.Y. Sup. Ct. 2006)
(complaint alleged sufficient facts to support an inference of malice where plaintiff alleged that
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motive for falsely and maliciously accusing him of criminal conduct was to fabricate a legitimate
reason to terminate his employment); Pontarelli v. Shapero, 231 A.D.2d 407, 412 (1st Dept
1996) (plaintiff sufficiently alleged malice where gravamen of action was that defendant
ousted plaintiff from her employment for purpose of forestalling her inquiries into financial
improprieties and then falsely and maliciously accused plaintiff of the same improprieties).
The Complaint fails to plead any non-conclusory facts to satisfy this standard; instead, it
merely parrots conclusory allegations that Pierce falsely accused Glaser; her statements were
false and intentional and intended to hurt Plaintiff; they were made falsely, maliciously and
with reckless disregard for the truth; she engaged in intentional manufacturing and
fabricated the statements; her conduct was knowing, malicious, willful and wanton and/or
showed a reckless disregard for the Plaintiffs rights; she affirmatively promulgated the
statements to cyber-lynch Glaser; she knew or should have known the statements were false;
and she was motivated solely out of malevolence and spite. (Cmpl. 2, 3, 4, 5, 10, 25, 26,
30, 31, 35, 36, 38, 39, 58, 59, 60, 69.) These conclusory allegations fail to allege any facts from
which actual malice can be inferred and, therefore, the Complaint fails to state a cause of action
for defamation.
B. The Complaint Does Not Sufficiently Allege That the Statements Were Made
With Gross Irresponsibility
Even if the Court finds that the actual malice standard does not apply to Pierces
statements, the Court should, in the alternative, dismiss the defamation claim for failure to plead
that Pierce acted with gross irresponsibility. Where the content of a statement is arguably
within the sphere of legitimate public concern, which is reasonably related to matters warranting
public exposition, a private figure plaintiff must establish that the defendant acted in a grossly
irresponsible manner without due consideration for the standards of information gathering and
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dissemination ordinarily followed by responsible parties. Chapadeau v. Utica Observer-
Dispatch, 38 N.Y.2d 196, 199 (N.Y. 1975). While originally made in the context of media
defendants, Chapadeau equally applies to non-media defendants. See, e.g., Pollnow, 107 A.D.2d
at 16 (a nonmedia individual defendant who utilizes a public medium for the publication of
matter deemed defamatory should be accorded the same constitutional privilege as the medium
itself); McGill, 179 A.D.2d at 108 (there is no reason why the Constitution should be
construed to provide greater protection to the media in defamation suits than to others exercising
their freedom of speech).
1. The Rape Allegations Against Glaser and His Resulting Ban From
Comedy Venues Is a Legitimate Public Concern
To determine whether a legitimate public concern exists, allegedly defamatory
statements can only be viewed in the context of the writing as a whole, and not as disembodied
words, phrases or sentences. Huggins, 94 N.Y.2d at 302. Courts are deferential to editorial
discretion in determining what is a legitimate public concern for the community: [a]bsent clear
abuse, the courts will not second-guess editorial decisions as to what constitutes matters of
genuine public concern, as long as a statement can be fairly considered as relating to any
matter of political, social, or other concern of the community. Id. at 303. Alleged criminal
conduct is recognized as a matter of legitimate public concern. See, e.g., Chapadeau, 38 N.Y.2d
at 200 (schoolteachers arrest for unlawful possession of heroin a matter of legitimate public
concern); Pollnow, 107 A.D.2d at 15-16 (closed trial of a minor a matter of legitimate public
concern). Additionally, courts may consider evidentiary materials submitted with the pleadings
at the motion to dismiss stage in determining whether a legitimate public concern existed.
Sheridan v. Carter, 48 A.D.3d 447, 448 (2d Dept 2008) (such evidence established that a
legitimate public concern existed regarding the subject of defendants statements).
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Here, taken as a wholeincluding the context provided by the August 13, 2016 Trent
and Glaser Facebook statements, wherein UCBs decision and the basis for it was already
publicizedPierces statements regarding the rape allegations against Glaser and his subsequent
banning from multiple New York comedy venues were about matters of legitimate public
concern, warranting public exposition, and the Court should not second-guess Pierces
editorial discretion absent clear abuse, which is not found here. Huggins, 94 N.Y.2d at 303.
2. Glaser Fails to Allege Sufficient Facts That Pierce Acted With Gross
Irresponsibility
To survive a motion to dismiss under the Chapadeau gross irresponsibility standard,
there must be allegations, which if proven, would show that [defendant] acted in a grossly
irresponsible manner. Sheridan, 48 A.D.3d at 448 (2d Dept 2008). Certain allegations, even if
true, fail to satisfy this standard: for example, a defendants reliance on information from a
source, where defendant had no reason to suspect her source of inaccuracy, is not gross
irresponsibility. Gaeta v. N.Y. News, Inc., 62 N.Y.2d 340, 351 (N.Y. 1984); see also Maloney v.
Anton Cmty. Newspapers, Inc., 16 A.D.3d 465, 466 (2d Dept 2005) (newspaper reporter could
rely on witness testimony to establish that he did not act in grossly irresponsible manner as a
matter of law). Further, defendants are not required to make inquiries to independently
ascertain[] the veracity of their source materials when making statements. Crucey v. Jackall,
275 A.D.2d 258, 265 (1st Dept 2000).
As with actual malice, Glasers conclusory allegations are insufficient to allege that
Pierce acted with gross irresponsibility. Even affording the complaint every favorable inference,
conclusory allegationsclaims consisting of bare legal conclusions with no factual
specificityare insufficient to survive a motion to dismiss. Godfrey, 13 N.Y.3d at 373. Here,
the Complaint fails to make any factual allegations, which if proven, would show that [Pierce]
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acted in a grossly irresponsible manner, and instead relies on bare legal conclusions that Pierce
showed a reckless disregard to the false statements, should have known that the statements
were false, and was reckless. See Sheridan, 48 A.D.3d at 448 (2d Dept 2008); (Cmpl. 31,
36, 38, 54, 59, 60.) Such lack of specificity is fatal to the Complaints defamation cause of
action.
C. The Statements Are Non-Actionable Expressions of Opinion
As an independent basis, the Court may dismiss the defamation claim because Pierces
statements are non-actionable opinions likely to be perceived as rhetorical hyperbole [or] a
vigorous epithet, not assertions of fact. LeBlanc v. Skinner, 103 A.D.3d 202, 213 (2d Dept
2012).
Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no
matter how offensive, cannot be the subject of an action for defamation. Mann v. Abel, 10
N.Y.3d 271, 276 (N.Y. 2008). [A]ccusations of criminality could be regarded as mere
hypothesis and therefore not actionable if the facts on which they are based are fully and
accurately set forth and it is clear to the reasonable reader or listener that the accusation is merely
a personal surmise built upon those facts. Gross v. N.Y. Times Co., 82 N.Y.2d 146, 155 (N.Y.
1993). On a motion to dismiss, a key factor is determining whether either the full context of the
communication in which the statement appears or the broader social context and surrounding
circumstances are such as to signal readers or listeners that what is being read or heard is likely
to be opinion, not fact. Brian v. Richardson, 87 N.Y.2d 46, 51 (N.Y. 1995). In Brian, for
example, both the broader context of the statements publication in the op-ed page (a forum
traditionally reserved for the airing of ideas on matters of public concern [containing]
considerable hyperbole, speculation, diversified forms of expression and opinion) and the
immediate context of the authors identity (a non-disinterested party), advocacy for a specific
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cause, use of rumors and unidentified sources, and a tone rife with rumor [and]
speculation made it sufficiently apparent to the reasonable reader that its contents represented
the opinion of the author and that its specific charges about plaintiff were allegations and not
demonstrable fact. Id. at 51-54.
Here, in the broader context, Pierces statements could only be understood as opinions.
Her statements were made on her Facebook page from her personal account, a forum reserved
for her personal use. And, in the immediate context: (1) her statements signaled that she was
not a disinterested party; (2) the purpose was advocacyspecifically, advocating that Glaser
should be banned from all venues except prison; (3) the original sources of the rape allegations
were unidentified; (4) the darkly comedic tone combining anger and humor made it apparent that
its contents represented opinions of the author; and (5) the statements were supported by, and
accompanied by, a recitation of the facts upon which they were basedi.e., Trents earlier
statement. (Cmpl. Ex. A; Miller Aff. Ex. 6.) Indeed, the sole addition by Piercenaming
Glaser as the subject of Trents postwas indisputably factually accurate: Glaser himself
admitted that he was accused of rape by one or more women and banned from UCB and
other comedy clubs as a result. (Miller Aff. Ex. 2.) Therefore, Pierces identification of
Glaser as the subject of Trents statement is non-actionable because it is conclusively true, and
Pierces commentary is non-actionable because, when viewed in its full context and the
broader social context and surrounding circumstances, it signaled to the reader that it was as an
expression of opinion and a personal surmise built on recited facts. Brian, 87 N.Y.2d at 50-51.
Further, the venue of an allegedly defamatory statement is a critical consideration in
determining whether it is a non-actionable opinion. Even apparent statements of fact may be
understood as opinion when made in public debate, heated labor dispute, or other circumstances
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in which an audience may anticipate the use of epithets, fiery rhetoric or hyperbole. Steinhilber
v. Alphonse, 68 N.Y.2d 283, 294 (N.Y. 1986). Internet-based forums are venues where citizens
may participate and be heard in free debate, readers give less credence to allegedly defamatory
Internet communications than they would to statements made in other milieus, and a defamatory
statement on the Internet is likely to be perceived as rhetorical hyperbole [or] a vigorous
epithet. LeBlanc, 103 A.D.3d at 213 (accusation on Internet that plaintiff was a terrorist not
actionable because it was rhetorical hyperbole or vigorous epithet); Kindred v. Colby, 54 Misc.
3d 1205(A) (Monroe Sup. Ct. 2015), affd, 42 N.Y.S.3d 906 (4th Dept 2016) (Facebook
allegations not defamatory in the whole context of the posting and the broader social context
because a reasonable reader can conclude that the statements constitute hyperbole, name-
calling, insults and venting, all of which are non-actionable, because [t]he venting of
frustration and unhappiness with others is acceptable on Facebook). Pierces statements were
made in a heated public discussion concerning recent, shocking rape allegations against Glaser,
and his banning by UCB as a result, where the use of epithets, fiery rhetoric, [and] hyperbole
was anticipated. Steinhilber, 68 N.Y.2d at 294. That they were made on the Internet reinforces
that they were rhetorical hyperbole or vigorous epithet, and thus non-actionable expressions
of opinion.
D. Glaser Is Libel-Proof
Glasers cause of action for defamation should be dismissed, independently of the
foregoing arguments, because he is a libel-proof plaintiff with respect to rape allegations, which
Glasers own statements support. New York courts have recognized that a plaintiffs reputation
with respect to a specific subject may be so badly tarnished that he cannot be further injured by
allegedly false statements on that subject. Guccione v. Hustler Magazine, Inc., 800 F.2d 298,
303 (2d Cir. 1986) (But in those instances where an allegedly libelous statement cannot
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realistically cause impairment of reputation because the persons reputation is already so low or
because the true portions of a statement have such damaging effects the claim should be
dismissed so that the costs of defending against the claim of libel, which can themselves impair
vigorous freedom of expression, will be avoided.); see also Jewell v. NYP Holdings, Inc., 23 F.
Supp. 2d 348, 394 (S.D.N.Y. 1998) (A libel-proof plaintiff cannot be harmed because the
plaintiff's reputation has already been so damaged that further falsehoods do not cause any
additional damage.). Criminal convictions are not necessary to establish an individual as libel-
proof. Guccione, 800 F.2d at 303-04. Assuming arguendo that any rape allegations against
Glaser are incorrect, his reputation was nevertheless effectively devastated prior to Pierces
statements and he could not be injured further by her individual comments. As Glaser concedes,
he had already been accused of rape prior to Pierces statements, already been banned by UCB
and other comedy clubs, his identity and the shocking nature of the accusations were already
revealed and publicized by third parties, and overnight [he was] shunned as a performer.
(Miller Aff. Ex. 2.) Pierces statements were, effectively, one grain of sand tossed onto an
already well-trodden beach. As such, Glasers reputation for sexual assault could not have been
further damaged by Pierces statements and the cause of action should be dismissed.
IV. THE COMPLAINTS CLAIMS OF INTENTIONAL INFLICTION OF

EMOTIONAL DISTRESS AND PRIMA-FACIE TORT SHOULD BE DISMISSED
Finally, the Court should dismiss Glasers tacked-on claims of intentional infliction of
emotional distress and prima facie tort.
First, a claim for intentional infliction of emotional distress will be dismissed as
duplicative where a plaintiff can properly recover for the alleged emotional distress caused by
the defamatory statements under the cause of action for defamation. Brancaleone v. Mesagna,
290 A.D.2d 467, 468-69 (2d Dept 2002); see also Butler v. Delaware Otsego Corp., 203 A.D.2d
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783, 784-85 (3d Dept 1994) (claim should not be entertained where the conduct complained of
falls well within the ambit of other traditional tort liability). Additionally, under New York law,
allegedly defamatory statementsincluding statements alleging sexual misconductgenerally
do not rise to the level of the requisite extreme and outrageous conduct necessary to support
a cause of action for intentional infliction of emotional distress. See, e.g., Foley v. Mobil Chem.
Co., 214 A.D.2d 1003, 1004 (4th Dept 1995). As Glasers claim falls well within the ambit of
defamation, and because Pierces statements in no way rise to the level of extreme and
outrageous conduct as a matter of law, this claim should be dismissed.
Second, Glasers claim of prima facie tort must be dismissed because his pleadings set
forth allegations of pure defamation. Lancaster v. Town of E. Hampton, 54 A.D.3d 906, 908
(2d Dept 2008). Prima facie tort was designed to provide a remedy for intentional and
malicious actions that cause harm and for which no traditional tort provides a remedy, and not to
provide a catch all alternative for every cause of action which cannot stand on its legs. Id.
Additionally, the Complaint fails to allege the special damages required to support a claim for
prima facie tort. Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142-43 (N.Y. 1985).
CONCLUSION
For the foregoing reasons, Pierce respectfully requests that this Court dismiss the
Complaint with prejudice.
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DATED: New York, New York

February 16, 2017
QUINN EMANUEL URQUHART &
Jeffrey Miller
Todd Anten
51 Madison Avenue, 22nd Floor
New York, NY 10010
Tel.: (212) 849-7000
Fax: (212) 849-7100
Attorneys for Defendant Jasmine Pierce
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Defendant&#39;s Memorandum of Law in Support

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Defendant&#39;s Memorandum of Law in Support

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FILED: NASSAU COUNTY CLERK 03/16/2017 11:47 AM INDEX NO.

SUPREME COURT OF THE STATE OF NEW YORK

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT JASMINE PIERCES

QUINN EMANUEL URQUHART &

Attorneys for Jasmine Pierce

PRELIMINARY STATEMENT .....................................................................................................1

I. MOST OF THE COMPLAINTS ALLEGATIONS FAIL TO SATISFY THE

II. THE COURT MAY CONSIDER EXTRINSIC EVIDENCE IN ASSESSING

III. THE COMPLAINTS DEFAMATION CLAIM SHOULD BE DISMISSED.................10

1. Glaser Must Establish Actual Malice Because He Is a Public

2. Glaser Must Establish Actual Malice Because Pierces

3. Glaser Fails to Allege Sufficient Facts That Pierce Acted With

2. Glaser Fails to Allege Sufficient Facts That Pierce Acted With

C. The Statements Are Non-Actionable Expressions of Opinion..............................21

D. Glaser Is Libel-Proof .............................................................................................23

IV. THE COMPLAINTS CLAIMS OF INTENTIONAL INFLICTION OF

Basis Yield Alpha Fund (Master) v. Goldman Sachs Grp., Inc.,

Berger v. Temple Beth-El of Great Neck,

Biondi v. Beekman Hill House Apartment Corp.,

Butler v. Delaware Otsego Corp.,

Celle v. Filipino Reporter Enterprises Inc.,

Dillon v. City of N.Y.,

Foley v. Mobil Chem. Co.,

Frazier v. Socy of Stage Directors & Choreographers, Inc.,

Freihofer v. Hearst Corp.,

Gaeta v. N.Y. News, Inc.,

Gertz v. Robert Welch, Inc.,

Gross v. N.Y. Times Co.,

Guccione v. Hustler Magazine, Inc.,

James v. Gannett Co.,

Jewell v. NYP Holdings, Inc.,

Jimenez v. United Fedn of Teachers,

Kornsweig v. Urban Athletics Madison LLC,

Lancaster v. Town of E. Hampton,

Liberty Affordable Hous., Inc. v. Maple Court Apartments,

Lore v. N.Y. Racing Assn. Inc.,

Maloney v. Anton Cmty. Newspapers, Inc.,

Minovici v. Belkin BV,

Pollnow v. Poughkeepsie Newspapers, Inc.,

Red Cap Valet, Ltd. v. Hotel Nikko (USA), Inc.,

Rovello v. Orofino Realty Co.,

Trachtman v. Empire Blue Cross & Blue Shield,

C.P.L.R. 3211(a)(7) ........................................................................................................1, 5, 9, 10

Defendant Jasmine Pierce (Pierce) respectfully submits this memorandum of law in

shunned as a performer, in what he characterized as a witch-hunt. In commenting on the

the right call.

reckless disregard for the truth.

of the cause of action for defamation and, separately, as insufficiently pled.

Pierces motion to dismiss with prejudice should be granted in its entirety.

Glaser is a comedian who [f]or over a decade performed at comedy venues

Queens, NY, posted the following statement on Facebook:

Hats off to UCB for making the right call.

refer to any particular incident.

The Complaint should be dismissed pursuant to C.P.L.R. 3211(a)(7) because the

to be true and accorded every favorable inference, conclusory allegationsclaims consisting of

bare legal conclusions with no factual specificityare insufficient to survive a motion to

elements of defamation in several ways:

irresponsibility, as her statements related to a matter of legitimate public concern.

Fourth, Pierces statements are non-actionable expressions of opinion, which, no matter

are likely to be perceived as rhetorical hyperbole or epithet, rather than defamatory.

Glasers already devastated reputation.

allege requisite elements of those torts.

I. MOST OF THE COMPLAINTS ALLEGATIONS FAIL TO SATISFY THE

claims arising from these alleged misstatements is required).

Defendant's Memorandum of Law in Support

Defendant's Memorandum of Law in Support