NY Judge's Defamation Suit Against Lawyer Nixed

NY Judge's Defamation Suit Against NY Lawyer Nixed
The New York Law Journal by Vesselin Mitev - July 17, 2009

An unusual $10 million defamation suit against an attorney brought by a Brooklyn judge for allegedly telling a New York Daily News columnist the judge improperly presided over a case involving a lawyer who represented the judge before the judicial conduct commission has been dismissed. However, while Manhattan Supreme Court Justice Martin Shulman dismissed all claims against attorney Ravi Batra, he allowed a defamation claim to proceed against the Daily News and columnist Errol Louis, finding that "the average reader might have concluded from one of Mr. Louis' columns that Brooklyn Supreme Court Justice Larry D. Martin is a corrupt jurist" under investigation.

On the claims against Mr. Batra, Justice Shulman found in Martin v. Daily News, 100053/08, that Justice Martin failed to show the lawyer had control over the publication of the allegedly defamatory article. Justice Martin sued the paper and Mr. Batra earlier this year, claiming he was defamed by two articles and several blog postings regarding judicial corruption in Brooklyn. On Jan. 28, 2007, Mr. Louis wrote an op-ed piece in which he described the judicial process in Brooklyn as "a snakepit filled with bribery and back-room political deals" that was on the verge of being "blown wide open." Mr. Louis cited an action brought by Mr. Batra against attorney Jerome M. Karp, Riskin v. Karp, 34131/06, in which Mr. Batra alleged that Mr. Karp, who had represented Justice Martin before the Commission on Judicial Conduct, simultaneously represented a party in the multimillion dollar real estate dispute before Justice Martin, Singer v. Riskin, 015812/01. Mr. Batra claimed Mr. Karp failed to disclose to the parties his affiliation with the judge. Mr. Louis' article concluded with, "Batra claims that Karp tried to rig the case by simultaneously representing Singer and the judge hearing his case." Mr. Karp was counsel to Justice Martin before the conduct commission, which in a determination issued in December 2001 and modified in June 2002 admonished the judge for sending ex parte letters seeking favorable consideration on behalf of defendants awaiting sentencing in other courts. On Feb. 8, 2007, in a follow-up Daily News piece, Mr. Louis described Justice Martin's admonition and wrote that the judge was "in the hot seat again" for allegedly overseeing a case involving his "personal lawyer" and mistakenly cited another case related to the real estate litigation, Singer v. Riskin, 015812/01, over which Justice Martin never presided. After readers pointed out Mr. Louis' error on the paper's blog, "The Daily Politics," he clarified the case caption but stuck by his claim that the judge should have recused himself. "It's clear as a bell and you know it," Mr. Louis wrote. Mr. Batra then vouched for Mr. Louis in a blog post in which he wrote, "[T]he facts are the facts, and Errol Louis has it right." In another blog post, Mr. Batra wrote that "[i]t is a matter of now-documented fact that Justice Larry D. Martin was then represented by Jerome Karp before NYS Commission on Judicial Conduct, albeit, then an undisclosed and unknown fact." Justice Martin contended he was defamed in the articles because "they accuse, or were intended to be understood by reasonable readers as accusing plaintiff of corruption and criminal conduct which tend to injure him in his profession." Further, Justice Martin claimed Mr. Batra was the source of the articles and defamed him again through the blog posts, claiming the "unequivocal reaffirmation ('the facts are the facts')" by Mr. Batra of the second article was defamatory.

Claims Narrowed

In his analysis, Justice Shulman ruled that the January op-ed piece was not defamatory when looked at as a whole, noting it alluded to "judicial corruption in Brooklyn" and focused on "the secretive, all-powerful screening panel" used to select Supreme Court candidates. The piece only referenced Justice Martin once, Justice Shulman held, and primarily discussed Messrs. Karp and Batra. "Construed as a whole, this court cannot conclude, as Justice Martin suggests, that the First Article conveys to the average reader that plaintiff was an accomplice in rigging a case…or engaged in criminal acts which should be investigated by the proper authorities," Justice Shulman wrote. But the judge reached the opposite conclusion regarding the second article, which misidentified the case over which Justice Martin presided. While the citation mistake itself was not enough to be defamatory, Justice Shulman held, writing that "corruption can be hidden or subtle" and pointing the reader to "the case of Justice Larry Martin," could cause an average reader to conclude that "plaintiff is a corrupt jurist" under investigation. As the article could be understood to accuse Justice Martin of criminal activity, the court "could not conclude as a matter of law" that it was protected opinion and thus allowed the claim against the Daily News and Mr. Louis to proceed, but dismissed it in regards to Mr. Batra. "[E]ven assuming Batra was the source of any potentially defamatory allegations, there is no allegation or other indication that he had any control over the publication of the Second Article," Justice Shulman wrote.

Blog Postings

Neither Mr. Louis nor Mr. Batra posted anything defamatory on the Daily News Web site, Justice Shulman found in dismissing Justice Martin's causes of action regarding the blog posts.
The judge characterized Mr. Louis' "clear as a bell" statement as "mere hyperbole" and thus not actionable, and Mr. Batra's reaffirmation of the second article as only vouching for "the accuracy of the general proposition that Justice Martin did indeed preside" over the action. In a statement, Mr. Batra praised the decision as making "clear that truth is welcome in a court, and that for a lawyer to speak the truth is not defamatory." Justice Martin's attorney, Stuart A. Blander of Heller, Horowitz & Feit, said he had not decided his next move. Anne Carroll, deputy general counsel for the Daily News, said she was pleased with the dismissal of the majority of the claims and was evaluating her options. A preliminary conference date is set for Aug. 11.


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