In this defamation action, the plaintiffs have failed to establish a prima facie case and accordingly, the court severs and dismisses the defendants, NYP Holdings Inc., The New York Post and Michael Starr from this action.

Defendants: NYP Holdings, Inc., the New York Post and Michael Starr (hereinafter, collectively, "NYP") have brought this motion under Index No. 102472/05 for summary judgment dismissing the complaint as against them in said action and in the identical action brought under Index No. 103072/05. Since no motion has been brought in that companion action, this Court, in the interest of judicial economy, will treat this motion as one to consolidate these actions and for summary judgment in the consolidated action. As such, defendants' motion is granted in its entirety.

In the underlying actions, plaintiff Shawn Montague, the president and sole shareholder of Breezin HVAC , Inc. (hereinafter "Breezin") is seeking monetary damages for alleged defamation of himself and his business, a heating and air conditioning company located in Staten Island.

The facts are undisputed that on October 25, 2004, WPIX television aired its nightly consumer affairs segment entitled "Help Me Howard" featuring television personality Howard Thompson . The segment involved a dispute between plaintiff and an elderly woman over the repair of the boiler in her home. In the segment, plaintiff and the woman's nephew are seen exchanging allegations and trading denials. Off camera, the parties eventually resolved their [*2]differences, and at the end of the broadcast they are seen shaking hands.

Two days following the broadcast, defendant NYP published a profile of Howard Thompson in its newspaper, the New York Post, detailing his career as a consumer advocate. The article, written by defendant Michael Starr, included a small picture of Mr. Thompson and plaintiff taken at the plaintiff's premises. The caption, which appears under a much larger picture of Mr. Thompson standing alone, reads as follows: "Ch. 11's Howard Thompson has been confronting con artists and unsavory business people for almost a decade." On August 22, 2005, plaintiff commenced a defamation action naming Howard Thompson, NYP Holdings, the New York Post, WPIX TV, WB Television Network, Robert Colletti (the photographer and nephew of the woman in the original TV segment), Michael Starr, and the Tribune Broadcasting News Network as defendants. That action (under Index No. 102472/05) was ultimately dismissed on May 10, 2006 pursuant to CPLR 3211 (a) (7) as against defendants WPIX and Howard Thompson, and the caption was amended to delete the names of the Tribune Broadcasting News Network and the WB Television Network as defendants. The second action commenced subsequently under Index No. 103072/05, pleads the same cause of action against the same defendants in the identical language.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact and its right to judgment as a matter of law.^[FN1] Once a movant meets this initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, in admissible form to establish the existence of a triable issue of fact.^[FN2]

An action for defamation is one wherein a defendant is accused of making a false statement about plaintiff which tends to expose him or her to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.^[FN3] The elements of the cause of action are (1) a false statement, (2) published to a third party without authorization or privilege, (3) fault, judged at a minimum by a negligence standard; and (4) either special harm or defamation per se.^[FN4] Special harm or special damage contemplates the loss of something having economic or pecuniary value to plaintiff,^[FN5] but it is assumed, i.e., need not be pleaded or proven, when the cause of action is for defamation per se.^[FN6]

In evaluating whether a cause of action for defamation has been stated, the words in question must be read in the context of the entire statement or publication as a whole, tested against the understanding of the average reader and, if not reasonably susceptible of a defamatory [*3]meaning, deemed non-actionable.^[FN7] "[C]ourts "will not strain" to find defamation "where none exists."^[FN8] Similarly, loose, figurative or hyperbolic statements, even if found deprecating of plaintiff, will not support the cause of action.^[FN9] As might be expected, truth is an absolute defense to a defamation action, regardless of the harm done.^[FN10] Statements which are substantially true are also not actionable,^[FN11] the relevant test being "whether the [disputed words] as published would have a different effect on the mind of the reader from that which the [literal] truth would have produced."^[FN12]

In support of their motion, the moving defendants initially assert that plaintiff has no viable cause of action because there is no mention of either Shawn Montague or Breezin in the NYP article.

Plaintiffs have failed to show that an average reader would be able to discern from the facts reported that any defamatory statements, which may appear therein were "of and concerning" the plaintiffs.^[FN13] Additionally, it is claimed that the focus of the article is exclusively on the career of "Help Me" Howard Thompson, and does not relate any particular consumer complaint or dispute with plaintiffs.

Finally, the moving defendants assert that the caption under Mr. Thompson's picture declaring that he has been "confronting con artists and unsavory business people for almost a decade" is substantially true. Therefore, it is not actionable even if it can be read as referring to either.^[FN14] In support of this last claim, defendants have annexed (as Exhibits "N" through "W") documents which include a copy of the criminal complaint and records pertaining to the ensuing legal proceedings against plaintiff Shawn Montague in which it was alleged that he had provided a Government Services Administration official with a free boiler in exchange for approximately $40,000 in contracts for work in various federal buildings. While the case against this plaintiff was eventually dismissed on an apparent technicality, plaintiff had already agreed to plead guilty to the charges (see Movants' "Exhibit "U"). Also, the federal official which he purportedly bribed was sentenced a prison term (see Movants' Exhibit "V"). Accordingly, the moving defendants assert that plaintiffs' defamation action must be dismissed as a matter of law.^[FN15] [*4]

In opposition to the motion, plaintiffs have failed to raise any material issues of fact warranting a trial. While two business associates have submitted affidavits indicating that they were able to identify plaintiff Montague in the photograph accompanying the New York Post article, plaintiff s have not offered any proof drawing into question the accuracy of the documents submitted in support of the motion, or challenging the "substantial truth" of the article insofar as it may include the individual plaintiff among the "con artists and unsavory business people" that Mr. Thompson has been "confronting...for almost a decade." In cases such as this, the burden of proving the alleged defamation is on plaintiff, and the inquiry only advances to the question of whether, e.g., defendant's words are defamatory once their falsity has been established.^[FN16] Having failed to raise any factual issue as to the falsity of the caption as it relates to plaintiff, the movants are entitled to dismissal of the complaint in the consolidated action against them.

Accordingly, it is hereby:

ORDERED, that the motion is granted, and it is further

ORDERED that the actions brought under Index Nos. 102472/05 and 103072/05 are consolidated under Index No. 102472/05; and it is further

ORDERED that the caption shall remain the same; and it is further

ORDERED that the caption shall remove the defendants, NYP Holdings, Inc., the New York Post and Michael Starr; and it is further

ORDERED, that the complaint as against defendants NYP Holdings, Inc., the New York Post and Michael Starr is severed and dismissed; and it is further

ORDERED, that the Clerk correct his records to reflect the foregoing consolidation and dismissals, and enter judgment accordingly.

All parties shall appear in DCM Part 3 at 9:30 a.m. on February 27, 2008 for a status conference.

ENTER,

____________________

Joseph J. Maltese

Justice, Supreme Court

DATED: February 13, 2008