[*1]
Muhlhahn v Goldman
2011 NY Slip Op 51683(U) [32 Misc 3d 1242(A)]
Decided on August 18, 2011
Supreme Court, New York County
Kenney, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through September 28, 2011; it will not be published in the printed Official Reports.


Decided on August 18, 2011
Supreme Court, New York County


Cara Muhlhahn, Plaintiff,

against

Andrew Goldman and NEW YORK MEDIA LLC, Defendants.




102846/10



Miller Korzenik Sommers LLP

Attorneys for Defendants Andrew Goldman and New York Media, LLC

488 Madison Avenue, 11th Floor

New York, New York 10022-5702

Catafago Law Firm, P.C.

Attorneys for Plaintiff Cara Muhlhahn

The Empire State Building

350 Fifth Avenue, Suite 4810

New York, New York 10018

Joan M. Kenney, J.



Recitation, as required by CPLR 2219(a), of the papers considered in review of this motion to dismiss the complaint:

PapersNumbered

Notice of Motion, Affidavit in Support, Exhibits & Memorandum in Support40551

Memorandum in Opposition10

Reply Affidavit & Memorandum in Further Support40858

In this pre-answer motion to dismiss an action for defamation, defendants Andrew Goldman (Goldman) and New York Media, LLC (NYM) seek an Order dismissing the complaint, pursuant to CPLR 3211 (a) (1) and (a) (7). Alternatively, movants seek an Order converting this application, pursuant to CPLR 3211 (c), to a motion seeking dispostive relief.

FACTUAL & PROCEDURAL BACKGROUND


Goldman is contributing editor of NYM and the author of an article entitled, Extreme Birth, published in NYM in or about March of 2009 (the Article) (see Ex. "A" annexed to Complaint, Ex. "A"). The Article features plaintiff Cara Muhlhahn (Muhlhahn), who is a certified nurse midwife specializing in home birth labor and delivery.

Prior to the publication of the Article, Muhlhahn was featured in a documentary entitled The Business of Being Born (BOBB). BOBB documents, among others, Muhlhahn and her practice as a home birth midwife, while examining the broader debate surrounding at-home births, hospital births, and the practice of midwifery generally. After BOBB was released, Muhlhahn also authored a memoir entitled, Labor of Love. The Article quotes portions of the memoir and makes reference to BOBB.

Muhlhahn alleges in the summons and complaint that thirteen statements published in the Article (hereinafter referred to as [Challenged Statements No.1-13]) form the basis of her claim for defamation against defendants (see complaint, Ex. "A" attached to notice of motion ¶ 11). Muhlhahn alleges that Challenged Statements # 1-13 are not only "false and defamatory" (see complaint ¶ 11), but are also "libelous per se and disparaged [Muhlhahn] in her trade, business and profession [sic] . . ." (See complaint ¶ 15.) Additionally, Muhlhahn alleges that these statements were made "with actual malice and/or a reckless disregard for the truth" (see complaint ¶ 14).

Defendants published the Article following Goldman's interview of Muhlhahn and others. The print version of the Article includes the subtitle:

"The fearless- some say too fearless- new leader of the home-birth movement." [Challenged Statement #1]

In its online publication, the Article includes the metatag:

"Is Midwife Cara Muhlhahn Too Fearless in Her Home-Birth Advocacy?" [Challenged Statement #2]

The Article identifies Muhlhahn as "the most visible proselytizer of the home-birth movement." According to the Article, BOBB "presents a horrifically plausible portrayal of a hospital childbirth system gone insane, of labor turned into a medical pathology . . ." and points to the "shocking rise in C-sections" which "has done nothing to improve infant or maternal-mortality statistics." The Article then notes:

"More than anything else, BOBB de-radicalized homebirth, conflating it with garden-variety natural childbirth and allowing Muhlhahn, largely unchallenged, to argue for its safety." [Challenged Statement #3]

The Article describes Muhlhahn as the "eminently reasonable alternative" to hospital births. However, the Article also states that Muhlhahn does not practice like a "typical" midwife and that [*2]Muhlhahn's "[p]ersonal experience has led her to dismiss many of what she calls the myths' that are taught in school as the bedrock of safe practice."

The Article also states that:

"[Muhlhahn] regularly does vaginal births after C-Section at home and has even home delivered the riskiest births, breaches, and twins." [Challenged Statement #4]

In the Article, Goldman describes his personal experience in recalling how he and his newly pregnant wife considered where to give birth to their son. After his wife was diagnosed with lupus, which Goldman asserts is considered "high risk" in obstetrical terms, Goldman recalls navigating the "enormous and impersonal hospital practice" where, "without the chart the doctor wouldn't have known whether we were there to have a baby or take her lunch order." In contrast, Goldman describes an initial consultation between Muhlhahn, Goldman, and his wife, in Muhlhahn's home office. Goldman was "touched by her interest and impressed by the amount of time she was willing to devote to our case," and states his belief that "Muhlhahn was different."

"[B]ut I was concerned by [Muhlhahn's] lack of experience with lupus and mystified by her reaction when Robin brought up the idea of delivering with a highly recommended midwife who delivers the babies of high-risk patients at St. Vincent's. Muhlhahn rolled her eyes, 'You might as well go with an obstetrician,' she scoffed." [Challenged Statement #5]

After a brief description of Muhlhahn's philosophy of home birth versus the experience of using a hospital, the Article then describes the experience of Ms. Sandra Garcia (Garcia) and her husband, Mr. Jeff Wise (Wise), under Muhlhahn's care:

"But labor is an unpredictable thing, and sometimes the experience is more nightmarish than poetic. Muhlhahn's patient Sandra Garcia was one week overdue when her water finally broke on a Sunday night in early November. She labored that night and through the next day assisted by her husband, Jeff Wise, and her doula, a former NYU postpartum nurse who was now working for Muhlhahn. (Muhlhahn, busy with another labor, appeared only sporadically.)" [Challenged Statement #6].

The Article describes Garcia's 72-hour labor. After the birthing doula attempted prematurely to deliver Garcia's baby and possibly increased Garcia's risk of infection:

"The doula had somehow misjudged her progression. Still, Muhlhahn wasn't concerned." [Challenged Statement #7]

After nearly 72 hours of labor, the Article describes the situation as it was recounted by Wise,: "The doula had gone home to rest. It was getting dark. They had no instrument to check the baby's heart rate. His wife's face was pallid, her knees and elbows raw from supporting her weight during the contractions. The apartment reeked of vomit and urine from her catheter."

The Article also quotes Wise as stating:

" How long is too long for a woman to be in labor?' Wise demanded to know when Muhlhahn finally returned to the apartment that night. Never,' Muhlhahn replied flatly." [Challenged Statement #8]

After reiterating Muhlhahn's philosophy which is to "[t]rust the wisdom of the body to send the baby out when it's ready," the Article describes Muhlhahn's eventual acquiescence to send Garcia to St. Vincent's Hospital (St. Vincent's). The Article quotes Garcia as saying, "It was a feeling of, [*3] Oh my God. Here are people in their white lab coats who know what they're doing, and there's equipment and medicine here.'" Eventually, Garcia's baby was delivered by C-section.

The Article then describes the nature of Muhlhahn's relationship with St. Vincent's hospital. In contrast to Muhlhahn's claim that St. Vincent's is her "backup hospital," the Article quotes:

" St. Vincents is [Muhlhahn's] dump,' says one former obstetrics resident who's treated Muhlhahn's transfers. She could say any hospital is her backup, because no hospital is ever going to deny a woman care. She'd bring her patients in, holding their hands, find out we were going to have to do a section, and then she's out the door. To me, that's a dump.' Other doctors on the floor have referred to her transferred patients as train wrecks'" [Challenged Statement #9].

On the issue of hospital privileges to midwives by St. Vincent's, the Article states:

"Muhlhahn claims that she could have privileges at St. Vincent's as well, but she prefers not to be encumbered by the hospital's restrictions. I actually like legitimacy. I don't enjoy being an outlaw,' she says. [Challenged Statement #10]

This statement is immediately followed by:

"But there are ways in which she has made herself an outlaw of sorts- by not carrying malpractice insurance, for instance. I think she's dangerous,' says a member of the obstetrics staff at St. Vincent's. You need to be accountable. Something bad is going to happen with her approach to management. Bad things happen to all of us'" [Challenged Statement #11]

The Article also claims:

"Though it is required by law for every midwife in New York to have one, Muhlhahn also doesn't have a signed practice agreement with a physician, a document that outlines the parameters of a midwife's care and protocols under which a mother would automatically risk out' of home birth" [Challenged Statement #12].

The Article describes the impact of BOBB on Muhlhahn's practice: "Thanks to BOBB, the last 24 months have been the busiest in the dozen years since she first set up a solo practice in the bedroom of her Stuy Town apartment" and concludes:

"Recently, Muhlhahn has more than tripled the number of births she takes on, to ten a month" [Challenged Statement #13]

ARGUMENTS


Defendants argue that this motion to dismiss should be granted and the complaint dismissed because Challenged Statements # 1 - 13 are (1) not defamatory as a matter of law as they are either (I) not capable of defamatory meaning, (ii) non-actionable opinion, and/or (iii) true statements, admitted by Muhlhahn herself, or (iv) a "fair index" of the Article; and 2) barred by the "single instance rule."

Plaintiff contends that the instant motion should be denied because: 1) Muhlhahn has pled a valid claim for libel per se; 2) it is improper for this Court to consider any of defendants' exhibits and the Goldman affidavit as they constitute inadmissible documentary evidence; and 3) converting the instant motion to a motion for summary judgment is procedurally premature since discovery in [*4]this action is yet to begin.

DISCUSSION


The standards of review on a motion to dismiss under either CPLR 3211 (a) (1) or (a) (7) are well-settled. "[T]he pleading is to be afforded a "liberal construction" (CPLR 3026). Where the motion to dismiss is brought under CPLR 3211 (a) (1) based on documentary evidence, "[the motion] may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314, 326 [2002] citing Leon v Martinez, 84 NY2d 83, 88 [1994]). Furthermore, "to be considered documentary, the evidence interposed must be unambiguous and of undisputed authenticity" (Fontanetta v John Doe, 73 AD 78, 84-86 [2010]).

In the procedural context of a motion to dismiss brought under CPLR 3211 (a) (7) for failure to state a claim, "[the court must] accept the facts as alleged in the complaint as true, accord the plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). "[I]f, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action (see O'Loughlin v Patrolmen's Benev. Ass'n of City of New York, Inc., 178 AD2d 117, 117 [1st Dept 1991] quoting Silsdorf v Levine, 59 NY2d 8, 12 [1983]).

At the outset, this Court must address the admissibility of the evidence under either a CPLR 3211 (a) (1) or (a) (7) standard which have been submitted by defendants in support of the instant motion. Namely, defendants attach the affidavit of Goldman (Goldman affidavit) (affidavit of Andrew Goldman, dated August 12, 2010, attached to notice of motion). Defendants also attach as exhibits to the Goldman affidavit thirteen (13) "highlighted" or clipped audio and video interviews between Goldman and inter alia Muhlhahn (interview clips) (see Ex. "E" attached to notice of motion), as well as excerpts from Muhlhahn's book, "Labor of Love" ("Labor of Love" excerpts) (see Ex. "D" attached to notice of motion). According to the Goldman affidavit, both the interview clips and "Labor of Love" excerpts are true and accurate (see Goldman affidavit ¶ 9, ¶ 13, ¶ 7). Defendants also attach the full-length version of BOBB (see Ex. "F" attached to notice of motion) and purported print-outs of Muhlhahn's midwifery practice's website (Muhlhahn's website) (see Ex. "B" attached to notice of motion). In his affidavit, Goldman swears that the attached version of Muhlhahn's website and annexed version of BOBB are also true and accurate (see Goldman Affidavit ¶ 4, ¶ 10).

Defendants' contention that the Goldman affidavit falls under the definition of "documentary evidence" pursuant to 3211 (a) (1), is without merit. Unlike other forms of acceptable "documentary evidence" (see e.g. 150 Broadway NY Assoc., L.P. v Bodner, 14 AD3d 1, 4 [1st Dept 2004] [lease]; Bronxville Knolls, Inc. v Webster Town Ctr. Partnership, 221 AD2d 248, 248 [1st Dept 1995] [integrated mortgage and note]; Casamassima v Casamassima, 30 AD3d 596, 596 [2d Dept 2006] [irrevocable trust]), an affidavit, by its very nature, cannot conclusively establish a defense as a matter of law (see Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [1st Dept 2004]). Moreover, the Goldman affidavit's self-serving assertions that the attached exhibits are "true and accurate" cannot conclusively dispose of Muhlhahn's defamation claims when they are admittedly "highlighted" portions and "excerpts" of recorded statements [*5]allegedly made by Muhlhahn in various forums. As such, they cannot serve as the proper means of authentication pursuant to the exacting standard of CPLR 3211 (a) (1) (see e.g. Springer v Almontaser, 75 AD2d 539, 540 [2010] ["The newspaper articles, printouts of web pages, and transcripts of radio and television interviews" submitted in support of defendants' motion to dismiss plaintiff's defamation claims pursuant to CPLR 3211 (a) (1) were not of "undisputed authenticity," and thus, did not qualify as "documentary evidence"]).

Alternatively, defendants contend that this Court may properly consider the Goldman affidavit and the motion exhibits for consideration of their application to dismiss, pursuant to CPLR 3211 (a) (7). However, it is well-settled that affidavits "are not to be examined for the purpose of determining whether there is evidentiary support for the pleading" (Rovello v Orofino Realty Co., Inc., 40 NY2d 633, 636 [1976]). This argument is similarly unpersuasive as defendants must meet the burden of showing that the self-serving statements of the Goldman affidavit and "highlighted" portions of the exhibits "conclusively establish" that Muhlhahn has no cause of action for defamation (see Sokol v Leader, 74 AD3d 1180, 1181-1182 [2d Dept 2010] [Rovello as applied in defamation case where documentary evidence failed to "conclusively establish" defense as a matter of law]).

It should be noted that most, if not nearly all, of the Challenged Statements are asserted by defendants to be true as allegedly demonstrated by the exhibits they annex to the Goldman affidavit. Defendants contend that plaintiff's failure to dispute the purported truth of certain statements in the exhibits conclusively establish that the statements are true. However, since plaintiff "will not be penalized because [s]he [is not required to make an] evidentiary showing in support of [her] complaint" (Rovello, 40 NY2d at 636 [1976]), defendants have misplaced plaintiff's burden at this stage of the litigation (see Pezhman v City of New York, 29 AD3d 164, 168 [1st Dept 2006] [reversing trial court's decision dismissing former teacher's defamation claims based on plaintiff's failure to contest the truthfulness of alleged defamatory statements in opposition to a motion to dismiss pursuant to CPLR 3211 (a) (1), (7), since plaintiff properly denied the truth of said statements in her complaint]).

Even disregarding the factual allegations asserted in the Goldman affidavit and the motion exhibits, this Court must address whether the Challenged Statements themselves are libelous per se as a matter of law in this pre-answer motion to dismiss.

"Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance" (Golub v Enquirer/Star Group, 89 NY2d 1074, 1076 [1997]). On a motion to dismiss a claim for libel on the ground that the offending statement is not defamatory, the court must determine whether the contested statements are reasonably susceptible of a defamatory connotation" (Ava v NYP Holdings, Inc., 64 AD3d 407, 412 [1st Dept 2009]). "The words must be construed 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 meaning, they are not actionable and cannot be made so by a strained or artificial construction" (Aronson v Wilersma, 65 NY2d 592, 593 [1985]). However, where the language is susceptible of more than one meaning, that is enough to say that a reasonable basis exists for a defamatory construction since "it [*6]becomes the [trier of fact's] function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader" (see Arrigoni v Vellella, 110 AD2d 601, 603 [1st Dept 1985] quoting James v Gannet Co., Inc., 40 NY2d 415, 419 [1976]).

Defamation is the "making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the middle of right thinking persons, and to deprive him of their friendly intercourse in society" (Dillon v City of New York, 261 AD2d 34, 38 [1st Dept 1999]). Generally speaking, defamation can take one of two forms- slander, which is defamatory matter addressed to the ear, or libel, which is defamatory matter addressed to the eye" (Ava v NYP Holdings, Inc., 64 AD3d 407, 412 [1st Dept 2009]). Libel is broken down into two discrete forms — libel per se, where the defamatory statement appears on the face of the communication, and libel per quod, where no defamatory statement is present on its face but a defamatory import arises through reference to facts extrinsic to the communication (id., 64 AD3d at 412). A statement is defamatory on its face when it "tends to expose the person to hatred, contempt or aversion, or induce an evil or unsavory opinion of him in the minds of a substantial number of the community" (Geraci v Probst, 15 NY3d 336, 345 [2010]), or when it suggests improper performance of her duties or unprofessional conduct (Chiavarelli v Williams, 256 AD2d 111, 113 [1st Dept 1998] citing Golub v Enquirer/Star Group, 89 NY2d 1074, 1076 [1997]).

Where the challenged statement is alleged to be defamatory because it reflects negatively on a person's profession or business, it is not enough for the challenged statements to be "a general reflection upon plaintiff's character or qualities" (see Golub v Enquirer/Star Group, 89 NY2d 1074, 1076 [1997]). Rather, "the statement must be made with reference to a matter of significance and importance for that purpose" (Liberman v Gelstein, 80 NY2d 429, 436 [1992]). Moreover, "the mere expression of unhappiness with another's professional work is not defamatory" or where the alleged defamatory statement is "of a kind incompatible with the proper conduct of plaintiff's business" (Aronson v Wilersma, 65 NY2d 592, 593 [1985]).

Since falsity is a necessary element of a libel claim, and only facts are capable of being proven false, it follows that a libel action cannot be maintained unless it is premised on published assertions of fact (see Guerrero v Carva, 10 AD3d 105, 111 [1st Dept 2004]). On the other hand, a "pure opinion," which is non-actionable, is a statement which is either accompanied by a recitation of the facts on which it is based or which does not imply that it is based on undisclosed facts (Gross v New York Times, 82 NY2d 146, 153 [1993]).

This Court has to determine whether the challenged statements are non-actionable opinion or assertions of fact (Silverman v Clark, 35 AD3d 1, 14 [1st Dept 2006]). In distinguishing between the two, the Court of Appeals has set forth the specific factors to be considered: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) 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 (see Brian v Richardson, 87 NY2d 46, 49 [1995]).

The Court of Appeals cautions, that sifting through a communication for the purpose of [*7]isolating and identifying assertions of fact should not be the central inquiry (Brian, 87 NY2d at 51). Instead, the Court should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about the libel plaintiff" (Guerro v Carva, 10 AD3d 105, 112 [1st Dept 2004]).

Finally, the Court is guided by the principle that even in cases where a statement constitutes opinion, such opinions will lose their protection and become actionable where the "statement of opinion" implies that it is based upon facts which justify the opinion but are unknown to the readers (see Steinhilber v Alphonse, 68 NY2d 283, 289 [1986]). These "mixed opinions," are actionable not because of the falsity of the opinion itself, but rather because of the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking (see id emphasis added). Conversely, mere opinion that is accompanied by the recitation of facts on which it is based, are ordinarily not actionable because "a proffered hypothesis that is offered after a full recitation of the facts on which it is based, is readily understood by the audience as conjecture" (see Gross v New York Times, 82 NY2d 146, 153 [1993]). In applying the foregoing standard to each of the Challenged Statements, this Court finds Challenged Statement # 1[FN1] and # 2[FN2] constitute non-actionable opinions as a matter of law. Namely, the phrase "Fearless" or "too fearless" lacks precise meaning and cannot be shown to be true or false.

Similarly, nothing in Statement #3,[FN3] is reasonably susceptible to have a defamatory meaning within the context of the Article's discussion of the controversy regarding home birth generally, the suggestion that Muhlhahn is unchallenged in her position for home-birth safety does not subject her to the kind of "evil opinion" by a reasonable reader (Geraci, 15 NY3d at 345 [2010]). Further, it does not negatively portray her business or profession. Even assuming arguendo, that said Statement #3 is reasonably susceptible to have a defamatory connotation, Statement#3 taken in its entirety, is non-verifiable opinion. As courts "will not strain to find defamation where it does not exist" (see Dillon, 261 AD2d at 38), this Court concludes that Statement #3 is not actionable.

Challenged Statement #4[FN4] could be perceived to have a reasonably susceptible defamatory meaning. It is a verifiable fact that Muhlhahn has worked with women who have had "risky" histories or pregnancies (i.e., "vaginal births after cesareans," "breeches," and "twins"), and read in connection with the Article's description of Muhlhahn's "midwifery practice" as "atypical," this [*8]Court finds that a reasonable reader could conclude that said statement, if false, reflects negatively on Muhlhahn's profession.

Muhlhahn also sufficiently states a cause of action sounding in defamation for Challenged Statement #5.[FN5] Namely, and in the context of a consultation in which Goldman and his pregnant wife consider employing Muhlhahn in her professional capacity, the assertion that Muhlhahn has a "lack of experience with lupus" is reasonably susceptible to be defamatory in meaning (see Guerro v Carva, 10 AD3d 105, 112 [1st Dept 2004]). To the degree that these statements were expressions of Goldman's opinion of Muhlhahn's knowledge of pregnant women with lupus, it is not protected because Goldman's opinions were clearly meant to be understood as based on facts known to Goldman, but unknown to the reader (see e.g. Pontarelli v Shapero, 231 AD2d 407, 411-412 [1st Dept 1996]).

Challenged Statement #6[FN6] is also actionable. The assertion that Muhlhahn appeared "only sporadically," viewed against the backdrop of providing midwifery services to Garcia, who experienced the ordeal 72 hours of labor, can be reasonably susceptible to more than one meaning. Namely, and according Muhlhahn her every favorable inference at this stage of the litigation, an average reader may conclude that the statement implies that Muhlhahn acted in a manner unfit for her profession (see Golub, 89 NY2d at 1076). Similarly,

Challenged Statements #7[FN7] and # 8[FN8] are also sufficient on their face. Stated within the same context as Challenged Statement #6, an average reader may reasonably conclude that Muhlhahn's alleged lack of supervision over the doula in the Garcia case, and alleged lack of concern for her client's condition are sufficient to suggest Mulhahn's performance of her professional duties was in some way improper. These statements relate directly to whether Muhlhan's management of a "nightmarish" labor was appropriate and implies that Gracia's birthing doula was working under Muhlhahn's supervision. Challenged Statements #7 and #8 are reasonably susceptible to a defamatory meaning because they imply that Muhlhan acted unprofessionally and was indifferent to her client's medical needs (see Liberman, 80 NY2d at 436). [*9]

Defendants' argument that Challenged Statements # 6, #7 and #8 are barred under New York's "single instance rule," is unconvincing. Under New York's "single instance rule," a plaintiff cannot allege libel for language that charges a professional with ignorance or mistake on a single occasion, but does not accuse her of general incompetence, ignorance, or lack of skill (Bowes v Magna Concepts, Inc., 166 AD2d 347, 348-349 [1st Dept 1990]). In Bowes, the First Department dismissed a defamation claim brought by the former editor of a publication company for stating that plaintiff had written an earlier article in which "her facts [were] jumbled and [she] failed to investigate those facts [in that case]" (166 AD2d at 348).

The "single instance" rule does not apply, to statements regarding conduct evidencing a lack of professional character so serious that the plaintiff would be unfit for her profession (Daniel Goldreyer, Ltd. v Van de Wetering, 217 AD2d 434, 437 [1st Dept 1995]). In considering the context of Muhlhahn's handling of the Garcia labor and delivery, this Court finds that an average reader could reasonably conclude that Challenged Statements #6, #7 and #8 allege instances of misconduct in the course of Muhlhahn's professional duties. Construed "not with the close precision expected from lawyers and judges but as they would be read and understood by the public to which they are addressed " (see November v Time Inc., 13 NY2d 175, 178-179 [1963]). When combined with the Article's description of Muhlhahn's home birth philosophy, this Court cannot apply the "single instance" rule to Challenged Statements #6-9 (see Armstrong v Simon & Schuster, Inc., 85 NY2d 373, 379 n 5 [1995]).

The statement that "[Muhlhahn would] bring her patients in, holding their hands, find out we are going to have to do a section, and then she is out the door," contains assertions of particular actions based on facts that reflect a lack of concern by Muhlhahn for her clients in the event of a need for medical intervention (Challenged Statement # 9[FN9]) (see Pezhman v City of New York, 29 AD3d 164, 168 [1st Dept 2006]).

Although defendants argue that this portion of Challenged Statement #9 is not libelous because it conveys nothing about Muhlhahn's actual practice as a midwife, this Court finds this reading as too limited. In the immediate context of Muhlhahn's handling of the Garcia case and Garcia's statement regarding hospital staff, "who know what they're doing" the average reader may reasonably conclude that said portion portrays Muhlhahn's healthcare practice in a negative light (see e.g. Guerrero, 10 AD3d at 112).

Upon any reasonable view of the stated facts, Muhlhahn has also adequately pled a cause [*10]action sounding in defamation in reference to Challenged Statement #10[FN10] (see O'Loughlin v Patrolmen's Benev. Ass'n of City of New York, Inc., 178 AD2d 117, 117 [1st Dept 1991]). Because Muhlhahn admitted to not having hospital privileges at St. Vincent's (whether on her own volition or otherwise), this is a verifiable assertion and said Statement is followed immediately by "it is required by law for every midwife in New York to have one," (meaning having hospital privileges). When read within the context of a discussion of Muhlhahn's midwifery practice(s), said Statement can be reasonably susceptible to a disparaging interpretation of Muhlhahn's profession and business (see Equinox Mgt. Group, Inc. v Guardian Life Ins. Co. of America, 28 AD3d 246, 246 [1st Dept 2006]).

Similarly, Muhlhahn has sufficiently pled a claim for libel per se with reference to Challenged Statement #11.[FN11] This Court is unpersuaded by defendants' contention that, viewed within the allegedly broader debate surrounding home birthing versus giving birth in a hospital, the phrase "outlaw of sorts" constitutes non-actionable opinion. Rather, the term "outlaw" coupled with the alleged fact that Muhlhahn is not covered by malpractice insurance policy, may be reasonably construed to reflect negatively upon plaintiff's professional conduct (see Golub, 89 NY2d 1076).

Challenged Statement #12[FN12] also sufficiently pleads a cause of action. As an assertion of fact that Muhlhahn does not have a practice agreement with a licensed physician, which is alleged to be required by law, could lead the average reader to conclude that plaintiff flouts the law. Moreover, these inferences implicate Muhlhahn's business or profession (see also Equinox,28 AD3d at 246; see e.g. Sprewell v NYP Holdings, Inc., 1 Misc 3d 847 [Sup Ct, NY County 2003]).

This Court finds that Challenged Statement #13[FN13] is not actionable. Although the assertion that Muhlhahn accepts a certain number of clients a month is easily verified, such a fact, when taken with in its usual meaning is not defamatory. Since statements cannot be [*11]libelous per se if the reference to an extrinsic fact is necessary to give Challenged Statement #13 a defamatory meaning. Consequently, Muhlhahn's claim against Challenged Statement #13 is hereby dismissed (Aronson v Wiersma, 65 NY2d at 594).

Finally, defendants argue that the Challenged Statements classify the Article as a "fair index," but have failed to provide any legal support for their argument, therefore it shall not be discussed herein.

Defendants also seek alternative relief, pursuant to CPLR 3211(c). . Defendants wish to convert the instant motion, to an application pursuant to CPLR 3212, (summary judgment). This branch of the motion is denied. Due to (1) the change in the procedural posture of the case as a result of this Court's partial denial of the original motion; (2) because it is well within defendants' discretion to make an additional dispositive motion, after discovery has been completed, and the note of issue filed, so they do not suffer any prejudice at this juncture; and (3) this Court's denial of the instant application is discretionary (Giannelli v St. Vincent's Hosp. and Med. Ctr. of New York, 160 AD2d 227, 232 [1st Dept 1990]) .

Accordingly, it is:

ORDERED that defendants Andrew Goldman and New York Media LLC's motion to dismiss is granted, in part; and it is further

ORDERED that the following statements pled in the complaint as defamatory are dismissed:

"The fearless-some say too fearless-new leader of the home-birth movement."

"Is Midwife Cara Muhlhahn Too Fearless in Her Home-Birth Advocacy?"

"More than anything else, BOBB de-radicalized homebirth, conflating it with garden-variety natural childbirth and allowing Muhlhahn, largely unchallenged, to argue for its safety."

"Recently, Muhlhahn has more than tripled the number of births she takes on, to ten a month."

And it is further

ORDERED that the remaining statements in the complaint alleged as defamatory shall remain; and it is further

ORDERED that defendants are directed to serve an answer to the complaint within 20 days after service of a copy of this order with notice of entry; and it is further

ORDERED that the parties are to appear for a preliminary conference in Room 304 at 71 Thomas Street, New York, New York on September 15, 2011, 9:30 A.M.

Dated: August 18, 2011

E N T E R

___________________________________

Hon. Joan M. Kenney

Footnotes


Footnote 1: "Is Midwife Cara Muhlhahn Too Fearless in Her Home-Birth Advocacy"

Footnote 2: "The fearless, some say too fearless, new leader of the home-birth movement."

Footnote 3: "More than anything else, BOBB de-radicalized home birth, conflating it with garden-variety natural childbirth and allowing Muhlhahn, largely unchallenged, to argue for its safety."

Footnote 4: "She regularly does vaginal births after C-section at home and has even home-delivered the riskiest births, breeches, and twins."

Footnote 5: "But I was concerned by her lack of experience with lupus and mystified by her reaction when Robin brought up the idea delivering with a highly recommended midwife who delivers the babies of high-risk patients at St Vincent's. Muhlhahn rolled her eyes, you might as well go with an obstetrician,' she scoffed."

Footnote 6: "But labor is an unpredictable thing, and sometimes the experience is more nightmarish than poetic. Muhlhahn's patient Sandra Garcia was one week overdue when her water finally broke on a Sunday night in early November. She labored that night and through the next day assisted by her husband, Jeff Wise, and her doula, a former NYU postpartum nurse who was now working for Muhlhahn. (Muhlhahn, busy with another labor, appeared only sporadically.)"

Footnote 7: "The doula had somehow misjudged her progression. Still, Muhlhahn wasn't concerned."

Footnote 8: "How long is too long for a woman to be in labor?' Wise demanded to know when Muhlhahn finally returned to the apartment that night, Never,' Muhlhahn replied flatly."

Footnote 9:" St. Vincent's is her dump,' says one former obstetrics resident who's treated Muhlhahn's transfers. She could say any hospital is her backup, because no hospital is ever going to deny a woman care. She'd bring her patients in, holding their hands, find out we were going to have to do a section, and then she's out the door. To me, that's a dump.' Other doctors on the floor have referred to her transferred patients as "train wrecks" (see Complaint attached as Ex. "A" attached to notice of motion).

Footnote 10: "Muhlhahn claims that she could have privileges at St. Vincent's as well, but she prefers not to be encumbered by the hospital's restrictions. I actually like legitimacy. I don't enjoy being an outlaw,' she says."

Footnote 11: "But there are ways in which she has made herself an outlaw of sorts- by not carrying malpractice insurance, for instance. I think she's dangerous,' says a member of the obstetrics staff at St. Vincent's. You need to be accountable. Something bad is going to happen with her approach to management. Bad things happen to all of us.'"

Footnote 12: "Though it is required by law for every midwife in New York to have one, Muhlhahnalso doesn't have a signed practice agreement with a physician, a document that outlines the parameters of a midwife's care and the protocols under which a mother would automatically risk out'of home birth."

Footnote 13: "Recently, Muhlhahn has more than tripled the number of births she takes on, to ten a month."