Libel Suit by Ex-Candidate Against Rival over Alleged Actions Towards Rival’s Campaign Volunteer Can Go Forward

From Thursday’s N.Y. Appellate Division decision in Irizarry v. Zelaya (Judges Troy Webber, Ellen Gesmer, Lizbeth González, and John Higgitt) (see here for more details on the underlying election):

Plaintiff [Edward Irizarry] opposed defendant Betty Lugo in the June 2021 Democratic primary election for the office of Judge of the Civil Court of the City of New York…. Defendant Ariana Zelaya was a volunteer for the Lugo campaign.

Zelaya alleged that while standing on a public sidewalk in Manhattan, petitioning for Lugo, plaintiff “walked up to [Zelaya], stood very closely to her and aggressively grabbed the petition board from [Zelaya’s] hands with force placing her in imminent fear of harm” and also “aggressively yelled at [Zelaya’s] in a menacing and intimidating manner with the intent to cause intimidation, harm and fear.” Zelaya initiated two actions against plaintiff, both of which were dismissed. Zelaya also filed a complaint with the police, which was dismissed as well.

Plaintiff commenced this action for defamation … based upon allegedly false statements, made in a campaign flyer and in tweets posted by Zelaya, accusing plaintiff of assaulting or harassing Zelaya and of abusing women more generally….

The statements that plaintiff is a “deadbeat misogynist,” who “is not fit to sit” and “lacks ethics and morals,” and that he worked for politicians who were “corrupt” lack a precise meaning and would be understood, especially in the context of a contested election, as nonactionable opinion. However, the remaining statements—that plaintiff “attack[ed]” and “harass[ed]” Zelaya, that a police report was filed about this incident at the 7th precinct in March, and that plaintiff is “an abuser of women” who has “harassed women, verbally abused women, threatened women to benefit himself” and who “worked and campaigned for corrupt politician[s] while a government employee and earning your tax dollars” and “worked for corrupt politicians Hiram Monserrate and Vito Lopez who were convicted for abusing women, sexual harassment and mail fraud”—have clear, readily understood meanings and are capable of being proven true or false.

While some of these remaining statements are undisputedly true, plaintiff has presented sufficient proof at this stage to support the falsity of the statements that plaintiff “attack[ed]” and “harass[ed]” Zelaya, that plaintiff is “an abuser of women” who has “harassed women, verbally abused women, threatened women to benefit himself,” and that plaintiff “worked and campaigned for corrupt politician[s] while a government employee and earning your tax dollars.” This proof includes the allegations of the complaint, statements in plaintiff’s … 2023 affidavits …; Zelaya’s prior, inconsistent police report; and the purported transcript of the audio recording of a conversation between plaintiff and [Lugo’s political consultant]….

Plaintiff has also presented sufficient proof to support the conclusion that the reprinting of the summons with notice in a related litigation falls within the malicious litigation exception to the fair report privilege.

Plaintiff has not alleged, in a nonconclusory fashion, that anyone other than Zelaya was involved in the creation of the subject tweets…. Plaintiff has, however, presented sufficient proof to support the conclusion that Lugo/Betty Lugo for Judge … were involved in the creation and/or dissemination of the subject flyer (and of the underlying police report and civil litigation) and that they acted with actual malice.

Plaintiff was not required to plead special damages because the alleged defamatory statements amount to libel per se insofar as they “tend[ ] to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community.” …

Seth L. Marcus represents plaintiff.