A New York Post article headlined "Hostile Mega-Lawyer Accused of Abusing Pregnant Wife," was a fair report of a bitter custody trial, the 2nd Circuit ruled recently. Zappin v. NYP Holdings Inc., 769 F. App'x 5 (2d Cir. 2019).

The article was part of the press coverage of a divorce case between two law firm associates in New York that had attracted public attention. The New York Post covered the first day of the custody trial, which was held in open court, and reported that plaintiff "beat his pregnant wife ... according to testimony by a court-appointed therapist." An accompanying photograph showed plaintiff on the courthouse steps next to a New York City police officer.

Plaintiff sued the Post, alleging the article and photograph falsely portrayed him as an abuser. He also alleged the article defamed him by reporting that he was fired by Quinn Emanuel Urquhart & Sullivan, LLP.

Last year, Judge Katherine Failla granted the Post's motion to dismiss, finding the article was a fair report of the custody trial. The article was substantially true notwithstanding the mistake in reporting that plaintiff was fired by Quinn Emmanuel, rather than the Mintz Levin law firm. In addition, the photo depicting plaintiff next to a police officer was not defamatory as a matter of law since it could not be reasonably interpreted as suggesting plaintiff had been arrested. Zappin v. NYP Holdings, Inc., 2018 WL 1474414 (S.D.N.Y. Feb. 2, 2018). Judge Failla also held that collateral estoppel separately barred the complaint since the abuse allegations had been proven in the divorce court proceedings.

2nd Circuit Decision

On appeal, plaintiff argued that New York State's fair report law did not apply to the custody proceeding, relying on a 1970 New York Court of Appeals decision that carved out matrimonial proceedings from the privilege. See Shiles v. News Syndicate Co., 27 N.Y. 2d 9 (1970). Shiles, however, involved a news report about sealed matrimonial records, and Judge Failla, conducting a more nuanced inspection of the 1970 decision, ruled the case did not bar application of the fair report privilege to the open court public proceedings at issue here.

The 2nd Circuit affirmed that New York's fair report privilege applies to reports of matrimonial proceedings conducted in open court. The court held the Post article was also substantially accurate, notwithstanding the mix-up regarding which firm had fired plaintiff. Quibbles over other alleged misconduct, such as stealing cable service, were of little consequence given the main allegation that plaintiff beat his wife while she was pregnant.

The court also rejected plaintiff's argument that the Post article was inaccurate because it reported on only one day of proceedings in a multiday trial. Plaintiff offered no evidence that he was vindicated in the other days of the trial. Moreover, the 2nd Circuit agreed that collateral estoppel barred him from relitigating the divorce case.

Robert Balin is a partner and Eric Feder an associate in Davis Right Tremaine's New York office. They represented the New York Post in this matter.