Zappin v. NYP Holdings Inc.

18-647
Zappin v. NYP Holdings Inc.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 24th day of April, two thousand nineteen.

PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JOHN M. WALKER, JR.,
JOSÉ A. CABRANES,
Circuit Judges.
____________________________________________

Anthony Zappin,

Plaintiff-Appellant,

v. 18-647

NYP Holdings Inc., DBA New York Post,
Julia Marsh,

Defendants-Appellees,

Matthew F. Cooper, a Justice of the Supreme Court
of the State of New York, in his individual and personal
capacity,
Defendant.
___________________________________________

FOR PLAINTIFF-APPELLANT: Anthony Zappin, pro se, Huntington, WV.

FOR DEFENDANTS-APPELLEES: Robert D. Balin, Eric J. Feder, Davis Wright
Tremaine, LLP, New York, NY.
 Appeal from a judgment of the United States District Court for the Southern District of New

York (Failla, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Appellant Anthony Zappin, pro se, sued the New York Post (the “Post”) and its reporter,

Julia Marsh, for defamation. He alleged that the Post published an article about a day of court

proceedings in his divorce and child custody case that falsely accused him of abusing his ex-wife.

The district court dismissed the complaint, reasoning that the Post article was privileged as it was a

fair and true report of Zappin’s custody hearing and that collateral estoppel barred Zappin from

challenging the truth of the abuse allegations. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),

construing the complaint liberally, accepting all factual allegations in the complaint as true, and

drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282

F.3d 147, 152 (2d Cir. 2002). The complaint must plead “enough facts to state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). Although a court must accept as true all the factual allegations in

the complaint, that requirement is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

I. Application of New York Civil Rights Law Section 7 to the Post Article

The district court properly concluded that New York Civil Rights Law § 74 applies to

reports of matrimonial proceedings. In New York, “[a] civil action cannot be maintained against

any person, firm or corporation, for the publication of a fair and true report of any judicial

proceeding, . . . or for any heading of the report which is a fair and true headnote of the statement

2
published.” N.Y. Civ. Rights Law § 74. Zappin argues that this privilege does not apply to

reports of matrimonial proceedings.

In Shiles v. News Syndicate Co., 27 N.Y.2d 9 (1970), the New York Court of Appeals

considered whether § 74 applies to news articles concerning the plaintiff’s divorce proceedings.

The relevant articles in that case were based on papers filed in the proceeding, that were sealed

court records under New York Domestic Relations Law § 235(1).1 27 N.Y.2d at 13. The Court of

Appeals concluded that the § 74 privilege did not apply to reports based on “records of proceedings

in an action for divorce or separation.” Id. at 18–19 (emphasis added). While the Shiles court did

not directly address whether this ruling also applied to reports based on a reporter’s observation of

open court proceedings in matrimonial cases, the decision suggests that it does not. The Court of

Appeals noted that “situations where the public have the right of access to proceedings in open

court” are distinguishable from situations where state law prohibits the public from inspecting

certain court records. Id. at 18 (internal quotation marks omitted). And although the New York

Domestic Relations Law seals records of matrimonial proceedings, it does not permit the

matrimonial court to restrict the public’s access to the courtroom proceedings unless the “public

interest requires that the examination of witnesses . . . not be public.” N.Y. Dom. Rel. Law §

235(2). Only then may a matrimonial court exclude the public from the courtroom. Id.

Zappin did not allege that the Post article was based on sealed court records. Rather, he

alleged that Marsh was present in the courtroom on November 12, 2015, implying that the

proceedings were open to the public and members of the press. In fact, the matrimonial judge

noted that the public was present during the testimony of a court-appointed forensic psychiatrist,

1
New York Domestic Relations Law § 235(1) seals copies of “the pleadings, affidavits,
findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or
memorandum thereof, or testimony” and prohibits anyone but the parties to examine them, except
by court order.

3
Dr. Alan Ravitz, including Marsh and another journalist. Given that the reporters were permitted

to attend the court hearing and the matrimonial judge did not ban the public from the courtroom,

Shiles does not bar the defendants from asserting a privilege under § 74.

II. “Fair and True” Report

The district court properly concluded that the Post article was a “fair and true” report of the

November 12, 2015 custody trial. “For a report to be characterized as ‘fair and true’ within the

meaning of the statute, thus immunizing its publisher from a civil suit sounding in libel, it is enough

that the substance of the article be substantially accurate.” Holy Spirit Ass’n for Unification of

World Christianity v. N.Y. Times Co., 49 N.Y.2d 63, 67 (1979). “A report is ‘substantially

accurate’ if, despite minor inaccuracies, it does not produce a different effect on a reader than would

a report containing the precise truth.” Karedes v. Ackerley Grp., Inc., 423 F.3d 107, 119 (2d Cir.

2005) (internal quotation marks omitted) (applying New York law). Some “liberality” is

permissible, Holy Spirit Ass’n, 49 N.Y. at 68, and “minor inaccuracies” do not render an otherwise

substantially true article defamatory, Shulman v. Hunderfund, 12 N.Y.3d 143, 150 (2009) (internal

quotation marks omitted). In addition, statements that are “pure opinion” are protected by the First

Amendment and are not actionable as defamation. Steinhilber v. Alphonse, 68 N.Y.2d 283, 289

(1986).

The Post article was substantially accurate. First, the article’s recitation of the allegations

of Zappin’s estranged wife, Claire Comfort—i.e., that Zappin was abusive, had planned to break

into a neighbor’s house, and had planned to create a fake Ashley Madison account—were attributed

to Dr. Ravitz. During his testimony, Ravitz stated that Comfort had told him that Zappin abused

her. Further, Comfort’s attorney read portions of Ravitz’s report aloud in open court, which

included Comfort’s allegations that Zappin hit her while she was 39 weeks pregnant, was planning

4
to make an Ashley Madison account to send to his former boss’s wife and steal cable from the

neighbor, and the attorney asked Ravitz questions about those allegations. Therefore, the article’s

summary of these allegations attributed to Ravitz was substantially accurate.

Next, Zappin complains about the article’s statement that Ravitz called him “controlling and

coercive.” Record on Appeal (“RoA”) doc. 22-1 at 2 In his testimony, Ravitz stated that

Zappin’s text messages to Comfort were “consistent with a pattern of coercive control” and had

concluded that “there was a pattern of domestic violence of the coercive, controlling type.” RoA

doc. 30-1 at 120, 135. Zappin argues that Ravitz was not qualified to call him controlling or

coercive because he was not an expert in domestic violence. Such an argument is meritless.

Although Ravitz acknowledged that he was not an expert in domestic violence, he did state that he

was an expert in psychiatry and could “look at patterns of allegations.” Id. at 22. The article’s

summary of Ravitz’s “controlling and coercive” comments was accurate.

The article also accurately summarized Ravitz’s statement that the psychological

evaluations “found that Zappin was ‘narcissistic, obsessive-compulsive and histrionic.’” RoA

doc. 22-1 at 2. This sentence mirrors Ravitz’s testimony summarizing the psychological tests.

Zappin argues that Ravitz was not qualified to make this assessment because he could not have

performed the psychological tests. But the article correctly stated that Ravitz was testifying about

the results of the exam, which were performed by a qualified psychologist and Ravitz included the

results of the tests in his report and testified about them. The article therefore accurately

summarized Ravitz’s statements about Zappin’s psychological test results.

Zappin argues that the district court erred by failing to consider that the Post article reported

on only one day of court proceedings in a multi-day trial and therefore could not be a substantially

accurate report. But Zappin cites no New York case supporting his argument. And to the extent

5
he means to argue that further reports on the trial would have vindicated him and shown that the

allegations were untrue, he is precluded from arguing that the abuse allegations were untrue as

discussed infra.

Zappin also argues that the article omitted the fact that, contrary to Comfort’s allegations

and the Post’s recounting, it was Comfort who had suggested a plot to break into a neighbor’s home

and steal cable, and that, by not including his objections to Comfort’s allegations, the article

implied that he had “actually engaged in the alleged conduct.” Appellant Br. 21. There is “no

requirement that the publication report the plaintiff's side of the controversy.” Cholowsky v.

Civiletti, 69 A.D.3d 110, 115 (2d Dep’t 2009); see also Glendora v. Gannett Suburban

Newspapers, 201 A.D.2d 620, 620 (2d Dep’t 1994) (“[T]he accuracy of the report was not altered

merely because the article did not contain the plaintiff's ‘side of the Judge’s decision’ . . . [or the

fact] that the plaintiff appealed . . . .”). But given that Zappin was also accused of beating Comfort

while pregnant, any implication that he also steals cable is of little consequence. See Karedes, 423

F.3d at 119 (reports are “substantially accurate” when they do “not produce a different effect on a

reader than would a report containing the precise truth”). In any event, the article included that

Zappin denied any abuse and his allegation that Comfort was actually violent. Therefore, the

article’s omission of Zappin’s denial of that specific allegation does not render the article an

inaccurate portrayal of the November 12, 2015, proceedings.

Zappin argues that the article’s assertion that he was fired from Quinn Emanuel was false

and therefore made the article inaccurate. But “minor inaccuracies” do not render an otherwise

substantially true article defamatory. Shulman, 12 N.Y.3d at 150 (internal quotation marks

omitted). Although Zappin is correct that the record did not show that he was not “fired” from

Quinn Emanuel, during the hearing, there was mention that Zappin had left that firm and that he had

6
later been fired by a different law firm, Mintz Levin. This small error—confusing from which

firm Zappin had been fired—does not substantially undermine the article’s overall accuracy.

III. Collateral Estoppel

Finally, Zappin challenges the district court’s conclusion that he was collaterally estopped

from challenging the truth of Comfort’s allegations because the matrimonial judge’s decision had

been affirmed on appeal. Under the Full Faith and Credit Act, 28 U.S.C. § 1738, a federal court

must apply New York collateral estoppel law to New York state court judgments. See Hoblock v.

Albany Cty. Bd. of Elections, 422 F.3d 77, 93 (2d Cir. 2005). In New York, “issue preclusion

occurs if (1) the issue in question was actually and necessarily decided in a prior proceeding, and (2)

the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in

the first proceeding.” Vargas v. City of New York, 377 F.3d 200, 205–06 (2d Cir. 2004) (internal

quotation marks omitted). “[C]ollateral estoppel [may] be invoked, either defensively or

offensively[,] by a nonparty to the prior litigation[.]” Buechel v. Bain, 97 N.Y.2d 295, 315–16

(2001).

Zappin’s claim challenging the truth of the abuse allegations is barred by collateral estoppel.

First, the abuse issue was actually litigated in the matrimonial proceeding. The matrimonial court

had to decide whether Zappin had been abusive in order to resolve the custody issues between him

and Comfort; the matrimonial court awarded Comfort sole custody because Zappin had been

abusive. Zappin v. Comfort, 155 A.D.3d 497, 498 (1st Dep’t 2017) (affirming sole custody

decision based on factual finding that Zappin “committed acts of domestic violence” against

Comfort “both during her pregnancy . . . and after the child was born” by “physically and verbally

harm[ing]” her); see Halyalkar v. Bd. of Regents, 72 N.Y.2d 261, 268 (1988) (“For a question to

have been actually litigated . . . , it must have been properly raised by the pleadings or otherwise

7
placed in issue and actually determined in the prior proceeding.”); Kret by Kret v. Brookdale Hosp.

Med. Ctr., 93 A.D.2d 449, 458–59 (2d Dep’t 1983) (holding that an issue was necessarily decided

where a decision on that issue was required to reach a verdict and a contrary decision in subsequent

litigation would contradict that verdict).

Further, Zappin had a full and fair opportunity to litigate. “[A] determination whether a

full and fair hearing was provided requires consideration of the realities of the [prior] litigation.”

Chartier v. Marlin Mgmt., LLC, 202 F.3d 89, 94 (2d Cir. 2000) (quoting New York v. Sokol. 113

F.3d 303, 307 (2d Cir. 1997)) (alternations in original). “Factors to be considered include, inter

alia: 1) the nature of the forum and the importance of the claim in the prior litigation; 2) the

incentive to litigate and the actual extent of litigation in the prior forum; and 3) the foreseeability of

future litigation (because of its impact on the incentive to litigate in the first proceeding).” Id.

Although Zappin represented himself pro se, he did have an attorney with him for portions of the

custody trial. Further, Zappin vigorously litigated the domestic abuse issue.

Zappin argues that he lacked a full and fair opportunity to litigate because the matrimonial

judge was biased against him. But Zappin offers no evidence supporting this argument, and

simply because a judge rejects an argument or rules against a party does not mean they are biased.

See Liteky v. United States, 510 U.S. 540, 555 (1994) (an adverse ruling is not evidence of bias).

The fact that the judge issued a sanctions decision earlier in the case is not evidence of bias because

the sanctions decision discussed only Zappin’s conduct in litigation, not the underlying issues of the

custody case, and mentioned the abuse allegations only in passing. See Zappin v. Comfort, 49

Misc. 3d 1201(A) (N.Y. Sup. Ct. 2015) (imposing sanctions on Zappin). Finally, Zappin argues

that the matrimonial judge disseminated a sanctions decision to the media and threatened Zappin

with a physical confrontation, but does not point to anything in the record supporting these claims.

8
See Buechel, 97 N.Y.2d at 304 (“The party to be precluded from relitigating the issue bears the

burden of demonstrating the absence of a full and fair opportunity to contest the prior

determination.”). Given that Zappin had a full and fair opportunity to litigate the domestic

violence issues, the Appellate Division’s decision affirming the custody award is entitled to

preclusive effect on the issue of whether Zappin was abusive.

We have reviewed the remainder of Zappin’s arguments and find them to be without merit.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court

9