Defamation | Americans with Disabilities | Emotional Support Animal

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Defamation Action Based on 2003 Posting Still Available on the Internet Is Time-Barred

Defamation Action Based on 2003 Posting Still Available on the Internet Is Time-Barred

In Huang v., et al., the plaintiff, Huang, sought in excess of $1.4 billion in damages alleging, among other things, defamation and invasion of privacy violations under New York law, based on the publishing of two articles appearing on in 2003, and in 2016.  The website reports Falun Gong-related news. As described in a 2018 article of The Economist, Falon Gong is a set of meditation exercises and texts that preach the virtues of truth, benevolence and forbearance, which was banned by China in 1999 as an “evil cult.”

The 2003 article was published 14 years before Huang filed his initial complaint on July 21, 2017, and lists Huang’s personal information including his name, the name on the passport, birth date, the passport number, his refugee ID, and his home address, and it provides a photo of Huang.

According to the decision, the article states:

In May 2003, Huang Renxiong came to Thailand from Mainland China and presented himself as a Dafa practitioner in order to deceive local practitioners.  In both Thailand and China, some practitioners who didn’t deeply understand the Fa were deceived.  His behavior has severely disturbed practitioners’ cultivation practice.  We hope those practitioners who were deluded by him will become clear minded as soon as possible, treat the Fa as teacher, eliminate attachments to fame, personal interest and sentimentality, and become righteous practitioners once again.

The second article, appearing in in 2016 did not identify plaintiff by name or photograph, whatsoever.  Rather, the author claimed that based on her reading of the 2003 article, she “realized” that the husband of her good friend “is the special agent from the Chinese Communist Party.”  Huang obviously believed that this article referred to him.

Addressing the defendant’s motion to dismiss the claim based on the 2003 posting, the Court first explained the law of defamation in New York as “the injury to one’s reputation either by written expression, which is libel, or by oral expression, which is slander.  To state a claim for defamation under New York law, a plaintiff must allege ‘(1) a false statement of fact, (2) about the plaintiff, (3) published to a third party without authorization or privilege, (4) through fault amounting to at least negligence, and (5) causing defamation per se or a special harm.’”

The Court further explained that a plaintiff “must identify ‘(1) the allegedly defamatory statements; (2) the person who made the statements; (3) the time when the statements were made; and (4) the third parties to whom the statements were published.’”

A defamatory statement “exposes an individual ‘to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or…induces an evil opinion of one in the minds of right-thinking persons, and…deprives one of…confidence and friendly intercourse in society.’” On a motion to dismiss a defamation claim, the court must decide whether the alleged statements are ‘reasonably susceptible’ to defamatory meaning.”

However, with respect to this 14 year old posting, the Court didn’t have to address these standards because it ruled the action time barred.

“The 2003 posting is time barred because in New York, defamation actions must be commenced within one year from the date the alleged defamatory statement is made. The 2003 article is time barred even if it remains accessible on the internet because under the ‘single publication rule,’ a libel claim accrues on the ‘earliest date’ it ‘became generally available to the public.’”

As to the 2016 article, the Court held that because it “neither names him nor makes him identifiable. Huang does not allege sufficient factual evidence that demonstrates that the 2016 article was published concerning him or that those who knew him would recognize it as concerning him. Because Huang failed to satisfy this burden, his defamation claim regarding the 2016 posting must be dismissed.”

ADA Reasonable Accommodation Suit Dismissed; Height Not Shown to Limit Major Life Activity

ADA Reasonable Accommodation Suit Dismissed; Height Not Shown to Limit Major Life Activity

In Morey v. Windsong Radiology Grp. P.C., Morey, four feet five inches tall, brought a federal action alleging violations of the Americans with Disabilities Act over her former employer’s failure to reasonably accommodate her alleged height disability.  She alleged that four feet five inches is “well outside of the normal range of height for adults” in the United States and in the area of New York where she worked.  She further alleged that her “height is a physiological, musculoskeletal condition which substantially limits one or more of her major life activities.”

It was alleged that in 2014 she began working on fluoroscope exams, using a step-stool affixed to a platform, provided by her employer Windsong Radiology Group PC (WRG).  Her inability to see the machine’s controls only became an issue when she began working on hysterosalpingogram exams.  In response to her 2015 accommodation request, WRG told Morey to leave those exams to others.  Shortly thereafter she claimed she was subjected to abuse and bullying by WRG technicians.  Her April 2015 termination notice accused her of refusing to perform hysterosalpingogram exams.

WRG moved to dismiss the complaint for failure to state a claim.  In addressing the motion the Court recognized that to survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,” but that “labels, conclusions, or ‘a formulaic recitation of the elements of a cause of action will not do.’” It said that “facial plausibility exists when the facts alleged allow for a reasonable inference that the defendant is liable for the misconduct charged,” but that the “plausibility standard” is not “a probability requirement: the pleading must show, not merely allege, that the pleader is entitled to relief.  Well-pleaded allegations in the complaint must nudge the claim ‘across the line from conceivable to plausible.’”

As for stating a claim under the ADA, the Court explained the ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of his employment” and that discrimination in violation of the ADA includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.”  To be a qualified individual under the ADA a plaintiff must be “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”  The Court concluded that to “plead a prima facie claim of discrimination based on a disability, a Plaintiff must plausibly allege the following elements: (1) plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.”

The ADA defines a “disability” as: (a) a physical or mental impairment that substantially limits one or more major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment.  The Court said that in determining whether a plaintiff has a disability that is protected by the ADA, courts “consider: (1) ‘whether the plaintiff suffered from a physical or mental impairment,’ (2) whether the life activity upon which the plaintiff relied constitutes a major life activity under the ADA,’ and (3) whether ‘the plaintiff’s impairment substantially limited the major life activity identified.’”

The Court dismissed the complaint finding that she did not allege facts from which it could be inferred she had a physical or mental impairment substantially limiting a major life activity, or that WRG saw her as having such an impairment.  Even assuming Morey requested a reasonable accommodation, her complaint did not plausibly allege she suffered any adverse action because of that request.

In applying the ADA standards, the Court recognized that the “extent to which Morey alleges an actual disability in her Complaint is as follows: her “height” is “well outside of the normal range for adults”; is of a physiological, musculoskeletal condition which substantially limits one or more of her major life activities”; and that she “suffers from a disability within the meaning of the ADA” which “substantially limits [her] major life activities.  Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” “to state a claim to relief that is plausible on its face.”

The Court concluded that “nowhere in her Complaint does Morey identify which ‘major life activity’ is limited by her alleged disability.  To the extent Morey means to allege that her height limits her ability to work, that allegation also fails as a matter of law.  In determining whether a person is substantially limited in the major life activity of working, a plaintiff must show that she is “substantially limited in her ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.  Morey’s Complaint does not allege that she cannot “perform either a class of jobs or a broad range of jobs in various classes; rather, she alleges only that she could not ‘see or reach the controls or maneuver the equipment safely’ when ‘operating a fluoroscope’ when performing one particular type of exam, at one particular location of her employer — hysterosalpingogram exams, for women with fertility issues, at WRG’s Williamsville location.  “The Court said that this “single allegation” does not support “a plausible inference of a substantial work limitation, as it affects at most one function of one particular job.”

Tenant Failed To Establish His Dog As An Emotional Support Animal

Tenant Failed To Establish His Dog As An Emotional Support Animal

In Westchester Plaza Holdings v. Sherwood, the petitioner-landlord Westchester Plaza Holdings, LLC commenced a holdover summary proceeding seeking to evict the respondent-tenant, Gertrude Sherwood and her occupant son, Sheldon Sherwood on the ground that they had failed to cure their violation of the no-pet clause in the parties’ lease.  Specifically, Westchester Plaza claimed that the tenants had violated their lease by harboring a dog without landlord’s permission, and sought a final judgment of possession of the subject apartment, and a money judgment in the amount of $3,467.00 for use and occupancy through August 2019.  Gertrude did not appear in the proceeding but Sheldon did and argued that dog complained of is an emotional support animal entitling him to keep the pet in the subject premises.

Generally under federal laws, “service animals” are dogs (or miniature horses) specifically trained to perform a task or service related to a person’s disability, while an assistance animal is an animal that works, provides assistance, or performs task for the benefit of a person with a disability or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.  New York State has also adopted laws pertaining to such animals.

Here, the Court found that there was “no dispute that respondents’ lease prohibits keeping a dog in their apartment.”  Notwithstanding the no-pet clause, Sheldon admitted that he brought the dog to reside in the apartment without the written permission of Westchester Plaza.  According to the decision, he testified that he suffers from kidney problems and depression and based on his condition he should be allowed to keep the dog for his emotional support.  In support of his position, “he testified that he was advised by his therapist from the Westchester County Jewish Services . . . that he obtain a dog for emotional support.  Occupant further testified that after obtaining the Staffordshire Bull Terrier in February of 2019, he then applied to the U.S. Service Animal Registry, and received a Service Animal Registration certificate and photo ID for his dog as an Emotional Support Animal.”

In addressing Sheldon’s defense, the Court explained that the New York State “Human Rights Law provides that it is an unlawful discriminatory practice to ‘refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford said person with a disability equal opportunity to use and enjoy a dwelling.’  To establish a violation of the Human Rights Law for failure to provide a reasonable accommodation, the complainant must establish a disability, the accommodation may be necessary in order for the complainant to use and enjoy his or her apartment, and the building owner refuses to make such an accommodation.”

The Court further explained that to “establish that a violation of the Human Rights Law occurred and that a reasonable accommodation should have been made,” Sheldon had to “demonstrate that he is disabled and that because of his disability it is necessary for him to keep the dog in order for him to use and enjoy the apartment, and that reasonable accommodations could be made to allow him to keep the dog.  A reasonable accommodation may be required by the State’s Human Rights Law if respondent can establish a need.  The burden is on the party requesting the reasonable accommodation.”

After a non-jury trial the Court found that Sheldon “failed to submit evidence that the dog helped him with his symptoms of depression and kidney disease.  Additionally, he failed to present any medical or psychological evidence to demonstrate that the dog was actually necessary in order for him to enjoy the apartment.”  Sheldon “did not call any professional witness from Westchester County Jewish Services, or anywhere else, to testify on his behalf.”  The Court further found that there was “documentary evidence” that Sheldon registered his dog as an emotional support animal with an internet company, USAServiceDogRegistration, and that “the registration of a dog with this entity can be completed by anyone after paying a fee and there is no case law or statute requiring this Court to accept this entity’s determination that a dog is deemed to be an emotional support animal.”

As such, the Court found that Sheldon failed to carry the burden of establishing through either medical or psychological expert testimony that the dog is an emotional support animal necessary for him to enjoy the use of his apartment, and that during the pendency of the proceeding the tenants remained in possession of the premises and petitioner was, therefore, entitled to a money judgment in the amount of the outstanding rents and use and occupancy.  However, because the proceeding was based upon a claim that the tenants had breached a provision of the lease, based on a new law enacted in New York, the Court granted a 30-day stay of issuance of the warrant, during which time the tenants may correct the breach, pay the outstanding arrears and get to stay in the apartment under the lease terms.

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