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. 
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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 
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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. 
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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 
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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 
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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 
7 

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 
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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. 
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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