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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A SUMMARY 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 24 th 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 Jus tice of the Supreme Court of the State of New York, in his individual and personal capacity, Defendant

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___________________________________________ 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.2 Appeal from a judgment of the United States Dist rict 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 th at 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 esto ppel barred Zappin from challenging the truth of the abuse allegations. We assume the parties’ familiarity with the underlying facts, the procedur al history of the case, a nd 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 plea d “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 accep t 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 Civ il 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 publicati on of a fair and true report of any judicial proceeding, . . . or for any heading of the report wh ich is a fair and true headnote of the statement3 published.” N.Y. Civ. Rights Law § 74. Zappin ar gues 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 plainti ff’s divorce proceedings. The relevant articles in that case were based on papers filed in the proc eeding, that were sealed court records under New York Do mestic Relations Law § 235(1). 1 27 N.Y.2d at 13. The Court of Appeals concluded that the § 74 privileg e 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 appl ied to reports based on a reporter’s observation of open court proceedings in matrimonial cases, the d ecision suggests that it does not. The Court of Appeals noted that “situations wh ere the public have the right of access to proceedings in open court” are distinguishable from situations where state law prohi bits the public from inspecting certain court records. Id. at 18 (internal quotation marks om itted). And although the New York Domestic Relations Law seals records of ma trimonial proceedings, it does not permit the matrimonial court to restrict the public’s access to the courtroom procee dings 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 presen t in the courtroom on Novemb er 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 fore nsic 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.4 Dr. Alan Ravitz, including Marsh and another jour nalist. Given that the reporters were permitted to attend the court hearing and the matrimonial j udge did not ban the public from the courtroom, Shiles does not bar the defe ndants 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 publishe r from a civil suit sounding in libel, it is enough that the substance of the articl e 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 inaccuraci es, it does not produce a different effect on a reader than would a report containing th e precise truth.” Karedes v. Ackerley Grp., Inc. , 423 F.3d 107, 119 (2d Cir. 2005) (internal quotation marks omitted) (applyi ng 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 th at 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 alou d in open court, which included Comfort’s allegations th at Zappin hit her while she was 39 weeks pregnant , was planning5 to make an Ashley Madison account to send to hi s former boss’s wife and steal cable from the neighbor, and the attorney asked Ravitz questions a bout those allegations. Th erefore, the article’s summary of these allegations attributed to Ravitz was substantially accurate. Next, Zappin complains about th e 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 coul d “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 Ravi tz’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 we re performed by a qualified psyc hologist and Ravi tz included the results of the tests in his repor t and testified about them. Th e article theref ore 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 extent6 he means to argue that further reports on the tr ial would have vindicated him and shown that the allegations were untrue, he is precluded from ar guing 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 repo rt was not altered merely because the article did not contain the plain tiff's ‘side of the Judge’s decision’ . . . [or the fact] that the plaintiff appealed . . . .”). But gi ven 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 “substantia lly accurate” when they do “not produce a different effect on a reader than would a report containing the precise tr uth”). In any event, the article included that Zappin denied any abuse and his allegation that Comfort was actually viol ent. Therefore, the article’s omission of Zappin’s de nial 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 th at he was fired from Qu inn Emanuel was false and therefore made the article inaccurate. But “m inor 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, th ere was mention that Zappin had left that firm and that he had7 later been fired by a different law firm, Mintz Levin. This small error—confusing from which firm Zappin had been fired—does not substantia lly 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 Co mfort’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 la w 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 questi on was actually and necessarily deci ded 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 i nvoked, 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 trut h 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 Co mfort 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 bor n” 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 otherwise8 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 opportuni ty to litigate. “[A] determination whether a full and fair hearing was provided requires considera tion of the realit ies 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)) (alterna tions in original). “Factors to be consid ered include, inter alia : 1) the nature of the forum a nd the importance of the claim in the prior litigation; 2) the incentive to litigate and the actual extent of litigati on in the prior forum; and 3) the foreseeability of future litigation (because of its impact on the in centive to litigate in the first proceeding).” Id. Although Zappin represented himself pro se, he did ha ve 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 o ffers 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 ru ling is not evidence of bias). The fact that the judge issued a sa nctions decision earlier in the cas e is not evidence of bias because the sanctions decision discussed only Zappin’s conduc t in litigation, no t 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 sancti ons decision to the medi a and threatened Zappin with a physical confrontation, but does not point to anything in th e record supporting these claims.9 See Buechel , 97 N.Y.2d at 304 (“The party to be prec luded from relitigating the issue bears the burden of demonstrating the ab sence of a full and fair opport unity to contest the prior determination.”). Given that Zappin had a fu ll 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 remainde r of Zappin’s argument s and find them to be without merit. For the foregoing reasons, the judg ment of the district court is AFFIRMED

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