Kotlyarsky v. New York Post
31 Media L. Rep. (BNA) 1545, 195 Misc. 2d 150, 757 N.Y.S.2d 703 (2003)
Rule of Law:
The doctrines of equitable estoppel, equitable tolling, or promissory estoppel will not prevent a defendant from asserting a statute of limitations defense in a libel action if the plaintiff fails to demonstrate due diligence in pursuing their claim or investigating the status of an alleged promise to retract a defamatory statement.
Facts:
- On December 11, 2000, the New York Post published an article reporting that Boris Kotlyarsky was under federal indictment for conspiracy and money laundering related to organized crime and that his business, Reliable Rehabilitation Center, was a “medical mill set up to defraud insurance companies.”
- On December 12, 2000, Boris Kotlyarsky left a message for reporter Susan Edelman, later advising her that the article's contents were false and requesting a retraction.
- On January 3, 2001, Boris Kotlyarsky pleaded guilty to one count of conspiracy to money launder.
- On April 20, 2001, Boris Kotlyarsky met with Susan Edelman at the New York Post office, bringing court documents to prove the article's falsity, and photographs were taken under the impression they would be used in a retraction.
- On May 29, 2001, Boris Kotlyarsky began serving his sentence of incarceration.
- After receiving no news of the retraction during his incarceration, Boris Kotlyarsky wrote a letter to Susan Edelman requesting a copy of the retraction on or about January 22, 2002.
- On February 12, 2002, Susan Edelman responded by letter, stating that she had withdrawn the requested retraction article due to lack of response from Boris Kotlyarsky's criminal attorney regarding a possible article.
Procedural Posture:
- On August 12, 2002, Boris Kotlyarsky, Alla Kotlyarsky, and Reliable Rehabilitation Center, Inc. (plaintiffs), commenced a libel action against New York Post, Susan Edelman, Devlin Barrett, and NYP Holdings, Inc. (defendants), by filing a complaint in the Supreme Court of New York, Kings County (trial court).
- On September 4, 2002, plaintiffs served defendant NYP Holdings, Inc. with the summons and complaint (Susan Edelman and Devlin Barrett were not served).
- On September 24, 2002, issue was joined.
- Defendants, New York Post and NYP Holdings, Inc., moved for summary judgment dismissing the complaint based on CPLR 3211 (a) (5) and 3212, arguing that the statute of limitations had expired.
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Issue:
Does a newspaper's alleged promise to retract a defamatory article, upon which the plaintiff claims reliance, equitably or promissorily estop the newspaper from asserting a statute of limitations defense in a libel action, where the plaintiff failed to exercise due diligence in investigating the retraction's status?
Opinions:
Majority - Mark I. Partnow, J.
No, a newspaper's alleged promise to retract a defamatory article does not equitably or promissorily estop the newspaper from asserting a statute of limitations defense when the plaintiff failed to demonstrate due diligence in ascertaining the status of the promised retraction. Justice Partnow affirmed that CPLR 215 (3) establishes a one-year statute of limitations for libel actions, commencing from the date of publication (December 11, 2000). The court distinguished equitable tolling from equitable estoppel, finding equitable tolling inapplicable because the plaintiffs had timely knowledge of their cause of action and the defendants did not conceal its existence. While equitable estoppel applies where a defendant's misconduct induces a plaintiff to delay filing, the plaintiff bears the burden of demonstrating due diligence. The court found Boris Kotlyarsky's nine months of inactivity between the meeting with Edelman (April 20, 2001) and his letter requesting a retraction (January 22, 2002) did not constitute due diligence. The court stated that Kotlyarsky's imprisonment was not a sufficient excuse, as he, his wife Alla Kotlyarsky, or their attorney could have made simple telephone inquiries. The opinion noted that plaintiffs could have initiated a libel action even with the promise of a retraction, using the retraction as mitigating evidence for damages. Similarly, promissory estoppel, which requires a clear and unambiguous promise and reasonable reliance, was not applicable due to the lack of due diligence and absence of a promise directly related to the statute of limitations. Consequently, the court concluded that plaintiffs failed to proffer sufficient evidence to establish tolling or estoppel.
Analysis:
This case highlights the stringent requirement for plaintiffs to exercise due diligence even when asserting equitable doctrines like estoppel to overcome statute of limitations defenses. It underscores that a defendant's alleged promise to rectify a wrong, such as publishing a retraction, does not automatically suspend the plaintiff's obligation to diligently pursue legal remedies. The decision reinforces that plaintiffs cannot passively rely on such promises, particularly in cases with clear statutory deadlines like libel, and must take proactive steps to protect their claims. This case serves as a cautionary tale for plaintiffs regarding the importance of timely action and the difficulty of invoking estoppel doctrines without clear evidence of deceptive conduct specifically aimed at preventing litigation and consistent due diligence on the plaintiff's part.
