Official Court Document
JACQUES AGNANT, Plaintiff, -against- TUPAC SHAKUR a/k/a "MAKAVELI," AND/OR THE
ESTATE OF TUPAC
SHAKUR, DEATH ROW RECORDS/INTERSCOPE RECORDS, JOSHUA'S DREAM, INTERSCOPE PEARL MUSIC, WARNER-TAMERLANE PUBLISHING CORP., SUGE
PUBLISHING, HURT-M-BAD, TOMMY DAUGHERTY and LANCE PIERCE, Defendants.
97 Civ. 3424 (MBM)
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
30 F. Supp. 2d 420; 1998 U.S. Dist. LEXIS 19714
16, 1998, Decided
December 18, 1998, Filed
DISPOSITION: [**1] Defendants' motions for summary judgment
granted and complaint dismissed as to these defendants.
PROCEDURAL POSTURE: Plaintiff,
an alleged informant, claimed libel by defendant record producers through a rap song, the case having been removed from the
Supreme Court of New York County (New York), to the district court. Defendants filed a motion for judgment on the pleadings
or, in the alternative, summary judgment. Plaintiff alleged that the lyrics referred to him as working as an undercover federal
informant against defendant rap artist.
OVERVIEW: Plaintiff, an alleged informant, claimed that a rap song by
defendant record producers falsely accused him of working as an undercover federal informant and that, as a result, he suffered
damage to his reputation and endangerment. However, the court asserted that, even accepting that the statements at issue were
false and caused plaintiff injury, the claim must be rejected, because to be libelous under New York law, a false statement
must hold plaintiff up to ridicule or scorn in the minds of right-thinking persons, but those who would think ill of one who
legitimately cooperated with law enforcement officials were not such persons. The court found that granting a pro tanto motion
for leave to amend the complaint would prejudice defendants and be futile, because plaintiff did not plead and could not prove
the requisite injury. The court found that no reasonable jury could interpret the disputed lyrics as urged by plaintiff without
knowing a lot of background. Because the allegedly defamatory statements were not libelous per se, plaintiff was required
to plead and prove special damages, but he did not. The court granted summary judgment.
OUTCOME: The court granted
defendant record producers' motions for summary judgment, and the complaint was dismissed as to these defendants, because
plaintiff's libel claim could not be libelous under New York law, and amendment would be futile.
summary judgment, libel, defamatory, informant, lyrics, special damages, reputation, matter of law, nigger, defamation,
rap, odds, accusation, deposition, libelous, falsely, song, accuse, plead, album, slander, defamatory meaning, law enforcement,
anti-social, declaration, pretrial, realist, lying, shit, shot
COUNSEL: For Plaintiff: PAUL S. BRENNER, ESQ.,
New York, N.Y.
For Estate of Tupac Shakur, Defendant: KENNETH G. SCHWARZ, ESQ., WILLIAM A. ZOLLA, ESQ.,
Fischbein Badillo Wagner Harding, New York, N.Y.
For Interscope Records, Interscope Pearl Music, Warner-Tamerlane
Publishing Corp., Defendants: CHARLES B. ORTNER, ESQ., MICHAEL T. MERVIS, ESQ., JARED L. GURFEIN, ESQ., Paul, Hastings, Janofsky
& Walker LLP, New York, N.Y.
For Death Row Records, Suge Publishing, Defendants: STEPHEN F. HUFF, ESQ., TOM
J. FERBER, ESQ., Pryor Cashman Sherman & Flynn, New York, N.Y.
JUDGES: Michael B. Mukasey, U.S. District
OPINION BY: Michael B. Mukasey
OPINION: [*421] OPINION AND ORDER
This libel case, initially filed in Supreme Court, New York County, and removed here pursuant
to 28 U.S.C. ?? 1332, 1441 (1994), arises from statements allegedly made about plaintiff, Jacques Agnant, in a rap song written
and performed by the late Tupac Shakur. Plaintiff sues the Estate of Tupac Shakur (the "Shakur Estate"), Interscope Records,
Interscope Pearl Music, Warner-Tamerlane Publishing Corp., [**2] Death Row Records, Inc. and Suge Publishing (collectively,
the "Record Company defendants"), as well as other companies and individuals allegedly involved in the production of the song.
The Record Company defendants move for judgment on the pleadings or, in the alternative, summary judgment. The Shakur Estate
moves for summary judgment. For the reasons stated below, defendants' motions for summary [*422] judgment are granted, and
the complaint is dismissed as to these defendants.
The following relevant facts are viewed in
the light most favorable to plaintiff. n1 Prior to his murder in September 1996, Tupac Shakur was a well-known and successful
rap music artist. (Compl. P 3; Gurfein Decl. Ex. C) n2 In late 1993, Shakur, plaintiff and a third man were arrested and indicted
for sexually assaulting a woman in a New York City hotel. (Gurfein Decl. Ex. C, at 1) Thereafter, the charges against plaintiff
were severed from those against Shakur, whose case went to trial in late 1994 and resulted in a conviction. (Compl. P 16;
Gurfein Decl. Ex. C, at 3, 6) Several months later, plaintiff pleaded guilty to lesser charges, for which he was sentenced
to three years' probation and fined $ 1000. (Agnant [**3] Dep. at 15-16) n3
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n1 Plaintiff failed to respond to defendants' Local Rule 56.1 statements.
As such, the material facts contained in defendants' statements are deemed admitted as a matter of law. See Local Civil Rule
56.1(a), Local Civil Rules of the U.S. District Courts for the Southern and Eastern Districts of N.Y. ("All material facts
set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by
the statement required to be served by the opposing party."); see also Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998).
"Compl." refers to plaintiff's Verified Complaint, dated March 19, 1997, and filed in Supreme Court, New York County. It is
attached as an exhibit to the Declaration of Jared L. Gurfein. (See Gurfein Decl. Ex. A)
n3 "Agnant Dep." refers
to plaintiff's pretrial deposition, taken on October 17, 1997. Select pages of the deposition transcript are attached as exhibits
to the Declaration of Jared L. Gurfein, the Affidavit of Kenneth G. Schwarz and the Declaration of Michael T. Mervis. (See
Gurfein Decl. Ex. B; Schwarz Aff. Ex. B; Mervis Decl. Exs. B, D)
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In December 1996, an album was released, featuring Shakur under
the posthumous alias "Makaveli," titled "The Don Killuminati: The 7 Day Theory." (Compl. P 14; Gurfein Decl. P 6, Ex. E) The
album included a song titled "Against All Odds," which contained the following lyrics, as reprinted in the complaint:
. . know that this be the realist [sic] shit I ever wrote . . . Hoping my true mother fucker know this be the realist [sic]
shit I ever wrote, I heard he was a light skin stockey with a Haitian accent jewelry fast cars and known for flashing listen
while I take you back and lace this rap a real live tale about a snitch named Haitian Jack, knew he was working for the fed.
Same crime different trial, Nigger picture what he said and did I mention promised to pay back to me Hinchman in due time.
I knew you Bitch Nigger is listening the world is mine set me up wet me up niggers struck heard your guns bust but you tricks
never shook me up. Touch one of mine or everything I owe I will destroy everything you touch. Play the game nigger all out
warfare eye for eye last words to a bitch nigger why you lie, now you got to watch your back now watch your front now here
we [**5] come gun shot to tut now you are stuck, fuck the rap game this is M.O.B. so believe me, we are enemies I go against
all odds. I hope my true mother fuckers know this be the realist shit I ever wrote against all odds.
(Compl. P 15)
To date, the album has sold approximately 7 million copies in the United States and 28 million copies worldwide. (Id. P 14)
his complaint, plaintiff alleges that the above lyrics refer to him and, as understood by the general public, state that he
"was working as an undercover federal informant" against Shakur in relation to the rap artist's 1994 trial. (Id. P 16) As
a result of the lyrics, plaintiff alleges, he "has been unable to find employment commensurate with his training and experience,
and has had his reputation destroyed in the community." (Id. P 19) He seeks $ 200 million in compensatory damages as well
as punitive damages. (Id. P 20)
The allegations in the complaint notwithstanding, the evidence reveals that plaintiff
is currently employed "in an executive capacity" at a record company called Undeas Entertainment ("Undeas"). (Rivera Aff.
P 1). In affidavits submitted in opposition to these motions, plaintiff and the [**6] president of Undeas, Lance Rivera, imply
that plaintiff got his current job after the release of "The Don Killuminati: The 7 Day Theory," and only [*423] then because
plaintiff and Rivera were "childhood friends." (Id. PP 2, 4; Agnant Aff. P 9) In his pretrial deposition, taken on October
17, 1997, however, plaintiff testified that he had worked continuously for Undeas, as "Director of A&R," beginning in
late 1994 or early 1995. (Agnant Dep. at 51-52, 111) Plaintiff testified that, in 1995 and 1996, he had received approximately
$ 120,000 in compensation from Undeas, and that he expected to receive a similar amount, if not more, for 1997. (Id. at 52,
57-60, 74) Moreover, plaintiff acknowledged that his employment contract prohibited him from seeking income from any source
other than Undeas and that, as of the time of his deposition, he had not searched for any additional work or income. (Id.
at 54, 58, 60) Plaintiff conceded also that his employer had not disciplined or threatened him in the period following the
release of Shakur's album. (Id. at 61) Finally, he testified that he was happy working for Undeas and had no intention of
seeking other employment. (Id. at 60) [**7]
As noted, the Record Company defendants move for
judgment on the pleadings or, in the alternative, for summary judgment. Because the Shakur Estate moves solely for summary
judgment, and because I have considered materials outside the pleadings, see Fed. R. Civ. P. 12(c), I will treat both motions
as motions for summary judgment.
Summary judgment is mandated when "there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In considering a summary
judgment motion, "the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party."
Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). Nevertheless, Rule 56 jurisprudence is clear in "providing
that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322,
91 L. [**8] Ed. 2d 265, 106 S. Ct. 2548 (1986). The non-moving party, therefore, "must do more than simply show that there
is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586,
89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "Conclusory allegations will not suffice to create a genuine issue." Delaware &
Hudson Ry. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990).
In their respective
motion papers, defendants raise four arguments in favor of summary judgment: first, that the statements at issue are not capable
of a defamatory meaning; second, that even if the statements are capable of a defamatory meaning, the statements are not libelous
per se and plaintiff has failed to plead and cannot prove special damages, as required; third, that the statements are protected
opinion; and fourth, that plaintiff is a public figure and the statements implicate a matter of public concern, requiring
plaintiff to plead and prove actual malice or gross irresponsibility, which he has not done and cannot do. The Shakur Estate
raises as an additional argument that plaintiff failed to comply with the necessary provisions of [**9] California and New
York probate law regarding claims against estates. Because I conclude that summary judgment is warranted on the basis of defendants'
first two arguments, it is unnecessary for me to consider the others.
Libel law provides redress for injuries
to a person's reputation caused by statements which tend to "expose the plaintiff to public contempt, ridicule, aversion or
disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse
in society." Foster v. Churchill, 87 N.Y.2d 744, 751, 642 N.Y.S.2d 583, 587, 665 N.E.2d 153 (1996) (internal quotation marks
and citations omitted); accord Levin v. McPhee, 119 F.3d 189, 195 (2d Cir. 1997). Although it is the jury's province to determine
whether the plaintiff has actually been defamed, a threshold issue for resolution by the court is [*424] "whether the statement
alleged to have caused plaintiff an injury is reasonably susceptible to the defamatory meaning imputed to it." Levin, 119
F.3d at 195 (citing James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 874, 353 N.E.2d 834 (1976)); see also Aronson
v. Wiersma, 65 N.Y.2d 592, 594, 493 N.Y.S.2d [**10] 1006, 1007, 483 N.E.2d 1138 (1985). The court's threshold inquiry is guided
by both the meaning of the words as they would commonly be understood and the context in which they appear. See Levin, 119
F.3d at 195.
Here, plaintiff alleges that Shakur's song "Against All Odds" falsely accuses him of "working as
an undercover federal informant" and that, as a result of this accusation, he has suffered damage to his reputation and been
placed in danger. (Compl. PP 18-19)Even accepting that the statements at issue are false and caused plaintiff injury, however,
plaintiff's claim must be rejected. In order to be libelous under New York law, a false statement must hold the plaintiff
up to ridicule or scorn in the minds of "right-thinking persons"; those who would think ill of one who legitimately cooperates
with law enforcement officials are not such persons. Cf. Restatement (Second) of Torts ? 559, cmt. e (1977) ("The fact that
a communication tends to prejudice another in the eyes of even a substantial group is not enough if the group is one whose
standards are so anti-social that it is not proper for the courts to recognize them."); W. Page Keeton et al., Prosser and
Keeton [**11] on Torts ? 111, at 778 (5th ed. 1984) ("The line is drawn . . . when the group who will be unfavorably impressed
becomes . . . one whose standards are so clearly anti-social that the court may not properly consider them.").
court is not the first to face the issue of whether falsely accusing one of acting as an informant can be defamatory. So far
as I can tell, every other court to have considered the question, save one, has held, as a matter of law, that such a statement
cannot be defamatory, the sole exception being the Scottish court in the nineteenth-century case of Graham v. Ray, 13 Sess.
Cas. 634, 636 (1851). See Burrascano v. Levi, 452 F. Supp. 1066, 1072-73 (D. Md. 1978), aff'd sub nom Burrascano v. U.S. Attorney
Gen., 612 F.2d 1306 (4th Cir. 1979); Saunders v. Board of Directors, WHYY-TV, 382 A.2d 257, 259 (Del. Super. Ct. 1978); Heimerle
v. Charter Books, 11 Media L. Rep. (BNA) 1278, 1279 (Sup. Ct. N.Y. County 1984); Connelly v. McKay, 176 Misc. 685, 28 N.Y.S.2d
327, 329-30 (Sup. Ct. N.Y. County 1941); Rose v. Borenstein, 119 N.Y.S.2d 288, 289-90 (N.Y. City Ct. 1953); see also Danias
v. Fakis, 261 A.2d 529, 531 (Del. Super. Ct. 1969); [**12] Hallock v. Miller, 2 Barb. 630 (1848); cf. Daniel More, Informers
Defamation and Public Policy, 19 Ga. J. Int'l & Comp. L. 503, 504-09, 524-26 (1989) (discussing cases from the United
States and other jurisdictions). n4 Notably, the leading case, Connelly, is a New York case.
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n4 Several law review commentators have criticized
the holdings in these cases on the ground, for example, that they provide "an open invitation to judges to assess which subgroups
within society are or are not worthy of the law's attention and respect." Lyrissa Barnett Lidsky, Defamation, Reputation,
and the Myth of Community, 71 Wash. L. Rev. 1, 20 (1996); see id. at 20-25; More, supra, passim; see also Randy M. Fogle,
Is Calling Someone "Gay" Defamatory?: The Meaning of Reputation, Community Mores, Gay Rights, and Free Speech, 3 Law &
Sex 165, 171-74 (1993); cf. Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution 74 Calif.
L. Rev. 691 (1986) (discussing Connelly and other informant defamation cases and implicitly criticizing them). These commentators
are free to comment and criticize, but unless and until they become judges in jurisdictions whose law applies, and have occasion
to rule rather than merely opine, I am free to disobey their prescriptions. Moreover, the task of deciding what is or is not
defamatory necessarily involves a court in a consideration of both community norms and the policy implications of alternative
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Connelly, the owner of a service station and rooming house patronized
primarily by interstate truck drivers alleged
slander based on a statement that
he was identifying to the Interstate Commerce Commission (the "ICC") truck
who were violating ICC rules. See Connelly, 28 N.Y.S.2d at 328. The
court assumed arguendo that the plaintiff's reputation
and livelihood had been
adversely affected and that the slander alleged conduct that was considered
within the plaintiff's community. See id. at 328-29. [*425]
Nevertheless, the court dismissed the complaint:
language attributed to the defendant cannot under any circumstances be
held defamatory, and not being defamatory
is not actionable. . . . It is true
that informers are not always held in too high esteem, and violators of the law
have good cause to shun one who engaged in such practice, but,
nevertheless, such acts cannot constitute a foundation
upon which to build an
action for slander. . . . To hold otherwise would be contrary to the public
in that it would penalize the law-abiding citizen and give comfort to
the law violator. It would impede law enforcement
for the benefit of the [**14]
Id. at 329. Insofar as plaintiff alleges libel based on the accusation
served as an informant, the complaint must be dismissed.
My decision that plaintiff
cannot maintain an action for libel based on the
accusation that he was an informant does not end the inquiry, however.
memorandum of law, plaintiff raises for the first time additional allegations of
libel stemming from
the lyrics in "Against All Odds." According to plaintiff,
the lyrics accuse plaintiff "of shooting Tupac Shakur,
of informing falsely upon
him to the District Attorney's Office, of lying to him, and of trying to hurt
musical career." (Pl. Mem. in Opp. at 1) n5 In particular, plaintiff argues
that: (1) Shakur's statement "the world
is mine set me up wet me up niggers
struck heard your guns bust but you tricks never shook me up" falsely alleges
plaintiff shot him, tried to hurt his recording career, and was generally
dishonest," (id. at 6); (2) the statement
"all out warfare eye for eye last
words to a bitch nigger why you lie" falsely accuses plaintiff of lying to
and to Shakur, (id. at 6-7); and (3) the phrase "and did I mention
promised [**15] to pay back to me Hinchman in
due time" refers "to the fact
that plaintiff promised Shakur a recording deal with Hinchman Records, but did
come through on the promise." (Id. at 7) In their reply papers, defendants
contend, first, that plaintiff's new arguments
should not be considered because
they were raised for the first time in his memorandum of opposition, after the
of discovery, and, second, that even if the new arguments are considered
they are deficient as a matter of law.
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n5 Plaintiff neglected to number
the pages of his memorandum of law. Page
citations refer to the pages as they would have been numbered, beginning
the caption page as page one.
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Although plaintiff's complaint quoted Shakur's lyrics at some length, the accusation that
plaintiff worked as an informant was the only feature of the lyrics singled out as defamatory. (See Compl. P 16) Indeed,
the complaint itself stated that "the remainder of the offensive words relate to how defendant TUPAC [Shakur] would
get revenge [**16] against the plaintiff." (Id.) In addition, plaintiff acknowledged at his deposition that the accusation
he was an informant was "basically the heart" of his position in this case. (Agnant Dep. at 87) Finally, in a letter
to defendants' counsel dated December 11, 1997 -- only eight days before the Record Company defendants served their present
motion -- plaintiff's counsel discussed exclusively the allegation regarding plaintiff's working as an informant
and implicitly accepted that the case would stand or fall on whether this statement was defamatory. (See Mervis Decl.
Were I to treat plaintiff's arguments as a pro tanto motion for leave to amend the complaint, I would
be on firm ground in refusing to consider plaintiff's new arguments and granting summary judgment to defendants, both
because such belated amendment would prejudice defendants, cf. Ansam Assoc., Inc. v. Cola Petroleum, Ltd., 760 F.2d
442, 446 (2d Cir. 1985) (upholding a denial of leave to amend a complaint in part because "permitting the proposed amendment
would have been especially prejudicial given the fact that discovery had already been completed and [the defendant]
had already filed a motion [**17] for summary judgment"), and, more significantly, because such amendment would be futile.
Cf. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962) (holding that it is not an abuse of
discretion to deny leave to amend where such amendment would be futile); [*426] Health-Chem Corp. v. Baker, 915 F.2d
805, 810 (2d Cir. 1990) ("Where . . . there is no merit in the proposed amendments, leave to amend should be denied.").
In order to make out a libel claimunder New York law, a plaintiff must show that the defendant published to a third party
(1) a false and defamatory statement (2) which was "of and concerning" the plaintiff (3) with the requisite degree
of fault -- the degree of which depends on the status of the libeled party and the subject matter of the statement, and
(4) injury to the plaintiff. See Chaiken v. VV Publ'g Corp., 907 F. Supp. 689, 695 (S.D.N.Y. 1995), aff'd, 119 F.3d
1018 (2d Cir. 1997), cert. denied, 140 L. Ed. 2d 179, 118 S. Ct. 1169 (1998); see also Weldy v. Piedmont Airlines, Inc.,
985 F.2d 57, 61 (2d Cir. 1993). Even assuming that plaintiff could satisfy the first three elements of his prima
facie case with respect to his new allegations [**18] of libel -- an assumption which defendants contend, with some justification,
is unwarranted -- plaintiff's action would fail because he has not pleaded and cannot prove the requisite injury.
New York law, a plaintiff who sues for libel must plead and prove special damages unless the allegedly defamatory statement
falls into one of the categories of libel per se, such as allegations that plaintiff committed a crime or allegations
that tend to injureplaintiff in the conduct of his trade, business or profession. See, e.g., Nunez v. A-T Fin. Info.,
Inc., 957 F. Supp. 438, 441 (S.D.N.Y. 1997). In the present case, plaintiff contends that the allegedly defamatory
statements are libelous per se insofar as they accuse him of lying to law enforcement officials, shooting Shakur and
reneging on his promise to secure a contract for Shakur with Hinchman Records. Such a "'strained, unreasonable and
unjustified' interpretation," however, cannot form the basis of an action for libel. Rappaport v. VV Publ'g Corp., 163
Misc. 2d 1, 618 N.Y.S.2d 746, 748 (Sup. Ct. N.Y. County 1994) (quoting Tracy v. Newsday, Inc., 5 N.Y.2d 134, 137,
182 N.Y.S.2d 1, 4, 155 N.E.2d 853 (1959)), aff'd, 223 [**19] A.D.2d 515, 637 N.Y.S.2d 109 (1st Dep't 1996). Moreover,
no reasonable jury could interpret the disputed lyrics in the manner urged by plaintiff without knowing -- at a
minimum -- that plaintiff was arrested along with Shakur, that Shakur was shot in New York and that "Hinchman" was a
reference to Hinchman Records. It is well established in New York, however, thatstatements cannot be libelous per
se "if reference to extrinsic facts is necessary to give them a defamatory import," Aronson, 65 N.Y.2d at 594-95, 493
N.Y.S.2d at 1008, or if "innuendo" is needed "to enlarge" their meaning "beyond the significance expressed by the
words themselves." Nunez, 957 F. Supp. at 441. Indeed, this is true even where the alleged defamation implicates a matter
of "common knowledge." Sterling Doubleday Enter., L.P. v. Marro, 238 A.D.2d 502, 503-04, 656 N.Y.S.2d 676, 678 (2d
Because the allegedly defamatory statements are not libelous per se, plaintiff would be required
to plead and prove special damages to prevail on his libel claim. See, e.g.,Nunez, 957 F. Supp. at 441. Special damages
consist of "'the loss of something having economic or pecuniary value,' which [**20] must flow directly from the
injury to reputation caused by the defamation and not from the effects of the defamation." Id. (quoting Restatement (Second)
of Torts, supra, ? 575, cmt. b). To satisfy the special damages requirement, a plaintiff must set forth an itemized
account of his losses; round figures, general allegations of a dollar amount or boilerplate allegations of someimpairment
to business reputation are insufficient. See id.; Newsday, Inc. v. C.L. Peck Contractor, Inc., 87 A.D.2d 326, 328,
451 N.Y.S.2d 415, 417 (1st Dep't 1982).
Plaintiff more or less concedes that he has not pleaded special damages.
The complaint alleges merely that "plaintiff has been unable to find employment commensurate with his training and
experience, and has had his reputation destroyed in the community." (Compl. P 19) As stated, however, such a general allegation
does not satisfy the requirement of pleading special damages, and plaintiff's new claims would therefore fail as a matter
of law. Further, it appears from the record that plaintiff could not prove special damages even had his pleading
sufficed. [*427] As he conceded at his pretrial deposition, plaintiff's salary and standing at [**21] Undeas were unaffected
by the alleged libel, and he was prohibited by his own employment contract from seeking additional income elsewhere.
To the extent that plaintiff's affidavits submitted in connection with the present motions contradict this earlier testimony,
they may be disregarded. See, e.g., Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995) ("'It is well
settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded
on a motion for summary judgment.'" (quoting Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987)).
short, plaintiff's libel action would be without merit as a matter of law whether or not I granted him leave to amend
the complaint to include his newly raised allegations. Consequently, summary judgment is granted.
* * *
the foregoing reasons, defendants' motions for summary judgment are granted, and the complaint is dismissed as to these
Dated: New York, New York
December 16, 1998
U.S. District Judge