SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 57 PART JENNIFERG. SCHECTER Justice ZERVOS, SUMMER INDEX 150522/2017 NO. MOTION DATE MOTION SEQ. NO. - vTRUMP, DONALD J. The following papers, numbered 1 to 4 003 dismiss ,were read on this motion to/for 1 ............................................ No(s) ------- Notice of Motion/Order to Show Cause - Affidavits - Exhibits ......................................................................................................... No(s) 2,3 Replying Affidavits ............... _........................................................................................................ No(s) 4 ------- Cross Motion ........................................................................................................................ Answering Affidavits - Exhibits Upon the foregoing papers, it is ordered that this motion is DECIDED IN ACCORDANCE DATED: WITH THE ACCOMPANYING DECISION 3/20/2018 o 1. CHECK ONE 2. CHECK AS No _------ - MOTION IS: 3. CHECK IF CASE DISPOSED D GRANTED D [!] DENIED SETTLE ORDER [Xl NON-FINAL 0 GRANTED D SUBMIT D DO NOT POST D FIDUCIARY 150522/2017 Motion No. 003 ZERVOS, SUMMER VS. TRUMP, DONALD J. I POSITION IN ART 0 OTHER ORDER APPOINTMENT D REFERENCE SUPREME COURT OF THE STATE OF NEW yORK COUNTY OF NEW YORK: PART 57 ------------------------------~---------x SUMMER ZERVOS, DECISION AND ORDER Plaintiff, Index No. 150522/17 -againstDONALD J. TRUMP, Defendant. ---------------------~------------------x JENNIFER G. SCHECTER, J.: In Clinton v Jones, 520 US 681 (1997), the United States Supreme Court held that a sitting president being sued in federal court for unofficial the question compel a of different Because court. whether concerns conclusion they do not, of for is not immune from acts. federalism suits defendant's this case or hold it in abeyance It left open and brought motion in comity state to dismiss is denied. Background On this motion accept the Boeheim, facts to dismiss alleged 24 NY3d 262, 268 In 2005, plaintiff the complaint, by plaintiff true Summer Zervos, a California on The Apprentice, and produced defendant Support to be (Davis v [2014]). was a contestant by the court must Donald a reality J. Trump [Supp], Ex 19 [Complaint] at ~ 19). resident, show starring (Affirmation in After defendant Zervos v Trump Index No 150522/17 Page 2 "fired" her on the program, plaintiff continued out for advice and to pursue job opportunities In 2007, office. plaintiff He allegedly "uncomfortable, met with restaurant escorted nervous and embarrassed" to defendant's area at his New York (id. at ~ 26). The was after he called her and asked him at the Beverly Hills Hotel When-plaintiff (id. at ~ 27). living-room (id. at ~ 21) . kissed her twice on the lips, making her next time she saw defendant her to meet defendant to seek him bungalow (id. at ~ 28). for dinner arrived, and waited After she was for him 15 minutes, at a in the defendant emerged from his bedroom, kissed Ms. Zervos "open mouthed" and pulled her toward him to him, "grabbed aggressively, 29). (id. at ~ 29) her and placed After plaintiff shoulder, He asked her to sit next again kissing his hand on her breast" pulled back and walked (id. at ~ away, defendant and When plaintiff walked out, he turned her around and suggested embraced "lay down her "get real" into the bedroom very took her hand that they led her her and watch and plaintiff (id. at ~ 30). some telly pushed (id. at ~ 30). telly" him away, (id.). telling He then repeated plaintiff's He him to words Zervos v Trump back Index No 150522/17 Page 3 to her lasciviously against her, trying After plaintiff him for dinner, (id. angry" "began to press to kiss her again" told defendant defendant at and ended when defendant that she had come to see two had the room and seemed dinner, stated that he needed told plaintiff to meet (id. at ~ 34). Plaintiff which abruptly to go to bed and him the next day at his golf course immediately went to discuss what had happened with her father and to get his advice She decided genitals (id. at ~ 30). "paced around The ~ 31). his to go ahead with the meeting (id. at ~ 35) . (id.) The following day, plaintiff had limited interaction defendant golf who course introduced (id. offered plaintiff seeking at ~ 36). Later Plaintiff him that she "was upset, because called week, of the the manager within the Trump organization that defendant's at the Beverly and told (id. at ~ 39). continued to no avail "sexually Hills defendant it felt like she was being for not sleeping with him" In 2009 and 2010, plaintiff believed that manager a job at half the salary that she had been (id. at ~ 38). penalized her to the general with Hotel seeking emploYment (id. at ~ 40). inappropriate was either She misconduct a test or an Index No 150522/17 Zervos v Trump Page 4 isolated incident" defendant "that embarrassing" (id. (id. at ~ 42). their past In 2016, plaintiff encounter had She never (id. at ~ 43). been emailed hurtful received and a response ) . In July 2016, defendant nominee for the Republican On Access October 7, party 2016, was Hollywood telling the program's was selected as the presidential footage made host: During a presidential October to a . Grab (id. at ~~ 1, 4). talk" come was ethically . the public for president" 2016, you're denied on tape and (id. at ~ 48) . forward and to She felt that telling the world of her experiences 14, [women] And when that he had discussed "chose show defendant "'I just start kissing subsequently speak publicly candidate depicted his words as "locker-room Plaintiff television debate two days later, defendant in the behavior do, so that that You can do anything'" them by the pussy. specific the You can do anything. star, they let you do it. characterized public from I don't even wait . . Just kiss. engaging (id. at ~ 44) . could evaluate Mr. Trump (id. at ~ 50). plaintiff along the right with thing to fully as a On the afternoon her counsel held of a Index No 150522/17 Zervos v Trump Page 5 press conference interactions at That very widely " 'To be she "publicly defendant reported clear, and I never responded appeared met a decade her ago. on his stated "'these allegations fame, campaign at a hotel That happened of people who purposes, knows or for maybe the her I am as a my life'" (id. at • rally, defendant . They are made are 100% false. It's not hard to find a small . willing who that website: or greeted is not Later on, at a North Carolina campaign handful his unwanted in a statement person and it .is not how I've conducted up, they never her (id. at • 53). day, inappropriately 55). described with Mr. Trump in detail, including sexual misconduct" was which to make for simple false smears financial reason for personal reasons, they want political to stop our Very simple. These claims defy reason, truth, logic, common sense. They're They movement. made without want to supporting stop our witnesses. campaign. No witnesses. Hey you know, 28 years ago, 10 years ago, 14 years ago, 12 years ago. Not me. 3 at 2-3) Believe . me. Not me. Not me" (id. at • 59; Supp, Ex Zervos v Trump At a Index No 150522/17 Page 6 rally in New Hampshire on reported that what she said is a lie" (Supp, Ex 8 at 2). that many of so the allegations against false," referred to another about him and insisted: Total (id.). with no witnesses that about nothing "ever He 63) numbers of women happened" totally already impact!" He stated been in the media happened voters over lies" coming up with phony (id. at 3). and made with, any of Twitter women. (Complaint at about "based on made-up up charges" these to steal the election" lamented total losing events large that never (id. at ~ 66). On October these a letter already seeing whatsoever" "100% fabricated Totally made up nonsense ~~ 60, had story [You've] been "you have phony people He tweeted and him "wrote 2016, "we can't let them get away with this lies. He said allegations, cousin 15, defendant "proven that plaintiff's October proven 17, 2016, phony stories, false) (Supp, Ex defendant 12) and 100% pushed He someone else about plaintiff, also tweeted: made big "Can't believe up by women time by press, re-tweeted (many have a statement by which included a picture of her and set forth "this is all yet another hoax," adding his own Index No 150522/17 Zervos v Trump Page 7 comment: "Terrible" that afternoon, (Complaint at ~ 69; Supp, Ex 13). defendant the media has deceived center with made-up At 4:31 tweeted: "New polls are good because the public by putting women front and stories and lies, and got caught" (Supp, Ex 14) . At the next defendant answered nonconsensual a question kissing stated: I didn't false. these women. the--I they ten minutes fiction. 19, 2016, about reports by nine women of (Complaint at ~ 73; Supp, Ex "those stories are all either I believe to step forward. .. fame or [the Clinton] got they get their all totally--it It was lies and it was fiction" see the woman [Hillary Clinton] If it wasn't, of fame, but they were totally I didn't the woman on the plane, want campaign did it. these people on October know any of these women. These women, think debate, or groping He 17 at 19/37) on presidential was all (Complaint at ~ 73; Supp, Ex 17 at 20/37). Finally, defendant to hurt on October declared: my 22, 2016, at a Pennsylvania "Every woman campaign, total rally, lied when they came forward fabrication. The events never Index No 150522/17 Page 8 Zervos v Trump happened. election Never. is over" On January alleging All of these liars will be sued after the (Complaint at ~ 74) 17, 2017, that defendant "knowing they were result commenced made defamatory this statements false and/or with reckless their truth or falsity" direct plaintiff of the (id. at ~ 78). false statements action, about her disregard She asserts and being that as a "branded liar who came forward only for fame or at the manipulation the financially emotionally suffered she campaign," Clinton She pleads (id. at ~~ 80-82). that [her] description of a of and that defendant's statements contained numerous false representations "including for being about her, subjected to unwanted sexual touching by defendant was a lie, phony, a hoax and 'made up,' and directed by Clinton contends that losses because she that [she] was motivated or the Democrats" "suffered at her restaurant least by fame and/or at ~ 85) (id. $2,914" lost business in financial (id. at ~ 81). Three days after this action was filed, defendant the 45th President dismissal office. of the United or for a continuance Because there is States. became He now moves of this case until no She authority for for he leaves delaying Index No 150522/17 Zervos v Trump Page 9 adjudication and because action, defendant's plaintiff motion has stated a cause of is denied. Analysis No one is above the It law. is settled that the President of the United States has no immunity and is "subject to the laws" for purely private acts (Clinton, 520 US at 696) . In Clinton v Jones, the United States Supreme Court made clear that "immunities performed, are grounded not the identity (id. at 695 William There, Jefferson Clinton The Court concluded subject to suit because regardless "possibility that the decision the official powers It explained that happens to the to be misallocation the Court to defend it'" required against a action that included a state-law defamation in federal court. entirely of the function of the actor who performed [citation omitted]) . then-President civil-rights in 'the nature the [would] curtail "litigation unofficial President of either that the President was' of the outcome there was no of the Executive the Branch" the scope of (id. at 701). of questions conduct poses judicial claim of no power the that relate individual perceptible or executive risk who of power" Index No 150522/17 Page 10 Zervos v Trump (id. In holding ) . that the doctrine did not mandate a stay President, Court between the the burdensome Judicial ability (id. at of all private flatly Branch interactions, constitutionally 702) act~ons rejected and the necessarily forbidden to perform of separation against that impairment of its constitutionally the "interactions Executive, rise of powers to even the the quite level of Executive's mandated functions" . The rule is no different for suits court related to the President's in the Supremacy commenced unofficial in state conduct. Nothing Clause of the United States Constitution even suggests that the President cannot be called to account before a state court for wrongful to any federal executive unofficial will conduct improperly government by a state official refrain responsibility. on interfering powers with the federal functions. court action Significantly, when is at issue, there is no risk that a state encroach President performs that conduct that bears no relationship or will compel that it the will from taking any official given to manner the in federal which the There is no possibility President compel action. the to take any President to Index No 150522/17 Zervos v Trump Page 11 To be sure, in pointing court may warrant court, each States and out that proceedings a different everyone Supreme Court analysis from those in federal of the concerns raised that implicates operations permits] state i v Train, could Mayo cannot lay instrumentality see also of N. Y., "control Matter 286 the v United be or on obtaining state 319 US 441, 445, 447 [1943] [a States, fees (id. at 691 n 13, exact money on a united States as "the federal function must be left free"] of NY Armand Schmoll, 503, manner attempts to perform 509 Inc. [194 1] in which v Federal [a state a federal agency orderly government of fields of government by the Constitution"]cert denied Reserve court its functions and duties .. of such power would hamper division conditioned state [federal agencies' 426 US 167 [1976] not the United unlawful intrusion into federal government operations citing Hancock in state Bank may performs not or Assumption and ignore the of state and nation 315 US 818 i [1942]).1 created Those The cases defendant relies on are no different (see Tennessee v Davis, 100 US 257, 267 [1879] [statute authorizing removal of actions against federal officers engaged in official duties is "no invasion of state domain"] i Tarble's Case, 80 US 397 [1871] [state judge could not intrude with operations of federal government by discharging a prisoner held under the authority of the I Index No 150522/17 Page 12 Zervos v Trump concerns are nonexistent when only unofficial conduct is in question. Nor is there any legitimate fear of local prejudice in state court when the actions under review bear no relationship to federal (Clinton, duties 1442 [a] [authorizing actions against removal officials [explaining may have existed, efforts duties"]; see also 142, 150 [2007] that in cases where to carry out 28 USC ~ court of to any act under 489 US 121, 139 "true state hostility directed against federal their Watson v Philip Morris federally Cos., mandated Inc., 551 US [purpose of removal statute is to "protect the government federal "for or relating it was specifically officers' citing from state to federal Mesa v California, color of such office"]; [1989] 5"20 US at 691, from the interference with its courts like 'operations''']) . There their is no federal accommodate the reason, moreover, counterparts President's will needs that be or state "either unable unfaithful to United States]; McClung v Silliman, 19 US 598, 605 [1821] [state court cannot issue writ of mandamus compelling federal officer to take governmental action]) . to the Index No 150522/17 Zervos v Trump Page 13 of tradition Presidential unofficial and can be just constitutional as mindful based international dismissing unofficial United President's has enacted based position If staying and is a because official that, when he (id. at 698) . articulated of the Trump stay is at a moment's does, no action defendant of of course, an authority related action unrelated "direct control 520 US, 691 n 13) deferring . Congress, civil for purely is the President conduct is the responsibility legislation or will take precedence. absolutely civil Resolution (Clinton, duration in the may have to attend to a governmental court and is not impermissible President" the President A lengthy and categorical there conduct States. the responsibilities end, or for on the possibility crisis. federal the 709). just as well as federal courts a stay notice, the President In against US to at of the "'unique must be denied. not justified important 520 and for the very same reasons v Jones, presidency deference scheme' that the office occupies" Additionally, in Clinton lawsuits conduct utmost (Clinton, responsibilities'" State courts can manage on private 'the giving to of the to the of a state . over the moreover, litigation under Index No 150522/17 Zervos v Trump Page 14 circumstances it felt (see appropriate [bankruptcy stay]; 50 USC ~ 3901 et seq. against servicemembers during military 11 USC ~ 362 [staying proceedings Even after service]) Clinton v Jones, decided more than 20 years ago, Congress has not suspended proceedings States and plaintiff's there are no compelling of the United reasons for delaying day in court here. Dismissal of action of the complaint is also denied standard necessary" Plaintiff's defendant, against the President that as the "pleading to proceed complaint for failure is if proven (see Davis, based on false, form to state a cause meets the minimal 24 NY3d at 268).2 assertions made the predicate by for a New York law applies. Defendant has not established that there is a conflict between substantive New York and California defamation law (K.T. v Dash, 37 AD3d 107, 111 [1st Dept 2006]). The only difference defendant points out is California's anti-SLAPP provision, which is a procedural statute enacted as part of California's code of civil procedure and has no applicability here (see Cal Civ Proc Code ~ 425.16 [j] [1] [requiring transmission of papers to California's Judicial Council]; see also Liberty Synergistics Inc. v Microflo Ltd., 718 F3d 138, 154 [2d Cir 2013] [explaining that "California courts have repeatedly held. . that California's anti-SLAPP rule is 'procedural' in nature" and applies in California courts regardless of which source of law governs a plaintiff's substantive claim]; Kibler v Northern Inyo County Hosp. Dist., 39 Cal 4th 192, 202, 46 Cal Rptr 3d 41, 47, 138 P3d 193, 198 [2006] [anti-SLAPP statute is a "procedural device"]). 2 Index No 150522/17 Page 15 Zervos v Trump maintainable defamation NY2d 146, 154 hatred, defamation" (Gross v New York Times Co., 82 [1993]). A false statement contempt, action tending ridicule, "to expose aversion or disgrace (Davis, 24 NY3d at 268). Court of Appeals determined a person to public constitutes In Davis v Boeheim, that a defamation the action could be maintained against a defendant who called individuals claiming to have been victims of sexual abuse liars and stated that he believed were that they (Davis, 24 NY3d 262 who may have someone sexual abuse] ). motivated [reinstating known to communicated that defendant justified neither credible in Davis a his well placed facts" authority (id. at 273) . to go public action against about alleged that the statements had information statements charges" and the context facts connotation that nor victims of abuse "appeared "spoke with undisclosed defamatory money defamation The Court concluded susceptible that by the because unknown were they to others individuals were (id. at 272). Defendant to have information of the statements about the suggested and that his statements that he were based on Zervos v Trump The Index No 150522/17 Page 16 statements here weigh dismissal of the complaint. than plaintiff who them--repeatedly knows even more Defendant--the what happened accused plaintiff his opinion but as a matter of fact. heavily only person other between of dishonesty the false" and "never happened" [and] made defendant Up."3 knows "fiction," and that A He not only averred that exactly believe what defendant's he insisted the allegations reader what or listener, transpired, statements two of not just in plaintiff told "phony stories" and issued statements "totally against that were that were the events "100% false cognizant that could reasonably convey: that plaintiff is contemptible because she "fabricated" events for personal gain (see Divet v Reinisch, 169 AD2d 416 [1st Dept 1991] [libelous character of statement "derives from the fact that it charges 3Accepting the allegations in the complaint as true, the challenged statements were "of and concerning" plaintiff. Some of the statements referred to "every woman" who came f~rward--"a particular, specifically-defined group of individuals" that a jury could find included plaintiff (see Three Amigos SJL Rest., Inc. v CBS News Inc., 28 NY3d 82, 86-87 [2016]; see also Gross v Cantor, 270 NY 93, 96 [1936]). The context of other statements--some of which were made days after plaintiff's press conference, related to allegations raised at her press conference or mentioned plaintiff and her family--similarly raise jury questions as to whether they pertained to her. Zervos v Trump Index No 150522/17 Page 17 (individuals) actionable in writing communicate" used that "specific, plaintiff (Davis, 24 NY3d at 271). as allegations rather Twitter, liars and they easily understood lied pertain to were op-ed is a preferred in her plaintiff (id.). or letters of or hyperbole. plaintiff's veracity 4 were That interests made were to the editor communication while up Most importantly, debates defendant's made to can be proven true or speeches, means language and often used statements he was but through defendant- -cannot be characteri'zed simply as opinion, rhetoric thus repeated statements--which pieces delivered further whether to pursue her own agenda through to His statements in their context, defendant's not made being on its face"]). Defendant false, with by heated about campaigning to become President of the United States, does not make them any less actionable (see Silsdorf [explaining that "concern v Levine, over 59 NY2d 8, 16 [1983] undue limitations upon Contrast Jacobus v Trump, 156 AD3d 452, 453 (1st Dept 2017) (holding that the statement that plaintiff, a political strategist, "begged" for a job, was "too vague, subjective and lacking in precise meaning. . to be actionable [and that its] immediate context would signal to a reasonable reader or listener" that it was an opinion and not fact). 4 Zervos v Trump expression Index No 150522/17 Page 18 in the course of political a defamation 464 US 831 action to proceed campaigns" by allowing was "misplaced"], cert denied [1983]).5 Because there which plaintiff is a reasonable would be entitled the complaint sufficiently view of to recover the claim upon for defamation, states a cause of action (Davis, 24 NY3d at 274) . Accordingly, it is ORDERED that defendant's ORDERED that defendant motion is to answer notice of entry of this order This is the decision Dated: March is denied; it is further within 10 days (see CPLR 3211[f]). and order of the court. 20, 2018 G. SCHECTER 5 Plaintiff's complaint, like the one in Silsdorf, sufficiently alleges actual malice (Silsdorf, 59 NY2d at 17) . of