UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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No. 17-cv-6903 (RJS)

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17? US 6:311"
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CHARLES OAKLEY, 

Plaintiff,

VERSUS

JAMES DOLAN ET AL. 

Defendants.

 

OPINION AND ORDER
February 19,2020

 

RICHARD J. SULLIVAN, Circuit Judge:

Plaintiff Charles Oakley brings this
action against MSG Networks, Inc., The
Madison Square Garden Company, and
MSG Sports Entertainment, LLC
(collectively, the Defendants?), and
James Dolan, alleging claims for
defamation, assault, battery, false
imprisonment, abuse of process, and denial
of a public accommodation in violation of
New York state law, and denial of a public
accommodation in violation of the
Americans with Disabilities Act (42 U.S.C.
12101 et seq.) Now before the
Court is Defendants? motion to dismiss the
Amended Complaint for failure to state a
claim upon which relief can be granted
under Federal Rule of Civil Procedure
For the following reasons,
Defendants? motion is GRANTED.

I. BACKGROUND
A. FactsI

As any basketball fan knows, Oakley is a
former NBA All-Star power forward who
played for the New York Knicks from 1988
to 1998. (Am. Compl.1[1l6, 14, 15.) Dolan

 

The following facts are taken from the Amended
Complaint, ?led on February 9, 2018 (Doc. No. 36
(?Amended Complaint? or ?Am. and the
video footage of Dolan?s The Michael Kay Show
interview (Doc. No. 43 Ex. 6 (?Dolan Interview?)),
which was incorporated therein by reference. See
Commc?ns, Inc. v. Shaar Fund, Ltd, 493 F.3d
87, 98 (2d Cir. 2007). In ruling on Defendants?
motion, the Court has also considered Defendants?
memorandum of law (Doc. No. 42 
Plaintiff?s opposition (Doc. No. 50 and
Defendants' reply (Doc. No. 54 

.n 

 

 

is the Executive Chairman of the MSG
Defendants, which own and operate
Madison Square Garden (?the Garden?) and
the Knicks. (Id. 1]1] 2, 7?10.) Although
Oakley asserts that he never met Dolan until
long after his playing days had ended, he
alleges that Dolan harbored animosity
toward him, ?constantly disrespect[ing]
[him]? and ?even having security harass
him? ?[w]ithout any justi?cation? when he
attended Knicks games. (Id. 1] 2; see also id.
1]1] 23, 26?28.)

Things came to a head on February 8,
2017, when Oakley attended a Knicks game
at the Garden against the Los Angeles
Clippers. (Id. 1] 30.) Oakley insists that he
was ?neither intoxicated nor otherwise
behaving inappropriately? when he arrived
at the Garden (id. 1] 31), and that he took his
seat, ?coincidentally? located several rows
behind where Dolan was sitting, without
fanfare (id. 1] 32). However, a few minutes
after Oakley sat down, three men identifying
themselves as members of the Garden?s
security team approached him and asked
him to leave the arena. (Id. 1] 34.) Oakley
claims he asked the guards why he was
being asked to leave, only to have one of the
guards respond: ?Why are you sitting so
close to Mr. Dolan?? (Id. 1] 35.)

Oakley acknowledges that he did not
immediately comply with the guards?
request, instead attempting to explain that
?he had done nothing wrong and simply
wanted to watch the game in peace.? (Id.
1]37.) He then ?turn[ed] around? and
?return[ed] to his seat.? (Id. 1] 40the guards grabbed him,
pushed him to the ground, and demanded
that he leave the Garden ?immediately.?
(Id. 1]1] 42, 44.) Once back on his feet,
Oakley continued to ask why he was being
ejected from the Garden, at which point the
guards again attempted to force him from
the arena. (Id. 1] 45.) Oakley responded by

?push[ing] their hands away,? whereupon
six guards grabbed him and threw him to the
ground. (Id. 1]1] 46?47.) The guards then
restrained him, escorted him out of the
Garden, and delivered him to police of?cers,
who arrested him and charged him with
assault. (Id. 1]1] 49, 51, 123.)

Following the February 8 incident,
Defendants made a series of statements that
Oakley alleges were defamatory. First, on
the night of the incident, the Knicks public
relations Twitter account, 
which is owned and operated by Defendants,
tweeted that Oakley:

behaved in a highly inappropriate
and completely abusive manner. He
has been ejected and is currently
being arrested by the New York City
Police Department. He was a great
Knick and we hope he gets some
help soon.

(Id. 1]58.) Second, on February 9,
tweeted:

There are dozens of security staff,
employees and NYPD that witnessed
Oakley?s abusive behavior. It started
when he entered the building and
continued until he was arrested and
left the building. Every single
statement we have received is
consistent in describing his actions.
Everything he said since the incident
is pure ?ction.

(Id. 1] 62.)

Third, on February 10, Dolan appeared
on ESPN Radio?s The Michael Kay Show
and made a number of statements about
Oakley and the February 8 incident,
including the following:

think the most important thing
with that is that we need to keep

the Garden a place that?s
comfortable and safe for
everybody who goes there. So
anybody who comes to the
Garden, whether they?ve been
drinking too much alcohol,
they?re looking for a fight,
they?re abusive, disrespectful to
the staff and the fans, they?re
going to be ejected and they?re
going to be banned.?2

- ?To me, I think that Charles has
got a problem. I?ve said this
before, we?ve said it before. We
said it one time that he?s his own
worst problem. He has a
problem. People need to sort of
understand that. He has a
problem with anger. He?s both
physically and verbally abusive.
He may have a problem with
alcohol, we don?t know, right.?

0 ?We know that he talked about
on TV that he was drinking
beforehand. We?ve heard
statements from some of the
police and security that he
appeared to be impaired, et
cetera. Yes, they clearly, our
staff . . . could see that.?

0 ?When you have issues like this,
the ?rst step for anybody is to
ask for help.?

0 ?The No. 1 concern always has
to be the safety and the comfort
of the fans.?

 

2 Where there are discrepancies between the
Amended Complaint and the original sources on
which it relies, the Court quotes the latter, which are
incorporated by reference into the Amended
Complaint. The oral statements printed here have
also been cleaned up to remove ?ller words 
?you know?).

?We?ll probably hear chants
tonight in support of Mr. Oakley,
but I would like . . . those same
people to look around and look at
the people who are working at
Madison Square Garden, and
understand that the person that
they?re chanting for may have
been a great Knick player, but he
was terribly abusive to those
same people who are there to
help them.?

?There were security people
there who were abused. There
were service people there who
were abused. The same people
that the fans who come to the
game tonight, who are going to
help those fans ?nd their seats,
get them food, try and make
them comfortable, they were
abused. And abused not in a
really horrible, angry, nasty way.
With racially with racial
overtones, sexual overtones. The
stuff you never ever want to hear.
How do you bring your kids to a
game if you think that?s going to
happen??

?It?s very clear to us that Charles
Oakley came to the Garden with
an agenda, with a mission in
mind and from the moment he
stepped into the Garden, and I
mean the moment he walked
through the ?rst set of doors, he
began with this behavior.
Abusive behavior, disrespectful
behavior. Stuff that I don?t think
you. . . want to say on the
radio. . . . And it just accelerated
and accelerated and accelerated,
all the way down to his seats, and
then ultimately with a
confrontation with security, and

eventually ending up with his
being ejected and arrested. . . .1
mean I?m not inside of Charles
Oakley?s mind. He did say a
bunch of things along the way
that looked like he was headed in
my direction. I didn?t hear them
myself but we heard from our
employees et cetera that he was
using my name a lot. But this
isn?t because I?m nervous. This
is because you can?t do what he
did and stay. We clearly did not
we weren?t perfect here, and I
think that Charles never should
have made it to his seats. That?s
on us. We?re doing things to
remedy that. To make sure that
doesn?t happen again with
anybody??

(Id. 111168?73; Dolan Interview.)
B. Procedural History

On September 12, 2017, Oakley ?led the
original Complaint in this action against
Dolan and the MSG Defendants, asserting
New York state law claims of defamation 
including defamation per se, libel, and
slander assault, battery, false
imprisonment, abuse of process, and denial
of a public accommodation in violation of
the New York State Human Rights Law
(N .Y. Exec. L. ?290 et seq.) 
and the New York City Human Rights Law
(N.Y.C. Admin. Code 8-101 et seq.)
He also alleged a federal
claim of denial of public accommodation in
violation of the ADA.3 (Doc. No. 1.) The
Court held a conference on January 12, 2018
to discuss Defendants? contemplated motion

 

3 The libel, assault, battery, and false imprisonment
claims were brought only against the MSG
Defendants, whereas the remainder of the claims
were asserted against all Defendants.

to dismiss. (Doc. No. 51 Ex. 1.) In light of
the discussions at that conference and
Oakley?s voluntary withdrawal of his
claim, Oakley ?led an Amended
Complaint on February 9, 2018 that
included an additional claim for defamation
per quod but was otherwise substantially
similar to the original Complaint. (Am.
Compl. 94?148.)

On March 5, 2018, the Court granted
Defendants? request to stay discovery
pending the disposition of Defendants?
motion to dismiss the Amended Complaint.
(Doc. No. 38.) Defendants ?led their
motion to dismiss on March 30, 2018,
asserting that Oakley had failed to state a
claim for which relief can be granted under
Rule (Doc. No. 41.) Oakley ?led
his opposition brief on May 24, 2018 (Doc.
No. 50), and Defendants ?led their reply
brief on June 11, 2018 (Doc. No. 54).
Oakley thereafter submitted a series of
letters to the Court on March 13, 2019
(Doc. No. 56), July 29, 2019 (Doc. No. 58),
and November 15, 2019 (Doc. No. 63) 
setting forth additional authorities and facts
in opposition to the motion to dismiss.
Defendants responded to each letter with
submissions of their own on March 13, 2019
(Doc. No. 57), July 30, 2019 (Doc. No. 59),
and November 18, 2019 (Doc. No. 64). In
September 2019 and January 2020, Oakley
also requested that the Court lift the
discovery stay in this matter (Doc. Nos. 61,
65), which the Court denied (Doc. Nos. 62,
67).

II. LEGAL STANDARD

To withstand a motion to dismiss under
Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must ?provide the
grounds upon which [the] claim rests.?
ATSI Commc?ns, 493 F.3d at 98; see also
Fed. R. Civ. P. pleading that
states a claim for relief must contain. . . a

short and plain statement of the claim
showing that the pleader is entitled to
relief. . . To meet this standard, a
plaintiff must allege ?enough facts to state a
claim to relief that is plausible on its face.?
Bell Ail. Corp. v. Twombly, 550 US. 544,
570 (2007). claim has facial plausibility
when the plaintiff pleads factual content that
allows the court to draw the reasonable
inference that the defendant is liable for the
misconduct alleged.? Ashcroft v. Iqbal, 556
US. 662, 678 (2009).

In reviewing a Rule 12(b)(6) motion to
dismiss, a court must accept as true all
factual allegations in the complaint and draw
all reasonable inferences in favor of the
plaintiff. ATSI Commc?ns, 493 F.3d at 98.
That tenet, however, ?is inapplicable to legal
conclusions.? Iqbal, 556 US. at 678. Thus,
a pleading that offers only ?labels and
conclusions? or ?a formulaic recitation of
the elements of a cause of action will not
do.? Twombly, 550 U.S. at 555. If the
plaintiff ?ha[s] not nudged [its] claims
across the line from conceivable to
plausible, [its] complaint must be
dismissed.? Id. at 570.

DISCUSSION
A. Extrinsic Evidence

As an initial matter, the Court must ?rst
address Defendants? request that it consider
extrinsic evidence outside the Amended
Complaint in analyzing the motion to
dismiss.

A complaint ?is deemed to include any
written instrument attached to it as an
exhibit or any statements or documents
incorporated in it by reference.? Nicosia v.
Amazoncom, Inc, 834 F.3d 220, 230 (2d
Cir. 2016) (quoting Chambers v. Time
Warner, Inc, 282 F.3d 147, 152 (2d Cir.
2002)). ?Where a document [or other
extrinsic evidence] is not incorporated by

reference, the court may nevertheless
consider it where the complaint ?relies
heavily upon thereby rendering [it]
?integral? to the complaint.? Id. (quoting
DiFolco v. Cable L.L.C., 622 F.3d
104, 111 (2d Cir. 2010)). A ?necessary
prerequisite? for taking into account
materials extraneous to the complaint ?is
that the ?plaintiff rely on the . . . [item] in
drafting the complaint; mere notice or
possession is not enough.? 1d. at 231
(quoting Global Network Commc?ns, Inc. v.
City of New York, 458 F.3d 150, 156 (2d
Cir. 2006) (alterations omitted)). 
material is not integral to or otherwise
incorporated in the complaint, it may not be
considered unless the motion to dismiss is
converted to a motion for summary
judgment and all parties are ?given a
reasonable opportunity to present all the
material that is pertinent to the motion.? Id.
(quoting Fed. R. Civ. P. The Court
may also consider ?matters of which judicial
notice may be taken,? Brass v. Am. Film
Techs, Inc, 987 F.2d 142, 150 (2d Cir.
1993), namely, facts that are ?not subject to
reasonable dispute because? they 
generally known within the trial court?s
territorial jurisdiction; or (2) can be -
accurately and readily determined from
sources whose accuracy cannot reasonably
be questioned,? Fed. R. Evid. 201.

Defendants urge the Court to consider
?certain highly relevant extrinsic evidence?
in ruling on the motion to dismiss, including
(1) video footage from a variety of sources
of the February 8 incident at the Garden,
(2) video footage of Dolan?s February 10
appearance on The Michael Kay Show,
(3) documents from Oakley?s New York
state criminal case and other unrelated civil
court proceedings commenced by Oakley
against third parties, and (4) information
posted on the website of the Rebound
Institute (a drug and alcohol rehabilitation
clinic), Oakley?s website

?oakleyinthekitchen.com,? and Twitter.
(Am. Comp]. 111] 92?93; Mem. at 12?15.)
For the reasons set forth below, the Court
determines that, aside from the video of
Dolan?s February 10 appearance on The
Michael Kay Show which is expressly
referenced in and relied upon by the
Amended Complaint the Court will not
consider any of the extrinsic evidence in
examining Defendants? motion to dismiss.
The Court likewise declines to take judicial
notice of these materials.

1. Video Footage of the February 8 Incident

Defendants contend that the Court
should consider video footage of the
February 8 incident ?because it is objective,
dispositive, and the best evidence of the
event at issue.? (Mem. at 13.) They
maintain that Oakley had access to the
internal Madison Square Garden arena
camera footage and other publicly available
video, so the Court?s consideration of those
videos would ?pose[] no surprise or
prejudice to Oakley.? (Id. at 13?14.)
However, Defendants fail to satisfy the
necessary requirements for this Court to
consider the video footage as extrinsic
evidence at the motion to dismiss stage.
Oakley does not incorporate the video
footage by reference in his Amended
Complaint, nor does he imply that the
footage was integral to that complaint. See,
Marlin v. City of New York, No. 15-cv-
2235 (CM), 2016 WL 4939371, at *8
(S.D.N.Y. Sept. 7, 2016) (refusing to
consider video clips at the motion to dismiss
stage because they were not integral to the
complaint nor did the complaint reference
them); Gersbacher v. City of New York, 134
F. Supp. 3d 711, 719 (S.D.N.Y. 2015)
(declining to consider video of arrest at the
motion to dismiss stage where plaintiff ?may
have been aware that his arrest was ?lmed,
but . . . nothing . . . indicate[d] that he had
seen the videos prior to Defendants raising

them, much less relied upon them in drafting
the complaint?).

The Court further declines to take
judicial notice of the video footage. The
videos do not represent facts that are
generally well known within this Court?s
territorial jurisdiction, and since the videos
have not been authenticated, their accuracy
cannot reasonably be assumed at this stage
of the proceedings. See, Harasz v.
Katz, 239 F. Supp. 3d 461, 474 (D. Conn.
2017)

2. Video Footage of Dolan?s February 10
Interview on The Michael Kay Show

Defendants likewise assert that the Court
may examine a video of Dolan?s appearance
on The Michael Kay Show because ?Oakley
relies on and quotes extensively from that
interview in [his] Amended Complaint.?
(Mem. at 14.) The Court agrees. Dolan?s
statements from The Michael Kay Show are
expressly referenced in the Amended
Complaint and are the very defamatory
statements on which Oakley is proceeding.
In a defamation case, the Court must analyze
the allegedly defamatory statements in total
and in context. See Elias v. Rolling Stone
LLC, 872 F.3d 97, 109 (2d Cir. 2017).
Oakley selectively quotes from Dolan?s
interview in the Amended Complaint,
providing snippets of Dolan?s remarks but
eliding the full context in which those
statements were uttered. (See Am. Compl.
11116843.) That context may affect the
meaning of Dolan?s statements. Therefore,
the Court is free to consider the video of
Dolan?s appearance on The Michael Kay
Show. See Edwards v. Raymond, 22 F.
Supp. 3d 293, 297 (S.D.N.Y. 2014)
(considering recording not attached to
complaint but on which plaintiff ?clearly
relied? in ?ling suit).

3. Documents from Oakley?s New York
State Criminal Case and Other
Proceedings

Defendants next ask the Court to
consider (1) the criminal complaint in the
New York state case related to the February
8 incident, (2) a notice of trespass signed by
Oakley and the District Attorney as part of
the plea disposition in that case, and
(3) pleadings Oakley has ?led in prior civil
cases ?in connection with his prior physical
altercations with security personnel and/or
law enforcement.? (Mem. at 14?15.) The
Court declines this request. Oakley does not
remotely reference the criminal complaint,
trespass notice, or pleadings in prior civil
cases in the Amended Complaint, let alone
rely on those documents such that they are
integral to the complaint. See, 
McLennon v. City of New York, 171 F. Supp.
3d 69, 90 (E.D.N.Y. 2016) (refusing to
consider ?documents related to [the
plaintiff?s] criminal case? where they were
not ?incorporated by reference? into the
complaint). Furthermore, although a court
may take judicial notice of documents from
other proceedings ?to establish the fact of
such litigation and related filings,? it may
not do so ?for the truth of the matters
asserted in the other litigation.? Kramer v.
We Warner Inc, 937 F.2d 767, 774 (2d
Cir. 1991).

While Oakley?s pleadings in prior civil
cases he commenced against unrelated third
parties do ?constitute the admissions of a
party-opponent? and therefore may be
admissible evidence in this case, see United
States v. McKeon, 738 F.2d 26, 31 (2d Cir.
1984), Defendants seek to use this evidence
to demonstrate Oakley?s ?recidivist history?
(Mem. at 15) and to show that ?this is not
the ?rst time Oakley has misbehaved and
then resorted to litigation as cover for his
own misconduct? (id. at 4). Defendants
insist that Oakley ?has repeatedly clashed

with police and security . . . and then
brought suits against the very police of?cers
and security guards who were the victims of
his abuse,? alleging that he is ?abusing the
litigation process to try to de?ect blame for
his own actions onto others.? (Id. at 5.)
Obviously, Oakley?s credibility and
motivations in bringing suit are not relevant
on a motion to dismiss, for which the factual
allegations are presumed to be true. See
Palin v. NY. Times Co, 940 F.3d 804, 812
(2d Cir. 2019) (holding that the district court
erred in making credibility determinations
on a motion to dismiss).

The Court therefore rejects Defendants?
request to consider the criminal complaint,
trespass notice, and pleadings Oakley has
?led in prior civil cases.

4. Information Published on Public
Websites

Defendants ?nally request that the Court
take judicial notice of certain postings on
Oakley?s website ?oakleyinthekitchen.com,?
on the Rebound Institute?s website
"reboundinstitute.com,? and on Twitter 
that allegedly shed light on Oakley?s
relationship with the Rebound Institute and
pertain to the issue of special damages.
(Mem. at 15.) The Court declines to take
judicial notice of this information. As
Oakley notes, the materials have not been
properly authenticated (Opp?n at 18), and
Defendants do not explain why the
materials? asserted inconsistency with the
Amended Complaint renders them
competent evidence that must be considered
at the motion to dismiss stage instead of on a
motion for summary judgment or at trial
(Mem. at 15). See, e. g, Moukengeschate v.
Eltman, Eltman Cooper, P. C., No.14-cv-
7539 (MKB), 2016 WL 1274541, at *13
n.13 (E.D.N.Y. Mar. 31, 2016); Gatley
Schuler v. Rainforest AIL, Inc, No. 14-cv-

226 (CR), 2016 WL 10516026, at *2 (D. Vt.
Feb. 10, 2016).



For all these reasons, the Court will not
consider the extrinsic evidence Defendants
proffer, except for the video of Dolan?s
February 10 appearance on The Michael Kay
Show.

B. Motion to Dismiss

Oakley claims that he was defamed by
statements Defendants made on February 8,
9, and 10. He also alleges assault, battery,
false imprisonment, abuse of process, denial
of a public accommodation in violation of
New York state law, and denial of a public
accommodation in violation of the ADA
based on the February 8 incident. The Court
will address each of these claims in turn.

1. Defamation

?Defamation, consisting of the twin torts
of libel and slander, is the invasion of the
interest in a reputation and good name.?
Albert v. Lokseri, 239 F.3d 256, 265 (2d Cir.
2001) (quoting Hogan v. Herald C0., 84
470, 474 (NY. App. Div. 1982)).
Slander is defamation by spoken expression,
and libel is defamation by written
expression. Id. Under New York law, a
defamation claim requires a plaintiff to
establish (1) a ?defamatory statement of fact
concerning the plaintiff;? (2) ?publication to
a third party;? (3) ?fault (either negligence
or actual malice depending on the status of
the [defamed] party);? (4) ?falsity of the
defamatory statement;? and (5) ?special
damages or per se actionability.? Celle v.
Filipino Reporter Enters. Inc, 209 F.3d 163,
176 (2d Cir. 2000) (libel); Albert, 239 F.3d
at 265?66 (slander). For slander claims,
New York law also requires a plaintiff to
establish that the statements in question are
not shielded by a privilege. Albert, 239 .3d

at 266. ?Whether particular words are
defamatory presents a legal question to be
resolved by the court in the first instance.?
Aronson v. Wiersma, 483 1138, 1139
(NY. 1985). If a plaintiff in a defamation
suit is a public of?cer or public ?gure, the
plaintiff must show actual malice on the part
of the speaker or publisher. See Curtis
Publ?g Co. v. Butts, 388 U.S. 130, 155
(1967).

In broad strokes, Oakley alleges that
Defendants defamed him by falsely accusing
him of assaulting Garden workers on
February 8, 2017 and of being an alcoholic.
Defendants respond that Oakley has failed to
suf?ciently plead three necessary elements
of his New York defamation claims: (1) that
the statements were defamatory statements
of fact, as opposed to opinion; (2) actual
malice; and (3) per se actionability or
special damages. (Mem. at 17?30.)

a. Assault Accusations

Oakley claims that Defendants made
defamatory statements accusing him of
having committed the ?serious crime of
assault? and of having been ?abusive?
toward others. (Am. Comp]. 1111103, 111,
1 17.) On February 8, 2017,
tweeted that ?Charles
Oakley came to the game tonight and
behaved in a highly inappropriate and
completely abusive manner. He has been
ejected and is currently being arrested by the
New York City Police Department.? (Id.
11 58.) The next day, again
tweeted about the incident, stating that
?[t]here are dozens of security staff,
employees and NYPD that witnessed
Oakley?s abusive behavior.? (Id. 1162.)
Furthermore, on February 10, 2017, Dolan
appeared on The Michael Kay Show and
stated that Oakley was ?physically and
verbally abusive? and that he ?abused?
many individuals at the February 8 game.

(Id. 1111 69, 72; see also supra section I.A.,
pp. The Court concludes that Oakley
fails to plead defamation based on these
statements because (1) they are not
defamatory statements of fact concerning
him, (2) he has failed to allege actual malice,
and (3) he has not alleged special damages
or per se actionability.

(1) Defamatory Statements of Fact

First, the statements Oakley identi?es
neither explicitly accuse nor imply that
Oakley committed assault. In New York,
third-degree assault requires an individual to
?cause physical injury to another person,?
N.Y. Penal Law and
second-degree assault requires ?serious?
physical injury, id. ?120.05. But the
allegedly defamatory statements do not
accuse Oakley of causing physical injury to
anyone. Oakley weaves together
Defendants? statements in a misleading
fashion, joining statements as connected that
were originally uttered at different times and
in different contexts, to maintain that
?[t]aken together, the statements that
[Oakley] was ?arrested? for ?engaging in
physically abusive? behavior that
jeopardized the safety of Knicks fans, give
rise to the reasonable inference that he was
arrested for physically attacking members of
the public.? (Opp?n at 20.) The Court
disagrees. Defendants never accused
Oakley of causing physical injury to anyone,
and their statements that Oakley was
?abusive? to individuals at the February 8
Knicks game and that he was ejected from
the game and arrested by the NYPD do not
give rise to the implication that Oakley
committed assault.4

 

4 Oakley cites Sprewell v. NYP Holdings, Inc., 772
188 (NY. Sup. Ct. 2003), for its
explanation that though a statement may not use the
?technical words of a criminal indictment,? it can still
be ?reasonably susceptible to a connotation of

Moreover, the Court concludes that
Defendants? statements accusing Oakley of
subjecting other individuals to ?abusive
conduct? at the February 8 game are not
defamatory because those statements
constitute nonactionable statements of
opinion. ?An expression of pure opinion is
not actionable? because receives the
Federal constitutional protection accorded to
the expression of ideas, no matter how
vituperative or unreasonable it may be.?
Steinhilber v. Alphonse, 501 550,
552 (NY. 1986). ?In New York, the
determination of whether a statement is a
fact or an opinion is left to the Court.?
Galland v. Johnston, No. 14-cv-44ll (RJS),
2015 WL 1290775, at *5 (S.D.N.Y. Mar. 19,
2015). The Court examines four factors in
making this determination: (1) ?whether the
speci?c language in issue has a precise
meaning which is readily understood or
whether it is inde?nite and ambiguous;?
(2) ?whether the statement is capable of
being objectively characterized as true or
false;? (3) ?the full context of the
communication in which the statement
appears;? and (4) ?the broader social context
or setting surrounding the communication
including the existence of any applicable
customs or conventions which might signal
to readers or listeners that what is being read
or heard is likely to be opinion, not fact.?
Kirch v. Liberty Media Corp, 449 F.3d 388,
402 n.7 (2d Cir. 2006) (internal quotation
marks and citation omitted). Because
context is important to the analysis, courts
do not consider the words in isolation, but
?construe[] [them] in the context of the

 

criminality,? id. at 193?94 (quoting Ca?ee v. Arnold,
104 352, 353 (NY. App. Div. 1984)), and
thus be defamatory. However, Sprewell is
inapposite. In Sprewell, the allegedly defamatory
statements referred to speci?c physical actions the
plaintiff took, such as ?punching a wall.? Id. at 193.
Here, Defendants? statements do not refer to any
speci?c physical actions Oakley took.

entire statement or publication as a whole,
tested against the understanding of the
average reader.? Dillon v. City of New York,
261 34, 38 (NY. App. Div. 1999).

According to the Amended Complaint,
Defendants? statements referred to Oakley?s
behavior as being ?inappropriate? and
?abusive,? with Dolan stating that Oakley
was ?physically and verbally abusive? and
that he ?abused? many individuals at the
February 8 game. However, ?abusive? is a
subjective term that the New York courts
have held to constitute a ?nonactionable
statement[] of opinion.? See Rotondi v. The
Madison Square Garden Co., No.
150097/2015, 2017 WL 4083093, at *3
(NY. Sup. Ct. Sept. 12, 2017) (?nding that
statements ?mostly consist[ing] of assertions
that the plaintiff was abusive and interfered
with [a basketball] game? were
?nonactionable statements of opinion?); see
also Colantonio v. Mercy Med. Ctr, 73
966, 968 (NY. App. Div. 2010)
(determining that statements that plaintiff
?has poor judgment,? ?is belligerent and
very unreasonable,? is ?not stable,? and is
?inappropriate? were ?nonactionable
expressions of opinion?); Farrow v.
O?Connor, Redd, Gollihue Sklarin, LLP,
51 626, 627 (NY. App. Div. 2008)
(holding that a ?subjective characterization
of the plaintiff?s behavior. . . constituted a
nonactionable expression of opinion?).

Accordingly, Oakley has failed to allege
that Defendants? statements are defamatory
statements of fact concerning him.

(2) Actual Malice

Oakley?s defamation claim based on
Defendants? allegedly false accusation that
he committed the crime of assault also fails
to allege that Defendants harbored actual
malice toward Oakley. Actual malice is a
necessary requirement of Oakley?s
defamation claim because Oakley is a public

10

?gure. (Am. Compl. 11111, 6, l4~17.)
Individuals who have ?assumed roles of
especial prominence in the affairs of
society? and ?invite[d] attention and
comment? are generally considered public
?gures. Gertz v. Robert Welch, Inc, 418
US. 323, 345 (1974); see also, Time,
Inc. v. Johnston, 448 F.2d 378, 380 (4th Cir.
1971) (holding that a former professional
basketball player was a public ?gure);
Pippen v. NBC Universal Media, LLC, No.
11-cv-8834 (SJC), 2012 WL 12903167, at
*2 (ND. 111. Aug. 2, 2012) (holding that
Scottie Pippen, a former professional
basketball player, was a public ?gure);
Wilsey v. Saraioga Harness Racing, Inc,
140 857, 858 (NY. App. Div. 1988)
(explaining that ?professional
athletes . . . are often public ?gures?).
Oakley describes himself as a ?Knicks
legend,? a ?premier? ?17-year veteran of the
who was ?inarguably the greatest
power forward in Knicks history? and who
appeared in the NBA All-Star Game in
1994. (Am. Compl. 1111 1, 6, 16?17, 54.) He
also states that he has spent significant time
since his retirement making ?guest
appearances? from which he earns tens of
thousands of dollars. (Id. 111] 92, 94.) Based
on the pleadings alone, there can be no
doubt that Oakley is a public ?gure.

A public ?gure cannot recover damages
for defamation unless he proves, by clear
and convincing evidence, that the relevant
statements were made with actual malice at
the time they were spoken or written. See
Palin, 940 F.3d at 817; see also Dunlap-
McCullen v. Rogers,lNo. 00-cv-3274 (JSR),
2002 WL 1205029, at *7 (S.D.N.Y. Feb. 21,
2002). A statement is made with ?actual
malice? where it is made ?with knowledge
that the statement[] [is] false or with
reckless disregard as to [its] falsity.? Biro v.
Conde? Nast, 807 F.3d 541, 544 (2d Cir.
2015). Actual malice concerns ?the
speaker?s subjective doubts about the truth

of the publication.? Church of Scientology
Int?l v. Behar, 238 F.3d 168, 174 (2d Cir.
2001). public-?gure plaintiff must
plead ?plausible grounds? to infer actual
malice by alleging ?enough fact[s] to raise a
reasonable expectation that discovery will
reveal evidence of actual malice.? Biro,
807 F.3d at 546 (quoting Twombly, 550 US.
at 556). ?Conclusory allegations are
insuf?cient. .. Amadasu v. Bronx
Lebanon Hosp. Ctr., No. 03-cv~6450 (AJP),
2005 WL 121746, at *13 (S.D.N.Y. Jan. 21,
2005) (citations omitted), report and
recommendation adopted by Amadasa v.
Rosenberg, No. 03-cv-6450 (LAK), 2005
WL 954916 (S.D.N.Y. Apr. 26, 2005).

Oakley fails to satisfy this requirement.
Indeed, he does not offer any facts beyond
conclusory allegations that the MSG
Defendants or Dolan acted with actual
malice. The Amended Complaint asserts
repeatedly that the MSG Defendants and
Dolan were ?fully aware that [their]
comments were and are entirely without
basis in fact and/or? that their comments
were made with ?a reckless disregard for
their trut (Am. Compl. 111159, 70.) But
the Amended Complaint does not provide
any factual grounds to support those
conclusory allegations. These are the type
of ?labels and conclusions? and ?formulaic
recitation[s] of the elements of a cause of
action? that must be disregarded under Iqbal
and Twombly. Twombly, 550 US. at 555;
Biro v. Cond? Nast, 963 F. Supp. 2d 255,
281 (S.D.N.Y. 2013).

In fact, the only assertion that the
Amended Complaint makes regarding actual
malice is that Dolan harbored a general
animosity toward Oakley. (Am. Compl.
111126, 28.) But evidence of ill will alone,
without more, cannot establish actual
malice. See Dunlop-McCullen, 2002 WL
1205029, at *16 n.3 (explaining that ?past
disputes between the parties and grudges . . .

11

[s]tanding alone. . . [are] not suf?cient to
establish actual malice? (quoting Celle, 209
F.3d at 183)). And the mere repetition of
the assertion that the MSG Defendants and
Dolan made their statements either knowing
they were false or with reckless disregard
for their truth is simply not enough to eke
out a cause of action. (Am. Compl. 1111 59,
70.)

Oakley thus fails to satisfy his burden
?to plead facts giving rise to the plausible
inference that [Defendants] [made] the
allegedly defamatory [statements] with
actual malice.? Palin, 940 F.3d at 815; see
also Hughes v. Twenty?First Century Fox,
Inc, 304 F. Supp. 3d 429, 453 (S.D.N.Y.
2018) (dismissing ?conclusory? allegations
regarding actual malice that ?provide[d] no
detail? as to the defendants? ?knowledge or
mental state?).

(3) Special Damages and Per Se
Actionability

Oakley also fails to plead that
Defendants? allegedly false accusations of
assault and/or abusive conduct caused him
to suffer special damages or were per se
actionable. ?Special damages are speci?c
and measurable losses which must be
alleged with suf?cient particularity to
identify actual losses and be related causally
to the alleged tortious acts.? Kancz'per v.
Lalo, 989 F. Supp. 2d 216, 237 (E.D.N.Y.
2013) (citation omitted). Oakley has not
alleged that he suffered special damages as a
result of Defendants? purportedly false
accusations that he committed the crime of
assault and was abusive toward the Garden
staff. In fact, the only damages alleged in
the Amended Complaint relate to Oakley?s
asserted loss of $40,000 from the Rebound
Institute, but that loss was expressly tethered
to Defendants? statements claiming that
Oakley was an alcoholic, not to the assault
accusation. (Am. Compl. 11 93.)

The Amended Complaint is equally
de?cient with respect to per se actionability.
To plead per se actionability in lieu of
pleading special damages, a plaintiff must
allege that the purportedly defamatory
statements ?t into one of four categories:
statements (1) ?charging plaintiff with a
serious crime;? (2) ?that tend to injure
another in his or her trade, business or

profession;? (3) ?that plaintiff has a
loathsome disease;? or (4) ?imputing
unchastity to a woman.? Liberman v.

Gelstein, 605 344, 347 (NY. 1992).
For those categories of statements, damages
may be presumed, and a defendant need not
plead speci?c damages. 1d. But ?whether
the contested statements are reasonably
susceptible of a defamatory connotation? are
matters for the Court to decide. 
v. Simon Schuster, Inc, 649 825,
829 (NY. 1995).

Here, Oakley asserts that Defendants?
statements ?accus[ed] him of having
committed the serious crime of assault
against members of the public, warranting
his arrest.? (Am. Compl. 1103.) But as
explained above, Defendants? statements
neither explicitly nor implicitly accused
Oakley of committing assault. They merely
alleged that he was ?abusive,? which is too
vague a term to support a claim of per se
defamation. See Colantonio, 73 at
968; Farrow, 51 at 627; Rotondi,
2017 WL 4083093, at 

Accordingly, Oakley does not
suf?ciently plead special damages or per se
actionability.

4:

For the reasons stated above, Oakley?s
defamation claim based on Defendants?
purported accusations that Oakley
committed the crime of assault and/or
engaged in abusive behavior toward Garden
staff fails to suf?ciently plead three

12

necessary elements and consequently fails
on those three independent grounds.

b. Alcoholism Statements

Oakley next contends that Defendants
defamed him by accusing him of being an
alcoholic. He maintains that Defendants?
statements ?were inarguably spreading the
false rumor that [he] was an alcoholic who
had a habitual problem that required ?help.??
(Am. Comp]. 1190.) Speci?cally, Oakley
alleges that the MSG Defendants stated on
February 8, 2017 that they ?hope[d]
[Oakley] gets some help soon.? (Id. 11 58.)
During his appearance on he Michael Kay
Show, Dolan made further comments about
Oakley ?drinking before[]? the game, that
police and security had said ?he appeared to
be impaired,? that Oakley ?may have a
problem with alcohol, we don?t know,? and
that ?[w]hen you have issues like this, the
first step for anybody is to ask for help.?
(Id. 1169; Dolan Interview.) Once again,
Oakley has failed to plead defamation
because (1) he has failed to allege actual
malice, and (2) he has not suf?ciently
alleged special damages or per se
actionability.

(1) Actual Malice

As noted above, Oakley is a public
?gure who must demonstrate that the
allegedly defamatory statements were made
with actual malice at the time they were
uttered. Palin, 940 F.3d at 809?10. But
once again, Oakley does not offer any proof
beyond conclusory allegations of
Defendants acting with actual malice.
Though he pleads that he has never abused
alcohol (Am. Comp]. 170), Oakley never
pleads that the MSG Defendants or Dolan
knew that purported fact. He merely pleads
conclusory statements that re?ect the
elements of actual malice and a generalized
assertion that the MSG Defendants and
Dolan knew somehow that he was not, in

fact, an alcoholic. Consequently, Oakley
fails to sufficiently plead actual malice.

(2) Special Damages and Per Se
Actionability

Oakley also fails to plead special
damages caused by Defendants? statements
or per se actionability. First, the Amended
Complaint does not plausibly allege that
Defendants? statements caused the purported
damages. To plead special damages, a
plaintiff must identify actual losses that are
?causally related to the alleged tortious act.?
L.W.C. Agency, Inc. v. St. Paul Fire 
Marine Ins. Co, 125 371, 373 (N .Y.
App. Div. 1986). The Amended Complaint,
however, merely states in a conclusory
manner that ?as a direct result? of
Defendants? statements, the Rebound
Institute ?conclu[ded] that it was not
appropriate for someone with. . . a
reputation [for alcoholism] to interact with
their patients? and that ?Oakley was
[therefore] not able to receive $40,000? in
appearance fees from the Rebound Institute.
(Am. Compl. 93, 95.) He does not
explain on what basis he reached this
conclusion or proffer any facts to support a
direct causal connection between
Defendants? statements and the Rebound
Institute?s alleged decision not to pay
Oakley $40,000 in appearance fees. Simply
assuming that Defendants? statements
?directly? caused the Rebound Institute to
withhold appearance requests is not enough
to support an allegation of special damages.

Second, the Amended Complaint does
not plausibly allege per se actionability
based on either of the grounds Oakley
proffers: that Defe'ndants? purported
statements that he is an alcoholic (1) tended
to injure him in his trade, business, or
profession (id. 1] 105); or (2) accused him of
suffering from a loathsome disease (id.
104). The first ground fails because the

13

challenged statements speak only to
Oakley?s general personal qualities, and
Oakley has not alleged any connection
between the allegedly defamatory statements
and his trade, business, or profession. The
second ground fails because New York law
does not consider alcoholism to be a
loathsome disease.

?Courts have consistently held that any
allegedly defamatory statements that do not
affect a plaintiff?s actual business
profession, rather than simply qualities that
are important for business, are not
defamatory per se.? Kalimantano GMBH v.
Motion in Time, Inc, 939 F. Supp. 2d 392,
420 (S.D.N.Y. 2013). A statement that
tends to injure another in his or her trade,
business, or profession is one that ?must be
made with reference to a matter of
signi?cance and importance for [the proper
conduct of the business, trade, profession, or
of?ce itself], rather than a more general
re?ection upon the plaintiff?s character or
qualities.? Medcalf v. Walsh, 938 F. Supp.
2d 478, 487 (S.D.N.Y. 2013) (quoting
Liberman, 605 at 348).

Defendants? statements can only be
construed as general re?ections upon
Oakley?s character or qualities, not as
speci?c comments regarding his purported
trade, business, or profession. Here, the
allegedly defamatory statements include no
reference to Oakley?s business or profession,
and merely reference Oakley himself. But
as Judge Swain recently observed, is
not suf?cient that [statements] tend to injure
plaintiff in his business, they must have been
spoken of him in his business.? acopina v.
Kerik, No. 14-cv-749 (LTS), 2016 WL
1268268, at *4 (S.D.N.Y. Mar. 31, 2016)
(emphasis omitted) (quoting Gurtler v.
Union Parts Mfg. Co., 285 AD. 643, 646
(N.Y. App. Div. 1955)); see also Walker v.
Urban Compass, Inc, No. 652554/2016,
2017 WL 608308, at *6 (NY. Sup. Ct. Feb.

15, 2017) (determining that accusations that
plaintiff abused alcohol did ?not speci?cally
relate to plaintiff?s ability to? perform his
job, ?but rather re?ect[ed] more generally
upon his character,? and thus were not
defamatory per se under the injury to trade,
business, or profession category).

Signi?cantly, the Amended Complaint
does not even specify what Oakley?s trade,
business, or profession is. Instead, the
complaint merely asserts that Oakley has
?made guest appearances at drug and
alcohol rehabilitation clinics to speak with
patients and provide other services,
including cooking them meals? (Am.
Compl. and that he ?works with
individuals who suffer from substance
issues? (id. 1] 105). Though Oakley?s brief
contends that he ?derived significant income
opportunities? from appearances at drug and
alcohol rehabilitation centers (Opp?n at 21),
the Amended Complaint is silent on that
point and merely alleges that ?it is a matter
of common knowledge that [Oakley] works
with individuals who suffer from substance
abuse issues? (Am. Compl. 1] 105). Since
Oakley does not plead that working with
individuals who suffer from substance abuse
issues is his trade, business, or profession,
he has not established per se actionability on
this basis.

Oakley next alleges that Defendants?
purported statements accused him of
?suffering from the loathsome disease of
alcoholism.? (Id. 1] 104.) This contention
also fails because New York law does not
consider alcoholism to be a loathsome
disease, and therefore Oakley does not plead
per se actionability on this basis. Under
New York law, loathsome diseases ?include
only existing venereal disease[s] and other
?loathsome and communicable? 
TC KC v. Valley Cent. Sch. Dist, 777 F.
Supp. 2d 577, 603 (S.D.N.Y. 2011) (quoting
Restatement (Second) of Torts ?572); see

14

also Marina v. Jonke, Nos. ll-cv-430, 11?
cv-4425 (VB), 2012 WL 1871623, at *11
(S.D.N.Y. Mar. 30, 2012). Alcoholism is
neither a venereal disease nor
communicable. Consequently, alcoholism
does not qualify as a loathsome disease for
purposes of per se actionability under New
York law.

Precedent supports this conclusion. In
Ruderman v. Stern, No. 39179/97, 2004 WL
3153217, at *16 (N.Y. Sup. Ct. Oct. 25,
2004), the court held that ?[d]efendants?
statements that plaintiff was an alcoholic?
did ?not constitute [defamation] per se?
because they did not ?fit into the [per se
actionability] categories.? Oakley cites
Hayes v. Sweeney, 961 F. Supp. 467, 481
(W.D.N.Y. 1997), for the proposition that
?an imputation of alcohol consumption is
defamatory when accompanied by some
aggravating factor, such as the suggestion
that [such] conduct is habitual or that the
person is ?a drunk.?? (Opp?n at 21.) Hayes
is inapplicable, however, because it involved
a claim of per se actionability based on
injury to trade, business, or profession not
an assertion that alcoholism was a loathsome
disease. 961 F. Supp. at 479?81. In that
context, the court determined that
defendants? statement accusing plaintiff of
having ?an alcohol problem that affected her
ability to perform her job? as a New York
State Department of Labor regional director
was per se actionable. Id. at 481. The court
noted, however, that is not actionable
per se to charge a man orally with being
drunk or in the habit of getting drunk,
unless? the statements quali?ed under a
different category of per se actionability. Id.
(quoting Morrison 12. News Syndicate Co.,
247 AD. 397, 399 (N.Y. App. Div. 1936)).

Accordingly, Oakley has neither
suf?ciently pleaded special damages nor per
se actionability for Defendants? statements

allegedly accusing him of being an
alcoholic.



Because Oakley has failed to allege
actual malice or special damages, his
defamation claim based on Defendants?
statements purportedly accusing him of
being an alcoholic must be dismissed.

2. Assault and Battery

In addition to his defamation claims,
Oakley contends that the MSG Defendants
committed assault and battery against him
when they ?physically and forcibly removed
[him] from the Garden and subsequently
detained him until police could arrive to
unjusti?ably arrest him.? (Am. Comp].
1 127.)

Assault is the ?intentional placing of
another person in fear of imminent harmful
or offensive contact.? Green v. City of New
York, 465 F.3d 65, 86 (2d Cir. 2006)
(citation omitted). Civil battery is ?an
intentional wrongful physical contact with
another person without consent.? Id.
(citation omitted). The law is clear that ?a
property owner has the right to use
reasonable force to eject a trespasser from
its premises,? but ?the use of unnecessary
force or evidence of intent to injure as
opposed to an intent to guard the owner?s
property removes the privilege.? Mitchell v.
NY. Univ, No. 150622/2013, 2014 NY.
Misc. LEXIS 105, at *17 (NY. Sup. Ct. Jan.
8, 2014) (citing Noonan v. Luther, 99 N.E.
178, 179 (N.Y. 1912); McGovern v. Weis,
265 AD. 367, 370 (N.Y. App. Div. 1943);
Hill v. Greeley Square Hotel C0., 175 AD.
421, 422?23 (N.Y. App. Div. 1916)).

According to the Amended Complaint,
three Madison Square Garden security
guards approached Oakley at his seat and
ordered him to leave the Garden ?without

explanation.? (Am. Compl. 1134.) Oakley
alleges that he ?attempted to defuse the
situation by . . . explaining to the security
personnel that he had done nothing wrong
and simply wanted to watch the game in
peace.? (Id. 1137.) He maintains that he
then ?turn[ed] around and. . .return[ed] to
his seat? (id. 1140), in an unspoken, but
explicit, refusal to comply with the MSG
Defendants? lawful directive as property
owners of the Garden. After this refusal to
comply, Oakley alleges that ?two of the
security guards grabbed [him] and pushed
him to the ground.? (Id. 1142.) Oakley
asserts that this conduct ?clearly exceeded
the bounds of reasonable behavior? because
there had been no ?physical threat or
provocation from (Id 11 43.)

Oakley further alleges that after he got
up and once more tried to request an
explanation for the security guards?
behavior, the guards reiterated their demand
that he leave the Garden and grabbed him
again to compel his removal. (Id. 1111 44?45.)
?Fearing for his safety,? Oakley claims he
then ?pushed their hands away in self-
defense.? (Id. 1146.) At this point, Oakley
alleges that ?six [security] officials? grabbed
him and ?thr[ew]? him to the ground,
?crowding around him and impeding his
ability to? stand up. (Id. 1111 47?48.) Oakley
maintains that he was then ?put into
restraints? and that the ?security guards
roughly threw him out of the Garden.? (Id.
1149.) Oakley asserts that by ?grabbing
[him], restraining him, dragging him to the
ground and refusing his repeated requests
that he be allowed to stand up, Defendants
greatly exceeded the amount of force that
was necessary in the situation.? (Id. 11 50.)

As an initial matter, Oakley grossly
misunderstands the law concerning a
landlord?s right to remove a trespasser from
its property. The law is clear that the MSG
Defendants had the right to expel Oakley

from the Garden and that his refusal to leave
justi?ed their use of reasonable force to
remove him a licensee who became a
trespasser by refusing to leave their property
after being directed to do 50.5 See, 
Norman, 99 N.E. at 179; McGovern, 265
AD. at 370; Hill, 175 AD. at 422?23; see
also Impastato v. Hellman Enters, Inc, 147
788, 789 (N.Y. App. Div. 1989)
(explaining that admission ticket to a
place of public amusement is merely a
license which is revocable, without cause, at
the will of the proprietor?); Gottlieb v.
Sullivan Cty. Harness Racing Ass?n, 25
798, 798 (NY. App. Div. 1966);
Madden v. Queens Cty. Jockey Club, Inc,
72 697, 698 (N.Y. 1947); Aaron v.
Ward, 96 N.E. 736, 737 (NY. 1911); People
ex rel. Burnham v. 82 N.E. 169, 185?
86 (NY. 1907) (explaining that a concert
ticket is a revocable license and that a
ticketholder, if he remains on the premises
after that license has been revoked,
?becomes a trespasser, and may be removed
by the use of force necessary for the
purpose?). Oakley?s pleadings and brief
reveal a mistaken belief that he could
?negotiate? with security personnel to avoid

being ejected, and that the MSG Defendants -

had to justify his ejection to his satisfaction
before he was required to comply with their
directive to leave. (See, Am. Compl.
11113443; Opp?n at 29?32.) Equally
unfounded is Oakley?s assertion that
reasonable force to remove a trespasser
cannot be employed unless the trespasser
?rst engages in physical threats or
provocation, even if that trespasser
steadfastly refuses to leave after being

 

5 See Rosenstiel v. Rosensliel, 20 71, 76 (NY.
App. Div. 1963) licensee is one who enters
upon or occupies lands by permission, express or
implied, of the possessing any
interest in the property, and who becomes a
trespasser thereon upon revocation of the permission
or privilege?).

16

requested to do so. (See Am. Compl. 11 43.)
Were Oakley?s version of property rights
accurate, property owners would be
powerless to remove trespassers, who would
be free to ignore the entreaties of property
owners to an inevitable stalemate. The law
is not so anemic. To the contrary, it permits
property owners to use reasonable force to
eject trespassers from their premises. This is
true even for venues like theaters and sports
arenas. See, Mathews v. NY. Racing
Ass Inc, 193 F. Supp. 293, 295 (S.D.N.Y.
1961) (horse racing track); of People ex rel.
Burnham v. 114 AD. 578, 581 (NY.
App. Div. 1906) (explaining that theater
owners had right to prevent individual from
entering theater ?by such reasonable force as
was necessary?). Therefore, the only issue
with respect to Oakley?s assault and battery
claim is whether Defendants used
unnecessary force or intended to injure him,
in which case the privilege to use force
would be forfeited.

In his Amended Complaint, Oakley
alleges that Defendants grabbed him and
forced him to the ground, but he does not
claim that this unwanted touching occurred
before he refused to comply with the
security guards? directive that he leave the
Garden. Indeed, Oakley never alleges that
he attempted to comply with the security
guards? directive. In his view, the guards?
use of force was unreasonable because he
did ?nothing wrong and simply wanted to
watch the game in peace.? (Am. Compl.
11 37.) But the guards were not required to
justify their request, and Oakley?s admitted
refusal to comply is what justi?ed their use
of force. Of course, the force used by the
guards had to be reasonable, but the mere
allegation that the guards subsequently
?grabbed [him] and pushed him to the
ground? (id. 1142) is not enough to
demonstrate unreasonable force, see, 
Kalfus v. NY. Presbyterian Hosp, 476 F.
App?x 877, 880?81 (2d Cir. 2012)

(explaining that police of?cers? pushing
trespasser onto the ground while arresting
him to remove him from the premises after
he refused to leave was reasonable force).

Nowhere does Oakley allege that the
guards intended to injure him, and his
description of the events as they unfolded
does not support an inference of excessive
or unreasonable force. Oakley does not
allege that the guards gratuitously punched
or kicked him or that any of the physical
contact was unnecessary or malicious. See,
Walsh 12. Hyde Behmcm Amusement
Ca, 113 AD. 42, 44 (NY. App. Div. 1906)
(upholding jury?s verdict of compensatory
damages for plaintiff where, in being ejected
from a theater, ?he was thrown down three
?ights of stairs and badly beaten and
bruised, such force being wholly
unnecessary in ejecting him?); Kelmenson v.
Metro. Opera Ca, 152 N.Y.S. 1002, 1003
(NY. App. Term 1915) (explaining that
?wanton? or ?malicious? force could not be
used to eject plaintiff from a theater). It was
only after Oakley slapped the guards? hands
away ?in self-defense? that three more
security guards arrived on the scene and
forced him to the ground and ?imped[ed] his
ability to? stand up. (Am. Comp]. 111146?
48.) But even then, Oakley does not allege
that the guards did anything more than
restrain him. The fact that they ?refused
[his] repeated requests that he be allowed to
stand up? could hardly be described as
unreasonable given that Oakley never
suggested that he was prepared to comply
with the guards? request that he leave the
arena. (Id. 11 48.) Eventually he was
allowed to stand up, ?put into restraints,?
removed from the Garden, and
?detained . . . until police . . . (Id.
111149, 127.) Other than the facts of being
restrained and removed all of which took
place after Oakley?s refusal to comply with
the guards? oral request that he leave the
Garden Oakley alleges no facts that

17

support an inference that the guards used
unnecessary force or intended to injure him.
Notably, the Amended Complaint nowhere
alleges that Oakley was in fact injured 
merely ?embarrass[ed]? and ?emotional[ly]
(Id. at 9, 25.)

Ultimately, Oakley makes no allegation
that the force used by Garden of?cials was
unreasonable. He argues instead that any
use of force was unreasonable, because it
was unreasonable to ask him to leave in the
?rst place. In Oakley?s telling, the security
guards had only one choice when he
declined their request that he leave the
Garden: to let him return to his seat to
watch the game. That is not the law, which
gives property owners the right to exclude
people and the right to use reasonable force
to eject them when they refuse to comply.
Having refused to comply with Defendants?
lawful directive that he leave the premises,
Oakley cannot cry foul merely because
Garden security guards exercised the lawful
right to remove him from the arena. Since
Oakley has not alleged any facts to suggest
that the guards? use of force was excessive
or beyond what was necessary to remove
him from the premises, his assault and
battery claims must be dismissed.

3. False Imprisonment

Oakley further charges that the MSG
Defendants committed false imprisonment
by ?intentionally con?n[ing] [him], with
[his] knowledge and awareness and without
his consent, when. ..they physically and
forcibly removed [him] from the Garden and
subsequently detained him until police could
arrive to unjusti?ably arrest him.? (Id.
11130.) To state a claim for false
imprisonment, a plaintiff must demonstrate
that the defendant intended to con?ne
[the plaintiff], (2) the plaintiff was conscious
of the con?nement, (3) the plaintiff did not
consent to the con?nement and (4) the

con?nement was not otherwise privileged.?
McGowan v. United States, 825 F.3d 118,
126 (2d Cir. 2016) (quoting Broughton v.
State, 335 310, 314 (NY. 1975)).

Oakley fails to suf?ciently plead a claim
of false imprisonment against the MSG
Defendants because their con?nement of
him ?until police could arrive? was
privileged. (Am. Compl. 1] 130.) As the
owners and operators of the Garden, the
MSG Defendants were within their rights to
revoke Oakley?s license to be on the
premises and eject him. See Aaron, 96 NE.
at 737; Burnham, 82 NE. at 185?86;
Gottlieb, 25 at 798. In removing
Oakley from the premises after he refused to
comply with their directive to leave, the
MSG Defendants were permitted to restrain
him as they led him out of the Garden. See,
e. Schae??er v. Cavaliero, 54 F. Supp. 2d
350, 352 (S.D.N.Y. 1999) (dismissing false
imprisonment claim against airline on Rule
50 motion because plaintiff was asked to
leave airplane but refused to comply). Once
outside the Garden, Oakley concedes that he
was arrested (Am. Compl. which
necessarily implies that the New York
Police Department made that arrest, not the
MSG Defendants. The Court thus grants
Defendants? motion to dismiss Oakley?s
false imprisonment claim.

4. Abuse of Process

Oakley next claims that Defendants
committed abuse of process when they
(1) ?caused process to be issued to [him] in
the form of a criminal charge;? (2) ?caused
[him] to be charged with an intent to do
harm and without excuse or justi?cation;?
and (3) ?caused [him] to be charged in a
perverted manner with the intent to
accomplish the collateral objective of
publicly embarrassing [him] and destroying
his reputation.? (1d. As a
result of Defendants? conduct, Oakley

18

claims that he lost $40,000 in appearance
fees and ?has suffered and continues to
suffer harm for which he is entitled to an
award of damages.? (Id. 137?138.)

To establish an abuse of process claim
under New York law, a plaintiff must
demonstrate that the defendant
employ[ed] regularly issued legal
process to compel performance or
forbearance of some act (2) with intent to do
harm without excuse o[r] justi?cation, and
(3) in order to obtain a collateral objective
that is outside the legitimate ends of the
process.? Savino v. City of New York, 331
F.3d 63, 76 (2d Cir. 2003) (quoting Cook v.
Sheldon, 41 F.3d 73, 80 (2d Cir. 1994)).
The plaintiff must also establish that the
abuse of process caused ?actual or special
damages.? Kahn v. Friedlander, 90 
868, 869 (NY. App. Div. 1982).

Oakley?s abuse of process claim must be
dismissed because he does not suf?ciently
plead special damages caused by the
Defendants? alleged abuse of process. The
Amended Complaint asserts that ?as a direct
result of Defendants? statements claiming
that Mr. Oakley was an alcoholic, . ..the
Rebound Institute[] came to the conclusion
that it was not appropriate for someone with
such a reputation to interact with their
patients.? (Am. Compl. 1] 93.) Thus, even
assuming that Oakley suf?ciently pleads
special damages a contention that the
Court rejected above (see supra section
pp. 13?13) Oakley?s
concession that these damages were caused
by Defendants? statements accusing him of
being an alcoholic, not from any abuse of
process, are fatal to his claim.

Accordingly, the Court grants
Defendants? motion to dismiss Oakley?s
abuse of process claim.

5. Denial of a Public Accommodation

Oakley last claims, in the alternative,
that Defendants discriminated against him
under the ADA and the by
?denying him access to the Garden based on
their perception that he suffers from
alcoholism, a disability.? (Am. Compl.
W141, 146.) To state a claim under the
ADA and the a plaintiff must
allege that she is a ?quali?ed individual?
with a disability; (2) that defendants are a
public accommodation as de?ned under
Title and (3) that she was denied the
opportunity to participate in or benefit from
defendants? services, programs or activities,
or was otherwise discriminated against by
defendants on the basis of her disability.?
Cotz v. Mastroeni, 476 F. Supp. 2d 332, 368
(S.D.N.Y. 2007); see also Rodal v.
Anesthesia Grp. of Onondaga, PC, 369
F.3d 113, 117 n.1 (2d Cir. 2004) (?New
York State disability discrimination claims
are governed by the same legal standards as
federal ADA claims?). An individual is
?disabled? within the meaning ?regarded as?
having a disability. Sec 42 U.S.C.
(de?ning ?disability? to
include ?being regarded as having such an
impairment?); N.Y. Exec. Law ?292(21)(c)
(de?ning ?disability? to include ?a condition
regarded by others as such an impairment?).

Although alcoholism quali?es as a
disability under the ADA and the 
Makinen v. City ofNew York, 857 F.3d 491,
495 (2d Cir. 2017), the Amended Complaint
does not plead any fact that supports a
plausible inference that Defendants
discriminated against Oakley on the basis of
his purported alcoholism. To the contrary,
Oakley merely pleads in a conclusory
manner that he was removed from the
Garden ?based on the Defendants? alleged
perception that he suffers from alcoholism.?
(Am. Compl. ii 141; see also id. 111123?24

l9

(stating in a conclusory manner that
Defendants ?[b]elieved [t]hat [p]laintiff was
an 

Beyond these conclusory assertions,
Oakley relies on three statements allegedly
uttered by Dolan to establish Defendants?
perception that Oakley suffers from
alcoholism. These include (1) Dolan?s
representation that ?anybody who comes to
the Garden [after] drinking too much alcohol
[is] going to be ejected and . . . banned;?
(2) Dolan?s musings that Oakley ?may have
a problem with alcohol, we don?t know;?
and (3) Dolan?s repeating of ?statements
from some of the police and security that
[Oakley] appeared to be impaired, et cetera?
at the February 8 game. (Opp?n at 37;
Dolan Interview.) None of these, either in
isolation or collectively, suf?ces to support
an inference that Defendants had a
perception that Oakley suffers from
alcoholism or that they discriminated against
him on that basis.

Courts have long distinguished between
?being a chronic alcoholic? and ?being in
public while drunk on a particular
occasion.? Powell v. Texas, 392 US. 514,
530?32 (1968) (plurality see also
Clifford v. County of Rockland, 528 F.
App?x 6, 8?9 (2d Cir. 2013) (distinguishing
alcoholism from drinking or being
intoxicated in the ADA context); Baptism v.
Hartford Bd. of Educ, 427 F. App?x 39, 42
(2d Cir. 2011) (same); Macshane v. City of
New York, No. 06-cv?6024 (RRM), 2015
WL 1298423, at *15 n.18 (E.D.N.Y. Mar.
23, 2015) (collecting cases in the ADA
context distinguishing alcoholism from
actions taken under the in?uence of
alcohol). The plain meaning of Dolan?s ?rst
statement is that people who drink too much
at the Garden will be ejected, and the third
statement clearly references Oakley?s
demeanor on the night of the February 8
game, not his purported alcoholism. As for

the second statement, Dolan in no way
connected that comment to Oakley?s
ejection from the Garden on February 8.
Therefore, though Oakley contends that
these statements ?support an inference that
Defendants denied [him] access to [the
Garden] based on their perception that he
suffered from alcoholism? (Opp?n at 38), the
obvious reading is that Oakley was denied
access for his conduct on the night of
February 8, 2017, not for being an alcoholic.
Indeed, as noted above, most of the
Amended Complaint asserts albeit in a
conclusory manner that Dolan knew that
Oakley was not an alcoholic. Without
additional facts, such as similar instances of
discriminatory treatment toward perceived
alcoholics or other statements re?ecting
Defendants? discriminatory animus toward
alcoholics at the Garden, the Amended
Complaint abjectly fails to allege a claim for
discrimination under the ADA or 
Cf Macshane, 2015 WL 1298423, at *17
(dismissing disability discrimination claims
on summary judgment in part because
plaintiffs ?failed to identify any proof
suggesting. ..that defendants exhibited
hostility toward them based on their
perceived disability, treated them differently
than similarly-situated [individuals], or
applied different procedures or standards to
them?).

Accordingly, the Court grants
Defendants? motion to dismiss as to
Oakley?s ADA and claims.

C. Leave to Amend

Finally, the Court considers Oakley?s
request for leave to amend. (Opp?n at 40
n.19.) ?Although Rule 15(a) of the Federal
Rules of Civil Procedure provides that leave
to amend ?shall be freely given when justice
so requires,? it is within the sound discretion
of the [Court] to grant or deny leave to
amend.? McCarthy v. Dun Bradstreet

20

Corp, 482 F.3d 184, 200 (2d Cir. 2007)
(quoting Fed. R. Civ. P. In addition,
the Second Circuit has consistently stated
that district courts may deny leave to amend
when plaintiffs request such leave in a
cursory sentence on the last page of an
opposition to a motion to dismiss, without
any justi?cation or an accompanying
proposed amended pleading. See, City
of Pontiac Policemen ?s Ftremen?s Ret.
Sys. v. UBS AG, 752 F.3d 173, 188 (2d Cir.
2014) (af?rming denial of leave to amend
where plaintiffs already had one opportunity
to amend their complaint and had ?identi?ed
no additional facts or legal theories? to
support their request to amend); Food
Holdings Ltd. v. Bank of Am. Corp, 423 F.
App?x 73, 76 (2d Cir. 2011) (af?rming
district court?s denial of leave to amend
where plaintiffs requested leave to amend
?on the ?nal page of their brief in opposition
to defendants? motion to dismiss, in
boilerplate language and without any
explanation as to why leave to amend was
warranted?); Porat v. Lincoln Towers Cmty.
Ass 464 F.3d 274, 275?76 (2d Cir. 2006).

Here, in a footnote to the ?nal sentence
of his opposition to Defendants? motion to
dismiss, Oakley, without any legal or other
support, states: ?To the extent that the Court
?nds de?ciencies in any of [Oakley?s]
claims, [Oakley] respectfully requests the
right to amend his pleadings to address any
such de?ciencies.? (Opp?n at 40 n.19.)
Signi?cantly, Oakley offers no basis for his
request for leave to amend nor does he
attach a proposed amended complaint. See
Loreley Fin. (Jersey) No. 3 Ltd. v. Wells
Fargo Sea, LLC, 797 F.3d 160, 190 (2d Cir.
2015) (noting that a court may deny leave to
amend, on notice grounds, ?where the
request gives no clue as to ?how the
complaint?s defects would be cured??
(quoting Porat, 464 F.3d at 276)).
Moreover, this is not Oakley?s ?rst attempt
at repleading in this action. To the contrary,

on January 19, 2018, after the parties had
exchanged pre-motion letters (Doc. Nos. 19,
24) and the Court had held a pre-motion
conference concerning Defendants?
contemplated motion to dismiss (Doc. No.
51 Ex. 1), Oakley sought and received leave
to amend for the purpose of addressing
de?ciencies in the complaint that the Court
and Defendants addressed at some length
(Doc. Nos. 29, 30). Notwithstanding the
bene?t of Defendants? pre-motion letter and
an extensive colloquy with the Court at the
pre-motion conference, Oakley?s amended
pleading still fails to allege facts suf?cient
to withstand a motion to dismiss.

As Judge aptly noted when he
was on the district court, ?[w]hile pleading
is not a game of skill in which one misstep
may be decisive to the outcome, neither is it
an interactive game in which plaintiffs ?le a
complaint, and then bat it back and forth
with the Court over a rhetorical net until a
viable complaint emerges.? In re Refco
Capital Wis, Ltd. Brokerage Customer
Sec. Litig, Nos. 06-cv-643, 07-cv-8686, 07-
cv-8688 (GEL), 2008 WL 4962985, at *2
(S.D.N.Y. Nov. 20, 2008) (internal
quotation marks and citations omitted); see
also Ruotolo v. City of New York, 514 F.3d
184, 191 (2d Cir. 2008) (noting that courts
can deny leave to amend where there has
been ?repeated failure to cure de?ciencies
by amendments previously allowed?
(quoting Fomari v. Davis, 371 U.S. 178, l82
NRW, Inc. v. Bindra, No. l2-cv-
8555 (RJS), 2015 WL 3763852, at *1
(S.D.N.Y. June 16, 2015) (?To grant leave
to amend after a plaintiff has had ample
opportunity to amend would be condoning a
strategy whereby plaintiffs hedge their
bets . . . in the hopes of having another bite
at the proverbial apple.? (internal quotation
marks and citation omitted)).

Accordingly, because Oakley has not
attached a proposed amended complaint or

21

even attempted to explain why an additional
opportunity to amend would cure the
Amended Complaint?s de?ciencies, the
Court denies Oakley?s request for leave to
amend.

IV. CONCLUSION

From its inception, this case has had the
feel of a public relations campaign, with the
parties seemingly more interested in the
court of public opinion than the merits of
their legal arguments. That is perhaps
understandable, given the personal and
public nature of the dispute. But while
basketball fans in general, and Knicks fans
in particular, are free to form their own
opinions about who was in the right and
whether Oakley?s ejection was motivated by
something more than the whims of the
team?s owner, the fact remains that Oakley
has failed to allege a plausible legal claim
that can meet federal pleading standards.
Accordingly, for the reasons stated above,
IT IS HEREBY ORDERED THAT
Defendants? motion to dismiss is
GRANTED. IT IS FURTHER ORDERED
THAT Oakley?s request for leave to ?le
another amended complaint is DENIED.
The Clerk of Court is respectfully directed
to terminate the motion pending at document
number 41 and to close this case.

SO ORDERED.




RICHARD J. SULLIVAN

United States Circuit Judge
Sitting by Designation

 

Dated: February 19, 2020
New York, New York

=8 44

Plaintiff Charles Oakley is represented
by Douglas H. Wigdor, Renan F. Varghese,
and Kenneth Walsh of Wigdor LLP, 85 Fifth
Ave, 5th FL, New York, New York 10003;
and Nelson A, Boxer of Petrillo Klein 
Boxer LLP, 655 Third Ave, 22nd FL, New
York, New York 10017.

Defendants James Dolan, MSG
Networks, Inc., The Madison Square Garden
Company, and MSG Sports 
Entertainment, LLC are represented by
Randy M. Mastro of Gibson, Dunn 
Crutcher LLP, 200 Park Ave, New York,
New York 10166; and James Walden and
Milton L. Williams of Walden Macht 
Haran LLP, 1 Battery Park Plaza, 34th Fl.,
New York, New York 10004.

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