DocumentCloud_Epstein_Docs_p00792.png

Case 18-2868, Document 279, 08/09/2019, 2628231, Page10 of 37 This argument, too, is frivolous. Despite plaintiff's baseless claim there is an “old” formulation and a “more modern” formulation of republication-liability law in New York, both cases she cites applied the same “old” standard used by the New York Court of Appeals in Geraci, by this Court in the two Egiazaryan cases, and by us in our Memorandum of Law in support of Ms. Maxwell’s motion for summary judgment. See Levy, 18 N.Y.S.3d at 439 (citing Geraci and Schoepflin); NPR, 914 N.Y.S.2d at 594-95 (citing Hoffman v. Landers, 537 N.Y.S.2d 228, 231 (2d Dep’t 1989) (citing Schoepflin)). Both the courts in Levy and NPR applied the Geraci standard and the 12(b)(6) standards, e.g., assuming the pleaded facts were true. They concluded it was possible to infer from the complaints’ allegations that the defendant caused the republications. Accordingly, they denied the motions to dismiss. See Levy, 18 N.Y.S.2d at 439; NPR, 914 N.Y.S.2d at 123. It was improper for plaintiff to cite these cases without disclosing they are 12(b)(6) cases in which the courts applied the Geraci republication rule and inferred facts from the pleaded allegations. B. New York state and federal courts have rejected liability for republication based on “foreseeability.” Plaintiff cites section 576 of the Restatement (Second) of Torts for the proposition that if republication was foreseeable, then the defendant is the cause of any special damages from the republication. This argument is frivolous. As an initial matter, plaintiff has pleaded no special damages. See Doc.1; Doc.23 at 23; Doc.37 at 17. Regardless, the New York Court of Appeals in Geraci rejected the Restatement’s foreseeability doctrine. See 938 N.E.2d at 921-22 (noting that section 576’s foreseeability standard “is not nearly as broad as plaintiff . . . suggest[s]” and “[t]hat we did not endorse such a broad [Restatement] standard of foreseeability in Karadumanis evident from our decision the following year in Rinaldi”) (emphasis supplied).