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153324/2019
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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
WOJCIECH CIESZKOWSKI,

PLAINTIFF,
Index No. 153324/2019
-AGAINST-

ALEXANDER BALDWIN III,

DEFENDANT.

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANT ALEXANDER BALDWIN III’S MOTION TO DISMISS

Dated: May 14, 2019 QUINN EMANUEL URQUHART & SULLIVAN, LLP

Luke Nikas
Maaren A. Shah
Alex Spiro
Ryan Rakower
51 Madison Avenue, 22nd Floor
New York, NY 10010
Tel: (212) 849-7000
Fax: (212) 849-7100
lukenikas@quinnemanuel.com
maarenshah@quinnemanuel.com
alexspiro@quinnemanuel.com
ryanrakower@quinnemanuel.com

Attorneys for Defendant Alexander Baldwin III

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TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES .................................................................................................................. ii

PRELIMINARY STATEMENT ...............................................................................................................1
FACTUAL BACKGROUND ...................................................................................................................3
ARGUMENT .......................................................................................................................................5
I. LEGAL STANDARD ................................................................................................................5
II. THE COURT SHOULD DISMISS CIESZKOWSKI’S FACIALLY DEFICIENT CAUSE OF
ACTION FOR SLANDER ..........................................................................................................5
A. Baldwin’s Statement On The Ellen Show Is Not Slander Per Se Because
Baldwin Does Not Accuse Cieszkowski Of A Serious Crime ...................................6
B. Baldwin’s Remark That He “Thought” Cieszkowski Was Going To Run
Over His Wife Is A Constitutionally Protected Statement Of Opinion That
Cannot Support a Slander Claim ...........................................................................10
CONCLUSION...................................................................................................................................12

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TABLE OF AUTHORITIES

Page
Cases
Barnes v. Hodge,
118 A.D.3d 633 (1st Dep’t 2014) .............................................................................................. 5
Boulos v. Newman,
302 A.D.2d 932 (4th Dep’t 2003) ...................................................................................... 10, 11
Cammarata v. Cammarata,
61 A.D.3d 912 (2d Dep’t 2009) ................................................................................................. 6
Carter v. Waks,
2017 WL 4509140 (N.Y. Sup. Ct., Queens Cty. Sept. 18, 2017) ........................................ 9, 10
Connaughton v. Chipotle Mexican Grill, Inc.,
29 N.Y.3d 137 (2017) ............................................................................................................ 5, 7
Cook v. Relin,
280 A.D.2d 897 (4th Dep’t 2001) ............................................................................................ 11
Deer Consumer Prods., Inc. v. Little,
2011 WL 4346674 (N.Y. Sup. Ct., N.Y. Cty. Aug. 31, 2011) .............................................. 4, 5
Fusco v. Fusco,
2008 WL 307456 (N.Y. Sup. Ct., Nassau Cty. Jan 16, 2008) ................................................... 9
Godfrey v. Spano,
13 N.Y.3d 358 (2009) ................................................................................................................ 5
Hargett v. Metro. Transit Auth.,
552 F. Supp. 2d 393 (S.D.N.Y. 2008)........................................................................................ 6
Hassig v. FitzRandolph,
8 A.D.3d 930 (3d Dep’t 2004) ................................................................................................. 11
I.M. Operating, LLC v. Younan,
2018 WL 354019 (N.Y. Sup. Ct., N.Y. Cty. Jan. 10, 2018) .................................................... 12
Immuno AG. v. Moor-Jankowski,
77 N.Y.2d 235 (1991) .............................................................................................................. 12
Leon v. Martinez,
84 N.Y.2d 83 (1994) .................................................................................................................. 5
Liberman v. Gelstein,
80 N.Y.2d 429 (1992) ................................................................................................................ 9
Lore v. N.Y. Racing Ass’n Inc.,
2006 WL 1408419 (N.Y. Sup. Ct., Nassau Cty. May 23, 2006) ........................................... 4, 5
Martin v. Hayes,
105 A.D.3d 1291 (3d Dep’t 2013) ............................................................................................. 9

ii

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Meyer v. Guinta,
262 A.D.2d 463 (2d Dep’t 1999) ............................................................................................... 8
Nunez v. A-T Fin. Info. Inc.,
957 F. Supp. 438 (S.D.N.Y. 1997) ............................................................................................ 6
People v. Sanchez,
34 N.Y.S.3d 565 (N.Y. Crim. Ct., Bronx Cty. 2016) ................................................................ 8
Simkin v. Bank,
19 N.Y.3d 46 (2012) .................................................................................................................. 5
People v. Smith,
90 N.Y.S.3d 800 (N.Y. App. Term., 1st Dep’t 2018) ................................................................ 8
Stephan v. Cawley,
2009 WL 1740827 (N.Y. Sup. Ct., N.Y. Cty. June 4, 2009) ..................................................... 9
Tourge v. City of Albany,
285 A.D.2d 785 (3d Dep’t 2001) ............................................................................................... 9
Wadsworth v. Beaudet,
267 A.D.2d 727 (3d Dep’t 1999) ............................................................................................. 10
Wright-Leslie v. Wong,
2018 WL 6927549 (N.Y. Sup. Ct., Kings Cty. Dec. 26, 2018) ............................................... 10
Yonaty v. Mincolla,
97 A.D.3d 141 (3d Dep’t 2012) ............................................................................................. 6, 7
Statutes, Rules, and Regulations
N.Y. C.P.L.R. 3211 ............................................................................................................... 1, 5, 12
N.Y. Penal Law § 120.20 ........................................................................................................ 7, 8, 9
N.Y. Penal Law § 175.30 ................................................................................................................ 9
N.Y. Vehicle & Traffic Law § 1212 ....................................................................................... 7, 8, 9
Other Authorities
Suzy Byrne, Alec Baldwin Details Parking Dispute that Led to His Arrest: “I Thought
He Was Going to Run My Wife Over,” Yahoo! Entertainment (Feb. 4, 2019),
https://www.yahoo.com/entertainment/alec-baldwin-details-parking-dispute-led-
arrest-thought-going-run-wife-145541281.html ............................................................... 3, 4, 11
The Ellen Show, Alec Baldwin Opens Up About Parking Spot Incident, YOUTUBE (Feb.
7, 2019), https://www.youtube.com/watch?v=ab1_cV6H8d4 ..................................... 3, 4, 8, 11

iii

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Alexander Baldwin III respectfully submits this Memorandum of Law, together with the

accompanying Affirmation of Luke Nikas, in support of his Motion to Dismiss Plaintiff’s claim

for slander per se for failure to state a cause of action under CPLR 3211(a)(1) and 3211(a)(7).

PRELIMINARY STATEMENT

Wojciech Cieszkowski is an individual from Rockland County. Alec Baldwin is a well-

known actor who lives in New York City. Cieszkowski is trying to turn a minor altercation over

a parking spot into a multi-million dollar lottery ticket.

This minor altercation began during an everyday dispute over a parking spot in our busy

city. Whether it is because Cieszkowski recognized Baldwin as a possible payday, is taken by his

own self-importance, or some other reason soon to be explored, Cieszkowski has transformed an

everyday spat into a violent confrontation that never actually occurred. Cieszkowski claims that

Baldwin attacked him and that he suffered serious injuries. Cieszkowski also says that Baldwin

slandered him during an interview on The Ellen Show, where Baldwin stated that he had feared

Cieszkowski was going to run over his wife, who was standing nearby with their young child when

Cieszkowski was pulling into the parking spot. Cieszkowski now says he wants “justice.”

Fortunately, justice will prevail, because the encounter was caught on video, and

Cieszkowski’s medical records tell the rest of the story. Cieszkowski was not cowering in front

of the parking meter while Baldwin aggressively lorded over him, as Cieszkowski falsely alleges

under oath. The men were standing face-to-face, arguing with each other about what had occurred.

Baldwin does not aggressively push Cieszkowski while Cieszkowski retracts from the encounter

in fear. He lightly taps Cieszkowski on the chest, Cieszkowski backs up slightly, and then

Cieszkowski gets face-to-face with Baldwin again to continue their argument. Nor does Baldwin

punch Cieszkowski in the face. The video shows that Baldwin never raises his arm above his

shoulder; he doesn’t swivel his shoulders to throw a punch; he doesn’t cock his arm back.

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The problems with Cieszkowski’s medical records are just as insurmountable. He suffered

no cuts. No bruising. No fractures. His scans all came back normal. And his discharge

instructions reveal everything one needs to know about the severity of what occurred:

“acetaminophen Tablet .. [ordered as TYLENOL..] 650 milliGRAM(s), Oral, once, Stop After 1

Doses.” Cieszkowski wants millions of dollars to remedy his supposed injuries. His doctors

thought he needed nothing more than one dose of Tylenol.

The encounter is not what Cieszkowski alleges it to be, or what he told the police when he

had Baldwin falsely arrested for a crime Baldwin did not commit. The videotape makes this case

about nothing more than the sad story of Cieszkowski out for money. Cieszlowski’s claims for

assault and battery will fail after these facts come out in discovery. But no discovery is necessary

to dismiss Cieszkowski’s frivolous claim for slander, as a matter of law. Cieszkowski asserts a

claim for slander per se based on Baldwin’s remark during an interview on The Ellen Show that “I

thought he was going to run my wife over with his car when he was stealing my parking spot.”

This claim fails for two reasons.

First, to state a claim for slander per se, Cieszkowski must allege that Baldwin accused

him of “serious crimes.” He has not done so. Cieszkowski alleges that Baldwin accused him of

reckless driving, in violation of the Vehicle and Traffic Law and the Penal Law. But Baldwin did

not accuse Cieszkowski of violating either statute. Moreover, New York courts have repeatedly

held that serious crimes are indictable offenses, such as murder, larceny, or rape—not

misdemeanors or traffic offenses. Cieszkowski’s claim for slander is foreclosed by settled law.

Second, Baldwin’s comment about what he “thought” at the time of the incident is a

constitutionally protected statement of opinion. The statement itself and the humorous context in

which it was made—in a lighthearted talk show interview—make this clear. So, too, does

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Cieszkowski’s Complaint: he accuses Baldwin of expressing an opinion about an emotion—that

Baldwin “feared” for his family’s safety. This is not slander.

The Court should dismiss Cieszkowski’s claim for slander.

FACTUAL BACKGROUND

On November 2, 2018, Cieszkowski drove to Greenwich Village to attend a “business

meeting.” (Nikas Aff., Exh. 1, Complaint ¶¶ 17–18.)1 Cieszkowski pulled over on the side of a

street in Greenwich Village to wait for a parking spot to open up. (Id. ¶ 19.) Baldwin was sitting

in an SUV on the same block. (Id. ¶ 21.) When someone pulled out of a parking spot, Cieszkowski

pulled in. (Id. ¶ 20.) As Cieszkowski exited his vehicle and approached the parking meter, he and

Baldwin had a heated verbal exchange. (Id. ¶¶ 25–31, 33.) Cieszkowski falsely alleges that

Baldwin punched him in the face. (Id. ¶ 34.)

On February 4, 2019, Baldwin appeared on daytime talk-show The Ellen Show for a

televised interview. (Id. ¶¶ 67–69, 89, 91; see also Nikas Aff., Exh. 2, Suzy Byrne, Alec Baldwin

Details Parking Dispute that Led to His Arrest: “I Thought He Was Going to Run My Wife Over,”

Yahoo! Entertainment (Feb. 4, 2019), https://www.yahoo.com/entertainment/alec-baldwin-

details-parking-dispute-led-arrest-thought-going-run-wife-145541281.html (“Yahoo

Entertainment Article”); Nikas Aff., Exh. 3, The Ellen Show, Alec Baldwin Opens Up About

Parking Spot Incident, YOUTUBE (Feb. 7, 2019),

https://www.youtube.com/watch?v=ab1_cV6H8d4 (“Interview Video”).)2 The interview took a

1
This Memorandum of Law assumes the truth of the allegations in the Complaint, as required on
a motion to dismiss, unless Baldwin is not required to do so under the governing standard. The
evidence will demonstrate, however, that Cieszkowski’s allegations of wrongdoing are meritless.
2
The Yahoo Entertainment Article and the Interview Video are properly considered in the Court’s
determination of Defendant’s Motion to Dismiss, as they are relied upon in the Complaint (see
Compl. ¶¶ 68, 89 (quoting the video); see also id. ¶ 69 (alleging “over 180,000 people have

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lighthearted and facetious tone; Baldwin joked that he had an altercation with a nun and that he

and Cieszkowski are now “best friends.” (Yahoo Entertainment Article 1–2; Interview Video 2:37,

3:25.) During the interview, Baldwin remarked: “Did I have an argument with the guy? Yeah. I

thought he was going to run my wife over with his car when he was stealing my parking spot.”

(Compl. ¶ 89; see also id. ¶ 69; Yahoo Entertainment Article 1; Interview Video 3:18.) Baldwin

denied punching Cieszkowski. (Yahoo Entertainment Article 2; Interview Video 3:00.) At no

point did Baldwin accuse Cieszkowski of speeding, driving inappropriately fast, disobeying traffic

signals, disregarding orders from law enforcement, failing to check his mirrors, or driving

intoxicated or impaired. (See generally Interview Video.)

Cieszkowski has nevertheless sued Baldwin for “claim[ing] that he feared” Cieszkowski

“‘was going to run [Baldwin’s] wife over with [Cieszkowski’s] car when [Cieszkowski] was

stealing [Baldwin’s] parking spot.’” (Compl. ¶ 68.) Cieszkowski alleges “[o]n information and

belief” that Baldwin’s wife “was not standing close to [] Cieszkowski’s car when [] Cieszkowski

pulled into the spot.” (Id. ¶ 75.) Cieszkowski does not state the basis for this “belief” or identify

the “information” underlying it. (Id.) Cieszkowski asserts in the alternative that “even if she had

been standing nearby,” Baldwin’s wife was not “in any danger of being ‘run over.’” (Id. ¶ 76.)

Cieszkowski alleges in conclusory fashion that “[a]t no time during the incident” did he “endanger

Mrs. Baldwin or anyone else.” (Id. ¶ 74.)

watched Mr. Baldwin’s interview on YouTube”); id. ¶ 70 & n.5 (citing the Yahoo Entertainment
Article for the proposition that Baldwin’s statements in the interview were “widely publicized in
major news media”)), and are integral to Cieszkowski’s cause of action for slander per se, see Deer
Consumer Prods., Inc. v. Little, 2011 WL 4346674, at *4 (N.Y. Sup. Ct., N.Y. Cty. Aug. 31, 2011)
(courts may consider “documents referred to in a Complaint” on a motion to dismiss, “even if the
pleading fails to attach them”); see also Lore v. N.Y. Racing Ass’n Inc., 2006 WL 1408419, at *2
(N.Y. Sup. Ct., Nassau Cty. May 23, 2006) (a court ruling on a motion to dismiss may consider
“documents that are integral to the plaintiff’s claims, even if not explicitly incorporated by
reference”).

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ARGUMENT

I. LEGAL STANDARD

On a motion to dismiss for failure to state a claim, the Court must “accept the facts as

alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference,

and determine only whether the facts as alleged fit within any cognizable legal theory.” Leon v.

Martinez, 84 N.Y.2d 83, 87–88 (1994). “At the same time, however, allegations consisting of bare

legal conclusions . . . are not entitled to any such consideration” or deference. Connaughton v.

Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141 (2017) (quoting Simkin v. Bank, 19 N.Y.3d 46,

52 (2012)); see also Barnes v. Hodge, 118 A.D.3d 633, 633 (1st Dep’t 2014) (“[C]laims consisting

of bare legal conclusions with no factual specificity [] are insufficient to survive a motion to

dismiss.” (quoting Godfrey v. Spano, 13 N.Y.3d 358, 373 (2009))). “Dismissal of the complaint

is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual

allegations and inferences to be drawn from them do not allow for an enforceable right of

recovery.” Connaughton, 29 N.Y.3d at 142.

On a motion to dismiss under CPLR 3211(a)(1) or (7), “it is undisputed that the Court . . .

may consider documents referred to in a Complaint,” Deer Consumer Prods., 2011 WL 4346674,

at *4, as well as “those facts alleged in the complaint, documents attached as an exhibit therefor

or incorporated by reference and documents that are integral to the plaintiff’s claims, even if not

explicitly incorporated by reference,” Lore, 2006 WL 1408419, at *2 (internal quotation omitted).

II. THE COURT SHOULD DISMISS CIESZKOWSKI’S FACIALLY DEFICIENT CAUSE OF

ACTION FOR SLANDER

Cieszkowski’s Complaint fails to state a claim for slander against Baldwin. Under New

York law, the elements of slander are “(1) a defamatory statement of fact, (2) that is false, (3)

published to a third party, (4) of and concerning the plaintiff, (5) made with the applicable level of

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fault on the part of the speaker, (6) either causing special harm or constituting slander per se, and

(7) not protected by privilege.” Hargett v. Metro. Transit Auth., 552 F. Supp. 2d 393, 402

(S.D.N.Y. 2008). Cieszkowski’s allegations fail to satisfy elements one and six as a matter of law.

A. Baldwin’s Statement On The Ellen Show Is Not Slander Per Se Because Baldwin
Does Not Accuse Cieszkowski Of A Serious Crime

The claim of slander requires Cieszkowski to allege that Baldwin’s statement “caus[ed]

special harm or constitut[ed] slander per se.” Id. Cieszkowski has alleged neither here. His

slander claim must therefore be dismissed.

First, “special harm” means “the loss of something having economic or pecuniary value.”

Yonaty v. Mincolla, 97 A.D.3d 141, 143 (3d Dep’t 2012) (internal quotation marks and citations

omitted). “[G]eneral allegations of injury to reputation” are “insufficient” to plead special harm.

Cammarata v. Cammarata, 61 A.D.3d 912, 913 (2d Dep’t 2009). Rather, “a plaintiff must set

forth an itemized account of her losses,” which “must flow directly from the injury to reputation

caused by the defamation and not from the effects of the defamation.” Nunez v. A-T Fin. Info.

Inc., 957 F. Supp. 438, 441 (S.D.N.Y. 1997). Even “round figures or a general allegation of a

dollar amount as special damages will not suffice.” Id. Cieszkowski’s Complaint—which alleges

only that Cieszkowski “suffered the damages hereinbefore alleged” “as a result” of Baldwin’s

purported slander (Compl. ¶ 93)—does not remotely approach the level of specificity required to

plead special harm under New York law.

Second, because Cieszkowski has failed to allege “special harm,” his claim for slander can

survive only if the statement he challenges constitutes slander per se, a classification reserved for

“statements that are commonly recognized injurious by their nature, and so noxious that the law

presumes that pecuniary damages will result.” Yonaty, 97 A.D.3d at 143–44. The four established

“per se” categories recognized under New York law are “statements (i) charging a plaintiff with a

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serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that a

plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman.” Id. (internal quotation

marks and citations omitted).

Cieszkowski claims that the first category is at issue here—that Baldwin accused him of a

serious crime. (See Compl. ¶ 92 (alleging Baldwin “falsely accused” Cieszkowski of “serious

crimes”).) He alleges that Baldwin’s statement implies that Cieszkowski violated Penal Law §

120.20 and Vehicle & Traffic Law § 1212, which he calls “serious crimes.” (Id.) Cieszkowski is

wrong for two reasons: Baldwin did not publicly accuse Cieszkowski of violating those laws, and

neither of these violations would be “serious crimes.”

Despite Cieszkowski’s conclusory assertion otherwise (see Compl. ¶ 92)—which is

afforded no weight on a motion to dismiss, see Connaughton, 29 N.Y.3d at 141—Baldwin never

accused Cieszkowski of violating Penal Law § 120.20 or Vehicle & Traffic Law § 1212. Penal

Law § 120.20 states that “[a] person is guilty of reckless endangerment in the second degree when

he recklessly engages in conduct which creates a substantial risk of serious physical injury to

another person.” N.Y. Penal Law § 120.20. Vehicle & Traffic Law § 1212 states that “[r]eckless

driving shall mean driving or using any motor vehicle . . . in a manner which unreasonably

interferes with the free and proper use of the public highway, or unreasonably endangers users of

the public highway. Reckless driving is prohibited.” N.Y. Veh. & Traf. Law § 1212.

On the February 4, 2019 episode of The Ellen Show, Baldwin stated, “Did I have an

argument with the guy? Yeah. I thought he was going to run my wife over with his car when he

was stealing my parking spot.” (Id. ¶ 89.) Neither Penal Law § 120.20 nor Vehicle & Traffic Law

§ 1212 are implicated by Baldwin’s statement that he “thought” Cieszkowski “was going to run

over [Baldwin’s] wife with his car.” (Id. ¶ 89.) Baldwin’s statements do not accuse Cieszkowski

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of speeding or driving inappropriately fast. (See generally Interview Video.)3 Likewise, Baldwin

never stated that Cieszkowski disobeyed traffic signals or orders from law enforcement, neglected

to check his mirrors, or drove intoxicated or impaired. (See generally Interview Video.) Driving

in a manner that would cause Baldwin to “fear[]” that Cieszkowski “was going to run [Baldwin’s]

wife over with [Cieszkowski’s] car” while parking (Compl. ¶ 68) is not enough to constitute

reckless driving under Vehicle & Traffic Law § 1212 or reckless endangerment under Penal Law

§ 120.20. See People v. Smith, 90 N.Y.S.3d 800, 803 (N.Y. App. Term., 1st Dep’t 2018)

(defendant’s actions were not criminally negligent or in violation of Vehicle and Traffic Law §

1212 even though defendant struck a pedestrian with her vehicle, where “[t]here was no evidence

that defendant operated her car in willful or wanton disregard of the rights of others,” [d]efendant

was not intoxicated or impaired,” “she did not speed or disobey traffic signals,” “she checked her

rear view and driver’s side mirrors before executing the turn,” and defendant “attempted, albeit

unsuccessfully, to stop the vehicle in the seconds after the collision and avoid striking the

pedestrian”); cf. People v. Sanchez, 34 N.Y.S.3d 565, 567–69 (N.Y. Crim. Ct., Bronx Cty. 2016)

(while allegations of defendant driving double the speed limit and weaving between lanes were

facially sufficient to state a claim for reckless driving under Vehicle & Traffic Law § 1212, they

were still insufficient to demonstrate reckless endangerment in violation of Penal Law § 120.20,

as “[s]peeding by itself does not create a substantial risk of serious injury” without “other factors”

like “evading police, driving the wrong way,” or “disobeying stop signs and red lights,” and

3
While Cieszkowski asserts in his Complaint that “Baldwin’s statement implies that []
Cieszkowski was driving dangerously when he pulled into the parking spot and that [] Cieszkowski
was driving quickly enough to ‘run someone over’ and endanger her life” (Compl. ¶ 71 (emphasis
added)), Baldwin did not state or imply this in the interview (see generally Interview Video).
Cieszkowski’s speculation regarding the implication behind Baldwin’s words is “flatly
contradicted by the evidence” and is “not presumed to be true on a motion to dismiss for failure to
state a cause of action.” Meyer v. Guinta, 262 A.D.2d 463, 464 (2d Dep’t 1999).

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“simply stating that other vehicles had to slow down and stop or that pedestrians could not cross

the road is not enough to show the requisite risk” of serious physical injury). As a matter of law,

Baldwin’s statement does not describe any behavior by Cieszkowski that would violate Penal Law

§ 120.20 or Vehicle & Traffic Law § 1212.

Cieszkowski’s position is also meritless because he cannot rely on Penal Law § 120.20 and

Vehicle & Traffic Law § 1212 to satisfy the “serious crime” element of slander per se. “[T]he law

distinguishes between serious and relatively minor offenses, and only statements regarding the

former are actionable without proof of damage.” Martin v. Hayes, 105 A.D.3d 1291, 1292 (3d

Dep’t 2013) (internal quotation marks and citation omitted). “Such serious crimes include murder,

burglary, larceny, arson, rape, and kidnapping.” Carter v. Waks, 2017 WL 4509140, at *2 (N.Y.

Sup. Ct., Queens Cty. Sept. 18, 2017). These alleged traffic violations don’t even come close to

constituting “serious crimes.” The New York Court of Appeals has instructed that “not every

imputation of unlawful behavior . . . is slanderous per se,” and specifically noted that “a charge of

a traffic violation, for example, would not exclude a person from society, and today would do little,

if any, harm to his or her reputation at all.” Liberman v. Gelstein, 80 N.Y.2d 429, 435 (1992)

(internal quotation marks and citation omitted). “To be actionable as slander per se, words

imputing the commission of a crime must be of the level of an indictable offense upon conviction

of which punishment may be inflicted.” Stephan v. Cawley, 2009 WL 1740827, at *4 (N.Y. Sup.

Ct., N.Y. Cty. June 4, 2009) (quoting Tourge v. City of Albany, 285 A.D.2d 785, 786 (3d Dep’t

2001)). Penal Law § 120.20 and Vehicle & Traffic Law § 1212 are not “indictable offense[s]”;

they are “simply . . . misdemeanor[s],” and accordingly not “serious crime[s].” Fusco v. Fusco,

2008 WL 307456, at *3–*4 (N.Y. Sup. Ct., Nassau Cty. Jan 16, 2008) (defendant’s accusation of

plaintiff filing a false police report in violation of Penal Law § 175.30—a class A misdemeanor—

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was not slander per se); see also Wright-Leslie v. Wong, 2018 WL 6927549, at *2 (N.Y. Sup. Ct.,

Kings Cty. Dec. 26, 2018) (finding the misdemeanor of criminal trespass in the second degree was

not a “serious crime” sufficient to “form the basis of a claim for slander per se”); Carter, 2017 WL

4509140, at *2 (defendant’s statements that plaintiff was “trespassing” and that plaintiff “hit”

defendant and injured defendant’s arm did not allege the commission of a “serious crime” and

accordingly did not constitute slander per se). Baldwin’s statement therefore never accused

Cieszkowski of any “serious crime.”

Cieszkowski “has not pleaded special damages” and his claim for slander does not fall into

any of the “four established exceptions” for slander per se. Wadsworth v. Beaudet, 267 A.D.2d

727, 728–29 (3d Dep’t 1999). His cause of action for slander must therefore be dismissed. Id.

B. Baldwin’s Remark That He “Thought” Cieszkowski Was Going To Run Over His
Wife Is A Constitutionally Protected Statement Of Opinion That Cannot Support
a Slander Claim

Baldwin’s statement on The Ellen Show that “I thought he was going to run my wife over

with his car when he was stealing my parking spot” (Compl. ¶ 89) is also not actionable for the

independent reason that it is a constitutionally protected statement of opinion.

“A person’s statements of opinion are constitutionally protected.” Boulos v. Newman, 302

A.D.2d 932, 932 (4th Dep’t 2003). “In determining whether a communication is an actionable

factual statement or a nonactionable opinion, a court must assess (1) whether the specific language

in issue has a precise meaning which is readily understood; (2) whether the statements are capable

of being proven true or false; and (3) whether either the full context of the communication in which

the statement appears or the broader social context and surrounding circumstances are such as to

signal readers or listeners that what is being read or heard is likely to be opinion, not fact.” Id. at

933 (internal quotation marks and citations omitted).

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Baldwin’s remark on The Ellen Show can only be reasonably interpreted as a statement of

opinion. The beginning of the statement—“I thought” (Compl. ¶ 89)—conveys to the listener that

Baldwin is expressing his personal opinion or view concerning his own state of mind at the time,

rather than an objective provable fact. See Boulos, 302 A.D.2d at 932 (“Here, the statement

ascribed to defendant by plaintiff began with ‘I don’t think,’ which signals that a statement of

opinion is to follow. Moreover, the alleged statement that ‘I don’t think [plaintiff] knows what he

is talking about either’ is ‘vague, ambiguous, indefinite and incapable of being objectively

characterized as true or false.’” (citations omitted)); see also Hassig v. FitzRandolph, 8 A.D.3d

930, 931–32 (3d Dep’t 2004) (“a reasonable reader would view” defendant’s statement that “I

don’t think one person on the Legislature gives [plaintiffs] any credence at all” as “mere puffery

or as reflecting his opinion, rather than fact,” and accordingly the statement was “not actionable”).

Even Cieszkowski’s Complaint interprets Baldwins’s statement as an opinion: he alleges

that Baldwin “claimed that he feared [] Cieszkowski ‘was going to run my wife over with his car

when he was stealing my parking spot.’” (Compl. ¶ 68 (emphasis added).) Baldwin’s expression

of fear is an expression of an emotion—not an objective statement of fact about Cieszkowski’s

specific conduct.

The context surrounding Baldwin’s statement also makes clear that Baldwin was

expressing his opinion. Baldwin and Ellen DeGeneres engaged in a lighthearted discussion during

which Baldwin joked in a tongue-in-cheek fashion that he had a violent encounter with a nun, and

that he and Cieszkowski were “best friends.” (Yahoo Entertainment Article 1–2; Interview Video

2:37, 3:25.) This was not a manifesto or an effort to recount detailed facts. It reflects a talk show

interview where Baldwin was explaining his opinion about a situation in the middle of various

sarcastic and humorous comments. See, e.g., Cook v. Relin, 280 A.D.2d 897, 898 (4th Dep’t 2001)

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(where “[t]he tone of [defendant’s] communication [was] ironic, sarcastic and caustic,” “it would

be plain to a reasonable listener that defendant ‘was voicing no more than a highly partisan point

of view’” (quoting Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 255 (1991))); I.M. Operating,

LLC v. Younan, 2018 WL 354019, at *10 (N.Y. Sup. Ct., N.Y. Cty. Jan. 10, 2018) (written

statements “taken as a whole and in full context” were not actionable where “terms like ‘quipped’

and ‘joked’ were used to preface several of the statements”).

Cieszkowski’s slander claim should therefore be dismissed for the independent reason that

it is premised on an expression of opinion that is protected under New York law.

CONCLUSION

For the above reasons, Baldwin respectfully requests that the Court dismiss Plaintiff’s

Third Cause of Action for slander per se for failure to state a claim under CPLR 3211(a)(1) and

3211(a)(7), with prejudice.

Dated: May 14, 2019

New York, New York

Respectfully submitted,

QUINN EMANUEL URQUHART & SULLIVAN, LLP

By: /s/ Luke Nikas_______________

Luke Nikas
Maaren Shah
Alex Spiro
Ryan Rakower
51 Madison Avenue, 22nd Floor
New York, NY 10010
Tel: (212) 849-7000
lukenikas@quinnemanuel.com
maarenshah@quinnemanuel.com
alexspiro@quinnemanuel.com
ryanrakower@quinnemanuel.com

Attorneys for Alexander Baldwin III

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