Page:Hosseinzadeh v. Klein.pdf/15

 “several months passed [and] nothing happen[ed]” prior to plaintiff’s first settlement offer and threat of litigation. But because that statement is “substantially true” as a matter of New York law, it is non-actionable. As previously noted, a statement is “substantially true” “if the statement would not have a different effect on the mind of the reader from that which the pleaded truth would have produced.”, 864 F.3d at 243–44 (quotation omitted). Here, plaintiff argues that Ethan Klein’s failure to mention that plaintiff sent a warning e-mail on August 2, 2016 makes Ethan Klein’s statement that “nothing happen[ed]” false and defamatory. (ECF No. 99.) Plaintiff further argues that Ethan Klein’s omission is defamatory because it paints plaintiff as “a trigger-happy litigant who immediately activates his lawyers when he is criticized.”

Plaintiff is mistaken for at least two reasons. First, viewing the Lawsuit video as a whole, the clear import of Ethan Klein’s statement that “nothing happen[ed]” is that defendants were surprised and disappointed by plaintiff’s decision to file a lawsuit months after the Klein video was first posted on YouTube. , 864 F.3d at 243 (“When a court interprets a publication in an action for defamation, the entire publication, as well as the circumstances of its issuance, must be considered in terms of its effect upon the ordinary reader.”) (internal quotation and alteration omitted). Plaintiff’s objection to the word “nothing” is hyper-literal and based on a strained and unsupported interpretation of the Lawsuit video. Given the Lawsuit video is all about plaintiff’s decision to file the present action, Ethan Klein’s statement that “nothing happen[ed]” could easily refer to the fact that in the intervening months, not that the parties had no communication.

Second, mention of the warning e-mail would not have produced a “different effect on the mind of the reader” from what defendants actually said. , 864 F.3d at 243–44 (quotation omitted). If, as plaintiff has alleged, the ordinary viewer would see plaintiff as a “trigger-happy litigant” after watching the Lawsuit video, it is exceptionally unlikely that knowledge of the April 2, 2016 e-mail, in which plaintiff explicitly threatened “costly” legal action if defendants did not comply with his demands within twenty-four hours, would change that perception. In other words, the “pleaded truth” would do absolutely nothing to undercut the allegedly defamatory implication of Ethan Klein’s statement (though the Court disagrees that Mr. Klein’s statement carried that implication). Because the statements identified by Plaintiffplaintiff [sic] are either non-actionable opinions or substantially true as a matter of law, Claim III is hereby dismissed.

IV. CONCLUSION

For the forgingforegoing [sic] reasons defendants’ motion for summary judgment is GRANTED in its entirety, and plaintiff’s motion for partial summary judgment is DENIED.

The Clerk of Court is directed to terminate the present action.

SO ORDERED.