In Joseph Sherman v. Thalia Graves and Gloria Allred, 24 Civ. 8494 (AT), 2025 WL 1558476 (S.D.N.Y. Jun 2, 2025), the court granted defendant’s motion to dismiss plaintiff’s defamation claim. This decision is a good summary of the current state of defamation law in New York.
In sum, on September 24, 2024, defendant Graves filed an action against plaintiff Sherman and Sean Combs alleging that, in 2001, Sherman and Combs raped Graves. Shortly after Graves filed this action, plaintiff brought the instant action, alleging that Graves and her attorneys falsely and maliciously filed the initial action against him. The court now addresses defendants’ motions to dismiss plaintiff’s complaint under Federal Rule of Civil Procedure 12(b)(6) and to sanction Sherman and his counsel.
The court summarized the “black letter” law of defamation as follows:
Defamation is the injury to one’s reputation either by written expression, which is libel, or by oral expression, which is slander. To state a claim for defamation under New York law, a plaintiff must show “(i) a defamatory statement of fact, (ii) that is false, (iii) published to a third party, (iv) of and concerning the plaintiff, (v) made with the applicable level of fault on the part of the speaker, (vi) either causing special harm or constituting slander per se, and (vii) not protected by privilege. A defamation claim is only sufficient if it adequately identifies the purported communication, and an indication of who made the communication, when it was made, and to whom it was communicated.
New York law recognizes an absolute privilege that prohibits defamation claims arising out of statements made in litigation if, by any view or under any circumstances, [the statements] may be considered pertinent to the litigation. The test of pertinency is extremely broad, and the privilege embraces anything that may possibly or plausibly be relevant or pertinent, with the barest rationality, divorced from any palpable or pragmatic degree of probability. This absolute privilege protect[s] the public interest in encouraging participants in litigation to speak with [the] free and open mind which the administration of justice demands.
[Citations and quotation marks omitted.]
Applying the law to the facts, the court explained:
Sherman fails to state a defamation claim. First, any allegedly defamatory statements made by Graves in her complaint are absolutely privileged. Sherman identifies no statements made by Graves that are unrelated or irrelevant to the First Action. The statements he does identify—Graves’ allegations that Sherman and Combs raped her and recorded the assault on video, and that Sherman was Combs’ bodyguard at the time of the incident—are “relevant [and] pertinent” to Graves’ sexual assault claims and are, therefore, absolutely privileged from a defamation claim. …
Second, Sherman’s assertions concerning Defendants’ alleged media statements are also insufficient to state a claim for defamation. Citing Graves’ complaint, Sherman alleges that Defendants “sued and went on a media tour touting, claiming, publishing, stating and telling the whole world (without any proof),” that Sherman raped Graves in 2001. Sherman further alleges that the statements “Defendants put forth in the media, e.g., on CNN, against [him] are utterly and entirely false.” His complaint, however, does not identify the “purported [media] communication[s],” “when [they were] made,” or “to [whom they were] communicated.” Thai, 726 F. Supp. 2d at 329 (citation omitted). Accordingly, Sherman’s allegations as to Defendants’ purported media statements fail to state a defamation claim. See Mehrhoff v. William Floyd Union Free Sch. Dist., No. 04 Civ. 3850, 2007 WL 4591741, at *5 (E.D.N.Y. Dec. 28, 2007) (dismissing defamation claim when complaint “d[id] not provide the substance of the alleged defamatory comments, nor d[id] it mention when [they were] made or to whom [they were] communicated”).
Third, Sherman’s allegations as to Graves’ “direct communications” with him also fail to state a defamation claim. Sherman alleges that, on or about November 29, 2023, Graves messaged him via Instagram, stating, “If you will be my witness against [Combs], then my attorneys will leave you out of any proceedings … [and] I will make sure that the state does not pick up charges or rape charges against you.” Graves’ alleged message to Sherman is irrelevant to the Court’s inquiry, however, because to state a defamation claim, a plaintiff must identify a statement that was published to a third party.
[Citation and quotation marks omitted.]
Based on this, the court held that dismissal of the defamation claim was warranted.