Rizzuti Ruling

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    UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

    GEORGE M. STEINBRENNER, III,Plaintiff,

    - against - o PIN rONESQUIRE REPORTING COMPANY, INC. IMALCOLML. ELVEY and PHILIP C.RIZZUTI,

    90 Civ. 6419 (RWS)

    Defendants.

    A P PEA RAN C E S:KAYE, SCHOLER, FIERMAN, HAYS & HANDLERAttorney for Plaintiff425 Park AvenueNew York, New york 10022By: PAUL J. CURRAN, ESQ.AARON RUBINSTEIN, ESQ.JAMES D. HERSCHLErN, ESQ.MICHAEL K. ROZEN, ESQ.Of CounselCHRISTY & VIENERAttorney f or De fe nd an ts620 Pifth AvenueNew York, New York 10020By: ARTHUR H. CHRISTY, ESQ.MARIA T. GALENO, ESQ.FRANK J. MONTELEONE, ESQ.

    SHARON FELDMAN, ESQ.Of Counsel

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    sweet, D. J.

    Defendants in this diversity action, Esquire ReportingCo., Inc. ("Esquir e") , MalcolmL. Elvey ("Elvey") and Philip C.Rizzuti ("Rizzuti") , have moved to dismiss the complaint ofplaintiff George M. steinbrenner, III ("Steinbrenner") I or, in thealternative, for smnmary judgment. For the following reasons, themotion for summary judgment is granted, and the case is dismissed.

    The par ties

    steinbrenner, a Fl or id a r es id en t, is a w el l- kn ow n p ubl icfigure, the principal owner and fonner Manaqinq General Partner ofthe New York Yankees Partnership, a limited partnership which ownsand operates the New York Yankees Major League Baseball Team ("theYankees").

    Esquire is a Delaware corporation located in New Yorkwhich provides stenographic services to the legal industry. Elvay,a New York resident, is the principal oWner and president ofEsquire, and Rizzuti, also a New York resident, is a shorthand orcourt reporter and licensed notary public who works for Esquire asa stenoqrapher.

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    . . .'

    P ri or P ro ce ed in gs

    This case arises out of an investigation ("theInvestigation If) undertaken by Francis T. Vincent, Jr. , theCommissioner of Baseball ("the Commissioner") , into certainact.ivities of Steinbrenner which were suspected of having beenviolative of the Major League Agreement ("M IA") , the con tra ct whi chgoverns the operation of major league baseball.

    As a result of the Investigation, the Co mmi ss io ne r i ss ue da written decision on JUly 30, 19 9 0 ("the Decision tt), whiChseverely curtailed steinbrenner' s activities with respect to theYankees. Following the Decision, on October 4, 19 9 0 Steinbrennerinitiated this action, seekinq daroages in the amount of $530,000from the parties responsible for transcribing certain interviewswhiCh occurred during the course of the Investigation.

    The case was initially assigned to the Honorable John E.spr Lazo , but was transferred to this Court on January 3 , ~9 9 1following Judge Sprizzo' s recusal.

    The defendants filed their mot.ion on October 24, 19 9 0,and oral argument was heard on February 1, 19 9 1.

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    . . . - . . . . . _ . . , " " ' _

    'theFacts

    Except as otherwise noted, the followinq facts are noti n d is pu te.

    1. The Commissioner1s Powers.

    Major league baseball is regulate by the KIA, under whichall professional baseball clUbs, including the Yankees, and theNational and American Leagues have delegated certain powers to theCommissioner. These powers include the power to investigate actsand practices that might be IInot in the best interests ofbaseball," and to impose penalties against parties found to haveengaged in such acts.'

    'steinbrenner claims that in exercising any of these powers,the Commissioner is bound by certain of rules of procedurepromulgated by prior commissioners, which require that allproceedings be conducted "like judicial proceedings and with dueregard for all the principals of natural justice and fair play."If the commissioner directs depositions to be taken, the rulesprovide that such depositions "will proceed substantially as if thetestimony had been taken on an open commission in a judicialproceeding. n The defendants dispute the applicability of therules, claiming that these rules are intended to govern onlyadversarial proceedings arising out of claims brought before thecommissioner by other parties, rather than unilateralinvestigations instituted by the commissioner on his owninitiative. rn any event, while this may be a factual disputebetween the parties, it is simply not material to steinbrenner' sclaims against these defendants, who are not parties to the MLA.At most, this issue would be relevant to a claim by Steinbrennerthat the co~issioner misused his power by employing the defendantsin a manner which violated the rules.

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    .......... vv. vv"Sv

    2. The Investigation

    In March, 19 90, the commissio~er began the Investigationto determine whether certain of steinbrenner' s activitiesconcerning his relationship with an individual named Howard Spira("Spira") had been "not in the best interests of baseball." TheCommissioner appointed John Dowd ("Dowd") to. conduct a preliminaryinvestigation and prepare a report, which the Commissioner woulduse to d ec id e w he th er f ur th er p ro ce ed in gs were appropriate.

    a. The interviews

    The major part of Dowd' s Investigation consisted of aseries Of interviews of steinbrenner and other yankee personnel tolearn the facts surrounding steinbrenner' s association with Spira.All of these interviews, which took place throughout the month ofMay 19 9 0, were transcribed by Rizzuti, the Esquire stenographer.Each interview began with Rizzuti swearing the witness in, and thetranscripts which Rizzuti produced were each entitled "SwornTestil:n.ony of" the interviewee. In addition, each transcriptconcluded with a standard certification signed by Rizzuti that theinterviewee "was previously sworn and that [this] deposition is atrue record of the testimony given by s uc h w it ne ss ."

    Prior to taking any interviews, ! )owd established certainprocedures to be followed. The interviewee~ were allowed to havetheir own counsel present, but Dowd was the only person who would

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    be allowed to examine the interviewee. Copies of the interviewt ra ns cr ipt s c re at ed by Rizzuti were to be provided on~y to Dowd,for his use in preparing his report to the Commissioner. All ofthe participants agreed to abide by t he se p ro ce du re s.

    b. The production of the transcripts

    Rizzuti described the procedure by which the interviewtranscripts were produced as follows:

    1) During the interviews, Rizzuti would record keystrokesmechanically on paper and electronically on magnetictape.2) The magnetic tape would be fed into a computer, "Whicwould translate the keystrokes into "raw" text, wordswith no sentence or paragraph structure and nopunctuation.3 ) A computer operator would edit the raw text, insertingappropriate punctuation and line breaks and correcting

    obvious errors, such as the mistranscription of similarsounding words (e.g. I "new" for "knew") or typographicalerrors, and translating Rizzuti' s coded keystrokes, suchas those used for personal names or other non-standardterms.4) The operator would produce a draft transcript forRizzuti, who would revieW' i t and make further correctionsbased upon handwritten notes recorded on the paper tapeand upon his independent recollection of the interview.These corrections would inclUde such things as deletingcolloquy which was transcribed but subsequentlydesignated "off the record" by the parties and correcting

    transcription errors which was detectable only from thecontext, such as recording the code for one person' s namewhere the conversation had clearly concerned a differentperson.

    At this stage, the transcripts were given to Dowd.Rizzuti stated that after he had turned over the first transcript

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    he received a telephone call from Dowd saying that he bad a numberof corrections to make to the transcript. As Dowd described thechanges to Rizzuti, Rizzuti reported that he understood that theywere all nof a stylistic, qranunatical nature." While he concededthat he normally would have expected such changes to have been madeby means of an nerrata sheet" circulated to all of the parties, andespecially t o the witness, be testified that under the proceduresestablished by Dowd, under which no one else had even receivedcopies of the transcripts, he felt that there was nothing wrongwith processing Dowd Is changes based solely on Dowd' s request.Rizzuti therefore arranged for oowd to communicate his requests toan Esquire computer operator, who would process the changes.Rizzuti testified that he believed that all of the c ha ng es p ro po se dby Dowd did not affect the substance of the transcripts.

    Rizzuti also stated that Dowd had never requested thatEsquire certify the transcripts as accurate, but that thecertification pages were prepared as a matter of r ou ti ne , d es pi tethe fact that the interviewees were not to be given an opportunityto review the transcripts for accuracy.

    c. The Commissioner' s heari ng

    On June 4, 19 9 0, after receiving and reviewing Do~d' sreport, the Commissioner decided to hold his own hearings toinvestigate further steinbrenner' s relation with Spira. To alloWstein]: ) rennerto prepare for the hearin g, the commissi oner provided

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    copies of all of the interview transcripts. In his letterinforming steinbrenner of the decision to hold the hearing, thecommissioner stated

    The sole judgment I have made to date is that, based onthe information gathered by [Dowd, J there is a sufficientcas is to require a hearing to permit you an opportunityto respond.

    The hearing was scheduled for July 5 and 6 . At thebeginning of the hearing, the Commissioner explained tosteinbrenner that he should not feel bound by any of his priorstatement s to Dowd, and that if he wished to change any aspect ofhis story he was free to do so. Steinbrenner was also permittedto submit statements of other witnesses and any o the r ma te ri al swhich be considered relevant to the matter. DUring the hearinq,the Commissioner introduced as exhibits all. of the interviewtranscripts prepared by Rizzuti.

    d. steinbrenner's discovery of the changes in t he t ra ns cr ip ts

    Af te r t he Co mmi ss io ne r' s he ar in g, St ei nbr en ne r' s co un se lnoticed that the interview transcripts which had been provided bythe Commissioner seemed-not to be entirely accurate records of whathad been said at the interviewees. On July 19 , steinbrennerinquired of Rizzuti whether any changes bad been made inthetranscripts. Ri zz ut i r es po nd ed by describing how Dowd' s changeshad been received and processed. Rizzuti testified that at that

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    time of steinbrenner' s ini tial inquiry, Esquire had in itpossession drafts of the interview transcripts which had beenmarked to indicate Dowd s change.s. However I because Riz zutbelieved that under Dowd' s procedures Esquire was not to supplyany material directly to anyone but Dowd, Rizzuti and Esquire gavethe ma rked -up tr anscript s to Dowd and suggested that steinbrennercontact Dowd to obtain further information. Rizzuti still had hispaper records of the interviews, but by that time the magnetictapes had been erased.

    On the following day, Steinbrenner' s counsel notifiedthe counsel for ~e Commissioner that they had evidence that thetranscripts had been altered by Dowd. In response, thecommissioner directed Esquire to cooperate with steinbrenner todetermine what changes had been made. Rizzuti thereupon made hispaper notes available to steinbrenner, who retained an independentstenographic reporting service to transcribe these notes andcompare the output to the transcripts produced by Esquire. At notime did steinbrenner' s counsel request the marked-up drafttranscripts from Dowd. According to steinbrenner's counsel, theretranscription and review process began on July 25 and wascompleted by the evening of July 27.2

    2At oral argument, Steinbrenner asserted that at least some ofthe alterations were not discovered until after the Commissioner' sDecision on July 3 0. Nevertheless, on July 29 steinbrenner'scounsel asserted that the review was completed on July 27.

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    On July 29 , steinbrenner's counsel sent a letter to theCommissioner Is counsel stating that the transcripts wereu nqu es ti on abl y n ot "true and accurate" as certified by Rizzuti, andidentifying several examples of discrepancies between Rizzuti' snotes of the steinbrenner interview and the final transcripts whichhad been produced to the commissioner. The letter offerecl noexamples of changes from any of the ot her inte rvi ews , but concludedwith the assertion that "the evidence that comprises the hearinqrecord is pervasive1y false" and the demand that t he In ve st ig at io nshould be terminated.

    e. T he Co mm is si on er ' s decision

    On the morning of July 30, the Commissioner informedsteinbrenner that he was denying the request to terminate theinvestigation and advised steinbrenner of his preliminary decisionthat, based upon the evidence adduced at the Commissioner' s hearingof July 5 and 6 and his review of the record, steinbrenner wouldreceive a two-year suspension from baseball followed by a three-year period of probation. ste.inbrenner and the. Commissionernegotiated all day long on the 30th, with the Commissionerultimately modifying his decision, at Steinbrenner' s request, toimpose a permanent restriction on steinbrenner' s activity asManaging General Partner of the Yankees, but to avoid the

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    .'

    suspension as ini tial1y proposed by the Commiss ioner. 3 Thdefendants assert, and steinbrenner does not aispute, that be didnot raise the issue of the alterations in the transcripts at antime during these negotiations.

    On the evening of July 3 0, the commissioner issued theDecision, and both he and steinbrenner signed an agreement anresolution ("the Agreement") and an order implementing the Decision(" th e Or de rn). In the eleven-page Decision, the Commissioner setforth the foundation for his con cl us io n that st ei nbre nn er 's conducthad been "not in the best interest of baseball" and specificallystated

    Mr. steinbrenner's team of lawyers have also raisedassorted objections to the procedures employed and to thepurported biases of Mr. Dowd and myself. I have directlyand indirectly through my counsel responded to andrejected this posturing. I will not belabor the pointother than to state that Mr. steinbrenner has beenafforded a full and fair opportunity to present to meorally and inwriting his views and testimony, all ofwhich I have considered with an open mind. In my view,Mr. steinbrenner's dilemmais not with the procedures Ihave utilized, but with his inability to rewrite history.Decision at 8.

    ~eportedly, steinbrenner souqht to avoid the term"suspension" because be felt that it would adversely affect hismembership on the United States Olympic committee, and thereforeconsented to a longer term o f p un is hI ne nt in exchange for not beingsuspended.

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    The Agreement provided that

    Mr. steinbrenner, recognizing the sole and exclusiveauthority of the Commissioner and recognizing thebenefits to Baseball from a resolution of this matterwithout further proceedings, agrees to accept thefollowing sanctions imposed by the commissioner:

    1. Mr.stainbrenner recognizes, agrees and submitsto the sole and exclusive jurisdiction of thecommissioner pursuant to the Major League Agreement. .2. Mr. steinbrenner acknowledges and accepts thefindinqs of the Decision to which this Agreement isattached and, specifically, that his conduct as describedin the Decision was not in the best interests of.; Baseball. Mr. Steinbrenner further accepts the sanctionsimposed on him by the Commissioner and agrees not tochallenge the sanctions incourt or otherwise. He alsoagrees he will not institute any legal proceedings of anynature against the commissioner or any of hisrepresentatives, either Major Leaque or any Major LeagueClUb relating to this matter.

    AgreeJtlentat 2.

    DISCUSSIOH

    1. The Standard for S~ary Judgment

    The standard for summaryjudgment is familiar. The courtis not "to weigh the evidence and determine the truth of the matterbut to determine whether there is a genuine issue for trial. nAndersonv. Liberty Lobby, Inc., 477U.S. 242, 249 (1986). SUI!llIlaryjud9ll1ent is warranted only if "the evidence is such that a

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    '-"I..I I.'\.'" oJ '" J.~ l' l.J:..~Ll\,. " . . . . . _ . . . . - - _ .. _ --_.

    reasonable jury could not return a verdict for the nonmovingparty." Id. at 248. In order to create a genuine factual issue,the non-movinq party "must do more than simply show that there issome metaphysical doubt as to the material facts." MatsushitaElectric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586(1986). This is particularly true for those issues on which thenon-moving party would bear the burden of proof at trial. Celotex~orp. v. Catret~, 477 U.S. 317, 322-23 (1986). In determiningwhether a genuine issue of fact exists, the court must draw allpermissible inferences in favor of the nonmoving party. Branum.v.Clark, 927 F.2d 698 (2d Cir. 1991).

    2. Summary Judgment Based on the Release Contained in the AgreementIs Not Warranted. .

    The defendants argue that SUltllllary judgment is appropriatebecause steinbrenner's action. is contractually barred by thepro vi si on of t he Ag re eme nt with the COlDlD.issioner,uoted above, inwhich St ei nb re nn er a gr ee d not to "institute any l eg al p ro ce ed in gsof any nature against the coIDlllissioner or any of hisrepresentatives. a The defendants claim that they acted asrepresentatives of the Commissioner because they were retained ~yDOwd to assist him in his preliminary investigation and totranscribe the interviews solely for his Denefit. steinbrennerdisputes this contention, asserting that a stenographer is

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    statutorily required by New York C.P.L.R 3 113 (a) ' to be aindependent participant in a deposition. Additionally,steinbrenner claims that even if the defendants were acting as thecommissioner' s representatives, he never intended that the releaseprovision of the agreement would extend to them.

    steinbrenner's reliance on the CPLR is ~isplacea.section 101 of the CPLR states that the statute "shall govern theprocedure in civ il jud icial proce edings in all courts of the stateand before all judges, except where the procedure is regulated byinconsistent statute. tt steinbrenner does not and cannot contendthat Dowd's interviews were related to any j ud ic ia l p ro ce ed in gs inany court, thus the CPLR, including 3113, do not apply.

    The evidence adduced thus far clearly indicates that thepr oceedi ngs before Dowd were not depositions in the normal senseof the word. Dowd was not only the interrogator, he was also theperson incharge of directing the Investigation and the appointedrepresentative of the ultimate decisionmaker, the Commissioner.Do wd e st ab li sh ed the procedures to be followed, including the rule

    4Ru1e 3113. Conduct of the examination.La) Persons before whom depositions may be taken.

    Deposi tions may be taken before any of. the followingpersons except an attorney, or employee of an attorney,for a party or prospective party and except a person whowould be disqualified to act as a juror because ofinterest in the event or consanguinity or affinity to aparty n

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    that only he was to receive copies of the transcripts, procedures.which were agreed to by all of the participants. Despite thpresence of other counsel, Dowd was the only person to question thinterviewees. While a certain amount of colloquy took placbetween Dowd and the other lawyers, these exchanges were primarilydirected at clarifying the infor.mation elicited by Dowd, rathethan attempting to cut off or obstruct the interrogation. Whilthe record discloses occasional examples of heated o r a rg um en ta ti veexchanges, there are also several instances in which the partiesp ro fe ss ed t he ir -m ut ua l ~nterest in cooperating to ensure that allof the information was accurately disclosed to Dowd and thecommissioner.

    In light of these obvious differences between thinterviews and formal depositions, Rizzuti was justified inregarding Dowd more as having a quasi-judicial role or as aa~nistratie hearinq officer than as a me re pa rti cipa nt inaordinary deposition. Therefore, it would not have beeunreasonable for Rizzuti to have considered himself and Esquire arepresentatives of the Commissioner, inmuch the same way ascourtroom reporter is generally viewed as a representative of thcourt.

    However, Rizzuti' s belief, reasonable or not, cannodetermine the scope of the release. As the Agreement is a contractbetween Steinbrenner and the Commissioner, its interpretationnaturally depends not on the understanding of potential third party

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    ... - ...- V., ... "V":IV

    beneficiaries, but rather on the intent of the parties themselves.On this issue, steinbrenners affidavit testimony that he did noconsider the reporters to have been representatives of thCommissioner is sufficient to create a genuine factual disputewhich precludes summary judgment based on the release contained it he Ag re em en t.

    3. Steinbrenner Has Not Established That the Defendants BehaviorWas Improper.

    Summary judgment for the defendants is neverthelessa pp ro pr ia te b ec au se . S te in br en ne r has not carried his burden ofestablishing a triable factual dispute concerning whether thedefendants actions in connection with the production of theinterview transcripts for Dowd were improper.

    a. The actual changes to the transcripts were not material.

    To the extent that steinbrenner' s claims depend on thefalsity of the transcripts, he has failed to present evidencei nd ic at in g t ha t any of the cha nges mate rial ly a ltere d the substanceor tone of the transcripts or that the alterations might reasonablybe considered to have affected the commissioner' s Decision.

    In the first place, Steinbrenner appears to havemisperceived his burden on this motion, asserting that the

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    defendants "have totally failed to make any demonstration that ngenuine issue Of material fact exists" as to the significance othe t ra ns cr ip t a lt er at io ns . As d is cu ss ed e ar li er , a party opposinsummary judgment is required to adduce evidence to establishtriable dispute with regard to some material factual issueparticularly as to those issues upon which that party would beathe burden of proof at trial. celotex Corp., supra, 477 U.S. 317322-23. steinbrenner cannot prevail based upon a mere assertionthat the changes were material; he must identify those particularchan ges w hich COuld reasonably support such a Claim.

    Rizzuti bas testified by a ff ida vit t ha t a number of thchanges reported by steinbrenner .rere changes made by Esquirpersonnel, either Rizzuti himself or the computer operatoperforming the initial transcription, to correct what Rizzuti felwere his owntranscribing errors, i.e., places where the transcripdid not accurately render what had occurred in the interview.These corrections included both those Which were obvious on thface of the transcript, such as clear typographical errors, anthose which Rizzuti identified based on his recollection of thpro cee din gs, i ncl ud ing t hos e in st ance s in which he had silnply keyein the wrong strokes, and those places were Rizzuti had transcribematerial which was later designated as "off the record." Thdefendants have reviewed Steinbrenner' s list of all of the changeidentified by his stenographers and, by c omp az- Ls en w it h t he ma rk edup transcriptswhicb were supplied to Dowd to indicate hi s chan geshave identified those changes made by Esquire and those made b

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    "Q"

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    "

    CHRISTY&nE~ER

    a~teration inDowd' s interview of Steinbrenner, where Dowd wasinvestigating steinbrenner' s instruction to one of his principalaides and i nv es ti ga to rs , P hi li p McNiff, ("McNiff"):

    RIZZUTI IS NOTES

    Q. My question to you is,how can you know what isaccurate and inaccurate unlessyou know the facts, sir?A. I leave that up to his

    [ Mc Ni ff ' s] j ud gm en t.Q. That is not what yousaid, you didn't say MeN iff,you ought to know what isaccurate or inac~rate.You said you wanted toknow what was accurate andinaccura.te, how do you knowthat unless you know what thefacts are?A. What are you talkingabout? All of the things thatwere mentioned, that 1: told youbefore, I wanted to be surethat they were accurate.Q. How were you going todo that, Mr. steinbrenner?A. I don't know, that isup to Phil McNiff to do, I wasnever in law enforcement.Q. We are talking about,you said it again, how did youknow what was accurate?A. I said whatever y~uturn over, make sure it loSaccurate. That is all 1: toldthem, that is all I wouldnaturally tell them.

    AS MODIFIED BY DOWO

    Q. My question to you is,how can you know what isaccurate and inaccurate unlessyou know the facts, sir?A. I leave that up to his

    judgment.Q. That is not what yousaid, you didn It say McNiff,you ought to know what is andis not accurate.

    How were you going to dothat, Mr. steinbrenner?A. r don't know, that isup to Phil McNiff to do, I wasnever in law enforcement.Q. Weare talking about,you said it aqain, how did youknow what was accurate?A. I said whatever youturn over, make sure it isaccurate.

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    Q. You said you wanted toknow what was accurate, notwhat you would turn over.A. If you want to make a

    play on every little word.Q. That is the only thingthat I can have, are yourwords.A. What I meant was, thatwhatever you are going todeliver, you make sure it isaccurate.

    That is what I meant wasthat whatever you are going tdeli vex , . you make sure it iaccurate.

    steinbrenner Tr. at 23 0-3 l. Thus the alteration eliminated somof the more repeti ti ve remarks by both participants and thecolloquy about na play on every little word, I' but did not affectthe substance of Oowd Is question or steinbrenner's response. Ev.ethis change, one of the most extensive identified by steinbrenner,is not enough to create a triable issue of fact as to whetherDowd' s alterations materially altered the substance or the tone othe transcript or in any way affected the Commissioner's Decision.

    The only change cited by steinbrenner which could evenarguably.be described as substantive was found in the transcriptof Dowds interview of McNiff. While trying to determine whethesteinbrenner had promised Spira any type of future considerationin exchange for information, Oowd had a short discussion with aKevin Hallinan ("Hallinan") , a former New York City policeman whoserves as the director of security for Major League Baseball.According to the transcript provided to the Commissioner, Dowdasked Hallinan whether a certain type of statement might be

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    considered a npromise. 1I Rizzuti testified that his own review ofhis notes indicated that the word used by Dowd was actuallyncomm. ime nt . " B ot h Esqui re Is computer operator and Steinbrenner' sreporters interpreted Rizzuti' s keystrokes as indicating that theword was "document. rt Rizzuti testified that upon review of thedraft transcript, he corrected the word to "promise," based on hisrecollection of the course of the conversation. McNiff testifiedby affidavit that Oowd had never used the term "pro~ise" in thatparticular context, although he did not go so far as to state thatthe correct word was "document." While all of this might barelybe enough to create a factual dispute as to which word Dowd reallyused, there is nothing which even remotely suqqests that thiscasual discussion between Dowd and another of tha Commissioner' sown representatives, during an interview filled with directquestions to McNiff concerning steinbrenner' s alleged arrangementwith Spira, could reasonably be deemed to have affected theC ommi s si o ne r ' s D ec is i on .

    Inaddition, the Commissioner was placed on notice asearly as July 20 that the transcripts had been modified, and onJuly 29 steinbrenner' s counsel reported that the process ofidentifying all of the changes was complete. Given the day-longnegotiations on July 30, steinbrenner had adequate opportunity tobring any significant changes in the transcripts to theCommissioner' s attention prior to the issuance Qf the Decision.This fact alone would compel the conclusion that none of the

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    Changes could have influenced the Commissioner to rule againssteinbrenner.

    b. There is no evidence that Rizzuti' s certifications of thtranscripts was improper.

    Not only has steinbrenner failed to show that thalterations to the transcripts were material, he has not presentedevidence sUfficient to create a triable dispute on the issue ow he the r Ri zz ut i' s c er ti fi ca ti on of t he t ra ns cr ip ts was proper. Hievidence on this issue consist of the affidavit of Raymond DeSimon("DeSimoneR), a notary public and court reporter, who asserts thaRizzuti' s certification of the transcript after Dowd' s changes habeen made was a violation of the customs and practices of thshorthand reportinq industry However, a careful reading oDeSimone' s testimony reveals that it is not sufficient to creata qenuine issue of f act r eg ar di ng Rizzuti's behavior.

    In the first place, DeSimone does not state that it i'always improper for a reporter to certify a transcript as accu rat eafter changes have been made, even changes which might render itmaterially inaccurate as a record of the proceedings, but onlstates that the reporter should obtain the consent of all of thparties before doing so. Accapting this assertion as true, it inecessary to determine how such consent should have been obtainedin the case of the i nte rv ie w t ra nscri pt s. Unfortunately,DeSimone' s testimony is limited to the case of adversarial

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    proceedings, in which all parties, including the primary witness,have access to the transcript and are thus competent to agree withor dispute the proposed changes. DeSimone ~akes no allowance forthe unique procedural rules imposed by Oowd and does not even offerany suggestion as to how his rule of "no ex parte changes" shouldbe applied where there is only one recognized party, particularlywhere that party is both the examiner and an agent of the ultimated ec i s io nm ak er As Steinbrenner does not dispute that he agreed toDowd' s procedures, his failure to present evidence that under thoseprocedures Rizzuti' s behavior was improper is fatal to any claimthat the certification of the modified transcripts constituted anytype o f m is co nd uc t.

    4. steinbrenner Has Not Established That His Damages WerePr oxi ma tel y Cau sed by the Defendants' Acts.

    Even if Steinbrenner had demonstrated the existence ofa f act ua l d isput e as to whether the defendants acted improperly,sUllUIlaryudgment would be a pp ro pr ia te b ec au se he has not shown thathis damages were proximately caused by the defendants' conduct.

    The damages which steinbrenner seeks to recover are theexpenses and legal fees which he incurred intranscribing Rizzuti r soriginal notes of the interviews and comparing those transcriptsto the t ra ns cr ip ts p ro vi de d to the commissioner. When Steinbrennerfirst ra.ised the issue of the changes in the transcripts, the

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    defendants, in keeping with the rule that all material be providedonly to Oowd, turned over to Dowd the marked-up drafts of thetranscripts indicating exactly which changes Dowd had made.steinbrenner was encouraged to obtain these drafts from Oowd inorder to find out what the changes were, but he chose instead tofollow the more laborious and costly route of retranscribing theoriqina~ notes and comparing that output by hand with thetranscripts which had been provided to the commissioner.

    Steinbrenner asserts that his refusal to fOllow thesimpler course of obtaining the marked-up drafts from Dowd wasreasonable in light of the fact that Dowd was the original sourceof the "tampering~n and therefore could not be trusted to provideevidence of his own wrongdoing. However, particularly in light ofthe preceding finding that none of the alterations was material,steinbrenner has presented no evidence to support this assertionor to justify his suspicion of Dowd. No proof has been adduced to

    - indicate either that Dowd would not have provided the mark-ups orthat they did not infact identify all of Dowd's changes. Whileit may be in some respects understandable that Steinbrenner wasreluctant to trust Dowd, that reluctance was based on hisunderlying belief that the Investigation was biased against him,and that belief has not been borne out by the evidence.Particularly with respect to the defendants here, Steinbrenner hassimply not created a triable issue as to whether their actions werethe proximate cause of his alleged damages.

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    This conclusion requires the dismissa1 of each ofsteinbrenner rS causes of action. Admi ttedly , there is someauthority in NewYork for the proposition that a plaintiff'sfailure to establish a proxi~ate relationship between thedefendant' s acts and the plaintiff' s damages is not a grounds fordismissing the plaintiff's claim but only for limiting the amountof recovery. See,~, Clearv..iewConcrete P! Ods. Corn. v. CharlesGherardi. Inc., 88 A.D.2d 46 1, 453 N.Y.S.2d 750 (4th Oepft 1985)(plaintiff lnight be enti tled to nominal damages for breach ofwarranty even though actual damages were resul t of interveningcause and not proximately related to defendant' s acts) . However,this proposition is inappliCable in the present case because actualdamage is a primary element of each of Steinbrenner' s claims.

    a. Notarial Misconduct

    steinbrenner' s first cause of action, for notarialmisconduct, is based upon N.Y. Exec. L. 135:

    For any misconduct by a notary pUblic in the performanceof any of his powers such notary public shall be liableto the parties injured for all damages sustained by them.

    In order to prevail on such a claim, a plaintiff must show thatthe notary' s conduct resulted in an injury, as the statute clearlyimposes liability only for such damages. Where the damages are notcausally related to the notary' s improper performance of a notarialact, the plaintiff' s claim must fail. Cf. Bogensky v. Rosenberg,202 Misc. 6 52, 6 52 (N.Y. Sup. ct. Suffolk Co. 19 52) (notarial

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    misoonduct must be predicated on misconduct in acting as notaryrather than harmful behavior by person who happens to be notary)

    h. In ju ri ou s Fa ls eh oo d

    Similarly, an e ss en ti al e le me nt of the tort of injuriousfalsehood, upon which steinbrenner ts second cause of action ispremised, is that the alleged false s ta te me nt ca us ed actual injuryto the plaintiff. See, LS.:., Penn-Ohio Steel Corn. Va Al1is-Chalmers Mfg. Co, 7 A.D.2d 441. 444, 184 N.Y.S.2d 58, 6 1 (1 st Oe p'1959) (nIf [the false statement] inflicts material harm upoanother and it results in actual damage to the pla int iff 'seconomic or le gal re lat ion shi ps, an action may lie") ; WasteDi sti lla tio n Techno logy . In c. v. Blasland & Bouck Engineers. P.c.,136 A.D.2d 633, 634 (2d Cep't 1988): Restatement (Second ) of Torts 623A (1917).

    c. Breach of Fiduciary OUty

    - Steinbrenner's third cause of action is based on thedefendants' alleged breach of their fiduciary duty towarsteinbrenner. Because the very nature of a fiduciary duty is threquirement the fiduciary act in good faith and candor to avoidharm to the party who is owed the duty, actual damage isn ec es sa ry c om po ne nt of this c la Im as well. ~, ~, Restatement(Second) of Torts 874 (19 77) (fiduciary liable "for harmreSUlting f ro m" br ea oh) .

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    Conclusion

    For all of the foregoing reasons, Steinbrenner has noestablished a genuine dispute concerninq the propriety of thedefendants behavior, nor has he shown a triable issue as towhether his damages were proximate1y caused by the defendants.Therefore, the defendants' motion for summary judgment dismissingthe complaint is granted.

    It is so ordered.

    New York, H. Y.Hay 3/ ' 1991 U.S.D.J.

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