NY- A New York State trial judge, Justice Walter B. Tolub of State Supreme Court in Manhattan, ruled on June 24 that Maximilia Cordero, known professionally as AVA in her modeling career, can proceed with a defamation suit against the New York Post and two of its reporters for the publication of an article quoting statements purporting to be her sexual fantasies from a MySpace page.

Tolub concluded that there was enough ambiguity surrounding the fantasy quotations that it should be up to “the community” — that is, a jury — to decide whether their publication was harmful to the plaintiff’s reputation.

Most of Cordero’s other claims against the defendants were dismissed by Tolub.

The lawsuit stems from an article by reporters Dareh Gregorian and Lucy Carne, both also named as defendants, published in the Post on October 23, 2007, a version of which can be retrieved online, originally titled “Gender-Bend Shocker, Kinky Sex Suit Gal is a Man.” From Tolub’s description, it appears that the version now available online has been “cleaned up” a bit from what was originally published in print.

The article reported on a lawsuit Cordero filed against Jeffrey Epstein, a fabulously wealthy Florida resident who has been prosecuted for having sex with underage girls. In that lawsuit, Cordero alleged Epstein had sexually molested her in his Manhattan mansion when she was a minor.

The Post reporters, finding this newsworthy, did some research on Cordero and reported in the October 23 article that Cordero “was born Maximillian Cordero in 1983,” but had dressed as female beginning at age 12 and had been taking hormones.

The Post reporters found several MySpace pages purporting to be Cordero’s, although the pages differed in identifying her sex and age. One of the pages presented a “masturbatory fantasy” involving “multiple men and then multiple women.”

On one of the pages, the writer describes herself as “a 17 year old model from New York City” — even though Cordero was at least 23 when the Post article was published. The page also says, according to the Post, “I’m a spoiled bitch and really mean. I love to have fun, hang out and party! Oh and I’m a junk head (pills, designer substances….).”

After paring away various factual statements that he found to have been accurately reproduced from Cordero’s complaint against Epstein, such as the revelations that Cordero was born male but always viewed herself as a girl, had been hospitalized with psychiatric problems, and was a heavy drug user and HIV-positive, Tolub wrote, “As best as this court can discern, two allegations remain in the complaint which might be considered actionable. The first is that the Plaintiff was engaged in some form of criminal conduct. The second statement which may be actionable, pertains to the claim that Plaintiff ‘was a promiscuous lying slut.'”

The version of the Post article now online does not include any such statement, and Tolub comments that the Post never stated that Cordero is promiscuous, but readers might draw that conclusion from the quotation about her sexual fantasies.

The first allegation was based on the Post’s quotation of a statement by Howard Rubenstein, described as “Epstein’s spokesman,” who observed that the ongoing investigations of Epstein’s sexual activities had “made him an easy target ‘for money-seeking lawyers and their women.'” Cordero alleged that this statement accused her of criminal activity, but Tolub was not willing to give it that interpretation.

“Although the statement of Mr. Rubenstein does not reflect well on Ms. Cordero’s character,” wrote Tolub, “it does not go so far as to accuse her of criminality. In common parlance, it is a stretch that this court believes is unwarranted, and as such cannot sustain a cause of action for defamation.”

However, Tolub was not ready to dispense with the other claim in ruling on the defendants’ pre-trial to dismiss Cordero’s suit. She claims she did not write the material on the MySpace pages attributed to her in the Post article, alleging that they are “forgeries posted by unknown people,” according to Tolub. The judge noted that under New York law, “statements falsely suggesting that a person is sexually promiscuous or sexually licentious” generally can be the basis of a defamation claim.

Tolub observed that the Post’s reporting of Cordero’s charges against Epstein did “not detail the graphic allegations made in the Epstein Lawsuit and never make any assertion about Plaintiff being promiscuous or having indiscriminate sex with others.” However, the article mentions and quotes from “Plaintiff’s alleged sexual fantasies as posted on MySpace.” So the question was whether Tolub would conclude, as a matter of law, that if those quotations were spurious, they could be the basis for a libel action because they were harmful to Cordero’s reputation.

In considering a motion to dismiss such a defamation claim, the court takes the first crack at deciding whether the words at issue were “reasonably capable of causing a defamatory meaning.” But, Tolub was unwilling to decide the case on his own as a matter of law, instead concluding that “a question for the jury is presented if the words used are ambiguous or susceptible of several meanings, one of which disgraces or discredits the Plaintiff.”

“The court is mindful that changing social mores could affect how certain sexual conduct is viewed by the community, and recognizes that what was once considered defamatory per se may no longer be considered defamatory today,” he continued. “The court is of the opinion that it is for the community to decide whether the language has a defamatory import, and whether the Article may be considered defamatory in the context in which it was presented.” As a result, Tolub would neither dismiss the case nor decide it.

In a portion of Tolub’s opinion not included in its official publication but which was published in the New York Law Journal last week, Tolub rejected Cordero’s invasion of privacy claim, pointing out that New York courts have not adopted a general civil right of privacy. The state’s privacy law is limited to unauthorized commercial use of a person’s name and image, a concept not applicable to news reporting on topics of public interest, such as an article about a lawsuit involving a controversial defendant such as Epstein.

Tolub specifically rejected the argument that New York’s HIV confidentiality statute was relevant here. Cordero stated in her complaint against Epstein that she is HIV-positive, a fact mentioned in the Post’s original 2007 article. Tolub pointed out that the confidentiality law concerns unauthorized disclosure of HIV-related information by custodians of medical records or confidential medical information. He concluded that the statute does not apply to a newspaper reporting facts included in a plaintiff’s unsealed legal papers filed in court and open for anybody to see.