AMY CLYDE and K-III CORPORATION as owner and Publisher of "NEW YORK MAGAZINE"
Defendants.
Index No.
Verified Complaint
Plaintiffs JOSEPH FELDSCHUH, M.D. and DAXOR CORPORATION, by and through their attorneys Schneider, Harris & Harris, with offices at 1015 Broadway, Woodmere, New York, as a complaint against the Defendants, state and allege as follows:
1. DAXOR CORPORATION is a domestic corporation existing pursuant to the laws of the State of New York, with its principal place of business at 350 Fifth Avenue, Suite 7120, New York, New York 10118.
2. DAXOR CORPORATION is publicly traded on the American Stock Exchange.
3. IDANT LABORATORIES is a division of DAXOR CORPORATION, (formed and existing under the laws of the State of New York) and having its principal place of business at 350 Fifth Avenue, Suite 7120, New York, New York 10118. IDANT operates a clinical laboratory, a sperm bank and a blood bank.
4. JOSEPH FELDSCHUH, M.D. is the President and majority Shareholder of DAXOR CORPORATION.
5. DR. FELDSCHUH is the Laboratory Director at IDANT.
6. Upon information and belief, and at all times alleged herein, AMY CLYDE was a citizen of the State of New York and was an agent and/or servant of K-III MAGAZINE CORPORATION as a writer.
7. Upon information and belief, and at all times alleged herein, Defendant K-III MAGAZINE CORPORATION (hereinafter referred to as K-III) was a domestic corporation, incorporated by the laws of the State of New York and is the owner and publisher of New York Magazine.
8. Upon information and belief, and at all times alleged herein, Defendant K-III is a foreign corporation licensed to do business in New York State and is the owner and publisher of New York Magazine.
9. Upon information and belief, Defendant K-III is a foreign corporation doing business in New York State and is the owner and publisher of New York Magazine.
10. Upon information and belief, and at all times alleged herein, Defendant K-III employed Defendant CLYDE.
11. Upon information and belief, and at all times alleged herein, Defendant CLYDE was a free lance writer who accepted an assignment from Defendant K-III to write about DAXOR and Dr. FELDSCHUH.
12. At all times mentioned, the Defendant K-III was and still is the owner and the publisher of a certain magazine known as "New York Magazine" published in the City of New York, New York and in general circulation there and throughout the State of New York and other nearby states.
13. That in the April 3, 1995 issue of "New York Magazine," the Defendant K-III Corporation published an article, written by Defendant CLYDE entitled "The Sperm King."
14. The article was false and defamatory.
15. The article, entitled "The Sperm King" sought to discredit DR. FELDSCHUH and DAXOR and hold them out for ridicule and humiliation.
16. The article, deliberately and falsely portrayed DR. FELDSCHUH as a person who believes he is above the law and not bound to obey the law and lawful regulations.
17. Specifically, on page 39, column one, Defendant CLYDE wrote, and Defendant K-III published the following: "He loves to argue, and he seems to believe that he's somehow above the law. "At one point, I asked him why his semen analysis employees weren't certified in the past. "'The people who worked here were receiving training from me,' said FELDSCHUH. 'The certificates were irrelevant. To say these employees need certificates of qualification is a joke."
18. The above excerpt from the Defendant CLYDE's article was a fabrication and deliberate misquote, deliberately twisted out of context and done to support Defendants' plan and scheme against the Plaintiffs.
19. DR. FELDSCHUH did have a conversation with Defendant CLYDE on March 2, 1995 concerning certificates. DR. FELDSCHUH explained that until 1989, despite years of his lobbying, there was no State regulation in place covering certification of semen analysis. He explained that he pioneered the methodology now used throughout the country. "The methodology, the technology that later was used around the country for banks was developed right here. The people who worked in the sperm bank were trained, basically by me."
20. DR. FELDSCHUH then went on to explain that in 1988 a City Health Inspector decided that semen analysis certificates were needed. "Since there was no category (as semen analysis in the New York City Health Code) that they should be listed under urine analysis. Now, how being qualified to do a urine analysis would qualify you to do a semen analysis is rather bizarre because there is no connection between the ability to do an accurate urine analysis and the ability to do a semen analysis; none whatsoever."
21. Defendant CLYDE then asked the following: "So you seem to be saying that those COQ's, those certificates that the city originally wanted your employees to have would have been irrelevant."
22. DR. FELDSCHUH replied that he believed requiring urine analysis certification to perform semen analysis "was a joke."
23. In the April 3, 1995 article, Defendant CLYDE wrote that Dr. FELDSCHUH referred to the sperm collection room as an "ejaculatorium." Such statement was false and never made by DR. FELDSCHUH.
24. In the April 3, 1995 article, Defendant CLYDE wrote and Defendant K-III published the following false and untruthful statement, "DAXOR employees had told State Investigators that at FELDSCHUH's direction they made false entries on official business records and lied to investigators in sworn statement."
25. Such statement was false.
26. At the time the Defendant K-III published the defamatory matter, Defendant K-III knew that Defendant CLYDE had written a false and defamatory article. Defendant K-III then failed to take the proper steps to ascertain its accuracy and instead published it.
27. In writing and publishing this false and defamatory matter, Defendant CLYDE was motivated by actual malice and wrongfully and willfully intended by this publication to injure the Plaintiffs.
AS AND FOR A FIRST CAUSE OF ACTION AGAINST DEFENDANT K-III ON BEHALF OF DR. FELDSCHUH
28. The Plaintiffs repeat, reassert and reallege paragraphs 1 through 27 with all force and effect as if alleged again herein.
29. Defendant K-III failed to take the proper steps to ascertain the accuracy of the "Sperm King" article and instead published it with reckless disregard of whether it was true or not.
32. By reason of this publication, Dr. FELDSCHUH was greatly injured in character and reputation, and suffered great pain and mental anguish, all to his damage in an amount not less than Fifteen Million ($15,000,000.00) Dollars.
33. Due to the wanton and reckless disregard for the truth displayed by Defendants K-III by its publication of the "Sperm King" article, Dr. FELDSCHUH demands punitive damages in the amount of Ten Million ($10,000,000.00) Dollars.
AS AND FOR A SECOND CAUSE OF ACTION AGAINST THE DEFENDANT K-III ON BEHALF OF DR. FELDSCHUH
34. The Plaintiffs repeat, reassert and reallege paragraphs 1 through 33 with all force and effect as if alleged again herein.
35. The Defendant K-III instructed Defendant CLYDE to write the "Sperm King" article for publication in New York Magazine.
36. K-III, its employers, agents and/or servants knew that the article as written was false and defamatory.
37. In publishing this false and defamatory matter, Defendant K-III was motivated by actual malice and wrongfully and willfully intended by this publication to injure the Dr. FELDSCHUH
38. By reason of the publication of the "Sperm King Article", Dr. FELDSCHUH was greatly injured in character and reputation and suffered great pain and mental anguish, all to his damage in an amount not less than fifteen Million Dollars ($15,000,000).
39. Due to the actual malice displayed by Defendant K-III by its publication of the "Sperm King" article, an article it knew to be false and defamatory, and that such publication was due solely to harm Dr. FELDSCHUH, DR. FELDSCHUH demands punitive damages in the amount of Ten Million Dollars ($10,000,000).
AS AND FOR A FIRST CAUSE OF ACTION AGAINST THE DEFENDANT K-III ON BEHALF THE PLAINTIFF DAXOR
40. The Plaintiffs repeat, reassert and reallege paragraphs 1 through 39 with all force and effect as if alleged again herein.
41. Defendant K-III failed to take the proper steps to ascertain the accuracy of the "Sperm King" article and instead published it with reckless disregard of whether it was true or not.
42. As a direct result of the publication of this false and defamatory article, DAXOR's stock price, as traded on the American Stock Exchange, dropped significantly.
43. DAXOR was forced to expend its own monetary resources to repurchase DAXOR stock and stabilize its price.
44. As a result of this article, DAXOR lost clients.
45. By reason of this publication, DAXOR was greatly injured in character, loss of stock value and reputation, all to its damage in an amount not less than Fifteen Million ($15,000,000.00) Dollars.
46. Due to the wanton and reckless disregard for the truth displayed by Defendants K-III by its publication of the "Sperm King" article DAXOR demands punitive damages in the amount of Ten Million ($10,000,000.00) Dollars.
AS AND FOR A SECOND CAUSE OF ACTION AGAINST THE DEFENDANT K-III ON BEHALF OF PLAINTIFF DAXOR
47. The Plaintiffs repeat, reassert and reallege paragraphs 1 through 46 with all force and effect as if alleged again herein.
48. The Defendant K-III instructed Defendant CLYDE to write the "Sperm King" article for publication in New York Magazine.
49. K-III, its employers, agents and/or servants knew that the article as written was false and defamatory.
50. In publishing this false and defamatory matter, Defendant K-III was motivated by actual malice and wrongfully and willfully intended by this publication to injure DAXOR, by misrepresenting and defaming DR. FELDSCHUH
51. As a direct result of the publication of this false and defamatory article, DAXOR's stock price, as traded on the American Stock Exchange, dropped significantly.
52. As a result of the article, DAXOR lost clients.
53. DAXOR was forced to expend its own monetary resources to repurchase DAXOR stock and stabilize its price.
54. By reason of the publication of the "Sperm King Article", DAXOR was greatly injured in character, loss of stock valuation and reputation all to its damage in an amount not less than Fifteen Million Dollars ($15,000,000).
55. Due to the actual malice displayed by Defendant K-III by its publication of the "Sperm King" article, an article it knew to be false and defamatory, and that such publication was due solely to harm DAXOR demands punitive damages in the amount of Ten Million Dollars ($10,000,000).
AS AND FOR A FIRST CAUSE OF ACTION AGAINST DEFENDANT CLYDE ON BEHALF OF DR. FELDSCHUH
56. The Plaintiffs repeat, reassert and reallege paragraphs 1 through 55 with all force and effect as if alleged again herein.
57. Defendant CLYDE had written a false and defamatory article. She failed to take the proper steps to ascertain its accuracy and instead wrote and had published it with reckless disregard of whether it was true or not.
58. By reason of this publication, Dr. FELDSCHUH was greatly injured in character and reputation, and suffered great pain and mental anguish, all to his damage in an amount not less than Fifteen Million ($15,000,000.00) Dollars.
59. Due to the wanton and reckless disregard for the truth displayed by Defendant CLYDE by writing and having published of the "Sperm King" article DR. FELDSCHUH demands punitive damages in the amount of Ten Million ($10,000,000.00) Dollars.
AS AND FOR A SECOND CAUSE OF ACTION AGAINST DEFENDANT CLYDE ON BEHALF OF DR. FELDSCHUH
60. The Plaintiffs repeat, reassert and reallege paragraphs 1 through 59 with all force and effect as if alleged again herein.
61. In writing and publishing this false and defamatory matter, Defendant CLYDE was motivated by actual malice and wrongfully and willfully intended by this publication to injure Dr. FELDSCHUH.
62. The Defendant CLYDE deliberately and maliciously fabricated quotations and attributed them to DR. FELDSCHUH.
63. By reason of this publication, Dr. FELDSCHUH was greatly injured in character and reputation, and suffered great pain and mental anguish, all to his damage in an amount not less than Fifteen Million ($15 000,000.00) Dollars.
64. Due to the actual malice displayed by the Defendant CLYDE in her writing an publication of the "Sperm King" article, which she knew was false and defamatory and that such publication was due solely to harm DR. FELDSCHUH and as such DR. FELDSCHUH demands punitive damages in the amount of Ten Million Dollars ($10,000,000).
AS AND FOR A FIRST CAUSE OF ACTION AGAINST DEFENDANT CLYDE ON BEHALF OF PLAINTIFF DAXOR
65. The Plaintiffs repeat, reassert and reallege paragraphs 1 through 64 with all force and effect as if alleged again herein.
66. Defendant CLYDE had written a false and defamatory article. She failed to take the proper steps to ascertain its accuracy and instead wrote and had published it with reckless disregard of whether it was true or not.
67. The Defendant CLYDE by defaming the character and integrity of the DR. FELDSCHUH, defamed the character and integrity of DAXOR.
68. As a direct result of the publication of this false and defamatory article, DAXOR's stock price, as traded on the American Stock Exchange, dropped significantly.
69. DAXOR was forced to expend its own monetary resources to repurchase DAXOR stock and stabilize its price.
70. As a result of the publication of the article, DAXOR lost clients.
71. By reason of this publication, DAXOR was greatly injured in character, stock price valuation and reputation all to its damage in an amount not less than Fifteen Million ($15,000,000.00) Dollars.
72. Due to the wanton and reckless disregard for the truth displayed by Defendant CLYDE by writing and having published the "Sperm King" article DAXOR demands punitive damages in the amount of Ten Million (10,000,000.00) Dollars.
AS AND FOR A SECOND CAUSE OF ACTION AGAINST DEFENDANT CLYDE ON BEHALF OF PLAINTIFF DAXOR
73. The Plaintiffs repeat, reassert and reallege paragraphs 1 through 72 with all force and effect as if alleged again herein.
74. In writing and publishing this false and defamatory matter, Defendant CLYDE was motivated by actual malice and wrongfully and willfully intended by this publication to injure Dr. FELDSCHUH and DAXOR
75. The Defendant CLYDE deliberately and maliciously fabricated quotations and attributed them to DR. FELDSCHUH.
76. The Defendant CLYDE by defaming the character and integrity of the DR. FELDSCHUH, defamed the character and integrity of DAXOR.
77. As a direct result of the publication of this false and defamatory article, DAXOR's stock price, as traded on the American Stock Exchange, dropped significantly.
78. DAXOR was forced to expend its own monetary resources to repurchase DAXOR stock and stabilize its price
79. By reason of this publication, DAXOR was greatly injured in character, stock price valuation and reputation all to its damage in an amount not less than Fifteen Million ($15,000,000.00) Dollars.
80. Due to the actual malice displayed by the Defendant CLYDE in her writing an publication of the "Sperm King" article, which she knew was false and defamatory and that such publication was due solely to harm DR. FELDSCHUH and DAXOR and as such DAXOR demands punitive damages in the amount of Ten Million Dollars ($10,000 000).
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray that this Court will grant judgment as against the Defendants:
As for the cause of action on behalf of DR. JOSEPH FELDSCHUH against the defendants as follows:
Fifteen million dollars ($15,000,000) in compensatory damages; Ten million dollars ($10,000,000) in punitive damages.
As for the Cause of action on behalf of Plaintiff DAXOR as follows:
Fifteen million dollars ($15,000,000) in compensatory damages; Ten million dollars ($10,000,000) in punitive damages.
Additionally, the Plaintiffs request:
costs and interest as allowed by law and such and further relief as may to the court seem just and proper.
