We previously discussed the bizarre lawsuit by Andrew Rector, 26, who sued ESPN, the Yankees, Major League Baseball, and announcers Dan Shulman and John Kruk are being sued by Andrew Rector, 26, for defamation after the network showed him asleep at the New York Yankees-Boston Red Sox game and joked about his being “oblivious” to the game. While Rector says that the commentators called him “stupor, fatty, unintelligent, stupid,” those insults are not heard on the videotape below from the telecast. Rector sued for $10 million in a complaint that I earlier criticized. The lawsuit has now been dismissed by Bronx Supreme Court Justice Julia Rodriguez, but Rector’s lawyer says that she sees a solid basis for appeal — though I fail to see such a basis. Indeed, given the condition of the original complaint, some judges might have awarded sanctions with the dismissal.

On the tape, ESPN announcer Dan Shulman refers to the sleeping fan as “oblivious,” while John Kruk comments that the ballpark was “not the place you come to sleep.” Those seem pretty accurate descriptions of the situation and “truth is a defense” to defamation. Indeed, Shulman marveled at the thought that the fan slept through a third inning home run by Yankee Carlos Beltran and 45,000 fans giving him a standing ovation.

Rector, who works for a Bronx-based auto leasing firm, alleges that he was defamed by comments portraying him as a “fatty cow that needs two seats” and a “confused disgusted and socially bankrupt individual.” (A “fatty” cow? If the announcers called someone a “fatty cow,” they deserve to be sued on abuse of a colloquialism alone). Rector claims that “[t]hese unmitigated verbal onslaughts crossed the line between reporting on sport and abuse against the plaintiff without reasonable cause or restraint.”

The clip shows nothing more than gentle teasing with Shulman saying “Is that guy to his left his buddy who’s just letting him sleep?” Kruk then replies “Maybe that’s his buddy, and he likes him a lot better when he’s asleep.” Yet, Rector claims that “[a]nnouncers like Dan Shulman and John Kruck [sic] unleashed avalanche of disparaging words against the person of and concerning the plaintiff. These words, include but not limited to ‘stupor, fatty, unintelligent, stupid’ knowing and intending the same to be heard and listened to by millions of people all over the world …” The use of “like” leaves it unclear as to who is being references but it suggests that somehow these defendants would be liable for comments from other individuals. Those other “announcers” may in fact be commenters on the ESPN website since the complaint states “The defendant Major league Baseball continually repeated these vituperative utterances against the plaintiff on the major league baseball web site the next day. These words and its insinuations presented the plaintiff as symbol of anything but failure.” I assume his lawyer, Valentine Okwara, of Jamaica, N.Y., meant “present the plaintiffs as [a] symbol of [nothing] but failure.”

The complaint continues (with garbled syntax and typos) to allege that “The defendant MLB.Com continued the onslaught to a point of comparing the plaintiff to someone of a confused state of mind, disgusted disgruntled and unintelligent and probably intellectually bankrupt individual. . . . Nothing triggered all these assertions only that the plaintiff briefly slept off while watching the great game something or circumstance any one can easily found them self.” The lawyer seems to get one of the key defendant’s names wrong in stating that “John Krock in his verbal attack insinuated that the plaintiff is individual that know neither history nor understood the beauty or rivalry between Boston Red Sox and New York Yankee.”

Rodriguez held that the comments were not defamatory, and at worst, reflected hyperbole or a looseness of words. She also said Rector was on camera for just 31 seconds of the three-hour game. However, Valentine Okwara, a lawyer for Rector, on Friday said he had advised his client that “there is room for appeal.” If so, it is so small as to be indiscernible to the legal eye.

Rector has made himself as far greater pitiful character with this poorly drafted, ill-considered lawsuit than he did in falling asleep at the game. He was previously shown to be a drowsy fan but proved himself something of a social clown in pursuing this claim. Most judges on an appeal would offer a far hasher response to the continuation of this litigation.