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DEFAMATORY REMARKS MADE AT A MUNICIPAL PUBLIC MEETING HAD NOTHING TO DO WITH THE SUBSTANCE OF THE MEETING AND THEREFORE WERE NOT ABSOLUTELY PRIVILEGED, PLAINTIFF’S DEFAMATION ACTION PROPERLY SURVIVED A MOTION TO DISMISS (SECOND DEPT).

The Second Department determined plaintiff’s defamation action properly survived a motion to dismiss. The defendant sought permission from the Village’s Board of Historic Preservation and Architectural Review to add an exterior stairway to her house. At the public meeting plaintiff, defendant’s neighbor, objected to the stairway. Then defendant made some remarks directly to plaintiff which, in essence, accused plaintiff of setting up a camera to view defendant’s daughter’s bedroom. The Second Department noted that statements at a public meeting before a municipal body are generally absolutely privileged. But here the statements had nothing to do with the substance of the meeting:

“The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se” … .

“Absolute privilege is based upon the personal position or status of the speaker and is limited to the speaker’s official participation in the processes of government” … . “The absolute privilege generally is reserved for communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings. This protection is designed to ensure that such persons’ own personal interests—especially fear of a civil action, whether successful or otherwise—do not have an adverse impact upon the discharge of their public function” … .

Here, as a threshold matter, the challenged statements, considered in the context in which they were made, tended to expose the plaintiff to public contempt, hatred, ridicule, aversion, or disgrace.

The challenged statements, which were made in the context of a contested application before a municipal body whose determination is subject to judicial review pursuant to CPLR article 78 …, would ordinarily be subject to absolute privilege… . Nevertheless, the absolute privilege embraces only those statements that may possibly be or become material or pertinent to the matters before the Board, construed under an extremely liberal standard… . Upon our review of the papers and documentary evidence submitted by the parties, we discern “not one scintilla of evidence present upon which to base the possible pertinency of [the] defendant’s statement[s]”… . Therefore, under the circumstances of this case, the challenged statements are not subject to an absolute privilege … . Gugliotta v Wilson, 2019 NY Slip Op 00261, Second Dept 1-16-19

 

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