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To Demonstrate “Defamation by Implication” Where the Factual Statements Are Substantially True, It Must Be Shown the Communication as a Whole Imparts a Defamatory Inference and the Author Intended or Endorsed the Defamatory Inference

In a full-fledged opinion by Justice Feinman, the First Department adopted criteria for determining whether a publication is defamatory by implication.  The subject of the case was a published magazine article describing a conspiracy in Russia involving hundreds of millions in illicit funds.  The plaintiffs alleged that the article defamed them by implying involvement in the conspiracy. The First Department affirmed the dismissal of the complaint and adopted a standard which requires the plaintiff to demonstrate the defamatory inference of the substantially true statements, as well as that the author intended or endorsed that inference:

“Defamation by implication is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements” … . The implied defamation cause of action was recognized by the Court of Appeals in a 1963 decision determining that, although the publication at issue contained no directly defamatory statements, “a jury should decide whether a libelous intendment would naturally be given to it by the reading public acquainted with the parties and the subject-matter” … . The following year, the U.S. Supreme Court’s landmark decision in New York Times Co. v Sullivan (376 US 254 [1964]) found that the free speech protections guaranteed by the First Amendment to the U.S. Constitution placed substantial limits on the right to recover for defamatory statements … . In a 1977 libel decision, after discussing the impact Sullivan had on defamation jurisprudence, the Court of Appeals addressed an aspect of the plaintiff’s claim that was akin to implied defamation, noting that although an author “could not make up facts out of whole cloth, omission of relatively minor details in an otherwise basically accurate account is not actionable. This is largely a matter of editorial judgment in which the courts, and juries, have no proper function” … . * * *

“[I]f a communication, viewed in its entire context, merely conveys materially true facts from which a defamatory inference can reasonably be drawn, the libel is not established. But if the communication, by the particular manner or language in which the true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of bearing that meaning” … .

…[T]his inquiry requires “an especially rigorous showing”: the “language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference”… . * * *

… To survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference. We believe this rule strikes the appropriate balance between a plaintiff’s right to recover in tort for statements that defame by implication and a defendant’s First Amendment protection for publishing substantially truthful statements… . Stepanov v Dow Jones & Co Inc, 2014 NY Slip Op 03940, 1st Dept 5-29-14

 

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Defendant’s Refusing to Be Interviewed by the Probation Department Was a Valid Ground for Sentence Enhancement

The Second Department determined the defendant’s refusing to be interviewed by the probation department was a valid ground for a sentence enhancement:

A defendant’s “failure to abide by a condition of a plea agreement to truthfully answer questions asked by [a]; probation department is an appropriate basis for the enhancement of the defendant’s sentence” … . Here, the plea condition requiring the defendant to cooperate with the Dutchess County Office of Probation and Community Corrections (hereinafter the OPCC) was explicit and objective, and the plea allocution reveals that the defendant acknowledged, understood, and accepted such condition … . Accordingly, the Supreme Court properly imposed an enhanced sentence based upon the defendant’s violation of the condition by refusing to be interviewed by the OPCC. People v Mazyck, 2014 NY Slip Op 03864, 2nd Dept 5-28-14

 

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Quantity and Nature of Child Pornography Warranted an Upward Departure in a SORA Proceeding

The Second Department determined the quantity and nature of the child pornography in defendant’s possession warranted an upward departure in a SORA proceeding:

…[I]n light of the large quantity of child pornography recovered from the defendant’s possession and the nature of that material, which included, among other things, images and videos depicting the torture of children, the County Court properly determined that there were aggravating factors not adequately taken into account by the SORA guidelines … . Upon making such a determination, the court providently exercised its discretion in granting the People’s application for an upward departure from the presumptive sex offender risk level … . People v Rotunno, 2014 NY Slip Op 03817, 2nd Dept 5-28-14

 

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Suicide Notes Not Protected by Marital Privilege—Substance Had Been Revealed to Third Parties

The Second Department determined that suicide notes left by the defendant were not protected by the marital privilege:

“One spouse may not, without consent, disclose a confidential communication made by the other during marriage (CPLR 4502 [b]; CPL 60.10)” … .. While a suicide note can be a communication made during marriage for the purpose of the privilege …, the spousal privilege falls “when the substance of a communication . . . is revealed to third parties” … . Here, the substance of the communication between the defendant and his wife of his intention to commit suicide through taking large quantities of Xanax was revealed by the defendant to Officer Johnstone, his neighbor, and the nurse who happened upon the scene of the accident. In addition, the defendant left the notes on the kitchen counter and directly addressed his children, as well as his wife, in one of the notes. Thus, the Supreme Court properly determined that the notes were not protected by the marital privilege … . People Jacob, 2014 NY Slip Op 03861, 2nd Dept 5-28-14

 

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Probationary Employee Fired in Bad Faith for Union Work—Supreme Court Had the Power to Reinstate Her But Not to Grant Her Tenure

The Second Department determined a probationary teacher demonstrated she was terminated in bad faith.  The court noted that Supreme Court did not have the power to grant the probationary teacher tenure, something only the administrative agency has the power to do:

A probationary employee may be discharged without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law … . The petitioner bears the burden of presenting competent proof of the alleged bad faith, the violation of statutory or decisional law, or the constitutionally impermissible or illegal purpose … . Here, the petitioner met her burden of demonstrating that the discontinuation of her probationary employment was made in bad faith, showing that the discontinuation followed a letter she wrote to the principal, in her capacity as a union chapter leader, requesting to make up her missed preparation periods. Although, generally, evidence of unsatisfactory performance rebuts a showing of bad faith …, in response to the petitioner’s showing, the appellants failed to establish that the discontinuance of the petitioner’s probationary employment was the result of poor performance. The record demonstrates that the petitioner began [*2]to receive “Unsatisfactory” ratings only after she asked the principal to make up her missed preparation periods, and it was at that point that the evaluations of the petitioner’s performance began to precipitously decline. Accordingly, the Supreme Court properly annulled the determination and reinstated the petitioner to her former position, with retroactive seniority, backpay, and benefits … .

However, the appellants correctly contend that the Supreme Court exceeded its authority by granting the petitioner tenure effective as of January 25, 2009. ” While the court is empowered to determine whether the administrative body acted arbitrarily, it may not usurp the administrative function by directing the agency to proceed in a specific manner, which is within the jurisdiction and discretion of the administrative body in the first instance'” … . Matter of Capece v Schultz, 2014 NY Slip Op 03834, 2nd Dept 5-28-14

 

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Domestic Relations Order Must Conform to Stipulation of Settlement

The Second Department noted that a domestic relations order must conform to any relevant stipulation.  If it does not conform, it must be amended to conform:

“Where a [domestic relations order]; is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the [domestic relations order]; to accurately reflect the provisions of the stipulation pertaining to the pension benefits” … . “A proper [domestic relations order]; obtained pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment”… . Mondshein v Mondshein, 2014 NY Slip Op 03806, 2nd Dept 5-28-14

 

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Father’s New York Custody Petition Not Preempted by Dominican Republic Court’s Denial of Father’s Application for Return of the Child

The Second Department determined Family Court should not have dismissed father’s petition for custody, despite a Dominican Republic court-ruling denying father’s application for return of the child. The application for return of the child was made pursuant to the Convention on the Civil Aspects of International Child Abduction (Convention). The father’s petition for custody in New York was deemed proper under the Uniform Child Custody Jurisdiction and Enforcement Act.  The New York custody petition was not preempted by the court ruling in the Dominican Republic:

The Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A) governs a New York State court’s jurisdiction in international child custody matters (see Domestic Relations Law § 75-d). Domestic Relations Law § 76, which establishes initial child custody jurisdiction, provides, inter alia, that a court of this Sate has jurisdiction to make an initial child custody determination if this State is the home state of the child on the date of the commencement of the proceeding (see Domestic Relations Law § 76[a]). “Home state” is defined [*2]as the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding (see Domestic Relations Law § 75-a[7]). While “state” is defined as a “state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States” (Domestic Relations Law 75-a[15]), pursuant to Domestic Relations Law § 75-d, a “court of this state shall treat a foreign country as if it were a state of the United States” (Domestic Relations Law § 75-d[1]).

The Convention, “done at The Hague on October 25, 1980, establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights” (42 USC § 11601[a];[4]). “The Convention seeks to secure the prompt return of children wrongfully removed to or retained in any Contracting State and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States” … . The Convention provides that a child abducted in violation of rights of custody must be returned to his or her country of habitual residence, unless certain exceptions apply … . Return is not required, for example, if the abducting parent can establish that there is a grave risk that the child’s return would expose him or her “to physical or psychological harm or otherwise place the child in an intolerable situation” … . A decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence … .

Here, it is undisputed that the United States was the child’s country of habitual residence, and that, at the time the petition was filed, New York was the child’s “home state.” Thus, the Family Court had jurisdiction to determine the father’s petition for custody (see Domestic Relations Law § 76[a]). Moreover, the denial, by the court in the Dominican Republic, of the father’s application for a return of the child pursuant to the Convention, did not preempt his custody proceeding … . Accordingly, the Family Court erred in dismissing the father’s petition. Matter of Katz v Katz, 2014 NY Slip Op 03841, 2nd Dept 5-28-14

 

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Claim Re: Ownership of Real Property Precluded by Laches Defense

The Second Department determined a counterclaim was properly dismissed pursuant to the laches defense.  The counterclaim alleged that a mortgage was void because the property passed by operation of law to the defendants upon the death of the property owner in 1988.  The defense of laches in this context was explained as follows:

“The essence of the equitable defense of laches is prejudicial delay in the assertion of rights” … . ” To establish laches, a party must show: (1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant'” … . “In order for laches to apply to the failure of an owner of real property to assert his or her interest, it must be shown that [the]; plaintiff inexcusably failed to act when [he or]; she knew, or should have known, that there was a problem with [his or]; her title to the property. In other words, for there to be laches, there must be present elements to create an equitable estoppel'” … . ” Equitable estoppel arises when a property owner stands by without objection while an opposing party asserts an ownership interest in the property and incurs expense in reliance on that belief. The property owner must inexcusably delay in asserting a claim to the property, knowing that the opposing party has changed . . . position to his [or her ]; irreversible detriment'” … . “Moreover, as the effect of delay may be critical to an adverse party, delays of even less than one year have been sufficient to warrant the application of the defense” … . Deutsche Bank Natl Trust Co v Joseph, 2014 NY Slip Op 03794, 2nd Dept 5-28-14

 

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Case Summary by Board of Examiners of Sex Offenders and Sworn Felony Complaint Constitute Clear and Convincing Evidence in a SORA Proceeding

The Second Department determined the case summary provided by the Board of Examiners of Sex Offenders and the sworn felony complaint provided clear and convincing evidence of continuing sexual misconduct against the victim:

In establishing a defendant’s risk level pursuant to the Sex Offender Registration Act (hereinafter SORA) (see Correction Law art 6-C), the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought (see Correction Law § 168-n[3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]…). ” In assessing points, evidence may be derived from . . . the victim’s statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders . . . or any other reliable source, including reliable hearsay'” … .

Here, the case summary and the sworn felony complaint constituted “reliable hearsay” (Correction Law § 168-n[3]…)  and provided clear and convincing evidence to warrant the assessment of 20 points under risk factor four, for engaging in a continuing course of sexual misconduct against the victim … .  People v Patronick, 2014 NY Slip Op 03816, 2nd Dept 5-28-14

 

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Evidence Defendant Had Victimized Other Children Justified Upward Departure in SORA Proceeding

The Second Department determined that clear and convincing evidence defendant had victimized other children justified an upward departure in the SORA proceeding:

…[T]he court’s classification of the defendant as a level three sex offender was justified. The People proved by clear and convincing evidence that the defendant had engaged in sexual misconduct with children other than the child whose victimization led to the defendant’s conviction. This constituted aggravating factors of a kind not otherwise taken into account by the guidelines that warranted an upward departure to level three … . People v DeJesus, 2014 NY Slip Op 03815, 2nd Dept 5-28-14

 

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