Defamation Archives - New York Appellate Digest

A FALSE IMPUTATION OF HOMOSEXUALITY IS NOT DEFAMATION PER SE; THEREFORE SPECIAL DAMAGES MUST BE ALLEGED; THE FAILURE TO ALLEGE SPECIAL DAMAGES REQUIRED DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department, in a full-fledged, comprehensive opinion by Justice Roman which cannot be fully summarized here, reversing Supreme Court, determined a false imputation of homosexuality is not defamation per se. Therefore the defamation cause of action, which did not allege special damages, should have been dismissed (defamation per se does not require special damages):

As set forth in the complaint, Pastor Maurice stated before approximately 300 members of the church that “the [p]laintiff was a homosexual,” and that “the [p]laintiff disrespected the church by viewing gay pornography on the church’s computer.” * * *

We agree with our colleagues in the Third Department that the earlier cases, including this Court’s decision in Matherson [100 AD2d 233], which held that the false imputation of homosexuality constitutes a category of defamation per se, are inconsistent with current public policy. * * *

… [W]e conclude that the false imputation of homosexuality does not constitute defamation per se. Matherson’s holding to the contrary should no longer be followed. Furthermore, the additional allegation that the plaintiff viewed gay pornography on the church’s computer likewise does not fit within any of the categories of defamation per se. Therefore, the plaintiff was required to allege special damages. Laguerre v Maurice, 2020 NY Slip Op 07877, Second Dept 12-23-20

December 23, 2020/0 Comments/by Bruce Freeman

Defamation, Employment Law

DEFAMATION CAUSE OF ACTION AGAINST DEFENDANT AND HIS EMPLOYER, UNDER A RESPONDEAT SUPERIOR THEORY, SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the defamation cause of action against defendant Polit and Polit’s employer, ADP, should not have been dismissed. Polit allegedly posted defamatory statements on defendant-restaurant’s Facebook page on behalf of Polit’s employer:

Plaintiffs commenced this action seeking damages arising from an allegedly defamatory statement authored by defendant David Thomas Polit and published by him to the Facebook page of plaintiff Crave L & D, LLC (Crave), a restaurant. Polit’s statement advised potential customers to stay away from the restaurant, alleging, among other things, health code violations, mistreatment of staff, and criminal activity. …

… [W]e conclude that plaintiffs sufficiently pleaded the existence of respondeat superior liability through … allegations, including, among other things, that Polit visited Crave for the sole purpose of soliciting plaintiffs to enter into a payroll service agreement with ADP, that Polit represented himself as ADP’s district manager and requested Crave’s business and payroll records in order to provide Crave with a quote for ADP’s services, that the post was based on Polit’s review of those records, that ADP encouraged Polit to use social media in connection with his sales work, that Polit published the post during regular business hours, and that ADP was aware of Polit’s use of Facebook and authorized his conduct. Elizabeth Votsis & Crave L&D, LLC v ADP, LLC, 2020 NY Slip Op 05311, Fourth Dept 10-2-20

October 2, 2020/by Bruce Freeman

Defamation, Privilege

THE STATEMENTS MADE ABOUT PLAINTIFF WERE PROTECTED BY QUALIFIED PRIVILEGE; PLAINTIFF WAS UNABLE TO SHOW THE STATEMENTS WERE MOTIVATED SOLELY BY MALICE; THE DEFAMATION ACTION WAS PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined plaintiff’s defamation action was properly dismissed. Plaintiff was accused by a fellow library board member, Hoag, of misappropriating over $20,000 in library funds. A criminal investigation uncovered no wrongdoing and plaintiff brought the defamation suit. The defamatory statements were protected by a qualified privilege because Hoag had an interest in the subject matter and the statements were made to a person with a corresponding interest. Therefore the statements were actionable only if Hoag was motivated solely by malice. The court held the statements were made in good faith, despite evidence that Hoag disliked plaintiff:

“Courts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether” … . Those communications include ones protected by the qualified privilege that attaches to a person’s good faith communication “upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and . . . made to a person with a corresponding interest” … . …

Defendants … came forward with proof that Hoag made the communication in good faith, with Hoag and other Board members averring that their review of financial records, as well as plaintiff’s refusal to provide requested documentation, caused them to believe that plaintiff had made numerous questionable, unauthorized and/or undocumented expenditures of library funds. …

Inasmuch as the proof reflects that the inquiry into library spending by Hoag and other Board members was at least part of what led Hoag to accuse plaintiff of misappropriating funds, “even if [Hoag] disliked plaintiff or possessed some ill will towards her, plaintiff has failed to make an evidentiary showing that [Hoag was] motivated by malice alone in making the statement[]” … . Macumber v South New Berlin Lib., 2020 NY Slip Op 05113, Third Dept 9-24-20

September 24, 2020/by Bruce Freeman

Civil Procedure, Defamation, Evidence, Tortious Interference with Contract

THE TORTIOUS INTERFERENCE WITH CONTRACT AND DEFAMATION CAUSES OF ACTION WERE NOT REFUTED BY DOCUMENTARY EVIDENCE AND WERE ADEQUATELY PLED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined that plaintiff had stated causes of action for tortious interference with contract and defamation and the actions should not have been dismissed on either the “documentary evidence” or “failure to state a cause of action” ground:

Turning first to CPLR 3211 (a) (1), a motion to dismiss pursuant to this provision “will be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” … . What may be deemed “documentary evidence” for purposes of this subsection is quite limited. “Materials that clearly qualify as documentary evidence include documents . . . such as mortgages, deed[s], contracts, and any other papers, the contents of which are essentially undeniable” … . Here, Supreme Court relied upon the statements taken during defendant’s investigation, as well as its non-harassment policy. As plaintiff argues, even sworn affidavits have been held inadequate to meet this statutory standard, and defendant’s submissions here do not qualify as documentary evidence … . …

The grounds for dismissal under CPLR 3211 (a) (7) are also strictly limited; the court is not allowed to render a determination upon a thorough review of the relevant facts adduced by both parties, but rather is substantially more constrained in its review, examining only the plaintiff’s pleadings and affidavits … . …

To establish a claim for tortious interference with a contract, the plaintiff must allege “the existence of [his or her] valid contract with a third party, [the] defendant’s knowledge of that contract, [the] defendant’s intentional and improper procuring of a breach, and damages” … . Here, plaintiff’s complaint alleged that a valid contract existed between plaintiff and the distributor, that defendant intentionally spread “false, specious and salacious accusations against [p]laintiff,” and that such conduct “had no good faith or justifiable cause” and did not “protect an economic interest.” Liberally construing these allegations, as we must, taking all of the alleged facts as true, and giving plaintiff every favorable inference … , they do not fail to state a claim.

The defamation claim will ultimately require “proof that the defendant made ‘a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se'” … . Here, the complaint sets forth the particular words complained of and the damages plaintiff allegedly sustained … . Carr v Wegmans Food Mkts., Inc., 2020 NY Slip Op 02141, Third Dept 4-2-20

April 2, 2020/by Bruce Freeman

Animal Law, Defamation, Employment Law, Evidence, Intentional Infliction of Emotional Distress, Tortious Interference with Employment

TORTIOUS INTERFERENCE WITH EMPLOYMENT AND DEFAMATION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION PROPERLY DISMISSED; ELEMENTS EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff stated causes of action for tortious interference with employment and defamation against a fellow employee of the Central New York Society for the Prevention of Cruelty to Animals (CNYSPCA), The intentional infliction of emotional distress cause of action was properly dismissed. The Fourth Department explained the elements of each cause of action and noted that the documents submitted to prove the truth of the allegedly defamatory statements were not “essentially undeniable” and did not “utterly refute” the allegations:

Plaintiff commenced this action to recover damages for tortious interference with employment, defamation, and intentional infliction of emotional distress (IIED). According to the complaint, at all times relevant to this appeal, plaintiff was the Executive Director of the Central New York Society for the Prevention of Cruelty to Animals (CNYSPCA) and defendant Stacy Laxen, DVM was a veterinarian for the CNYSPCA. During her tenure with the CNYSPCA, plaintiff directed that several cats be euthanized due to an outbreak of ringworm. Soon thereafter, and based on plaintiff’s decision to approve euthanasia without input from a veterinarian, defendant Board of Directors of the CNYSPCA terminated plaintiff’s employment. …

“[A]n at-will employee may assert a cause of action alleging tortious interference with employment where he or she can demonstrate that the defendant utilized wrongful means to effect his or her termination . . . In such cases, the plaintiff is required to show: (1) the existence of a business relationship between the plaintiff and a third party; (2) the defendants’ interference with that business relationship; (3) that the defendants acted with the sole purpose of harming plaintiff or used dishonest, unfair, improper or illegal means that amounted to a crime or an independent tort; and (4) that such acts resulted in the injury to the plaintiff’s relationship with the third party” … . …

… [W]e conclude that plaintiff sufficiently alleged that Laxen’s statements constituted defamation per se inasmuch as they purportedly injured plaintiff in her “professional standing”… . Furthermore, despite the court’s determination that plaintiff was a limited purpose public figure and Laxen was protected by the common interest qualified privilege, accepting the facts as alleged in the complaint as true, and according plaintiff the benefit of every possible favorable inference, we conclude that the complaint sufficiently alleged that Laxen acted with the requisite malice necessary to overcome those defenses … . Conklin v Laxen, 2020 NY Slip Op 00958, Fourth Dept 2-7-20

February 7, 2020/by Bruce Freeman

Defamation

DEFAMATION ACTION BASED UPON A REPORTER’S NAMING THE WRONG TEACHER AS HAVING BULLIED A FIFTH-GRADER PROPERLY DISMISSED; THE REPORTER HAD SUFFICIENT REASON TO RELY ON THE STUDENT’S MOTHER AND ANOTHER SOURCE BOTH OF WHOM PROVIDED THE WRONG NAME (FIRST DEPT).

The First Department determined defendant WPIX was not liable for an article about the bullying of a fifth-grader by a teacher. The teacher allegedly involved in the bullying had the last name “Rainbow,” but plaintiff, Starlight Rainbow, also a teacher, had no involvement with the student. The article misidentified the involved teacher as Starlight Rainbow. The First Department explained the standard of proof and found that the WPIX reporter had sufficient reason to rely on the wrong name provided by the student’s mother and another source. The court further found that there was no duty to retract the story:

The parties … agree that the article concerned a matter of public concern, and that plaintiff is not a public figure. Thus, to prevail on a defamation claim, plaintiff must show, by a preponderance of the evidence, that WPIX was “grossly irresponsible” in publishing the article on its website, in that it acted “without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties” (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 199 [1975]). The gross irresponsibility standard of Chapadeau is more lenient than the actual malice standard applicable to public figures … . * * *

… .WPIX could not be held liable for failure to retract the article during the nearly seven months that elapsed from her August 2014 retraction demand to its removal of the article from its website in March, 2015 upon her commencement of this case. Plaintiff provides “no authority to support [her] argument that the Chapadeau standard imposes a duty to correct previously-acquired information — and the law does not recognize such an obligation” … . Rainbow v WPIX, Inc., 2020 NY Slip Op 00499, First Dept 1-23-20

January 21, 2020/by Bruce Freeman

Defamation

PLAINTIFF DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF’S PUBLIC STATEMENTS CALLING DEFENDANTS CON ARTISTS, SCAMMERS AND THIEVES WERE DEFAMATORY; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE COUNTERCLAIMS ALLEGING DEFAMATION PROPERLY DENIED; THE LAW OF DEFAMATION CONCISELY AND COMPLETELY EXPLAINED (SECOND DEPT).

The Second Department determined defendants’ counterclaims alleging defamation properly survived plaintiff’s motion for summary judgment. The law of defamation is concisely and completely explained in the decision:

… [D]uring a Sabbath gathering at the parties’ synagogue, the plaintiff allegedly stood up at the center podium, asked for the congregants’ attention, and, pointing to the Nissanis, stated that he wanted “to make an announcement for everyone to know” that “[w]e have in our synagogue two NOCHLIM,” which the Nissanis claim is a Hebrew word for “scammers or con artists.” The plaintiff allegedly continued: “They are David Nissani and Ronen Nissani,” and “if they ask you to do any business with them, or to invest with them, then you definitely should not.” After services had concluded, while the Rabbi was admonishing the plaintiff for bringing business affairs to the synagogue, the plaintiff allegedly stated in the presence of the Rabbi and the synagogue’s president, “But these people are Nochlim and Ganavim,” a Hebrew word for “thieves.” As Ronen Nissani began to walk home from the synagogue, the plaintiff allegedly shouted at him in front of the synagogue in the presence of others that “I’m going to be on your ass until I get my money! I’m not going to leave you alone! You will see! You are thieves!” * * *

The plaintiff failed to establish, prima facie, that these statements did not constitute false assertions of fact … . Viewed in the context in which the allegedly defamatory statements were made, a reasonable listener would likely understand those statements to imply that the Nissanis swindled the plaintiff out of money in connection with their business … . The statements can readily be proven true or false and, given the tone and overall context in which the statements were made, signaled to the average listener that the plaintiff was conveying facts about the Nissanis … .

Even if the challenged statements had not conveyed assertations of fact, they would nonetheless be actionable as mixed opinion, since a reasonable listener would have inferred that the plaintiff had knowledge of facts, unknown to the audience, which supported the assertions he made … . Levy v Nissani, 2020 NY Slip Op 00113, Second Dept 1-8-20

January 8, 2020/by Bruce Freeman

Civil Procedure, Defamation, Education-School Law, Human Rights Law, Immunity, Intentional Infliction of Emotional Distress, Negligence

WHETHER PLAINTIFFS WILL BE ABLE TO ESTABLISH THE CLAIMS IN A COMPLAINT IS NOT CONSIDERED ON A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM; HERE THE DEFENDANTS’ ARGUMENT THAT PLAINTIFFS WILL NOT BE ABLE TO LEARN AN ESSENTIAL ASPECT OF THEIR CASE IN DISCOVERY BECAUSE OF STATUTORY IMMUNITY WAS NOT RELEVANT TO WHETHER THE COMPLAINT STATED CAUSES OF ACTION (FIRST DEPT).

The First Department determined defendant school’s motion to dismiss the complaint was properly denied. Plaintiffs alleged the school retaliated against them after they complained about race-related issues by making a false child neglect report to Child Protective Services (CPS). The school argued the plaintiffs will not be able to learn the identity of the person who reported the alleged neglect because of the immunity provided by the Social Services Law. The 2nd Department explained that the immunity question is not relevant to whether the complaint states causes of action:

… [P]laintiffs assert causes of action for intentional infliction of emotional distress, defamation, violations of the New York State and City Human Rights Laws, and negligent hiring, training and supervision … .

Defendants moved to dismiss all of these causes of action on the basis that plaintiffs would be unable to prove any of these claims because they did not know the identity of the CPS reporter and would be unable to learn it in discovery. …

… [I]n the context of this motion to dismiss, the Court does not assess the relative merits of the complaint’s allegations against defendant’s contrary assertions or to determine whether or not plaintiffs can produce evidence to support their claims … . Whether plaintiffs “can ultimately establish [their] allegations is not a part of the calculus in determining a motion to dismiss” … . Thus, regardless of whether plaintiffs will be able to obtain disclosure concerning the identity of the CPS reporter (Social Services Law § 422[4][A] …), defendants have not demonstrated entitlement to dismissal of the well-pleaded complaint for failure to state a cause of action … . M.H.B. v E.C.F.S., 2019 NY Slip Op 08276, First Dept 11-14-19

November 14, 2019/by Bruce Freeman

Defamation, Immunity, Social Services Law

DOCTOR’S REPORTING PLAINTIFFS’ CHILD’S INJURIES TO CHILD PROTECTIVE SERVICES IS PROTECTED BY THE QUALIFIED IMMUNITY PROVISION IN THE SOCIAL SERVICES LAW, PLAINTIFFS’ DEFAMATION ACTION SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant doctor’s (Bludorn’s) and hospital’s motion for summary judgment in this defamation case should have been granted. The injury to plaintiffs’ child had been reported to Child Protective Services which ultimately determined the report to be unfounded:

Social Services Law § 413 requires certain individuals, including physicians like Bludorn, to make a child protective report whenever “they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child.” Where these mandated reporters discharge their reporting duties in good faith, they are accorded qualified immunity from civil liability (see Social Services Law § 419). A mandated reporter’s good faith “shall be presumed, provided [that] such person . . . was acting in the discharge of [his or her] duties and within the scope of [his or her] employment, and . . . such liability did not result from the willful misconduct or gross negligence of such person” … . “The reporting requirements [that] trigger the qualified immunity provision in Social Services Law § 419 are not predicated upon actual or conclusive proof of abuse or maltreatment. Rather, immunity attaches when there is reasonable cause to suspect that the infant might have been abused and when the party so reporting has acted in good faith in discharging the obligations and duties imposed by the statute” … . …

The child’s medical records and the social worker’s written assessment confirmed that plaintiffs had expressed uncertainty as to what had caused the child’s skull fracture and that they had offered two different possible explanations, both of which involved incidents that had occurred several days before they sought medical treatment for the child. Bludorn averred that he made the child protective report in good faith and that, in so reporting, he had no intent other than discharging his statutory duties under Social Services Law § 413 and protecting the interests of his patient. Hunter v Lourdes Hosp., 2019 NY Slip Op 05831, Third Dept 7-25-19

July 25, 2019/by Bruce Freeman

Appeals, Civil Procedure, Defamation, Election Law, Immunity, Municipal Law

STATEMENTS POSTED ON AN ELECTION-RELATED FACEBOOK PAGE ABOUT THE OPPOSING CANDIDATE ARE NOT SHIELDED BY IMMUNITY AND ARE ACTIONABLE IN THIS DEFAMATION CASE; TO APPEAL THE DENIAL OF A MOTION TO STRIKE PORTIONS OF A COMPLAINT A MOTION FOR LEAVE TO APPEAL MUST BE MADE (THIRD DEPT).

The Third Department determined statements posted on an election-related Facebook page by defendant, a Sheriff running for County Executive, concerning plaintiff, a Deputy County Executive also running for County Executive, were actionable in this defamation case. The court noted that the defendant’s appeal of the denial of his motion to strike certain paragraphs of the complaint (CPLR 3024) was not before the court because a motion for leave to appeal had not been made (CPLR 5701 [b] [3]):

… [W]e reject defendant’s contention that he is shielded from liability due to absolute immunity. This immunity protects government officials, such as defendant, “with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties” … . As such, plaintiff cannot maintain a defamation claim against defendant based upon statements “emanating from official reports and communications” … . Although defendant was commenting about an investigation being conducted by his office, as well as responding to attacks on the credibility of his office, the documentary evidence in the record establishes that the challenged statements were not posted on the official site of the Chemung County Sheriff. Rather, they were posted on defendant’s campaign Facebook page and another Internet website. Under these circumstances, defendant cannot rely on absolute immunity … .

… The statement that plaintiff was “pilfering free gas from taxpayers” is “susceptible to a defamatory meaning, inasmuch as [it] convey[s], at a minimum, serious impropriety and, at worst, criminal behavior” … . Such statement also “has a precise meaning that is capable of being proven true or false” … . …

The complaint alleged that defendant published the false statements and that they “were made in bad faith, with reckless disregard for the truth” and “tend[ed] to subject plaintiff to public contempt, ridicule, aversion, and disgrace.” In view of these allegations, as well as the specific statements at issue, we are satisfied that plaintiff sufficiently pleaded malice … . Krusen v Moss, 2019 NY Slip Op 05733, Third Dept 7-18-19

July 18, 2019/by Bruce Freeman