Bodkin v Trunzo

[*1] Bodkin v Trunzo 2006 NY Slip Op 50627(U) [11 Misc 3d 1080(A)] Decided on April 11, 2006 Supreme Court, Suffolk County Spinner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 11, 2006
Supreme Court, Suffolk County

CHRISTOPHER D. BODKIN, Plaintiff,

against

CAESAR TRUNZO, individually and as an agent of the Town of Islip Republican Committee, Defendants.



2005-19427



Elliot F. Bloom, Esq.

Attorney for Plaintiff

114 Old Country Road, Suite 308

Mineola, New York 11501

Sinnreich Safar & Kosakoff LLP

Attorneys for Defendant

Courthouse Corporate Center

320 Carleton Avenue, Suite 3200

Central Islip, New York 11722

Jeffrey Arlen Spinner, J.

Upon the following papers numbered 1 to 33 read on this Motion:

Defendant' s Notice of Motion& Supporting Papers 1-24, & Exhibits A-G

Plaintiff' s Affirmation In Opposition & Supporting Papers 25-33

it is, ORDERED, that the application of Defendant is hereby granted in all respects.

Defendant moves this Court for an Order: pursuant to CPLR 3211(a)(7), dismissing the Complaint in its entirety for failure to state a claim upon which relief may be granted.

As accurately pointed out in the Memorandum of Law submitted by moving party herein:

"An essential element of any defamation claim is that the plaintiff must show that the alleged statements were about and concerning him [and] that they were likely to be understood as defamatory by the ordinary person...". Blum v. State of New York, 225 AD2d 878, 680 NYS2d 355, 357 (4th Dep't1998). It is the responsibility of the Court to determine whether plaintiff has satisfactorily alleged this element. See Suozzi v. Parente, 202 AD2d 94, 616 NYS2d 355, 358 (1st Dept 1994) (citing Tracey v. Newsday, Inc., 5 NY2d 134, 182 NYS2d 1, 155 NE2d 853 (1959)). In this case, because it is clear that the statement is not about plaintiff and would not be understood by the ordinary person to be defamatory to plaintiff, the Complaint should be dismissed."

The relevant portion of the article that appeared in Newsday, which is the source of the alleged defamatory statement sued upon herein, states as follows:

"While warring Brookhaven factions battled, so did Islip Republicans, who are trying to oust Republican town board member Christopher Bodkin from the ballot for [*2]re-election. Bodkin has opposed efforts to lift term limits for Islip Republican Supervisor Peter McGowan. Bodkin submitted petitions with 4,302 signatures, but opponents say 3,260 are improper, which would leave Bodkin with only 1,042 legitimate signatures, 958 fewer that the 2,000 needed. There's some fraud, a lot of sloppy things and duplication of signatures,' said State Sen. Caesar Trunzo (R-Brentwood), Islip GOP chairman. In one case, the signature of a dead person appeared on one of Bodkin's petitions. Michael Dawidziak, a Bodkin campaign adviser, disputed such claims, saying their signatures have been checked and rechecked and will withstand the challenge. This is an insult to the democratic process,' he said.

It is clear that the only statement attributed to Defendant regards petitions, not Plaintiff per se. "There's" does not identify Plaintiff, individually, nor does Defendant's statement allege Plaintiff committed fraud, Plaintiff was sloppy, or Plaintiff duplicated signatures. It is well understood by the general public, who is called upon to sign these nominating petitions, that such an effort is carried out by a group of people, and that the petitions submitted are not the product of Plaintiff alone.

Plaintiff's own campaign adviser clearly reacts to Defendant's statement in a manner acknowledging the discussion is about the petitions, not Plaintiff per se, first with the statement not quoted but attributed to him, ...their signatures have been checked and rechecked and will withstand the challenge...", wherein he speaks of their signatures', not Bodkin, and then in the quote attributed to him,"This is an insult to the democratic process", not an insult to Bodkin per se.

In the opinion of this Court, in an action for defamation the first and most necessary element to be successfully alleged in order to sustain such a cause of action against a motion to dismiss must be that the statement attributable to Defendant specifically references Plaintiff, directly, and that absent the ability to demonstrate a direct connection between Defendant's statement and Plaintiff, all other elements of the action fail, because no provable defamation occurred.

For all the reasons stated herein above, it is, therefore,

ORDERED, that the application of Defendant for an Order: pursuant to CPLR 3211(a)(7), dismissing the Complaint in its entirety for failure to state a claim upon which relief may be granted, is hereby granted in all respects.

Dated: April 11, 2006

Riverhead, New York

____________________________________HON. JEFFREY ARLEN SPINNER, [*3]J.S.C.