Neuschotz v Newsday Inc.
Annotate this CaseDecided on August 22, 2006
Supreme Court, Kings County
Ivor Neuschotz, Plaintiff,
against
Newsday Inc. et. al., Defendant
15242-05
Francois A. Rivera, J.
On September 21, 2005, defendant Daily News, L.P., (Daily News) filed the instant motion seeking an accelerated judgment dismissing Ivor Neuschotz's (plaintiff) amended complaint pursuant to CPLR §3211 (a)(1) and (a)(7).
By summons and complaint dated May 16, 2005, plaintiff brought the instant libel/defamation action against the United Federation of Teachers, Mr. Mulgrew, and Ms. Engler, Newsday, and the Daily News. Thereafter, in lieu of filing an answer, Daily News, filed this motions to dismiss the complaint pursuant to CPLR §3211 (a) (1) and (a) (7). While the motion was pending, plaintiff filed an amended complaint alleging that the aforementioned statements made by Daily News were defamatory, made with real and actual malice, and with knowledge that they were false or with reckless disregard for the truth. Subsequently, the court granted Daily News' motion to apply the pending motion to the amended complaint.
Daily News' instant motion consists of the affidavit of their deputy general counsel, Anne B. Carroll, five annexed exhibits, and several memoranda of law. Anne B. Carroll's affidavit alleges that the five annexed exhibits are true and correct copies. It further alleges that the third, fourth and fifth exhibits were provided to her by the New York City Department of Education in response to a Freedom of Information Law (FOIL) request.
The first annexed exhibit is the summons and complaint; the second is a copy of defendant's allegedly libelous publication of May 22, 2004 pertaining to the plaintiff, the third is a report from the Special Commissioner of Investigation; the fourth is a stipulation of settlement between the plaintiff and the New York City Department of Education; the fifth is an undated four page document apparently prepared for the New York City School Construction Authority.[*2]
A motion made pursuant to CPLR §3211 seeks a dismissal pre-answer or before issue is joined. On such a motion a court must accept as true the facts as alleged within the four corners of the complaint and accord the plaintiff the benefit of every possible favorable inference to determine whether the allegations fit within any cognizable legal theory (Morone v. Morone, 50 NY2d 481, 484[1980]) "However, bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on such a motion" see (Palazzolo v. Herrick, 298 Ad2d 372 [2nd Dept 2002]).
CPLR §2214(a) provides in pertinent part that a notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.
A motion made pursuant to CPLR §3211(a)(1) contemplates that the defense will be established by documentary evidence alone and without reference to evidence derived from affidavits (Siegel, New York Practice 3d ed §259 [1999]). Under CPLR §3211(a)(1) a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see, e.g Heaney v. Purdy, 29 NY2d 157 [1971]).
A motion for an accelerated judgment of dismissal pursuant to CPLR §3211(a)(7) may utilize affidavits and other forms of proof to attack the merits of a cause of action. To succeed on the motion, the defendant must convince the court that nothing the plaintiff can reasonably be expected to prove would help; that the plaintiff just doesn't have a claim (Siegel, New York Practice 3d ed §265 [1999]). In assessing a motion under CPLR §3211(a)(7) however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (Rovello v. Orofino Realty Co., 40 NY2d 633, 635 [1976]) and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). Inasmuch as defendant seeks pre-answer relief, the court may not convert the motion to a summary judgment application pursuant to CPLR §3212 absent prior notice to all parties (Moustafis v. Osbourne,18 AD3d 723 [2nd Dept. 2005]). The court is not converting the motion.
There is no dispute that on May 22, 2004, the Daily News published an article entitled "Fear HS Students Exposed to Asbestos." The article contained statements attributed to defendant Ellie Engler (a Teachers Union representative) and Margie Feinberg (an Education Department spokesperson) including: (1) "[plaintiff] had to know about the asbestos problem because the School Construction Authority outlined the issue in a report given to the school this winter"; (2) "[plaintiff] hired students to renovate the school library"; (3) "[b]reaking tiles would potentially release asbestos into the air"; (4) "[plaintiff] was disciplined for unauthorized work at the school and a letter of reprimand was placed in his file"; (5) "officials have not tested the tiles but are proceeding as if they have asbestos"; and (6) "[t]ests in the library on May 14 showed no airborne asbestos - but that was a week after officials installed exhaust filters and any toxic dusts [*3]would have settled."
There is also no dispute that on or about February 2005, plaintiff and the Department of Education entered into a stipulation of settlement. Under the terms of the settlement, plaintiff agreed to retire from his position as principal of Grady High School effective July 1, 2005 and to waive his right to make legal claims against the Department of Education and its employees and agents for any of their actions arising out of the investigation. For its part, the Department of Education agreed to allow plaintiff to apply for and accept per diem consulting work with the Department of Education after his retirement and further agreed that plaintiff would not receive an "unsatisfactory" rating for the 2004-2005 school year.
In order for Daily News to prevail on its motion pursuant to CPLR §3211(a)(1), the documentary evidence relied upon must be in admissible form and conclusively establish a complete defense to the plaintiff's cause of action. Daily News' motion papers do not contain an affidavit from the defendant or the author of the article in question. The only sworn allegation of facts are contained in the affidavit of Anne B. Carroll, who identifies herself as counsel and not as an officer of the defendant corporation. "CPLR §3020(d)(1) mandates that if a party is a domestic corporation, the verification "shall be made by an officer thereof . . . ." While the statute authorizes that in certain limited circumstances someone other than a party may verify a pleading, such person must explain why the verification is not made by the party (see CPLR§3020 [d][3] and CPLR §3021)"(Giamba v. Commissioner of Motor Vehicles, 46 NY2d 743 [1978]; see also Promenade Nursing Home Inc. v. Lacey, 10 Misc 3d 1066(a) [NY Sup. Queens Co. 2005]). Her six allegations of fact demonstrate no personal knowledge of any facts pertinent to the complaint or to the defense based on documentary evidence. Her affidavit provides no explanation of the relevance of the annexed exhibits. The accompanying memorandum of law do not satisfy this fundamental deficiency. Rather it simply provides the legal arguments to support the defenses raised unsupported by any allegations of fact. Although the affidavit is the evidentiary backbone of almost every motion, it is not indispensable. When a motion is based on a point of law requiring no poof, no affidavit is needed [McKinney's Practice Commentaries to CPLR Rule 2214 by David Siegel].
Civil Rights Law § 74 provides in pertinent part as follows: Privileges in action for libel. A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published. This section does not apply to a libel contained in any other matter added by any person concerned in the publication; or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof.
Daily News contends that all of the complained of statements in its article are fair and accurate reports of the Special Commissioner's official investigation proceeding, annexed as the third exhibit, and are therefore absolutely privileged under Civil Rights Law § 74.
This particular claim is not merely a point of law and requires proof that the defendant's [*4]published article was derived from an official proceeding. The failure of the defendant to provide an affidavit from anyone with personal knowledge on the applicability of the privilege renders this branch of the motion procedurally defective. Daily New's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) is therefore denied.
Turning to defendant's motion to dismiss pursuant to CPLR 3211(a)(7), Daily News reiterates that all of the complained of statements are absolutely privileged under Civil Rights Law § 74. In addition, the Daily News argues that some of the complained of statements are not actionable because such statements are not reasonably susceptible of a defamatory meaning. In particular, the Daily News maintains that Ms. Feinberg's statement that "officials have not tested the tiles but are proceeding as if they have asbestos," and that "[t]ests in the library on May 14 showed no airborne asbestos" are, as a matter of law, not defamatory. The Daily News further contends that the statement in its article that plaintiff "hired students to renovate the library" is not actionable since no one disputes that this statement is accurate. Finally, the Daily News argues that plaintiff's action must be dismissed because he has not adequately pled the necessary element of actual malice so as to support a libel claim.
Every defamation claim is governed by the basic standard that a libel or slander plaintiff must plead that the statement at issue is "both false and defamatory"(Brian v. Richardson, 87 NY2d 46, 51 [1995]). Whether a given statement constitutes an expression of opinion on an actionable factual assertion is a question of law for the court to decide, and such determination must be made by considering the context of the whole communication, along with its tone and apparent purpose (Ferris v. Loyal Order of Moose Oneonta Lodge No. 465, 259 AD2d 914, 915 [3rd Dept 1999]). An allegedly defamatory statement is not actionable if it is "pure opinion", which is defined as being accompanied by a recitation of the facts upon which it is based (see, Steinhilber v. Alphonse, 68 NY2d 283, 289 [1986]. In contrast, a statement of opinion which implies that it is based upon facts to support the opinion but such facts are unknown to those reading it, is deemed a "mixed opinion" and is actionable (see, Steinhilber v Alphonse, supra, at 289).
With regard to the defamatory nature of the statements in question, the court agrees with the contention raised in defendant's memorandum of law that the following three statements can not support a cause of action for libel because they are not both false and defamatory:
1) "officials have not tested the tiles but are proceeding as if they have asbestos,"
2) "[t]ests in the library on May 14 showed no airborne asbestos" and
3) plaintiff "hired students to renovate the library".
That portion of defendant's motion which is addressed to the sufficiency of plaintiff's pleadings remains viable notwithstanding the absence of an affidavit of party with personal knowledge. CPLR 3016(a) provides that in an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally (see Gardner v. Alexander Rent a Car, Inc., 28 AD2d 667 [1st Dept. 1967]). [*5]Plaintiff's amended complaint avers that he was an acting principal of William E. Grady Career and Technical Education High School at the time of defendant's allegedly libelous publication. A high school principal is deemed a public official for purposes of the defamation law (Jee v. New York Post Co., 176 Misc 2d 253, 259-260 [NY Sup 1998], aff'd 260 AD2d 215 [1st Dept 1999]). Under the United States constitutional standard, plaintiff must plead that the defendant published the allegedly libelous statements with "actual malice" -that is, "with knowledge that it was false or with reckless disregard of whether it was false or not" (New York Times Co., v. Sullivan, 376 U.S. 254, 279-280 [1964]).
"The degree of specificity required when pleading constitutional malice is not as clear. Several New York courts have required some level of factual detail in relation to constitutional malice, (see Jiminez v. United Federation of Teachers, 239 AD2d 265 [1st Dept 1997]; Red Cap Valet, Ltd. V. Hotel Nikko (USA), Inc., 273 AD2d 289 [2nd Dept 2000]; Themed Restaurants, Inc. v. Zagat Survey, LLC, 4 Misc 3d 974 [Sup 2004]) however, at least one court has suggested that specific detail as to constitutional malice may be advanced later in the proceedings (compare, Alianza Dominicana, Inc. v. Luna, 229 AD2d 328 [1st Dept 1996])." [NY Prac., New York Law of Torts §1:57]."
This court finds that the analysis set forth in the Alianza decision is more appropriate in and in accordance with the liberal pleadings provisions set forth in CPLR §§§ 2001, 3013 and 3026, particularly in the context of a pre-answer motion to dismiss the complaint. The court finds that plaintiff's amended complaint sufficiently pleads that the allegedly libelous statements were made with "reckless disregard of the truth" so as to withstand a CPLR 3211 (a) (7) motion (People ex rel. Spitzer v Grasso, 21 AD3d 851, 852-853 [1st Dept. 2005]).
Turning to the balance of defendant's argument and reviewing the remaining allegedly libelous statements, the court finds that the statement that (1) "[plaintiff] had to know about the asbestos problem because the School Construction Authority outlined the issue in a report given to the school this winter" is reasonable susceptible of a defamatory connotation. An average reader could rationally construe the statement to mean that plaintiff was aware of the danger of asbestos contamination and nevertheless, knowingly placed high school students in danger of exposure to same. Plaintiff has alleged that this statement is false and the court finds it defamatory within its context. Inasmuch as the following statement survives defendant's pre-answer motion to dismiss the complaint, it is unnecessary at this time to review the remaining statements to assess whether they are also defamatory. Daily News' motion to dismiss plaintiff's complaint against it is denied. Daily News must answer the complaint in twenty days.
This constitutes the decision and order of the court.
____________________________x
J.S.C.
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