Rosenthal v Roberts

[*1] Rosenthal v Roberts 2005 NY Slip Op 51994(U) [10 Misc 3d 1057(A)] Decided on October 11, 2005 Supreme Court, New York County James, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2005
Supreme Court, New York County

MARK ROSENTHAL, Plaintiff,

against

LILLIAN ROBERTS, VERONICA MONTGOMERY-COSTA, CLIFF KOPPELMAN, MAF MISBAH UDDIN, JIM TUCCIARELLI, DONALD AFFLICK, LENNY ALLEN, and MAGDA DEJESUS, Defendants.



102603/04



Plaintiff counsel

Kennedy, Schwartz & Cure

113 University Place - 7th Floor

New York, NY 10003

212 358 1500

Defendants' attorney

Spivak, Lipton, Watanabe, Spivak & Moss LLP

1700 Broadway - Suite 21

New York, NY 10019

212 765 2100

Debra A. James, J.

The court shall grant defendants' motion to dismiss this defamation action because the statements alleged to be defamatory constitute protected opinion in the context of a highly charged union election.

Plaintiff is a former Treasurer of District Council 37 (DC37 or the "union"), American Federation of State, County and Municipal Employees (AFSCME) and current President of Local 983, AFSCME. Defendants are also union officers within DC37, including Lilian Roberts who is Executive Director of DC37. The current suit arises out of a hotly contested election for DC37 posts held on January 27, 2004. Plaintiff supported a slate of candidates which ran against defendants.

Plaintiff alleges that certain election fliers published and distributed by, or on behalf of the defendants to union members, contained false statements that libeled him. Copies of the fliers are attached to the Amended Complaint. Plaintiff alleges that the first flier contains defamatory statements as follows: "ROSENTHAL IS TRYING TO FIX THE ELECTION . . . Rosenthal wants Barbara Deinhardt to be in charge of the election. Deinhardt's five-year contract as the ethics officer is up for renewal next year by the ethics committee. Because Rosenthal is the chairman of the ethics committee, he can influence whether Deinhardt's contract is renewed." Plaintiff alleges that this statement is false in that Barbara Deinhardt did not have a contract up for renewal in 2004. The second allegedly defamatory statement states: "(a) Rosenthal's response to Lisa's plight was to tell the City that he was willing to accept even less wages and no benefits for the WEP workers, as long as they continued to pay union dues to his local. . . (b) When Lillian Roberts was fighting to bring the hourly pay of the WEP workers up, Rosenthal went [*2]behind her back and told the City he would take $7.50 less than Lillian was asking for and less than what the City originally said it would pay these workers." Plaintiff alleges that these statements are false because that he never told the City that Local 983 was willing to accept lower wages or that the Local was willing to accept an hourly wage of $7.50. The third allegedly defamatory statement was in a third flyer: "Mark Rosenthal challenged the election results from his run for President of Local 983 and fell into his Locals election scandals. He did not uncover the scandals that were going on in the other locals. How could he unless he knew in advance and was a part of it?" Plaintiff claims that he did uncover scandals in other locals and was not a participant in the criminal acts committed by DC37 officials.

The parties appear to accept as does this court that the plaintiff is a "public figure" who must plead and prove "actual malice" in order to sustain a claim for defamation. See Curtis Pub. Co. v Butts, 388 US 130, 155 (1967) ("We consider and would hold that a 'public figure' who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers"). In another action involving an internal dispute amount union members the First Department has held that An allegedly defamatory statement is not actionable if it is an expression of pure opinion, no matter how vituperative or unreasonable it may be. The distinction between fact and opinion is made on the basis of what the average person hearing or reading the communication would take it to mean, and four factors are considered in making this assessment: (1) whether the specific language employed is precise or vague and ambiguous, (2) whether the statement may be objectively characterized as either true or false, (3) the context in which the statement appears and (4) the broader social setting surrounding the communication, including a custom or convention which might serve to indicate that it is an expression of opinion and not fact.

O'Loughlin v Patrolmen's Benev. Ass'n of City of New York, Inc., 178 AD2d 117, 118(1st Dept 1991) (citations and internal quotations omitted).

The Court of Appeals has provided further guidance to courts on the evaluation of whether statements constitute protected opinion stating that in determining whether a particular communication is actionable, we continue to recognize and utilize the important distinction between a statement of opinion that implies a basis in facts which are not disclosed to the reader or listener, and a statement of opinion that is accompanied by a recitation of the facts on which it is based or one that does not imply the existence of undisclosed underlying facts. The former are actionable not because they convey "false opinions" but rather because a reasonable listener or reader would infer that the speaker or writer knows certain facts, unknown to the audience, which support the opinion and are detrimental to the person toward whom the communication is directed. In contrast, the latter are not actionable because . . . a proffered hypothesis that is offered after a full recitation of the facts on which it is based is readily understood by the audience as conjecture. Indeed, this class of statements provides a clear illustration of situations in which the [*3]full context of the communication signals readers or listeners that what is being read or heard is likely to be opinion, not fact.

Gross v New York Times Co., 82 NY2d 146, 153 -154 (1993). Finally, in examining the context in which statements are made, consideration must be given to the nature of contested union elections and processes. See Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL-CIO v Austin, 418 US 264, 282 (1974) (state libel law must not be "inconsistent with the protection for freedom of speech in labor disputes").

Applying these principles to the statements challenged here the court holds that the statements constituted protected opinion uttered in the heat of a highly-charged and contentious union election. With respect to the first challenged statement that plaintiff had "fixed" the election, plaintiff apparently is only asserting the falsity of the statement that "Deinhardt's five-year contract as the ethics officer is up for renewal next year by the ethics committee." However, contrary to plaintiff's argument, it appears that Barbara Deinhardt's term would expire in 2005, one year after the election. Although plaintiff alleges that the statement was published in December 2003, the statement is substantially true and therefore cannot be the basis of a libel claim. Furthermore, the allegation that plaintiff was trying to "fix" the election constitutes protected opinion because as set forth in the flyer it constitutes "a proffered hypothesis that is offered after a full recitation of the facts on which it is based is [and] readily understood by the audience as conjecture." Gross, supra, 82 NY2d at 154.

Similarly, the second flyer accusing plaintiff of telling the City that he would accept lower wages contains no facts capable of supporting a defamation claim. The mere fact that the statements are not flattering to plaintiff does not make them actionable. Under such a standard most campaign literature would be subject to defamation liability. The alleged defamation is too vague to be actionable as it contains no statement capable of verification such as the date and time plaintiff spoke to a particular official. Rather the statements constitute hyperbolic opinion that the plaintiff had not represented the union membership effectively and would have been understood by the union membership that way. To adopt the standard urged by the plaintiff would place this court in the position of policing union election campaign slogans and circulars and would be too restrictive of the federal legislative union election prerogative. See Petramale v Local No. 17 of Laborers Intern. Union of North America, 736 F2d 13, 16 (2d Cir 1984) ("criticism of union officers, even when it amounts to slander, is protected speech under the LMRDA").

Similarly, as argued by the defendants, the statements in the third flyer at most accuse the plaintiff of knowing in advance of a "scandal," but do not accuse the plaintiff of committing any crime. The statements contained therein are mere surmise and opinion and therefore are not capable of being false.

Based on the foregoing, this court finds that the defendants' have established their entitlement to dismissal of the complaint.

Accordingly, it is

ORDERED and ADJUDGED that the defendants' motion to dismiss te complaint is hereby GRANTED, the complaint is DISMISSED and the Clerk is directed judgment enter accordingly.

This is the decision and order of the court.

J.S.C.