Neuschotz v Newsday Inc.

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[*1] Neuschotz v Newsday Inc. 2006 NY Slip Op 51626(U) [12 Misc 3d 1198(A)] Decided on August 21, 2006 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 21, 2006
Supreme Court, Kings County

Ivor Neuschotz, Plaintiff,


Newsday Inc. et. al., Defendant


Francois A. Rivera, J.

On November 7, 2005, defendant Newsday, Inc. (Newsday) 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, Newsday, 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 Newsday 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 Newsday's application to apply the motion to the amended complaint.

There is no dispute that on May 21, 2004, Newsday published an article entitled "Rebuke in asbestos cover-up." Among other things, the article cited unnamed teachers union officials' allegations that: (1) plaintiff "directed students and a teacher to tear down library walls and shelves even though he knew the room contained asbestos, then tried to cover up the incident"; (2) "the costs have climbed to $500,000 for cleanup instead of a $90,000 asbestos removal"; (3) "everything in the library, including books and computers will have to be thrown out" and "other grants [may be] withdrawn"; (4) "earlier this month, when work was stopped because live wires were found in a metal and glass wall being dismantled, authorities learned [plaintiff] had kept secret a report that said the floor tiles had to be safely removed because of the asbestos"; and (5) "[b]y the time construction and education officials arrived to take pictures, someone had [*2]reattached the metal plates onto the remnant of the wall and removed the asbestos floor tiles and debris." In addition, the Newsday article contained several statements made by union representative, defendant Michael Mulgrew, including: (1) "[plaintiff] said the abatement was too expensive. It wouldn't allow him to do what he wanted to do in the library - cappuccino machines? I don't know"; (2) "just in moving things around, asbestos tiles started becoming dislodged"; (3) [plaintiff] told them it was OK, and was putting a rug in and they could continue work"; (4) "On May 5, when the school custodian confronted him, [plaintiff] did not seal the library but instead directed a staff member to do more work. Students were in the library at the time"; (5) "it was only yesterday that the principal told angry students over the public announcement system that air sample tests concluded the environment was safe"; and (6) "[plaintiff] had repeatedly been warned by the School Construction Authority to stop making unauthorized changes in the building."

At oral argument of the motion, plaintiff disputed Newsday's claim that all of the allegedly defamatory statements were shielded by Civil Rights Law §74. The court requested and received from the parties memoranda of law addressing this issue.

Newsday's motion papers consists of the affirmation of Devereux Chatillon, six annexed exhibits, and accompanying memoranda of law. Devereux Chatillon's affirmation alleges that she is Newsday's counsel, that her affirmation is in support of the motion and that the annexed six exhibits are true and correct copies. The first annexed exhibit is the summons and complaint; the second purports to be a report from the Special Commissioner of Investigation; the third is a stipulation of settlement between the plaintiff and the New York City Department of Education; the fourth is a copy of defendant's allegedly libelous publication of May 21, 2004; the fifth is a letter dated May 19, 2004, the sixth is a memorandum dated May 10, 2004 purportedly emanating from the United Federation of Teachers.

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 [*3]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 and consequently will limit its review to the parties respective motion papers.

In order for Newsday 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. Analyzing Newsday's motion papers the court notes the following deficiencies. The only sworn allegation of facts are from the affidavit of Newsday's counsel which demonstrate no personal knowledge of the underlying facts of either plaintiff's complaint or Newsday's defense. There is no affidavit from the defendant. Defendant's third annexed exhibit is a five page, unsigned letter with a letterhead indicating that it is from Special Commissioner of Investigation for the City of New York . The letter lacks a government seal or other certification of its authenticity and is apparently incomplete. The fifth exhibit is an unsigned two page document which contains the initials ATC in the letterhead. On its face it does not appear to emanate from a government agency but rather to be addressed to one. The sixth exhibit is an unsigned, unnumbered two page document which contain the indication United Federation of Teachers in its letterhead. There is no affidavit attesting to the authenticity of these three exhibits.

CPLR §4520 provides as follows: Certificate or affidavit of public officer. Where a public officer is required or authorized, by special provision of law, to make a certificate or an affidavit to a fact ascertained, or an act performed, by him in the course of his official duty, and to file or deposit it in a public office of the state, the certificate or affidavit so filed or deposited is prima facie evidence of the facts stated.

CPLR§ 4520 creates a hearsay exception for certain records prepared by public officers. To fall within CPLR § 4520 the public record must meet several requirements: (1) the record must be made by a public officer; (2) it must be in the form of a 'certificate' or 'affidavit'; [*4](3) the record must be required or authorized 'by special provision of law'; (4) it must be made in the course of the officer's official duty; (5) it must be a record of a fact ascertained or an act performed by the officer; and (6) it must be on file or deposit in a public office of the state. Only a few types of formal public records have been deemed to meet all of these criteria. Examples include a report of receipts and disbursements of the highway department prepared by a county treasurer pursuant to statutory requirement and filed with the county board of supervisors, and a verified statement of a bank's assets and liabilities prepared by the superintendent of banks and filed with the county clerk pursuant to statute." (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4520:1, at 240-242 (Miriam Osborn Memorial Home Ass'n v. Assessor of City , 9 Misc 3d 1019 [Sup Ct Westchester Co. 2005]).

The common-law public documents hearsay exception is broader than CPLR §4520 and has not been superceded by statute (see Consolidated Midland Corp. v. Columbia Pharm. Corp., 42 AD2d 601 [2d Dept 1973]). Therefore, the public document is admissible without the testimony of the official who made it, but it must be authenticated (see e.g. People v. Garneau, 120 AD2d 112, 166[4th Dept 1976]). It is well settled that to be admissible, any public document must be authenticated as being that which it purports to be . . ."(People v. Smith 258 AD2d 245, 249 [4th Dept. 1999]). Following that determination, the question remains whether the document has been properly authenticated"]; Prince, Richardson on Evidence § 8-1101 [Farrell 11th ed]). Authentication of certain public records may be accomplished by certification as provided in CPLR §4518(c).

"Authentication under either the statutory or common-law public document exception is a two-step process. If the document is attested as correct by the official or deputy having legal custody of it, it becomes 'prima facie evidence of such record' (CPLR4540[a]). Attestation involves a comparison of the copy with the original and a statement of the accuracy of the copy. The additional standard to be satisfied for proper authentication is compliance with one of the three allowable methods of certification (CPLR§4540[b]).(Miriam Osborn Memorial Home Ass'n v. Assessor of City , 9 Misc 3d 1019 [Sup Ct Westchester Co. 2005]).

CPLR §4540[b] provides in pertinent part: (b) Certificate of officer of the state. Where the copy is attested by an officer of the state, it shall be accompanied by a certificate signed by, or with a facsimile of the signature of, the clerk of a court having legal custody of the record, and, except where the copy is used in the same court or before one of its officers, with the seal of the court affixed; or signed by, or with a facsimile of the signature of, the officer having legal custody of the original, or his deputy or clerk, with his official seal affixed; or signed by, or with a facsimile of the signature of, the presiding officer, secretary or clerk of the public body or board and, except where it is certified by the clerk or secretary of either house of the legislature, with the seal of the body or board affixed. If the certificate is made by a county clerk, the county seal shall be affixed.[*5]

Newsday 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 therefore, these statements are absolutely privileged under Civil Rights Law § 74. They also contend that the third and fifth exhibit are admissible as public records. Inasmuch as these exhibits are not properly authenticated, they are not in admissible form and the court will not rely upon them. The remaining exhibits consist of the pleadings, the allegedly libelous publication, a stipulation signed by the plaintiff and an unsigned memorandum purportedly from the UFT. These documents and counsel's affirmation do not conclusively demonstrate defendant's complete defense to plaintiff's cause of action pursuant to CPLR§3211(a)(1).

In support of its motion to dismiss the complaint pursuant to CPLR §3211 (a)(7), Newsday again raises the argument of privileged under Civil Rights Law § 74 and in the alternative argues that the complaint must be dismissed because it fails to adequately plead the necessary element of actual malice.

Plaintiff contends that the amended complaint sufficiently alleges a prima facie tort for libel as it alleges that Newsday published its article with reckless disregard of the truth. Contrary to Newsday's argument, the court finds that plaintiff's amended complaint sufficiently pleads that 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).

The thrust of Newsday's argument relies heavily on exhibit three which has no indicia of authenticity. Since it is unsigned and apparently incomplete, its contents do not reveal its reliability. While indeed the court may have discretionary authority, under proper circumstances, to disregard the lack of authentication as a merely technical omissions, the court finds it improper to do so here (see Welde v. Wolfson, 32 AD2d 973 [2nd Dept 1969]). In the Welde case the Appellate Division found that an unauthenticated police accident report possessed sufficient circumstantial guarantees of the documents authenticity to overlook the lack of authentication. The circumstantial guarantees were the contents of the document and the legal incidents which attend to its filing. The analysis applied in the Welde case is not appropriate here (compare Brown v. Reece, 194 Misc 2d 269 [N.Y.City Civ. Ct.2003]).

The third exhibit is apparently incomplete and there is nothing in the motion papers which the court may rely upon pertaining to the legal incidents which attend to its filing. In fact, there is nothing before the court to show a statutory duty or obligation to file the exhibit with a government entity. Furthermore, the court sees no judicial economy gained by disregarding these deficiencies. Assuming Newsday is able to remedy the aforementioned deficiencies in the [*6]motion papers, it may renew the request for an accelerated judgment pursuant to CPLR §3212 after answering plaintiff's complaint.

Newsday's motion to dismiss plaintiff's complaint against it is denied. Newsday must answer the complaint in twenty days. This constitutes the decision and order of the court.