Gitter v Phoenicia Times, Inc.

[*1] Gitter v Phoenicia Times, Inc. 2008 NY Slip Op 52620(U) [22 Misc 3d 1109(A)] Decided on December 15, 2008 Supreme Court, Ulster County Zwack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2008
Supreme Court, Ulster County

Dean Gitter, Plaintiff,

against

The Phoenicia Times, Inc., PAUL SMART, and BRIAN POWERS, Defendants.



08-2787



Gruner Law Office

Attorneys For Plaintiff

Paul L. Gruner, Esq., of counsel

253 Wall Street

P.O. Box 4060

Kingston, New York 12402

Wapner, Koplovitz & Futerfas, PLLC

Attorneys For Defendants

Rod Futerfas, Esq., of counsel

239 Wall Street

P.O. Box 3268

Kingston, New York 12402

Henry F. Zwack, J.

In this libel action, defendants move to dismiss the complaint pursuant to CPLR 3211(a)(7). Plaintiff opposes the motion.

On March 27, 2008, a letter to the editor appeared in the Phoenecia Times regarding plaintiff. The letter refers to plaintiff, a developer, as having "paid off" the New York State Department of Environmental Protection, which is later defined in the same paragraph as having paid fees to a lobbying firm, in conjunction with a development project of plaintiff, the Belleayre Resort project. The letter goes on to state the writer's belief that government officials have accepted bribes from plaintiff. The final paragraphs express the writer's opposition to the project and belief that elected officials and plaintiff are only concerned about money, as opposed to the community where the project would be located. The final paragraph of the letter reads: "Take to arms Shandaken and surrounding communities. This is a war for our town's (sic), for our lives."

Plaintiff commenced the present libel action against the defendant newspaper, as well as Brian Powers, its publisher and Paul Smart, its editor. The author of the letter is not a party to this action. The complaint sets forth claims of defamation, intentional infliction of emotional distress and prima facie tort. The complaint alleges that defendants "maliciously publish[ed] libelous material defaming Plaintiff, which material was in the form of a letter to the editor", and that defendants "were motivated by actual malice and knew the written statements therein were false and untrue, or that such statements were made with reckless and wanton disregard for the truth or falsity of said statements." The complaint alleges that the letter was published by defendants to retaliate against plaintiff for his development of the Belleayre Resort.

It is well established that on a motion to dismiss pursuant to CPLR 3211(a)(7) the extent of a court's inquiry is whether a cause of action has been stated in the complaint and it does not involve a determination as to whether the cause of action as stated is supported by proof (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Rovello v Orofino Realty Co., 40 NY2d 633 [1976]). Supporting affidavits are not required because the motion is related solely to the legal sufficiency of the complaint, although they may be received to remedy defects in the complaint (id.). A motion to dismiss the complaint based upon a failure to state a cause of action must be denied where "from [the complaint's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law." (Polonetsky v Better Homes Depot, Inc., 97 NY2d 46, 54 [2001] [quoting Guggenheimer v Ginzberg, 43 NY2d 268, 275 [1977]). The complaint must be given liberal construction on a CPLR 3211(a)(7) motion and all facts in the complaint and all factual inferences must be determined in plaintiff's favor when deciding if a cognizable cause of action is stated (Sokoloff v Harriman Estates Dev. [*2]Corp., 96 NY2d 409 [2001]; Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, LLP, 96 NY2d 300 [2001]; Leon, 84 NY2d at 87-88).

A defamation claim must be based upon a published statement that is false and defamatory (Brian v Richardson, 87 NY2d 46, 50-51 [1995]). To be false, a statement must be a statement of fact and not a statement of opinion (Brian, 87 NY2d at 51). Whether a statement is a statement of fact or opinion is a question of law (see, Millus v Newsday, Inc., 89 NY2d 840 [1996]). In analyzing the question of whether a statement is fact or opinion, the entire context and circumstances must be considered (see Brian, 87 NY2d at 51; Bernard v Grenci, 48 AD3d 722, 724 [2d Dept 2008]; Torain v Liu, 279 Fed.Appx. 46 [2d Cir 2008]). Whether a statement is an assertion of fact or opinion is an inquiry to be resolved by the court, which must consider the context and content of the communication as a whole, including its tone and apparent purpose.

(Versaci v Richie, 30 AD3d 648, 648-49 [3d Dept 2006] [citations omitted]).

The Court has considered the context and content of this letter and finds that it is an assertion of opinion only and therefore the complaint must be dismissed. The Court finds that the average reader of this letter, while they may be initially drawn in by the provocative opening sentence ("Dean Gitter (Crossroad Ventures) Paid Off the DEP"), will soon come to realize upon reading the first paragraph in full, that the writer appears to be stating her belief that the lobbying fees paid by plaintiff to a lobbying firm equates with paying off government officials. In the next paragraph it is made even more clear that any claim that bribes were paid was her personal opinion, and apparently based upon the fact that lobbying fees were paid, which is not a crime ("There is no doubt now in my mind that government officials are and have been accepting bribes from Dean Gitter..."). The Court also notes that this is a letter to the editor on a controversial development project that has incited much public debate and opinion. While the fact that these statements appear in a letter to the editor is not dispositive of whether they are opinion or fact, this fact is entitled to consideration by the Court (see, Millus, 89 NY2d at 842; Brian, 87 NY2d at 52).

The facts referenced in the letter make clear that plaintiff has paid a lobbying firm for representation, which is not a crime. It is clear from the context and tone of the entire letter taken as a whole that any allegation that plaintiff has bribed government officials is purely the opinion of the writer, based upon the fact that plaintiff paid lobbying fees. The Court finds that the average reader of this letter would conclude that while it may be the writer's opinion that bribery by plaintiff may have occurred, the facts set forth by the writer only state that plaintiff paid a lobbying firm, which is not disputed and is not a crime. The average reader could either conclude that plaintiff paid lobbying fees, which is not a crime, but which is equated with the crime of bribery in the writer's opinion; or that the writer learned of the lobbying firm payments by plaintiff, and then extrapolated [*3]from that and drew her own conclusion and opinion that plaintiff bribed government officials. In either event, the Court finds that the letter is not actionable against defendants because the undisputed facts (that plaintiff paid lobbying fees) are not false or otherwise defamatory, and the expressed opinion and personal surmise of the writer (that plaintiff bribed government officials) cannot state a defamation claim. Therefore, the complaint must be dismissed as to the defamation claim.

Regarding plaintiff's claim that the Court should analyze the letter line by line, the Court concurs with defendants that this is not consistent with controlling legal precedent (see, e.g., Mann v Abel, 10 NY3d 271, 276-77 [2008]; Versaci, supra).

Regarding defendants' claim that they are entitled to costs and attorneys fees pursuant to Civil Rights Law § 70-a and § 76-a, the Court concurs with plaintiff that under the facts of this case these provisions are not applicable. Defendants have not counterclaimed pursuant to Civil Rights Law § 70-a for attorneys fees and costs and therefore this portion of their motion is denied.

Regarding plaintiff's claims of intentional infliction of emotional distress and prima facie tort, the Court finds that these claims must also be dismissed. The intentional infliction of emotional distress claim is based upon the same facts as the defamation claim and also fails to set forth facts to demonstrate conduct that goes the limits of societal decency (see Clark v Schuylerville Central Sch. Dist., 24 AD3d 1162, 1164 [3d Dept 2005]; Demas v Levitsky, 291 AD2d 653, 660 [3d Dept 2002]). The prima facie tort claim lacks an allegation of special damages (see Stanton v Carrara, 28 AD3d 642 [2d Dept 2006]). Therefore, these claims must be dismissed and the complaint is dismissed in its entirety.

Accordingly, it is

ORDERED, that defendants' motion is granted to the extent set forth above; and it is further

ORDERED, that the complaint is dismissed in its entirety.

This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorneys for the defendants. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:December, 2008

Troy, New York

________________________________________ [*4]

Henry F. Zwack

Acting Supreme Court Justice