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finding that a statement on Facebook that the plaintiff was "pilfering free gas from taxpayers" was "susceptible to a defamatory meaning, in as much as it conveys, at a minimum, serious impropriety and, at worst, criminal behavior" (citations, alterations, and quotation marks omitted)
Summary of this case from Solstein v. MirraOpinion
526648
07-18-2019
Michael S. KRUSEN, Respondent, v. Christopher J. MOSS, Appellant.
Levene Gouldin & Thompson, LLP, Vestal (Michael R. Wright of counsel), for appellant. Hinman, Howard & Kattell, LLP, Binghamton (Albert J. Millus Jr. of counsel), for respondent.
Levene Gouldin & Thompson, LLP, Vestal (Michael R. Wright of counsel), for appellant.
Hinman, Howard & Kattell, LLP, Binghamton (Albert J. Millus Jr. of counsel), for respondent.
Before: Garry, P.J., Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Aarons, J. Plaintiff, who at the time was the Deputy County Executive of Chemung County and was running for the position of County Executive, commenced this action claiming that defendant, who was the Chemung County Sheriff and was also running for County Executive at the time, made several defamatory statements concerning his use of a county-issued gas credit card. As relevant here, plaintiff specified two separate statements, one that was published on defendant's campaign Facebook site and one that was published on another Internet website. Prior to serving an answer, defendant moved under CPLR 3024 to strike paragraphs 9 and 24 in the complaint as scandalous and for "[d]ismissal pursuant to CPLR 3211 and/or summary judgment pursuant to CPLR 3212." Plaintiff opposed the motion, and, while it was pending, defendant served an answer. In an April 2018 order, Supreme Court partially granted that part of defendant's motion seeking relief under CPLR 3024 by striking paragraph 9 from the complaint and, as relevant here, denied that part of the motion seeking dismissal of the complaint with respect to the Facebook and Internet postings. Defendant appeals. We affirm.
As an initial matter, we are without jurisdiction to entertain defendant's contentions challenging that part of the April 2018 order that denied his motion to strike certain paragraphs from the complaint under CPLR 3024 (see CPLR 5701[b][3] ). Defendant was required to seek leave to appeal (see e.g. Netbai v. New York State Elec. & Gas Corp., 162 A.D.2d 862, 862, 559 N.Y.S.2d 186 [1990] ) and, because he did not do so, this portion of his appeal is not properly before us (see Collins v. Troy Publ. Co., 213 A.D.2d 879, 881, 623 N.Y.S.2d 663 [1995] ).
Regarding that part of defendant's motion seeking dismissal of the complaint, we note that, in seeking said relief, defendant relied on both CPLR 3211 and 3212. Plaintiff, however, contends that the standards of only CPLR 3211 should apply. We agree. "A motion for summary judgment may not be made before issue is joined and the requirement is strictly adhered to" ( City of Rochester v. Chiarella, 65 N.Y.2d 92, 101, 490 N.Y.S.2d 174, 479 N.E.2d 810 [1985] [citations omitted] ). The record reflects that defendant made his motion in September 2017, plaintiff opposed it in October 2017 and defendant served his answer in November 2017. In view of this procedural posture, defendant's motion was premature to the extent that he sought summary judgment. We cannot say that the parties deliberately charted a summary judgment course (see e.g. Kline v. Town of Guilderland, 289 A.D.2d 741, 741 n, 734 N.Y.S.2d 333 [2001] ; Patten Corp. v. Association of Prop. Owners of Sleepy Hollow Lake, 172 A.D.2d 996, 1000, 568 N.Y.S.2d 970 [1991] ), as plaintiff argued in his opposition papers that issue had not been joined and that there had been no discovery (see Henbest & Morrisey v. W.H. Ins. Agency, 259 A.D.2d 829, 829–830, 686 N.Y.S.2d 207 [1999] ). Furthermore, although a court may treat a pre-answer motion as one seeking summary judgment, it must notify the parties that it is doing so (see CPLR 3211[c] ). There is no indication that Supreme Court gave this notification and, therefore, the court, to the extent that it did so, erred in analyzing the motion under CPLR 3212 (see Lockheed Martin Corp. v. Aatlas Commerce, Inc., 283 A.D.2d 801, 802–803, 725 N.Y.S.2d 722 [2001] ; Henbest & Morrisey v. W.H. Ins. Agency, 259 A.D.2d at 829–830, 686 N.Y.S.2d 207 ).
That said, we reject defendant's contention that he is shielded from liability due to absolute immunity. This immunity protects government officials, such as defendant, "with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties" ( Clark v. McGee, 49 N.Y.2d 613, 617, 427 N.Y.S.2d 740, 404 N.E.2d 1283 [1980] ). As such, plaintiff cannot maintain a defamation claim against defendant based upon statements "emanating from official reports and communications" ( Mahoney v. Temporary Commn. of Investigation of State of N.Y., 165 A.D.2d 233, 238, 565 N.Y.S.2d 870 [1991] ). Although defendant was commenting about an investigation being conducted by his office, as well as responding to attacks on the credibility of his office, the documentary evidence in the record establishes that the challenged statements were not posted on the official site of the Chemung County Sheriff. Rather, they were posted on defendant's campaign Facebook page and another Internet website. Under these circumstances, defendant cannot rely on absolute immunity (compare Charlie's at the Fair, LLC v. State of New York, 135 A.D.3d 1042, 1044–1045, 23 N.Y.S.3d 411 [2016] ). Defendant also asserts that his Facebook posting constituted nonactionable opinion. As alleged in the complaint, the Facebook posting stated, "this ‘is’ definitely about politics, and greed which often go hand in hand. Making over $200,000 a year and pilfering free gas from taxpayers, it's unacceptable and as an elected official I'm going to call it as I see it." According to defendant, this Facebook posting was nonactionable opinion because it was supported by facts and was in response to plaintiff's attack on his credibility. We disagree. The statement that plaintiff was "pilfering free gas from taxpayers" is "susceptible to a defamatory meaning, inasmuch as [it] convey[s], at a minimum, serious impropriety and, at worst, criminal behavior" ( Loder v. Nied, 89 A.D.3d 1197, 1200, 932 N.Y.S.2d 546 [2011] ; Greenberg v. Spitzer, 155 A.D.3d 27, 47–48, 62 N.Y.S.3d 372 [2017] ; cf. Baker v. Galusha, 114 A.D.3d 1124, 1124–1125, 981 N.Y.S.2d 198 [2014] ). Such statement also "has a precise meaning that is capable of being proven true or false" ( Rabushka v. Marks, 229 A.D.2d 899, 902, 646 N.Y.S.2d 392 [1996] ). As such, Supreme Court correctly concluded that this statement was actionable.
Finally, defendant argues that plaintiff failed to establish actual malice. As a public figure, plaintiff must prove by clear and convincing evidence that defendant made the alleged defamatory statements with actual malice – i.e., "with knowledge that [they were] false or with reckless disregard of whether [they were] false or not" ( Kipper v. NYP Holdings Co., Inc., 12 N.Y.3d 348, 353–354, 884 N.Y.S.2d 194, 912 N.E.2d 26 [2009] [internal quotation marks and citation omitted]; see Freeman v. Johnston, 84 N.Y.2d 52, 56, 614 N.Y.S.2d 377, 637 N.E.2d 268 [1994], cert denied 513 U.S. 1016, 115 S.Ct. 576, 130 L.Ed.2d 492 [1994] ). The complaint alleged that defendant published the false statements and that they "were made in bad faith, with reckless disregard for the truth" and "tend[ed] to subject plaintiff to public contempt, ridicule, aversion, and disgrace." In view of these allegations, as well as the specific statements at issue, we are satisfied that plaintiff sufficiently pleaded malice (see Kotowski v. Hadley, 38 A.D.3d 499, 500, 833 N.Y.S.2d 103 [2007] ). Furthermore, under the circumstances of this case, discovery is necessary to allow plaintiff to explore defendant's knowledge and motivation for making the alleged defamatory statements (cf. Volgstadt v. Jamestown Scrap Corp., 207 A.D.2d 966, 966, 616 N.Y.S.2d 830 [1994] ).
Garry, P.J., Mulvey and Pritzker, JJ., concur.
ORDERED that the order is affirmed, with costs.