Opinion
1183 CA 19–01398
02-07-2020
Seth OLNEY, Individually, and Doing Business as the Olney Place, Plaintiff–Respondent, v. TOWN OF BARRINGTON, John Griffin, as Code Enforcement Officer of Town of Barrington, and John Griffin, Individually, Defendants–Appellants.
BOYLAN CODE, LLP, ROCHESTER (ROBERT J. MARKS OF COUNSEL), FOR DEFENDANTS–APPELLANTS. LITTMAN & BABIARZ, ITHACA (PETER N. LITTMAN OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
BOYLAN CODE, LLP, ROCHESTER (ROBERT J. MARKS OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
LITTMAN & BABIARZ, ITHACA (PETER N. LITTMAN OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting that part of the motion seeking to dismiss the fifth cause of action as against defendant John Griffin, individually and as Code Enforcement Officer of Town of Barrington and as modified the order is affirmed without costs.
Memorandum: On appeal from an order that, inter alia, denied in part their motion to dismiss the second amended complaint, defendants contend that Supreme Court erred in denying the motion with respect to the first cause of action, for defamation, and the fifth cause of action, for negligence.
We reject defendants' contention that the court should have dismissed the first cause of action on the ground that the allegedly defamatory statements were true. "[S]ummary dismissal is appropriate under CPLR 3211(a)(7) when the defendant's evidentiary submissions ‘establish conclusively that plaintiff has no cause of action’ " ( Liberty Affordable Hous., Inc. v. Maple Ct. Apts., 125 A.D.3d 85, 87, 998 N.Y.S.2d 543 [4th Dept. 2015], quoting Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976] ), and it is well established that truth constitutes a complete defense to a defamation claim (see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 503, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984] ). Here, however, defendants' evidentiary submissions in support of their motion failed to conclusively "establish[ ] the truth of the specific libel [and slander] claimed by plaintiff " ( Russo v. Padovano, 84 A.D.2d 925, 926, 446 N.Y.S.2d 645 [4th Dept. 1981] [emphasis added]; see Stega v. New York Downtown Hosp., 31 N.Y.3d 661, 674, 82 N.Y.S.3d 323, 107 N.E.3d 543 [2018] ). Indeed, the "entire thrust and purport" of defendants' defense of truth in this case "is to establish ... the truth of a different charge than the one [alleged in the second amended complaint]," and a defense of truth "cannot stand" if it is "aimed at establishing the truth of a charge different from that [identified in the complaint]" ( Crane v. New York World Tel. Corp., 308 N.Y. 470, 478–479, 126 N.E.2d 753 [1955] [emphasis added] ). To the contrary, a "plea of truth ... must be as broad as the alleged libel [or slander] and must establish the truth of the precise charge therein made" ( id. at 475, 126 N.E.2d 753 [emphasis added] ), yet defendants do not assert that the precise charges identified in the second amended complaint are actually true. The court thus properly denied defendants' motion insofar as it sought to dismiss the first cause of action on the ground of truth.
Defendants' remaining grounds for dismissing the first cause of action are raised for the first time on appeal and are therefore not properly before us (see Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem. Hosp., Inc., 148 A.D.3d 1418, 1420, 49 N.Y.S.3d 792 [3d Dept. 2017] ; Levy v. Grandone, 14 A.D.3d 660, 662, 789 N.Y.S.2d 291 [2d Dept. 2005] ; Taub v. Amana Imports, 140 A.D.2d 687, 689, 528 N.Y.S.2d 884 [2d Dept. 1988] ). Defendants' reference in their notice of motion to the potential applicability of an "absolute and qualified privilege[ ]," without identifying the specific privilege or privileges upon which they sought to rely and without any legal argument to alert plaintiff or the court to the precise theory raised, was insufficient to preserve defendants' current reliance on the litigation privilege, the common interest privilege, and the governmental official privilege (see Kuriansky v. Bed–Stuy Health Care Corp., 73 N.Y.2d 875, 876, 538 N.Y.S.2d 233, 535 N.E.2d 286 [1988] ; see generally U.S. Bank N.A. v. DLJ Mtge. Capital, Inc., 33 N.Y.3d 84, 89, 98 N.Y.S.3d 530, 122 N.E.3d 47 [2019] ).
Finally, defendants contend that the fifth cause of action should be dismissed as duplicative of the first cause of action. Although that contention is unpreserved for appellate review (see Wolkstein v. Morgenstern, 275 A.D.2d 635, 637, 713 N.Y.S.2d 171 [1st Dept. 2000] ), it nevertheless presents a pure question of law appearing on the face of the record that could not have been avoided had it been raised in a timely manner (see Coscia v. Jamal, 156 A.D.3d 861, 864, 69 N.Y.S.3d 320 [2d Dept. 2017] ; see generally Stranz v. New York State Energy Research & Dev. Auth. [NYSERDA], 87 A.D.3d 1279, 1281, 930 N.Y.S.2d 136 [4th Dept. 2011] ). We therefore reach the merits of defendants' argument on this issue and conclude that the fifth cause of action as asserted against defendant John Griffin is duplicative of the first cause of action because the fifth cause of action as against Griffin is based on the same facts, alleges the same wrongs, and seeks the same relief as the first cause of action, which is asserted only against Griffin (see Themed Rests., Inc. v. Zagat Survey, LLC, 21 A.D.3d 826, 827, 801 N.Y.S.2d 38 [1st Dept. 2005] ). Indeed, a "defamation cause of action is not transformed into one for negligence merely by casting it as [such]," and in circumstances "in which plaintiff alleges an injury to his reputation as a result of statements made or contributed to by defendants, plaintiff is relegated to whatever remedy he might have under the law of defamation and cannot recover under principles of negligence" ( Colon v. City of Rochester, 307 A.D.2d 742, 744, 762 N.Y.S.2d 749 [4th Dept. 2003], appeal dismissed and lv. denied 100 N.Y.2d 628, 769 N.Y.S.2d 192, 801 N.E.2d 412 [2003] [internal quotation marks omitted]; see Iafallo v. Nationwide Mut. Fire Ins. Co., 299 A.D.2d 925, 927, 750 N.Y.S.2d 386 [4th Dept. 2002] ). We thus modify the order accordingly. The fifth cause of action as asserted against defendant Town of Barrington, however, is not duplicative of the first cause of action because the first cause of action is not asserted against the Town (cf. Colon, 307 A.D.2d at 744, 762 N.Y.S.2d 749 ).