Opinion
23823/04.
Decided December 31, 2007.
Defendants move seeking an Order granting them summary judgment over plaintiff. Defendants contend that the instant action alleging defamation must be dismissed inasmuch as the allegedly defamatory statement made and/or attributable to defendants was substantially true and/or qualifiedly privileged. Plaintiff opposes the instant motion asserting that defendants to the extent that defendants published a statement they knew to be false, they defamed the plaintiff and that said statement was not subject to any privilege. Plaintiff cross-moves seeking an Order granting him partial summary as to liability. Plaintiff seeks summary judgment for the very same reasons he opposes defendants' motion for summary judgment. Plaintiff also seeks an Order striking defendant's answer for their purported failure to provide the names of the witnesses defendants have used to support their motion for summary judgment. Defendants oppose plaintiffs' motion for summary judgment for the very same reasons they seek summary judgment. Defendants oppose plaintiff's motion seeking to have defendants answer stricken asserting that while defendants never actually exchanged the names of the witnesses at issue, plaintiff was well aware that these individuals were witnesses in the within action.
For the reasons that follow hereinafter defendants' motion is hereby granted and plaintiff's cross-motion is hereby denied as moot.
The instant action is for alleged defamation. Within his complaint, plaintiff alleges that on November 8, 2003, defendant JACKIE ANDERSON (Anderson), a member of defendant RIVERBAY CORPORATION's (Riverbay) Board of Directors, published an article in defendant CO-OP CITY TIMES' (Times), a newspaper published by Riverbay. It is alleged that Anderson authored the article at issue titled "How The Riverbay Board Fell Apart! Part 1, Conflicts of Interest." Said article stated that plaintiff, treasurer of Riverbay, had been "removed" from said position for "taking money," which constituted a "major violation." Plaintiff alleges that the statement within said article asserting that he was "removed from the position of treasurer of the Riverbay Corporation by a vote from the board," is false and was published with knowledge of its falsity. Plaintiff asserts that said article was negligently published and/or was published with reckless disregard of its accuracy. As a result of the publishing of the article plaintiff alleges that he was defamed insofar as said article accuses him of dishonesty and implies that he was responsible for theft or misuse of money. As such, plaintiff alleges that he has suffered contempt, ridicule, aversion and disgrace and his reputation in the community has been damaged.
In support of the instant motion defendants submit a portion of plaintiff's deposition transcript wherein he testified, in pertinent part, as follows. Plaintiff authored a letter dated September 29, wherein he thanked Nat Weiss (Weiss) for an educational contribution, in the amount of $250, made by Weiss to the education of plaintiff's daughter. The contribution was the result of a discussion Weiss had with Cooperator's Appeal Committee where Weiss stated that he was charitable and contributed to education and different charitable organizations. Thereafter, Marie Heath (Heath), a board member, gave plaintiff an envelope and stated that it was from Weiss. The envelope contained a check. Upon discovering that it was against regulations to accept the check, plaintiff returned the same to Weiss. Plaintiff told Riverbay about the check and thereafter resigned as treasurer. An executive meeting was held where the letter and its contents thereof were discussed. There was discussion as to how the receipt of money by a board member would be viewed. It was agreed that plaintiff would return the money so as to quell any issue of impropriety. Plaintiff was not forced to resign but did so to avoid impropriety and so as not have anyone think he was an improper person. On November 17, 2003, plaintiff wrote an email to Miss Filizzola, wherein he apologized for the situation.
Defendants and plaintiff have chosen to submit portions of deposition transcripts rather than submit the same in their entirety, a practice this Court abhors. To the extent that this practice offers nothing short of a disjointed picture, the recitation of the facts extrapolated from said transcripts may and does come across as disjointed.
Defendants submit a portion of Anderson's deposition transcript wherein she testified, in pertinent part, as follows. Anderson and other board members were shown documents regarding plaintiff. Some members wanted him terminated, but it was agreed that plaintiff should resign instead. Plaintiff was not removed, he was asked to resign, which to Anderson is akin to removal. While the by-laws have a procedure for removal of a board member, a vote was brought to the table and it was agreed that plaintiff would resign. Anderson characterized it as forceful resignation, meaning that she voted on forcing plaintiff to resign. Anderson authored an article in the Times on a weekly basis.
Defendants submit a portion of Riverbay's deposition transcript wherein William Stuttig (Stuttig) testified, in pertinent part as follows. The Times is a weekly newspaper, which is circulated to all residents of Co-op City. As such, approximately 15,000 people receive the same. Some former residents, business people, and associates of the area also receive the Times.
Defendants submit an affidavit from Al Shapiro (Shapiro) wherein he states, in pertinent part, the following. Shapiro is the first vice president of Riverbay's board of directors. Riverbay owns and operates a residential community known as Co-op City and also publishes a community newspaper titled the Times. In October 2003, Shapiro was president of Riverbay and plaintiff was treasurer. On September 29, 2003, plaintiff delivered a letter to RiverBay's board of directors along with a check from Weiss made out to plaintiff in the amount of $250 and a money order made out to the St. Mary Star of the Sea School. Within his letter plaintiff explains that he had received the aforementioned check from Weiss, a resident of Co-op City, and had applied the same to pay for his daughter's school related expenses. Based upon the contents of plaintiff's letter, it appeared that he had violated Riverbay Board Resolution No. 83-34, which among other things, prohibited members of the board from accepting gifts from residential or commercial tenants. On October 8, 2003, the board held an executive session following its regular meeting where the contents of plaintiff's letter were addressed. It was decided that plaintiff should not retain his position as treasurer. Because the Board cannot record an official vote at an executive session, plaintiff was asked to resign and issue an apology. On November 14, 2003, plaintiff tendered a written resignation and on November 17, tendered a written apology. Had plaintiff not resigned, he would have been officially removed.
Annexed to Shapiro's affidavit, defendants' submit a host of documents, plaintiff's letter, the check he received from Weiss, the money order referred to by Shapiro, a copy of resolution # 83-34, plaintiff's resignation letter and his subsequent apology. Said documents are not certified, sworn, and no foundation for the same's admission is laid.
Both defendants and the plaintiff submit a host of documentary evidence which is in completely inadmissible form. Accordingly, the Court will only mention said evidence to point out its inadmissibility but shall not describe, discuss, or consider the same.
Defendants submit eight affidavits. The affidavits are from Alonzo Newton, Iris Baez, Oscar Alvarado, Carmen Howell, Saul Weber, Letitia Morales, Othelia Jones, and Denise Grant. All the individuals just mentioned are members of Riverbay's board and within their affidavits, which are nearly identical, they reiterate the contents of Shapiro's affidavit with regard to plaintiff's letter dated September 29, 2003, the executive meeting wherein it was decided that plaintiff resign and apologize, and plaintiff's resignation and apology.
Defendants submit some handwritten documents purportedly memorializing the executive session whereat plaintiff was asked to resign. The same are not certified, sworn, and no foundation for the same's admission is laid.
In opposition to the defendants' motion and in support of his motion for summary judgment, plaintiff submits several documents: a copy of a Time's article dated November 8, 2003, a copy of two resolutions, a copy of Riverbay's by-laws, a copy of plaintiff's resignation, and a copy of a Time's article dated November 15, 2003. Said documents are not certified, sworn, and no foundation for the same's admission is laid.
Plaintiff submits portions of Stuttig's deposition transcript, already submitted by defendants and additional portions, wherein he testified, in pertinent part as follows. Stuttig was associate editor with the Times. Management was allowed to publish an article in the times as was the board under a section called viewpoint. Back in 2003, there was a policy at the Times to have the legal department review any content for publication within the Times, if the same was a personal attack or accusation. With regard to the article at issue, upon receipt of the same from Anderson, Sttutig requested that the same be reviewed by the legal department. Stuttig showed the article to Miss Filizzola who asked Anderson to make some changes. Anderson's articles were routinely the subject of review by the legal department.
Plaintiff submits the portion of his deposition transcript, already submitted by defendant.
Plaintiff submits a copy of Anderson's deposition transcript, which includes the portion already submitted by defendants, wherein besides testifying to what was already discussed she testified, in pertinent part, as follows. Anderson was on Riverbay's board of directors from 1997 through 2003. In 2003, Anderson ran for reelection on a slate or group with common interests and who agreed with the viewpoints she would publish in the Times. Anderson and the aforementioned group were also united in their goal to get rid of the Marion Scott Management Realty (Realty), who managed Co-op city since 1999. Realty had been managing Co-op City since 1999 and Anderson assistant treasurer at the time had voted to have Realty manage Co-op City. Plaintiff was the treasurer who was elected to the board while Anderson was already on the board. Riverbay's by-laws, which Anderson received upon being elected to the board, had a procedure for removing an officer and/or director from the board and removal was warranted for violation of the by-laws. Plaintiff was ultimately removed as treasurer from the board because he accepted a check from Weiss, a resident at Co-op City. By removal Anderson meant that by a vote of the board at an executive session, he was forced to tender his resignation. Anderson doesn't recall whether plaintiff was given notice that the board intended to remove him or force him to resign. Anderson does not recall seeing a resolution regarding the same.
While on the board, Anderson was aware of a group of people named the Marion Scott Majority (Majority), who would vote in favor of all matters benefitting Realty without researching or verifying the same. At times Anderson would vote with the Majority. During her first year on the board she considered herself part of the majority but her third year, she no longer felt the same. When Anderson lost re-election to the board, she ran on anti-Realty slate and lost. Plaintiff was not part of the majority slate. During her first tenure with the board, Anderson worked for Realty as a junior accountant. Realty had been hired as manager of Co-op City about a year prior to Anderson's employment with Realty and Anderson had voted to hire Realty. She was employed by Realty for nine months and resigned upon learning that according to Riverbay's by-laws it was a conflict of interest to sit on the board while employed by Realty. Anderson also resigned due to her disagreement with the way Realty was managing Co-op City. In connection with her employment with Realty she had to give testimony pursuant to an investigation being conducted by the New York State Inspector General. Said investigation was focused on bribery related to Realty in connection with its management of Co-op City. Anderson also developed negative feelings regarding the Majority, felling that some of them were liars, cheats, and dishonest people. She voiced her opinions regarding the Majority in the viewpoint articles she published in the Times. With regard to Anderson's viewpoint articles, she along with other board members were told to refrain from defaming anyone therein. Her articles had been subjected to review by Riverbay's legal department prior to publication and she had been accused of lying within said articles by other board members.
On November 8, 2003, Anderson published a viewpoint article in the Times wherein she stated that plaintiff had been removed from his position as treasurer from the board. The article did not state that plaintiff had resigned insofar as Anderson equated removal with being forced to resign. Anderson described a resolution by the board dated October 14, 2003. Said resolution was for purposes of deciding whether to accept plaintiff's resignation. She had not seen said resolution prior to publishing her article.
Plaintiff submits a portion of Riverbay's deposition transcript wherein Rozann Boone testified, in pertinent part as follows. Neither she nor Riverbay's legal department cross checked the minutes created at meetings to determine if what was published in the Times was accurate.
The Law and Standard on Summary Judgment
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 161 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993).
Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).
It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated
[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).
Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Thus, while evidence inadmissible when the motion is made and inadmissible when the case is tried, is insufficient to raise an issue of a fact precluding summary judgment; inadmissible evidence, whose inadmissability has been excused and which may likely be admissible at trial, may be considered. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972). In Phllips, for example, the court discussed that in lieu of affidavits from actual witnesses, detailing the substance of their testimony, affidavits listing witnesses' names, the substance of their testimony, and how said witnesses acquired their knowledge, could be considered and could raise an issue of fact sufficient to defeat summary judgment. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witnesses' testimony and that witnesses' testimony created an issue of fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991).
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):
Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcok, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 511 NYS2d 833, 503 NE2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 34,1 357 NYS2d 478, 313 NE2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see, Schoen v. Rochester Gas Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra). See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001). Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).
Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).
A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano, 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).
Defamation
An action for defamation is one where a defendant is accused of making a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.
Foster v. Churchill, 87 NY2d 744, 751 (1996); See also, Manfredonia v. Wiess, 37 AD3d 286 (1st Dept. 2007); Dillon v. City of New York, 261 AD2d 34 (1st Dept. 1999); Fairley v. Peekskill Star Corporation, 83 AD2d 294 (2nd Dept. 1981). The elements of a defamation action are (1) the publishing of a false statement to a third party; (2) publishing said statement without authorization or privilege; (3) fault, judged at a minimum by a negligence standard; and (4) special harm or defamation per se. Dillon v. City of New York, 261 AD2d 34 (1st Dept. 1999); Salvatore v. Kumar, 2007 WL 3307778 (2nd Dept. 2007). Special harm or special damage means the loss of something having economic or pecuniary value. Liberman v. Gelstein, 80 NY2d 429 (1992).
Special damages need not be pled or proven when the cause of action is for defamation per se. Id. Rinaldi v. Holt, Rinehart Winston, Inc., 42 NY2d 369 (1977); Donati v. Queens Ledger Newspaper Group, 240 AD2d 696 (2nd Dept. 1997). Slander per se is any oral statement which relate to any one of the following: statements charging plaintiff with a serious crime, statements that tend to injure another in his trade, business or profession, statements that accuse plaintiff of having a loathsome disease, or statements that impute that a woman is unchaste. Id. Libel per se is a writing which exposes plaintiff to "public contempt, ridicule, aversion or disgrace, or induce[s] an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society." Rinaldi v. Holt, Rinehart Winston, Inc., 42 NY2d 369, 379 (1977).
A plaintiff seeking to recover on a cause of action asserting defamation per se inasmuch as a defendant's statements have hurt his trade, business or profession, must prove that the defamation is of the kind incompatible with his business, trade, office, or profession. Liberman v. Gelstein, 80 NY2d 429 (1992). The statement must be in reference to a matter of significance and importance for that purpose. Id.
In evaluating whether a statement is defamatory the words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction
Dillon v. City of New York, 261 AD2d 34, 38 (1st Dept. 1999); See also, Aronson v. Wiersma, 65 NY2d 592 (1985). Accordingly, whether words are defamatory present a question of law for the court to decide in the first instance. Id. To that end, courts will not strain to find defamation where none exists. Dillon v. City of New York, 261 AD2d 34, (1st Dept. 1999); Fairley v. Peekskill Star Corporation, 83 AD2d 294 (2nd Dept. 1981). Loose, figurative, or hyperbolic statements, even if deprecating are not actionable. Dillon v. City of New York, 261 AD2d 34 (1st Dept. 1999).
With regard to defenses to defamation, truth provides a complete defense to an action asserting defamation. Fleckenstein v. Friedman, 266 NY 19 (1934); Dillon v. City of New York, 261 AD2d 34 (1st Dept. 1999); Proskin v, Hearst Corporation, 14 AD3d 782 (3rd Dept. 2005); Love v. William Morrow and Co., Inc., 193 AD2d 586 (2nd Dept. 1983); Smith v. United Church Ministry, Inc., 212 AD2d 1038 (4th Dept. 1995); Schwatzberg v. Mongiardo, 113 AD2d 172 (3rd Dept. 1985). Substantial truth, will also suffice to defeat an action for defamation. Id.; Leibowitz v. St. Luke's Roosevelt Hospital Center, 281 AD2d 350 (1st Dept. 2001); Fairley v. Peekskill Star Corporation, 83 AD2d 294 (2nd Dept. 1991). On the issue of substantial truth as a bar to defamation the court in Fleckenstein, articulated what it called a workable test, namely whether the statement as published would have a different effect on the reader or listener than the truth as pleaded. Fleckenstein v. Friedman, 266 NY 19 (1934). The rationale being that [w]hen the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel, no legal harm has been done.
Id. at 23.
An absolute privilege also bars a claim for defamation and is in essence a license to defame for it renders one who defames immune to suit resulting from acts defaming another. Liberman v. Gelstein, 80 NY2d 429 (1992); Stukuls v. State of New York, 42 NY2d 272 (1977). Said privilege however is reserved for those who are considered principal executives of a State or local government or who are entrusted by law with administrative or executive policy-making responsibilities of considerable dimension. Id.
A conditional privilege also bars a claim for defamation. Id. A conditional privilege is one only available in the absence of malice. Id. As such, under certain circumstances, an otherwise defamatory statement is immune from liability if the same is qualifiedly privileged, e.g., the common interest privilege. Foster v. Churchill, 87 NY2d 744 (1996); Liberman v. Gelstein, 80 NY2d 429 (1992); Stukuls v. State of New York, 42 NY2d 272 (1977); Dillon v. City of New York, 261 AD2d 34 (1st Dept. 1999); Present v. Avon Products, Inc., 253 AD2d 183 (1st Dept. 1999). Generally, an action for defamation is barred when the common-interest privilege applies. Id. With regard to the common-interest privilege, the court in Stukuls, stated
[a] communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contained criminating matter which, without this privilege, would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation.
Stukuls v. State of New York, 42 NY2d 272, 278-279 (1977). The rationale underpinning the privilege is that absent abuse, the flow of information between people having a common interest should not be impeded. Foster v. Churchill, 87 NY2d 744 (1996); Liberman v. Gelstein, 80 NY2d 429 (1992). Once a defendant tenders evidence demonstrating that his statements are conditionally privileged, plaintiff must then come forward with evidence establishing that said statements were motivated solely by express malice or ill will. Stukuls v. State of New York, 42 NY2d 272 (1977). The court in Liberman, clarified and expanded on what is meant by malice in the context of a defamation action and what a plaintiff must establish in order to overcome the common interest privilege. Liberman v. Gelstein, 80 NY2d 429 (1992). The court went on to explain that with regard to a defamation action two kinds of malice will suffice to defeat the privilege, common-law malice and the standard stated by the Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Id. As such, common-law malice is ill will or evil intent as the motive for the defamatory statement and actual malice is statements that were made with a high degree of awareness that said statements were probably false. Liberman v. Gelstein, 80 NY2d 429 (1992); Foster v. Churchill, 87 NY2d 744 (1996); Schwartzberg v. Mongiardo, 113 AD2d 172 (3rd Dept. 1985). With regard to actual or constitutional malice, a plaintiff seeking to overcome the privilege asserting actual malice, must tender evidence to demonstrate that defendant entertained serious doubts as to the truth of the statement or that he made the same while highly aware that the same was probably false. Liberman v. Gelstein, 80 NY2d 429 (1992). The standard is a subjective one, focusing on the speaker's state of mind. Hoesten v. Constance Best, 34 AD3d 143 (1st Dept. 2006). As such, actual malice is measured not by whether a reasonably prudent person would have published or would have investigated prior to publishing a statement but whether the defendant actually believed that the statement was false. Goldblatt v. Seaman, 225 AD2d 585 (2nd Dept. 1996). Not knowing that something is true is not at all akin to knowing to a high degree of probability that something is false. Id.; Foster v. Churchill, 87 NY2d 744 (1996). With regard to common-law malice, a plaintiff seeking to overcome the privilege by asserting common-law malice must demonstrate that defendant was solely motivated by a desire to injure the plaintiff. Present v. Avon Products, Inc., 253 AD2d 183 (1st Dept. 1999). Ill-will or spite must be actually proven and will not be found when based on surmise and conjecture. Dillon v. City of New York, 261 AD2d 34 (1st Dept. 1999). In fact, conclusory allegations, surmise, conjecture, and suspicion are insufficient to defeat the common-interest privilege. Ferguson v. Sherman Square Realty Corp., 30 AD3d 288 (2nd Dept. 2006); Kamerman v. Kolt, 210 AD2d 454 (2nd Dept. 1994). With regard to common-law malice, If the intent to hurt the plaintiff was a just reason for the defamatory statement and the statement was also made to further the interest protected by the privilege, the statement is not actionable. Present v. Avon Products, Inc., 253 AD2d 183 (1st Dept. 1999); Liberman v. Gelstein, 80 NY2d 429 (1992).
The common interest privilege has been found to apply to defamatory statements regarding an employee's job performance made at a meeting of a company's board of directors. Id. The privilege has also been applied to defamatory statements made by a board of governors in a tenant's association regarding a building's landlord, Liberman v. Gelstein, 80 NY2d 429 (1992), to statements made by employees to an employer regarding another employee's misconduct and to the very same statements made when to the police or the district attorney, Present v. Avon Products, Inc., 253 AD2d 183 (1st Dept. 1999).
Another well recognized conditional privilege is the public official privilege. With regard to said privilege the Supreme Court stated that the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
Rinaldi v. Holt, Rinehart Winston, Inc., 42 NY2d 369, 379 (1977), quoting, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Accordingly, a defamatory statement made regarding a public official is immune from liability unless, much like the common interest privilege, plaintiff demonstrates that the same is false and it was made with either actual or common-law malice. Id.
Yet another conditional privilege is the limited issue public figure privilege which is based upon the status of the plaintiff, the burden of proving said status resting on the defendant. Fairley v. Peekskill Star Corporation, 83 AD2d 294 (2nd Dept. 1981). A plaintiff is considered a limited issue public figure, and thus a defendant's defamatory statements regarding the same are immune from liability if the plaintiff has "voluntarily acted to influence the resolution of a public controversy." Fairley v. Peekskill Star Corporation, 83 AD2d 294, 298 (2nd Dept. 1981). In order for the privilege to apply, there must a controversy, and the same must not merely be a matter of public interest, but it must be a real dispute whose outcome affects the general public or some segment in a substantial way. Id. The controversy must be addressing some specific question rather than a general interest or concern. Id. Like the common interest privilege and the public figure privilege, the limited use public figure privilege can be overcome by proof of actual or common-law malice. Id.
Provided that the facts upon which it is based is set forth, or there is no implication that the same is based upon undisclosed facts, an opinion, whether false or libelous is not actionable. Id. Steinhilber v. Alphonse, 68 NY2d 283 (1986). However, an opinion regarding criminal conduct is only qualifiedly privileged and the privilege is overcome by the establishing of actual or common-law malice. Id.
A complaint alleging defamation, but failing to allege the precise words allegedly giving rise to the cause of action and failing to list the time, place and manner of publication, is defective and must be dismissed. Khan v. Reade, 7 AD3d 311 (1st Dept. 2004); Gardner v. Alexander Rent-A-Car, Inc., 28 AD2d 667 (1st Dept. 1967).
Discussion
Defendants motion seeking summary judgment is hereby granted insofar as the written statements made by Anderson were qualifiedly privileged under the common interest privilege. A review of plaintiff's complaint, all the evidence submitted in connection with the instant motion and cross-motion, and all arguments proffered, evince that the point of contention, the alleged defamatory language at issue, is Anderson's assertion that plaintiff was removed from his position as treasurer on Riverbay's board. Accordingly, the remainder of the statement is not at issue and the Court shall not endeavor to discuss the same. It is also worth noting that for the very same reasons just cited, the Court notes that it is undisputed that Anderson published the article at issue and also made the statements alleged.
The evidence tendered by defendant, in particular Shapiro's affidavit, establishes the following. On September 29, 2003, plaintiff declared that he had accepted money from Weiss a shareholder. To the extent that plaintiff was treasurer, Shapiro avers that said act was a violation of the board's by-laws, in particular board resolution # 83-34, which among other things, prohibited members of the board from accepting gifts from residential or commercial tenants. Thereafter, according to Shapiro, on October 8, 2003, the board held an executive session following its regular meeting where the contents of plaintiff's letter were addressed. It was decided that plaintiff should not retain his position as treasurer. Plaintiff was asked to resign and issue an apology. On November 14, 2003, plaintiff tendered a written resignation and on November 17, tendered a written apology. Had plaintiff not resigned, he would have been officially removed. The limited portion of Anderson's deposition testimony submitted by defendants establishes that Anderson voted upon plaintiff's resignation which to her was akin to removal. Anderson believed that plaintiff was forced to resign and makes no distinction between removal and forced resignation. The portion of plaintiff's deposition transcript submitted by defendants establishes that plaintiff voluntarily resigned so as to avoid any appearance of impropriety.
Based on the foregoing, defendants' motion seeking summary judgment insofar as Anderson's statement was substantially true is denied since defendants have failed to establish prima facie entitlement to summary judgment on that issue. In fact, the very evidence tendered by defendants on that issue raises an issue of fact precluding summary judgment. With regard to substantial truth, the test is whether the statement as published would have a different effect on the reader or listener than the truth as pleaded. Defendants don't deny that Anderson, within her viewpoint article, stated that plaintiff was removed from the board. Defendants don't deny that said statement was a mis-characterization of the truth, since by all accounts plaintiff resigned. Defendants also don't deny that to state that someone was removed or terminated from a position, if not true, is defamatory. Instead, defendants argue that said statement was substantially true insofar as plaintiff was forcefully removed from the board. Defendants argue that to state that someone was removed from a position has no different effect upon the reader or listener than to state that said person was forced to resign. Both statements defendants argue give the impression of an involuntary ouster. The Court agrees with defendants and if the evidence, without any factual dispute, bore out defendants contention that plaintiff was forced to resign, the inquiry would end there. However, the evidence submitted by defendants, namely plaintiff's own testimony, evinces that plaintiff denies he was forced to resign and that instead voluntarily resigned. As such, insofar as a voluntary resignation is not akin to removal and would not have the same effect on the listener or reader, defendants' defamatory statement is not substantially true. Accordingly there is an issue of fact created by defendants' own evidence, namely whether plaintiff's resignation was voluntary or forceful. As such, defendants fail to establish prima facie entitlement to summary judgement on the issue of substantial truth.
Defendants' application for summary judgment based upon the limited use public figure privilege is hereby denied insofar as defendants have failed to establish prima facie entitlement to summary judgment on that issue. A plaintiff is considered a limited use public figure, and thus a defendant's defamatory statements regarding the same are immune from liability, if the plaintiff has voluntarily acted to influence the resolution of a public controversy. In order for the privilege to apply, there must be a controversy, and the same must not merely be a matter of public interest, but must be a real dispute whose outcome affects the general public or some segment in a substantial way. Based upon the evidence proffered by defendants, this Court cannot conclude that the plaintiff is a limited use public figure. Nothing proffered establishes that the events herein, namely plaintiff's acceptance of a check from Weiss, his resignation thereafter, voluntary or otherwise, and Anderson's article were matters of a public controversy or concern. Moreover, assuming that the events herein were deemed a controversy, no evidence has been tendered establishing that the same would have a substantial effect on the shareholders at Co-Op City. As such, defendants have failed to establish the applicability of the privilege and have thus failed to establish prima facie entitlement to summary judgment on that issue.
With regard to defendants' application seeking summary judgment on the basis of the common interest privilege, defendants have established prima facie entitlement to summary judgment insofar as they have demonstrated the applicability of the privilege to the statement published by Anderson. The common interest privilege applies to any communication made in good faith when the same is related to any subject in which all parties to the conversation have a corresponding interest or duty. The privilege bars any claim for defamation and can only be overcome by the establishment of actual or common law malice. Once a defendant tenders evidence demonstrating that his statements are conditionally privileged, plaintiff must then come forward with evidence establishing that said statements were motivated solely by express malice or ill will or were made with a high degree of awareness that said statements were probably false. In this case, the evidence tendered by defendants demonstrates that Anderson and plaintiff were both on Riverbay's board. Stuttig testified that the viewpoint, the publication, wherein Anderson published her statement regarding the plaintiff, circulated to all Co-op City residents. Shapiro testified that plaintiff had violated Riverbay's by-laws and as such he was asked to resign. To the extent that Anderson, and the board for that matter, were fiduciaries to Co-Op City's shareholders, the Court finds that Anderson had a duty to report the events regarding plaintiff's violations of the by-laws and the shareholders, who receive the Times, had an interest in receiving said information as the same pertained to those they elected to handle the administration of their residence. As such, defendants have established prima facie entitlement to summary judgment based upon the common-interest privilege.
Plaintiff's opposition fails to raise an issue of fact sufficient to preclude summary judgement. To the extent that the Court has found that the common interest privilege is applicable, a point that plaintiff does not strongly contend, it is incumbent upon plaintiff to establish actual or common-law malice. With regard to actual or constitutional malice, a plaintiff seeking to overcome the qualified privilege asserting actual malice, must tender evidence demonstrating that defendant entertained serious doubts as to the truth of the statement or that he made the same while highly aware that the same was probably false. The standard is a subjective one, focusing on the speaker's state of mind and has nothing to do with whether a reasonable person would have believed the statement to be false (emphasis added). With regard to common-law malice, a plaintiff seeking to overcome the privilege must demonstrate that defendant was solely motivated by a desire to injure the plaintiff. Ill will or spite must be actually proven and will not be found when based on surmise and conjecture. If the intent to hurt the plaintiff was just one reason for the defamatory statement and the statement was also made to further the interest protected by the privilege, the statement is not actionable. In opposition to the instant motion and in support of his cross-motion, plaintiff tendered much of the same evidence tendered by defendant. In an effort to prove malice, plaintiff also relied heavily on a host of inadmissible documents such as board resolutions, Riverbay's by-laws, and an article published in the Times subsequent to the article at issue. Plaintiff also heavily relied upon Anderson's deposition testimony. Other than asserting that Anderson was motivated by spite and ill will, plaintiff's submission is bereft of any concrete evidence demonstrating the same. The portion of Anderson's deposition testimony submitted by plaintiff established several facts which plaintiff believes are important. Anderson testified that she had been previously employed by Realty while concomitantly serving on the board. She testified that she was not aware that working for Realty, who managed Co-Op City, whose board she served on, was a conflict of interest. She testified hat she disliked the Majority and was defeated by a slate organized by the same. Anderson further testified that she was present at the meeting and did in fact cast a vote on plaintiff's resignation. Anderson also identified a resolution evincing that the board allowed plaintiff to resign and did not remove him. Nothing submitted by plaintiff establishes that in publishing the defamatory article, Anderson was solely motivated by common-law malice, namely, spite, ill will, or hate. At best plaintiff's evidence demonstrates that the statement was made with a disregard to actual facts. However, this is by no means evidence of hate or spite.
Additionally, the evidence submitted by plaintiff does not establish that Anderson acted with actual malice. Nothing establishes that when Anderson made the statement herein she did so with serious doubts as to the truth of the statement or that she made the same while highly aware that the same was probably false. The opposite is true. Anderson's testimony demonstrates her unshakable belief that plaintiff was removed rather than being allowed to voluntarily resign. She consistently testified that in her opinion removal and forced resignation were one in the same and that plaintiff was forced to resign. The standard for purposes of actual malice is a subjective one and as such, in order to defeat the privilege, plaintiff has to tender evidence demonstrating that Anderson's belief was other than what she testified to. As such, irrespective of what actually happened, removal or resignation, and what the inadmissible documents may show with respect to the same, the relevant inquiry is whether plaintiff proffers any evidence demonstrating Anderson had a high awareness that her belief that plaintiff was removed was probably false. Plaintiff offers nothing to controvert the same.
Accordingly, to the extent that defendants establish that the statement herein was privileged as per the common interest privilege and plaintiff fails to demonstrate actual or common-law malice, defendants' motion for summary judgment is hereby granted. Based on the foregoing, plaintiff's cross-motion is hereby denied as moot. It is hereby
ORDERED that plaintiff's complaint be dismissed with prejudice. It is further
ORDERED that defendants serve a copy of this Order with Notice of Entry upon plaintiff within thirty (30) days hereof.
This constitutes this Court's decision and Order.