Opinion
117438/05.
Decided September 17, 2007.
Motion sequences 006 and 007 are consolidated for disposition.
In this action for libel and slander brought by a correction officer employed by the New York City Department of Correction ("Department"), defendants move for summary judgment dismissing the amended complaint ("complaint"). The motions are granted for the reasons that follow.
It is undisputed that plaintiff, Jeannette Pinero, has been a correction officer since 1987, that her duties at all relevant times included the supervision of prisoners, and that she was required to carry a firearm to perform her job.
On December 19, 2004, the New York Post, which is owned by defendant NYP Holdings, Inc. ("Post"), published an article ("Post Article") written by defendant Rich Calder ("Calder").
The Post Article was published under the headline:
KERIK TAX BREAK'
IRS-dodging lover ducked discipline
The complaint alleges that the following statements in the Post Article were libelous:
A city correction officer romantically linked to Bernard Kerik when he was correction commissioner got away with breaking tax rules that led to more than 100 of her co-workers being arrested or fired in a 1990's scandal, The Post has learned.
Jeannette Pinero filed W-4 forms from 1992-1995 declaring 99 exemptions, a maneuver that increased her take-home pay and allowed her to delay paying income tax, city records show.
By listing 99 exemptions, the most allowed by law, Pinero was able to avoid having more than $60,000.00 withheld from her paychecks over a four-year period, estimated an accountant who reviewed some of Pinero's income information for The Post.
City officials said tax-secrecy laws prevent them from knowing whether Pinero, 41, still owes taxes. But they say they presume she eventually paid up because she was never prosecuted or disciplined.
The Post Article also reported that:
Five of the correction officers who were fired or disciplined claimed to the Post that Pinero's lack of punishment is just one of many examples of how Kerik selectively enforced laws and regulations while he was heading the department.
With respect to defendant Terrence Skinner ("Skinner"), the complaint alleges that on January 7 and 28, 2005, respectively, he made a slanderous statement that appeared in an article in The Chief ("Chief Article"), a publication for New York City employees, and a libelous statement in an Op Ed piece in the Chief ("Skinner Op Ed"). The following statement in the Chief Article allegedly libeled plaintiff:
. . . that while Mr. Kerik fired numerous employees who sought to avoid paying income taxes by listing 99 exemptions on their returns, he took no disciplinary action for doing so against either Mr. Picciano or Jeanette [sic] Pinero, an officer whom Mr. Kerik has reportedly acknowledged during a court deposition was his mistress while he worked at Correction.
The Chief Op Ed statement allegedly defaming plaintiff was:
How about the DOI explaining how Picciano and Jeannette Pinero got away scot free for their involvement in the tax scandal, yet others were ferociously prosecuted for their involvement.
Finally, the complaint alleges, obliquely, that Skinner was a defamatory source for the Post Article.
Mr. Kerik, who was head of the Department, and had also served as a Commissioner of the New York City Police Department, was tapped by President George W. Bush to head the U.S. Department of Homeland Security in December 2004. The nomination quickly drowned in a maelstrom of scandal. Plaintiff admits that she was romantically involved with Mr. Kerik, while he was Commissioner of the Department. Plaintiff also testified at her deposition that in May 1996, she changed her W-4 on file with the Department from 0 withholding exemptions to 99, in anticipation of a retroactive pay check. She stated at her deposition that the change was in effect for one month, until June 1996, when she filed a new W-4 claiming 0 exemptions. The statement that plaintiff claimed 99 exemptions on her W-4 forms from 1992 to 1995 turned out to be false, and there is no evidence in the record that plaintiff owed taxes that she did not pay.
However, it is undisputed that Calder wrote the Post Article in reliance upon various sources, which he believed to be true, including the following:
1. Several December 2004 newspaper articles in the New York Times, the Washington Post and the New York Daily News, mainly concerning Mr. Kerik. Two of the Daily News articles contained references to plaintiff, although her name was not mentioned, alleging that Kerik blocked a promotion of a jail supervisor for reprimanding a female officer whom Kerik had dated and that Kerik had carried on "simultaneous extramarital liaisons with two women" in a secret downtown apartment.
2. Three December 2004 articles in New York Newsday and Bulletin News Network, regarding a federal lawsuit brought by Eric DeRavin, III, ("DeRavin Case"), a jail supervisor, which claimed that he was denied a promotion at the Department because he reprimanded plaintiff, with whom Kerik was having a relationship. The articles reported that plaintiff lost a sexual harassment complaint she filed with the Department against DeRavin in 1996.
3. December 2004 articles in the Daily News whichreported that some said that Kerik had a ten-year extra-marital relationship with plaintiff, that many close to Kerik thought in the 1990s that he would marry her, and that two lawsuits were brought against the City by correction officers who claimed that Kerik retaliated against them after they crossed plaintiff.
4. The pleadings and an administrative decision in Department of Correction v. Reed, dated April 5, 2001, which found that claims of sexual misconduct made by Correction Officer Mildred Gonzalez, a friend of plaintiff's, involved a "a gross abuse of power and misuse of the EEO and disciplinary processes to protect a favored employee." Officer Reed testified during the hearing that "Officer Gonzalez had a direct line to Commissioner Piniero [sic] who worked in his office." See, Calder Affidavit, Exh. D, p. 27. The sexual harassment charges against Officer Reed were dismissed.
5. An interview with Mr. Reed, who stated that his lawsuit against the City had been settled and that it was common knowledge in the Department that Pinero received special treatment because of her relationship with Kerik.
6. A conversation with Nitchwaidumela Bey, a former Department of Correction Officer, who had been terminated for alleged tax violations and was a plaintiff in a federal suit, Kelly v. City of New York (" Kelly"), against the Department for discriminatory firing. The suit claimed that a correction officer who had an affair with Kerik, and others who were close to him, were not terminated in similar circumstances. Mr. Bey referred Calder to his lawyer, Irene Donna Thomas ("Thomas").
7. A 1997 City press release that Calder obtained from the DOI, reporting that 100 current and former City employees, including 74 employees of the Department, had been charged with crimes for evading taxes, had been suspended, and were to be disciplined, after an investigation ("Investigation") by the City Department of Investigation ("DOI") and other City and New York State agencies. The press release reported that during the investigation, the DOI asked the New York City Office of Payroll Administration ("OPA") to prepare a list of every City employee "who claimed an unusually large number of exemptions (typically 98 or 99 allowances) on his or her withholding certificate. . . ." Then Mayor Guiliani was quoted as saying, "[a]ll citizens, especially Correction Officers with a sworn duty to serve and protect, have an obligation to pay their taxes. Any type of activity designed to evade taxes will not be tolerated."
8. Three New York Times articles from 1996 and 1997 concerning the Investigation and prosecution of City employees, including correction officers, who took illegal exemptions.
9. A Daily News article, dated April 28, 2003, which reported that John Picciano, Kerik's former chief of staff and his current partner at the Guiliani consulting firm, declared 99 exemptions, but went unpunished unlike other members of the Department. The article also quoted Michael Caruso, DOI's Inspector General, and Kerik, stating that wilfully supplying false information on a W-4 is a crime and conduct unbecoming a correction officer.
10. A conversation with Thomas, the plaintiffs' lawyer in Kelly, who also represented the plaintiffs in a parallel action, Bolden v. City of New York (" Bolden").
11. The pleadings in Bolden and Kelly, provided by Thomas, as well as a document she had obtained in discovery in the two actions, which she described as a computerized list of correction officers who had taken forty or more exemptions during the years 1992 through 1995. The document heading contained the names of DOI and OPA and was entitled "Employees With 40 or More Tax Exemptions — Correction" ("1800 Report"). The 1800 Report listed "J. Pinero," identifying her by address, social security number and date of birth, as having claimed 99 exemptions during the years 1992 through 1995. J. Pinero's annual income for each of the four years was included in the 1800 Report. Thomas said that a redacted copy of the 1800 report had been submitted in support of the City's motions for summary judgment in Kelly and Bolden.
12. The 1800 Report.
13. Communication with the DOI, which declined to comment on Pinero or the 1800 Report, but confirmed that it was created in connection with the Investigation.
14. Interviews with other correction officers who had been terminated following the Investigation, including Ronnie Fordham, a plaintiff in Bolden, James Price and Michael Nichols, who stated that employees close to Kerik, including plaintiff, were shown favoritism and were not punished for claiming excessive exemptions, while those who were not connected to Kerik were treated adversely.
15. Two conversations with Tom Antenen, a spokesman for the Department, who confirmed the accuracy of plaintiff's salary on the 1800 Report, but declined further comment.
16. A conversation with Emily Gest, a DOI spokesperson, who stated that all Department employees were treated the same as a result of the investigation, were arrested or disciplined for excessive exemptions if they did not pay their taxes, and that if Pinero did take 99 exemptions but was not prosecuted or disciplined, she presumed that she had paid her taxes, a comment that was reported by Calder in the Post Article.
17. A conversation with an Internal Revenue Service representative, who confirmed that it is a violation of law to claim more exemptions on a W-4 than a taxpayer has a reasonable basis to claim.
18. A consultation with an accountant who estimated, based upon plaintiff's salary as reported on the 1800 Report, that she would avoid withholding taxes in the amount of $61,000.00 by claiming 99 exemption in the years 1992 through 1995.
19. A call to Kerik's lawyer, who declined to comment.
It is undisputed that Calder relied upon these sources.
Plaintiff's refers to pages 30-32, 37-40 and 70-71 of Calder's testimony to establish what Calder relied upon in writing the Post Article. However, those pages of his testimony are not in the excerpted transcript annexed as Exhibit I to plaintiff's opposition papers.
The only disputed fact relating to Calder's effort to verify the allegations in the Post Article is his claim that he tried to call Pinero and that another Post reporter spoke to plaintiff at her home, but she declined to comment. Pinero's refusal to comment is not relied upon by the court in making its determination because it is disputed.
There is evidence in the record that the 1800 Report turned out to be erroneous. According to the deposition testimony of Rose-Ellen Myers, who was employed by OPA, shortly after the 1800 Report was prepared using data in a computer, it was discovered that it reflected the number of exemptions claimed by City employees on June 18, 1996, the date that the 1800
Report was created. Therefore, it reflected plaintiff's withholding exemptions on June 18, 1996, not for the tax years 1992 through 1995, as reported in the Post Article. Ms. Myers testified that DOI was notified of the error, but there is no evidence in the record as to when that occurred.
Excerpts from the deposition of Ms. Myers are annexed as Exhibit D to defendants' Reply Affidavit of Slade R. Metcalf, sworn to on April 12, 2007. Plaintiff's opposition papers state that the deposition is annexed thereto as Exhibit H, but that exhibit is actually the deposition of Marcia Hinds. Pages 77 and 80 of the Myers deposition, upon which plaintiff relies, are not included in the excerpted pages supplied by defendants and, therefore, not in the record.
Skinner claims that he relied on the Post Article. He also denies, and it is unrebutted, that he was not the source for it. Both Skinner and Calder testified that they first spoke after the Post Article was published.
Discussion
It is well settled in the State of New York that correction officers are public officials for purposes of the standard of proof required to prevail in a defamation suit. Sweeney v. Prisoners' Legal Services of NY, Inc., 146 AD2d 1 (3rd Dept. 1989), affirmed, 84 NY2d 786 (1995) (correction officer indistinguishable from police officer and both are public officials for purposes of defamation analysis). Plaintiff erroneously contends that her withholding exemptions relate to private conduct outside the ambit of the rules for comments on the conduct of public officials in their official capacity. However, anything that touches on a public official's fitness for office is relevant and "few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character." Monitor Patriot Co. v. Roy, 401 U.S. 265, 273-274 (1971). Correction officers who supply false information to taxing authorities are guilty of crimes involving "willful deceit or a calcualted disregard for honest dealings." Bowman v. Kerik, 271 AD2d 225 (1st Dept. 2000).
In order for a public official to recover in an action for defamation, clear and convincing proof must be presented that false statements were made with malice or with reckless disregard for the truth. Prozeralik v. Capital Cities Communications, Inc., 82 NY2d 466 (1993), citing New York Times v. Sullivan, 376 U.S. 254 (1964). See also, Orr v. Lynch, 60 AD2d 949 (3rd Dept. 1978), affirmed, 45 NY2d 903 (1978) (police officer). The heightened standard of proof required recognizes our "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." New York Times Co. v. Sullivan, supra, 376 U.S. at 270.
Constitutional malice requires the plaintiff to demonstrate either that the defendant realized the statement was false or subjectively entertained serious doubts as to its truth. Prozeralik v. Capital Cities Communications, Inc., supra. The standard turns on the subjective state of mind of the reporter; recklessness may not be inferred from failure to investigate further. St. Amant v. Thompson, 390 U.S. 727, 731 (1968) (reckless conduct not measured by whether reasonably prudent man would have published, or investigated, but by whether sufficient evidence permits conclusion that defendant in fact entertained serious doubts as to truth of publication); Mahoney v. Adirondack Pub. Co., 71 NY2d 31, 39 (1987) (dismissing complaint against public figure where no direct evidence showed that reporter or publisher knew or suspected falsity of article).
In addition, "[t]ruth is an absolute, unqualified defense to a civil defamation action." Commonwealth Motor Parts, Ltd. v. Bank of Nova Scotia, 44 AD2d 375, 378 (1st Dept. 1974), affirmed, 37 NY2d 824 (1975).
Turning to this case, the first two allegedly libelous statement in the Post Article are:
A city correction officer romantically linked to Bernard Kerik when he was correction commissioner got away with breaking tax rules that led to more than 100 of her co-workers being arrested or fired in a 1990's scandal, The Post has learned.
Jeannette Pinero filed W-4 forms from 1992-1995 declaring 99 exemptions, a maneuver that increased her take-home pay and allowed her to delay paying income tax, city records show.
Many of the statements about plaintiff in the Post Article were true. The statement that plaintiff was romantically linked to Kerik was true. Plaintiff admits that she was romantically linked with Kerik. It also was true that plaintiff broke tax rules by claiming 99 exemptions, albeit not in 1992 through 1995. Plaintiff does not, and cannot, dispute that claiming 99 exemptions without a reasonable basis on a W-4 is a crime. Federal law prohibits claiming exemptions that exceed the number to which one is entitled, 26 USCS § 3402, and doing so is a crime punishable by a maximum penalty of a fine of $1,000 and one year in prison, 26 USCS § 7205. There is no dispute that some of plaintiff's co-workers were arrested or fired from breaking tax rules in the 1990's. Moreover, the statements concerning the Investigation were absolutely privileged under the New York Civil Rights Law § 74 as a fair and true report of the 1997 press release concerning it. Freeze Right Refrigeration Air Conditioning Services, Inc. v. New York, 101 AD2d 175, 183 (1st Dept. 1984) (fair and true report of official investigation absolutely privileged under § 74).
Civil Rights Law § 74 provides as follows: "A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published."
The untrue statement that in 1992 through1995 plaintiff "got away with breaking tax rules," and declared 99 exemptions was supported by the 1800 Report, an official document, which stated that plaintiff took 99 exemptions for those years. Although Ms. Myers stated at her deposition in this case that the 1800 Report prepared by OPA was inaccurate, there is no showing on this record that Calder knew that prior to publication. The 1800 Report was presented to Calder by Thomas as reliable, it bore the indicia of an official document, it was not disputed by DOI witnesses, who refused to comment on the story but confirmed the accuracy of Pinero's salary, and was presented by the City as evidence in federal court. In fact, on November 30, 2006, DOI witness, Marcia Hinds, testified at a deposition in this case, which was held the day before Ms. Myers' deposition, that the 1800 Report reflected the number of exemptions plaintiff took in 1993 to 1995. Hinds Tr., pp. 73-75. The fact that one witness, Ms. Myers, testified in 2006 that the 1800 Report was inaccurate does not prove that Calder knew that it was unreliable when the Post Article was published. The statements that plaintiff "got away with breaking tax rules" and "increased her take home pay and allowed her to delay paying income tax," directly flowed from the 1800 Report and Calder's consultation with an accountant, as did the third allegedly libelous statement:
Plaintiff's accountant submitted a notarized letter, not an affidavit, which the court will not consider, as it is not proof in admissible form. C.P.L.R. § 3212(b); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).
By listing 99 exemptions, the most allowed by law, Pinero was able to avoid having more than $60,000.00 withheld from her paychecks over a four-year period, estimated an accountant who reviewed some of Pinero's income information for The Post.
The final alleged libel in the Post Article was not defamatory, as it quoted an official who presumed plaintiff had paid her taxes:
City officials said tax-secrecy laws prevent them from knowing whether Pinero, 41 still owes taxes. But they say they presume she eventually paid up because she was never prosecuted or disciplined.
In sum, the complaint must be dismissed against NYP Holdings, Inc., and Calder because there is no proof that the Post Article was published with reckless disregard for the truth or that these defendants doubted, or had reason to doubt, the truth of the story or the reliability of its sources.
Turning to defendant Skinner, the complaint against him must be dismissed because the statements were true and, with respect to the Skinner Op Ed, the words were clearly the expression of an opinion. The words in the Chief Article were:
. . . that while Mr. Kerik fired numerous employees who sought to avoid paying income taxes by listing 99 exemptions on their returns, he took no disciplinary action for doing so against either Mr. Picciano or Jeanette [sic] Pinero, an officer whom Mr. Kerik has reportedly acknowledged during a court deposition was his mistress while he worked at Correction.
The words complained of in the Skinner Op Ed were:
How about the DOI explaining how Picciano and Jeannette Pinero got away scot free for their involvement in the tax scandal, yet others were ferociously prosecuted for their involvement.
It was true that plaintiff was guilty of violating tax laws. Plaintiff admitted at her deposition that she took 99 exemptions in May/June of 1996 and that she was involved with Kerik. It is undisputed that plaintiff was never disciplined or prosecuted for taking 99 exemptions, although other correction officers were. Hence, the statements were true.
In addition, the Skinner Op Ed was not actionable because it was a statement of opinion. The statement was one of several allegations of corruption by Kerik in a letter to the editor written by Skinner. The thrust of the letter is that criminal behavior by Kerik and his favorites was not investigated and/or explained by the DOI because of Kerik's close relationship with Mayor Guiliani. The letter concluded with the following recommendation: "it's obvious that DOI needs to have some form of protection to stop the Mayor or his people from co-opting them with regard to these types of corrupt activities."
In distinguishing between statements of fact and opinion the factors to be considered by a court are: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact." Brian v. Richardson, 87 NY2d 46, 51 (1995). The court must consider the content of the communication as a whole, as well as its tone and apparent purpose to determine whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff or were expressions of opinion. Id.
The thrust of the Skinner Op Ed was an expression of an opinion as to whether DOI was discharging its responsibilities in an even-handed manner, rather than a statement of established facts concerning plaintiff. As in Brian v. Richardson, supra, the Skinner Op Ed appeared in the opinion section of the newspaper, its predominant tone was rife with rumor and speculation, and the statements about plaintiff could be understood as "allegations to be investigated rather than facts." Id. The overall tone of the letter signaled to the reasonable reader that Skinner felt that DOI ought to explain why plaintiff, who was close to Kerik, wasn't prosecuted for tax irregularities that led to the prosecution of others. Calling for an explanation is not the same as presenting facts as established.
Lastly, there is no proof that Skinner was the source for the Post Article. Accordingly, it is
ORDERED and ADJUDGED that defendants' motions for summary judgment are granted and the amended complaint is dismissed with prejudice as against defendants NYP Holdings, Inc., Rich Calder and Terrence Skinner.