Opinion
No. 10–3551.
11-04-2011
Russell A. SCHINDLER, Plaintiff, v. Hector L. MEJIAS, Jr., Christine French, William Deridder, and Ulster County Society for the Prevention of Cruelty to Animals, Defendants.
Russell A. Schindler, Esq., Plaintiff Pro Se. (Sue H.R. Adler, Esq., of Counsel), Young, Sommer, Ward, Ritzenberg, Baker & Moore, L.L.C., Attorneys for Defendants.
Russell A. Schindler, Esq., Plaintiff Pro Se.
(Sue H.R. Adler, Esq., of Counsel), Young, Sommer, Ward, Ritzenberg, Baker & Moore, L.L.C., Attorneys for Defendants.
Opinion
MICHAEL H. MELKONIAN, J.
Defendants Hector L. Mejias, Jr. (“Mejias”), Christine French (“French”), William DeRidder (“DeRidder”), and Ulster County Society for the Prevention of Cruelty to Animals (“Ulster SPCA”) move for summary judgment dismissing plaintiff Russell A. Schindler's complaint in this libel action alleging that defendants published defamatory statements against plaintiff. Plaintiff alleges that defendants defamed him by communicating statements to the Ulster County District Attorney's office accusing plaintiff, who is an attorney, of falsely identifying himself as the Ulster County District Attorney Donald Williams for the improper purpose of obtaining possession of his client, Jody Fabrikant's, (“Fabrikant”) dog from Ulster SPCA without presenting a copy of the court order requiring return of the dog. Plaintiff cross-moves for partial summary judgment of liability against Mejias and Ulster SPCA.
Each of the movants bears the initial burden to establish a prima facie showing of entitlement to judgment either granting or dismissing the causes of action as a matter of law, and to tender sufficient evidence to eliminate any material issues of fact from the case (Zuckerman v. City of New York, 49 N.Y.2d 557, 560 [1980] ). A cause of action for defamation requires a showing that the defendant made a false statement, without privilege or authorization, to a third party, which false statement tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him or her in the minds of right-thinking persons, and to deprive him or her of their friendly intercourse in society, that the falseness of the statement constitutes fault as judged by, at a minimum, a negligence standard, and the false statement either caused special harm or constitutes defamation per se (Foster v. Churchill, 87 N.Y.2d 744, 751 [1996] ; Dickson v. Slezak 73 AD3d 1249, 1250 [3rd Dept., 2010] ; Roche v. Claverack Coop. Ins. Co., 59 AD3d 914, 916 [3rd Dept., 2009] ; Dillon v. City of New York, 261 A.D.2d 34, 37–39 [1st Dept., 1999] ).
The Court begins its analysis of defendants' motion by rejecting all of defendants' arguments that the statements allegedly communicated to the District Attorney's office regarding plaintiff are not defamatory because they do not specifically state that plaintiff committed “criminal impersonation.” It is not necessary for the statement to use the phrase “criminal impersonation” for the statement to be defamatory. The Court also rejects the argument that the statements are not defamatory because they do not include the element of personal benefit to plaintiff. The statements are defamatory because they accuse plaintiff of falsely identifying himself as an official to obtain the benefit of getting Fabrikant's dog without the proper court order.
The Court rejects defendants' counsel's claim that the French's and Mejias' statements and District Attorney's investigation were directed primarily at plaintiff's allegedly trespassing at Ulster SPCA or attempting to obtain the dog without a court order, rather than plaintiff's alleged criminal impersonation. Mejias' statement sets forth no trespass claim and confirms that the primary subject was plaintiff's alleged impersonation of the District Attorney. Defendants' counsel's claim that the statements focused on plaintiff's not having a court order is contradicted by Donald Williams' affidavit which confirms that his primary reason for having plaintiff investigated was his concern based on French's information that plaintiff had misrepresented himself as the District Attorney.
While the general rule provides that a defamatory statement is not actionable absent a showing of “special damages,” one of the recognized exceptions to that restriction is when the statement imputes any kind of fraud, dishonesty, misconduct, incompetence, incapacity or unfitness in the performance of one's profession or trade (Allen v. CH Energy Group, Inc., 58 AD3d 1102, 1103 [3rd Dept., 2009] ; Kotowski v. Hadley, 38 AD3d 499, 500 [2nd Dept., 2007] ; Scott v. Cooper, 215 A.D.2d 368, 369 [2nd Dept., 1995] ). The alleged defamatory words should be considered in the context of the entire statement or publication as a whole, tested against the understanding of the average listener (Aronson v. Wiersma, 65 N.Y.2d 592, 594 [1985] ; Allen v. CH Energy Group, Inc., 58 AD3d 1102, 1103 [3rd Dept., 2009] ).
It appears that the alleged defamatory statements in this case fall within that exception. Accusing plaintiff, an attorney, of lying regarding his identity and misrepresenting himself as a public official for the purpose of obtaining relief to which he is not entitled is libel per se (Cassidy v. Warner, 256 AD 878, 878 [3rd Dept., 1939] ). The alleged conduct is not only highly inappropriate given plaintiff's profession, but reflects that plaintiff is unethical and not to be trusted, and also constitutes a violation of New York Penal Law § 190.25, which proscribes criminal impersonation, an offense that includes acting with intent to cause another to rely upon pretended official authority.
The Court also rejects defendants' argument that the “single instance rule” bars plaintiff's defamation claim. The single instance rule applies where a publication charges a professional person with a single error in judgment, but the single instance rule does not apply to defamation actions where the alleged single act shows a lack of character or a total disregard of ethics (Allen v. CH Energy Group, Inc., 58 AD3d 1102, 1103 [3rd Dept., 2009] ). The conduct attributed by defendants to plaintiff falls outside the single instance rule because the alleged conduct reflects an absence of character or ethics on plaintiff's part rather than a single error in judgment. Thus, the Court finds that defendants' statements regarding plaintiff's conduct at the Ulster SPCA are defamatory.
Turning to the question of whether the defamatory statements about plaintiff are true, the Court rejects defendants' extensive efforts to bolster the defamatory statements against plaintiff by presenting multiple affidavits and quantities of other evidence of Fabrikant's cruelty to animals. The validity of defendants' charges and evidence against Fabrikant is not an issue here or relevant to the truth of the defamatory statements against plaintiff or any other aspect of plaintiff's defamation action.
Defendants also present Mejias' affidavit, in which he asserts that when plaintiff and Fabrikant came to the Ulster SPCA plaintiff misrepresented himself to Mejias as the Ulster County District Attorney, Donald Williams. The Court finds that Mejias' affidavit meets defendants' initial burden by supporting the truth of the defamatory statements. Thus, it falls to plaintiff to demonstrate that the law does not support summary judgment and/or assemble and present facts sufficient to require a trial of any issue of fact to defeat the motion (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ).
Plaintiff has met his burden of raising triable issues regarding the truth of Mejias' and French's defamatory statements with his statement that he did not identify himself as the District Attorney or as Donald Williams. Plaintiff also supports his opposition with Mejias' prior testimony that plaintiff did not misrepresent himself as Donald Williams the Ulster County District Attorney. The tape recording of Mejias' call to 911 at the time of the incident conclusively contradicts Mejias' affidavit and defamatory statement and corroborates plaintiff's version of events. On the 911 tape, Mejias stated that plaintiff identified himself as Fabrikant's attorney. Mejias identified plaintiff as Fabrikant's counsel multiple times. Plaintiff has clearly raised a triable issue of fact on the issue of whether he misrepresented himself to Mejias (Cook v. Presbyterian Homes of W.NY, 234 A.D.2d 906, 907 [4th Dept., 1996] ; Koncelik v. Abady, 179 A.D.2d 942, 944 [3rd Dept., 1992] ; Wilson v. Haagen–Dazs Co., 215 A.D.2d 338 [1st Dept., 1995] ; Colazo v. Tower 45 Assoc., 209 A.D.2d 339, 339 [1st Dept., 1994] ). Defendants having failed to demonstrate the truth of their defamatory statements about plaintiff, it is necessary to continue looking at defendants' arguments for summary judgment.
The Court rejects defendants arguments regarding whether the defamatory statements were published by defendants. To meet their initial burden, defendants must affirmatively demonstrate the absence of any merit in plaintiff's position and the merit of their own claims and/or defenses against plaintiff's causes of action (Holly v. Morgan, 2 AD3d 1170, 1171 [3rd Dept., 2003] ; Mennerich v. Esposito, 4 AD3d 399, 401–402 [2nd Dept., 2004] ). Instead of attempting to meet that initial burden, defendants try to avoid their initial burden by arguing that plaintiff will be unable to meet his burden of proving who supplied the defamatory statements to the District Attorney's office. That argument is insufficient on its face. A summary judgment motion is not an opportunity for the Court to speculate about whether plaintiff will be able to prove his case at trial. Movants cannot meet their initial burden in moving for summary judgment by ignoring that they bear the initial burden and merely arguing that their opponent has not proved or will be unable to prove his case when opposing the motion for summary judgment or at trial.
Defendants have not demonstrated that they did not publish the defamatory statements. The Court begins by rejecting defendants' argument that plaintiff published the defamatory statements to the Assistant District Attorney. Defendants fail to explain how plaintiff first became aware of defendants' defamatory story. Plaintiff's alleged statement to the Assistant District Attorney occurred after French admits contacting the District Attorney, after the District Attorney admits causing his investigator to investigate plaintiff's alleged impersonation, after the District Attorney's investigator contacted plaintiff in the course of his investigation, and after the investigator gave plaintiff a copy of Mejias' statement.
Defendants' claim that they did not publish the defamatory statements is contradicted by the District Attorney's statement that French called him and informed him that plaintiff had impersonated the District Attorney. Mejias also admits giving the defamatory story about plaintiff to the District Attorney's investigator. Even defendants' suggestion that they did not publish Mejias' written statement makes no sense because they concede that Mejias' statement was created at the Ulster SPCA and they have failed to suggest how anyone other than the defendants could have conveyed Mejias' statement to the District Attorney's office.
Given plaintiff's claim that the defamatory story and statement were allegedly presented to the Ulster County District Attorney's office, the Court must determine whether the communication was privileged. Public policy mandates against imposition of civil liability on communicants of certain defamatory communications because those communications are either absolutely or qualifiedly privileged (Rosenberg v. MetLife, Inc., 8 NY3d 359, 365 [2007] ; Toker v. Pollak, 44 N.Y.2d 211, 218 [1978] ).
Absolute privilege is afforded to communications by those participating in a public function, such as executive, legislative, judicial, or quasi-judicial proceedings, so long as the communications are material and pertinent to the issue to be resolved in the proceeding (Rosenberg v. MetLife, Inc., 8 NY3d 359, 365 [2007] ; Wiener v. Weintraub, 22 N.Y.2d 330, 331 [1968] ). Those communicants are cloaked with immunity against the imposition of liability in a defamation action irrespective of the communicant's motives (Toker v. Pollak, 44 N.Y.2d 211, 219 [1978] ). The absolute protection afforded such individuals is designed to ensure that their own personal interests, especially fear of a civil action, do not have an adverse impact upon the discharge of their public function (Toker v. Pollak, 44 N.Y.2d 211, 219 [1978] ).
A qualified privilege is afforded defamatory communications fairly made by a person in the discharge of some other public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned or there is a common interest between the communicant and recipient (Rosenberg v. MetLife, Inc., 8 NY3d 359, 365 [2007] ; Liberman v. Gelstein, 80 N.Y.2d 429, 437 [1992] ; Toker v. Pollak, 44 N.Y.2d 211, 219 [1978] ). Where communications are protected by a qualified privilege, the communicant does not have immunity against the imposition of liability in a defamation action. The qualified privilege only negates the presumption of “malice” implicitly flowing from communicating a defamatory statement, and thereby requires that the plaintiff also prove that the communicant acted out of “malice” (Toker v. Pollak, 44 N.Y.2d 211, 219 [1978] ). Thus, in practice, the qualified privilege only fails to protect communicants who act out of malice, rather than public interest. It is not to the convenience and welfare of society that false and injurious communications as to the reputation of others should be made for the gratification of an evil and/or malicious disposition or for any other object than that which gave rise to the qualified privilege (Toker v. Pollak, 44 N.Y.2d 211, 221 [1978] ).
The Court agrees with defendants that defendants' communications with the district attorney's office are entitled to the qualified privilege (Toker v. Pollak, 44 N.Y.2d 211, 220 [1978] ). Thus, plaintiff will ultimately be required to demonstrate that the defamatory statements were given to the District Attorney's office out of malice. Malice in this context is demonstrated by either the communicant's “evil intent or a motive arising from spite or ill will” or a “knowing or reckless disregard of a statement's falsity” (Rosenberg v. MetLife, Inc., 8 NY3d 359, 365 [2007] ; Liberman v. Gelstein, 80 N.Y.2d 429, 437 [1992] ).
When raising the question of malice, defendants have once again improperly attempted to shift their initial burden of proof to plaintiff by arguing that plaintiff will be unable to demonstrate that defendants were acting out of malice when they published the defamatory information to the District Attorney and his investigator. Even assuming that defendants had met their initial burden on the malice issue, plaintiff has raised triable issues. As noted previously, the 911 tape clearly demonstrates that plaintiff identified himself to Mejias as Fabrikant's attorney and Mejias changed his story after the fact. The 911 tape reflects that Mejias was not in anyway confused on that point at that time and does not support Mejias' later efforts to suggest that the change in his story resulted from his being confused by plaintiff and Fabrikant. The radical, unexplained change in Mejias' story is evidence that Mejias' changes were intentional.
The audiotape of Mejias' conversation with Fabrikant and another woman contains Mejias' numerous contradictory explanations for his changed story. Among Mejias' explanations is that French and DeRidder pressured Mejias by implying that they would fire Mejias from his job with the Ulster SPCA if he did not comply with their demand that he write a statement regarding plaintiff's behavior at Ulster SPCA. Mejias stated that at French's and DeRidder's behest he handwrote a statement declaring that plaintiff misrepresented himself and gave it to French and DeRidder, who changed the story before having it turned into the typed statement that has been produced as an exhibit and appears to bear Mejias' signature and initials, but which Mejias denied initialing or signing. Mejias states that French and DeRidder insisted on Mejias giving them the defamatory statement because they wanted to use the statement regarding plaintiff's alleged misrepresentation to get Fabrikant in trouble.
The Court rejects defendants' counsel's assertion that the tape recording is inadmissible hearsay. As a defendant, Mejias' admissions are admissible against him and those he conspired with. Although defendant's counsel attempts to claim that the tape was doctored, she has failed to establish her expertise and her opinion is therefore inadmissible. Mejias could give admissible evidence on the matter, but has failed to deny the authenticity of the tape recording or explain its contents. Thus, plaintiff has also met his burden of showing facts sufficient to require a trial on the issue of whether defendants acted out of malice (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). Having failed to eliminate any of the factors that are necessary for plaintiff to succeed on his defamation action, defendants have failed to meet their initial burden of demonstrating that they are entitled to summary judgment and their motion must be denied.
The Court exercises its discretion by reserving any decision on plaintiff's cross-motion for partial summary judgment of liability against Mejias and Ulster SPCA until after trial. A decision granting partial summary judgment against Mejias and Ulster SPCA would not eliminate the need for a full trial against the remaining defendants, which will necessarily involve a full airing of Mejias' accusations against French and DeRidder. Furthermore, a decision in plaintiff's favor would interfere with the trier of facts' weighing Mejias', French's, and DeRidder's inconsistent stories and assessing the comparative responsibility of each of defendant for their publication of the defamatory statements against plaintiff.
Accordingly, defendants' motion for summary judgment is denied and the Court reserves decision on plaintiff's motion for summary judgment until after trial.
This constitutes the Decision and Order of the Court. This Decision and Order is returned to plaintiff's counsel. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. 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. Memorandum constitutes the Decision and Order of the Court.
SO ORDERED.