BROOKS v.THE STATE OF NEW YORK, #2000–015-512, Claim No. 97690
At common law, in order to establish a prima facie case in a slander action by
a private person involving a private matter the claimant is required to prove
the statement was defamatory, referred to the claimant and was published by the
defendant to a third person. This claim failed because claimant did not prove
that the statement set forth in the claim was ever uttered by a Sate
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Steven U. Teitelbaum, Esquire
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
June 12, 2000
See also (multicaptioned
In a timely filed claim, claimant seeks to recover money damages resulting from
an allegedly defamatory statement made by New York State Department of
Environmental Conservation Officer Cindy Harcher on October 3, 1996.
The claim asserts that claimant operates two ranches in Beaverhead County,
Montana and has conducted a ranching business there since 1991. Before moving
to Montana, claimant was a resident of the State of New York where he worked as
a harness horse trainer and owner. CPLR 3016 (a) provides that in an action for
slander or libel "the particular words complained of shall be set forth" in the
claim which, in this case, alleges that Officer Harcher defamed the claimant
when, on October 3, 1996, she spoke by telephone to Beaverhead County Game
Warden Michael Mehn and stated "Tim Brooks is not licensed in New York in any
horse racing occupations, but his dad Randall had been till being kicked out of
the racing circuit for some sort of cruelty to animals". The answer sets forth
that the defendant lacked information or knowledge sufficient to form a belief
as to the truth of the allegation that Officer Harcher made the statement quoted
in the claim. CPLR § 3018 (a) provides that a party "shall specify those
statements as to the truth of which he lacks knowledge or information sufficient
to form a belief and this shall have the effect of a denial". Thus, the initial
issue framed by the pleadings is whether Officer Harcher ever made the statement
that "Tim Brooks is not licensed in New York in any horse racing occupations,
but his dad Randall had been till being kicked out of the racing circuit for
some sort of cruelty to animals".
Claimant testified that prior to moving to Montana he resided in Gardner, New
York. He trained and owned standard bred horses in New York State from 1977 to
1991 and was licensed by the New York State Racing and Wagering Board from 1987
until 1993. Claimant owned and trained horses which he raced at Yonkers
Raceway, Roosevelt Raceway, Saratoga Harness Track, and Monticello Raceway.
Throughout the 1980s he owned two or three horses which were stabled at
Monticello and trained five or six others. He recalled that at some time during
October of 1991 he was accused by the American Society for the Prevention of
Cruelty to Animals (ASPCA) of abusing cats at Monticello. He stated that cats
were always around the stable and that they sometimes became infected with mange
which was transmittable to the horses.
The ASPCA summons accused claimant of killing a cat. He responded to the
charge in Monticello Town Court where he was found not guilty.
The Court received into evidence Exhibit B consisting of three documents and a
certification. The first document was a letter dated February 26, 1990 by
Merrill Yankowitz, the Director of Security at Monticello Raceway, directed to
October 1989, I received a call from Carol Pent, a groom working at Monticello
Raceway asking me to come to the barn she was working at. After getting to the
barn she (Carol Pent) showed me a plate of bright green liquid by the barn door.
She stated to me that Randy Brooks had placed it there and that it was car
anti-freeze Randy was using to poison the cats in the barn and some of the cats
had already been poisoned.
Carol Pent also stated that Randy had taken a cat and put it into a burlap sack,
hosed it with water and then threw it on the roof to freeze. Carol asked Randy
what he was doing and he said, 'nothing.' Randy's son, Tim came by and got the
sack with the cat off the roof.
I called Randy Brooks to my office to find out what was happening. He told me
that he hated cats, but did not know anything about anti-freeze and that he did
throw a cat on the roof, but he always throws them there and they get down by
themselves. I warned him to stop doing that and not to put out any more
anti-freeze. He said, 'okay' and left my office.
That was the last I heard of anything happening to cats until I was called by
Donna Hysell concerning cats again.
Page two of Exhibit B contains handwritten notes dated January 8, 1990 stating
that there was a telephone call from Donna Hysell claiming that either Tim
Brooks or Randy Brooks killed three cats in her barn with a pitchfork. Page
three is an official notice executed by Carolyn T. Derlaga, General Manager of
Monticello Raceway, sworn to on January 10, 1990 and addressed to Tim Brooks
and Randy Brooks directing them not to enter the grounds of Monticello Raceway
under threat of arrest for criminal trespass. Claimant testified that he
received the notice barring him from the grounds of Monticello Raceway.
Claimant testified that he was not present during the telephone conversation
between Michael Mehn and Officer Harcher but had learned of the allegedly
defamatory statement through an unidentified restaurant worker in Dillon,
Montana and his granddaughter, who was informed by a playmate, the daughter of
his neighbor who was a game warden.
Carolyn Derlaga testified that she was employed at Monticello Raceway as
Comptroller and Assistant General Manager beginning in 1984 and was later
promoted to General Manager. During January of 1990, Ms. Derlaga received
complaints concerning abuse of animals by claimant and directed raceway
security personnel to investigate. The investigators concluded that the
claimant had abused cats and as a result of that determination Ms. Derlaga
issued the written notice to Randy Brooks and Tim Brooks dated January 10, 1990
ejecting them from the grounds of Monticello Raceway. She stated that the
claimant never denied the allegation of abusing cats.
A copy of the deposition testimony of Michael Mehn was received into evidence
as Exhibit 3. Mr. Mehn testified that he had been employed as a game warden for
approximately 16 ½ years by the Montana Department of Fish, Wildlife and
Parks and was assigned during 1996 to investigate whether Timothy Brooks was
illegally obtaining resident hunting licenses in Montana while still a resident
of the State of New York. Mr. Mehn stated that in order to conduct his
investigation it was necessary to determine if Timothy Brooks was still a
resident of New York State and to establish that fact he would need information
as to whether Timothy Brooks held licenses in New York, paid New York State
resident income taxes, voted in New York, or was employed there. Mr. Mehn
contacted the New York State Department of Environmental Conservation in an
effort to secure the required information and Officer Harcher was directed by a
superior to assist Mr. Mehn with his investigation of Timothy Brooks. Mr. Mehn
testified that in conducting that investigation he communicated to Officer
Harcher indirectly that she should also obtain information about the claimant
because he believed that some of the signatures upon the license applications in
Montana did not appear to be those of Timothy Brooks and more closely matched
the claimant's handwriting. Mr. Mehn believed that claimant may have been
improperly buying resident Montana licenses for Timothy Brooks while he was
still a resident of New York.
Mr. Mehn spoke with Officer Hatcher by telephone on October 3, 1996. It was
during this conversation that the allegedly defamatory statement quoted in the
claim was made. The following day Mr. Mehn prepared a report in which he
attempted to record his recollection of the conversation. Mr. Mehn gave the
following testimony at his examination before trial:
Q. Now, let's focus on the last paragraph of your October 4, 1996, memorandum.
Is that – that paragraph has a quotation in it?
Q. And did you put those words, quote, kicked out of the racing circuit, closed
quote, in quotes because you were reciting the words of Cindy Harcher?
A. I would say yes. I wouldn't guarantee those were her words, but that he had
lost his license in New York because of some sort of cruelty to animals
Q. And those were the words of Cindy Harcher?
Q. Well, essentially? Are you telling me you paraphrased her words, or did you
try to reproduce them as accurately as memory allowed?
A. Yes, I would say that I tried to paraphrase them as accurately as memory
Q. And that would be within one day of having heard those words?
Q. So in reading this last paragraph, can I conclude that Cindy Harcher told
you that Randall Brooks had been licensed in New York State in the horse racing
occupation until he was kicked out of the racing circuit for some sort of
cruelty to animals?
A. I would say yes.
Q. That's what she told you?
Q. And why was she providing you this information about Randall Brooks and
being kicked out of the racing circuit in New York for some sort of cruelty to
A. Basically, a lot of it had to do with the licensing fact. It left a time
trail on when Randall Brooks was in New York and when Randall Brooks was in
Montana. And just in the course of looking at horse racing licenses, however
they do it back there, I'm assuming, under Brooks, she had several names listed,
and Randall was not there and dad had been licensed, or lost his license as I
Q. Your statement goes on – your October 4th, 1996, memorandum goes on to
note this had been at Monticello Raceway?
Q. Did Cindy Harcher tell you that?
Q. Do you know where Monticello Raceway is?
A. Not at all.
Officer Cynthia Harcher testified that she graduated from Buffalo State College
with a Bachelor of Arts degree in Criminal Justice and was employed by the
Department of Correctional Services from 1982 to 1988. She became an
Environmental Conservation Officer in 1988, a position which she still held at
the time of trial. Officer Harcher was instructed by a superior to assist Game
Warden Michael Mehn in an investigation concerning Timothy Brooks being
conducted by the Montana Department of Fish, Wildlife and Parks. She testified
that she was provided a memorandum received from Mr. Mehn. The memorandum,
received as part of Exhibit A, indicated that he was "currently working a case
where a New York resident has been purchasing resident Montana big game licenses
by using his dad's address" and requested certain information regarding licenses
issued to Timothy Brooks including his voter registration status and whether he
was then filing resident New York State income taxes. The memorandum provided
Timothy Brooks' date of birth and social security number, and also indicated
parenthetically "has or had racing stables". Officer Harcher investigated
whether Timothy Brooks held New York hunting licenses, drivers licenses, filed
New York resident tax returns or conducted business in New York. Mr. Mehn also
requested that Officer Harcher check as to whether Timothy Brooks held a New
York State license as a horse trainer and it was in the course of attempting to
ascertain that information that Officer Harcher contacted Monticello Raceway to
see if Timothy Brooks was licensed as a horse trainer at that facility. Officer
Harcher was advised of claimant's expulsion from the grounds of Monticello
Raceway due to his cruelty to cats and believed that it was a part of her duty
to pass that information along to Mr. Mehn in that it might be pertinent to the
issue of Timothy Brooks' residence and relevant to the claimant's credibility if
he was called as a character witness at the trial of Timothy Brooks in Montana.
Officer Harcher testified unequivocally that she told Mr. Mehn that claimant
may have been kicked out of Monticello Raceway for cruelty to animals and that
she never stated that claimant was "kicked out of the racing circuit". The
evidence before the Court disclosed that Timothy Brooks was convicted in the
State of Montana of improperly obtaining resident licenses.
At the close of the evidence the defendant made a motion to dismiss the claim
upon the grounds that claimant's proof had failed to establish that Cynthia
Harcher made the statement quoted in the claim and that the statement that she
did make concerning the claimant being ejected from the grounds of Monticello
Raceway for cruelty to animals was true. That motion will now be
At common law in order to establish a prima facie case in a slander action by a
private person involving a matter of private concern the injured party was
required to prove that the statement was defamatory, that the statement referred
to claimant and that the defendant published the statement to a third party (PJI
3:23 F; 2 NY PJI 152; dissenting opinion of Justice Boehm in
Streips v LTV Corp.
, 216 AD2d 923, 926). Truth was an affirmative
defense to be pleaded and proved by the defendant (Rinaldi v Holt, Rinehart
, 42 NY2d 369, 379, 380; Bingham v Gaynor
, 203 NY 27;
Schwartzberg v Mongiardo
, 113 AD2d 172; Bounds v Mutual of Omaha Ins.
, 37 AD2d 1008). The decision of the United States Supreme Court in the
case of New York Times Co. v Sullivan
, 376 US 254, changed the rule so
that in all defamation cases except those involving a private figure upon a
matter of purely private concern the injured party has the burden of proving
falsity as an element of the cause of action and truth is no longer an
affirmative defense (PJI 3:27; 2 NY PJI 227). It is upon the third requirement
of publication that the claim fails as a matter of law.
"A slanderous statement is published and therefore actionable when it is heard
by some third party" (
Barber v Daly
, 185 AD2d 567, 569). A defendant meets its "burden of
establishing lack of publication by presenting proof in admissible form that the
defamatory statements alleged ... were not made by them" and an assertion by the
defamed party that a third person told him that the defamatory statement was
made is mere hearsay and not sufficient as a matter of law to raise a triable
issue of fact (Scaccia v Dolch
, 231 AD2d 885). In order to establish
publication there must be proof that the defamatory statement alleged in the
pleading "was in fact uttered" (Elsky v Hearst Corp.
, 232 AD2d 310).
Here, the defendant took the position from the start that Officer Harcher did
not make the defamatory statement quoted in the claim. Officer Harcher
presented proof in evidentiary form that the statement was not uttered through
her testimony that she never told Mr. Mehn that claimant was "kicked out of the
racing circuit for some sort of cruelty to animals". She merely stated to Mr.
Mehn that claimant was apparently barred from the grounds of Monticello Raceway
for some sort of cruelty to animals. Claimant could not supply anything other
than hearsay evidence to the contrary . Mr. Mehn's deposition testimony
establishes to the satisfaction of the Court that he was not directly quoting
what was stated by Officer Harcher but was merely paraphrasing when, on the day
following the telephone conversation, he attempted to put on paper what he
recalled of the conversation. The Court credits the testimony of Officer
Harcher based upon its observation of the witness at trial and concludes that
the memorandum prepared by Mr. Mehn regarding his conversation with Officer
Harcher, which includes a reference to Monticello Raceway, when combined with
his examination before trial testimony, is insufficient to establish that the
allegedly defamatory words were actually spoken (
Rossignol v Silvernail
, 185 AD2d 497). With respect to the statement
that Officer Harcher did make to Mr. Mehn, the claimant did not make a motion
to conform the pleadings to the proof so as to bring before the Court the issue
of whether the statement that claimant was banned from the grounds of Monticello
Raceway for cruelty to animals was defamatory (Rossignol v Silvernail
at 499). Truth is a complete defense to any claim for defamation
and need not be proved to a literal degree (Love v Morrow & Co.
AD2d 586, 587). Had the claimant been successful in amending the claim to set
forth that Officer Harcher told Mr. Mehn that claimant was banned from the
grounds of Monticello Raceway for cruelty to animals that claim would have been
dismissed because the evidence before the Court establishes the truth of the
statement. The defendant's motion to dismiss must be
The Clerk is directed to enter a judgement in accord with this decision.
June 12, 2000
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of