New York State Court of Claims

New York State Court of Claims

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 employee.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Steven U. Teitelbaum, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 12, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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 "File" stating:
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?

A. Yes.

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 charge.

Q. And those were the words of Cindy Harcher?
A. Essentially.

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 would allow.

Q. And that would be within one day of having heard those words?

A. Yes.

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?

A. Yes.

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 animals?

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 said there.

Q. Your statement goes on – your October 4th, 1996, memorandum goes on to note this had been at Monticello Raceway?

A. Right.

Q. Did Cindy Harcher tell you that?

A. Yes.

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 addressed.

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 & Winston, 42 NY2d 369, 379, 380; Bingham v Gaynor, 203 NY 27; Schwartzberg v Mongiardo, 113 AD2d 172; Bounds v Mutual of Omaha Ins. Co., 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, supra 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., 193 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 granted.
The Clerk is directed to enter a judgement in accord with this decision.

June 12, 2000
Saratoga Springs, New York

Judge of the Court of Claims