New York State Court of Claims

New York State Court of Claims

PRISCO v. THE STATE OF NEW YORK, #2000-017-601, Claim No. 81677, Motion Nos. M-51963, CM-52850


Synopsis


State's motion for summary judgment, based on collateral estoppel resulting from findings in related Federal litigation, granted. Claim alleged improper State involvement in operation of landfill. Also, summary judgment granted as to defamation claim.

Case Information

UID:
2000-017-601
Claimant(s):
FILOMENA PRISCO, Individually and as Administratrix of the Goods, Chattels and Credits of THOMAS PRISCO, Deceased
Claimant short name:
PRISCO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
81677
Motion number(s):
M-51963
Cross-motion number(s):
CM-52850
Judge:
ANDREW P. O'ROURKE
Claimant's attorney:
Reardon & Sclafani, P.C.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney Generalby: Dewey Lee, AAG and Gregory Nolan, AAG
Third-party defendant's attorney:

Signature date:
September 25, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This claim, which has lasted longer than the Trojan War, was duly filed and served in October, 1990, arises out of events that occurred in 1987 and 1988. The instant motion and cross motion, both of which seek summary judgment in favor of the respective parties[1], were filed in 1995, and were held in abeyance pending resolution of a parallel action brought by claimants in federal court. After a District Court trial, the federal action reached its denouement with the decision of the United States Court of Appeals for the Second Circuit affirming the trial result (Prisco v A&D Carting Corp., 168 F.3d 593) filed on February 17, 1999 (and the subsequent denial by that court of plaintiff's Petition for Rehearing), and following additional submissions by the parties herein, the summary judgment applications were fully and finally submitted to this court on May 4, 2000.
FACTS
The facts and allegations that underlie the instant claim against the State of New York are set forth at length in the decisions of the United States District Court for the Southern District of New York (Prisco v State of New York, 1996 WL 596546) and the United States Court of Appeals for the Second Circuit (Prisco v A&D Carting Corp., supra), from which the following brief summary is taken.

Filomena Prisco ("claimant") and her husband Thomas Prisco (who died during the pendency of this action) were the owners of a large parcel of real property located in Patterson, Putnam County. Beginning sometime in the early spring of 1987, they operated a landfill on the property, intending to level the land and also earning money by charging fees for the dumping of construction and demolition (C&D) material. The landfill operation was run by Thomas Prisco until August or September of that year, when the Priscos were approached by a William Bubenicek, who was a former neighbor and, at the time, employed as a lieutenant by the New York State Department of Environmental Conservation's Bureau of Environmental Conservation Investigation Unit. Bubenicek suggested setting up a landfill site on their property "under State supervision," and he arranged for a meeting between the Priscos and Lloyd Ward, a State Police officer who was on medical disability at the time. The Priscos, Bubenicek and Ward agreed among themselves to operate a State-sanctioned disposal site on the Priscos' property, however the agreement was never reduced to writing and the Priscos never confirmed with any State official or agency that Bubenicek had any authority to enter into any such agreement or enterprise on behalf of the State of New York.

In any event, Bubenicek and Ward commenced their operation of the disposal site in October, 1987. Although Thomas Prisco was actively involved in supervising the landfill operation for a few weeks, in November the Priscos left to spend the winter in Florida, leaving their son to collect the dumping fees in their absence. Prior to leaving for Florida, the Priscos requested written confirmation of their purported arrangement with the State, in response to which they received a letter from Bubenicek, dated November 12, 1987, advising that he had inspected their site to determine compliance with State laws governing C&D disposal and it appeared to be in compliance, but since site inspection was not his primary function, he was referring the matter to the Solid Waste Division of the DEC. On December 1st and 11th, the site was inspected by DEC personnel, who found violations of State regulations regarding disposal of waste in surface water. On December 16, 1987, the DEC mailed the Priscos a letter advising that their site was not being operated in compliance with State law and directing them to cease operations immediately, cover the landfill by February 15, 1988 and seed all covered areas with grass. In a subsequent letter dated January 11, 1988, the Priscos were advised that they had 24 hours to correct all the problems at the site or it would be shut down. On February 5, 1988, the Priscos were ordered to immediately cease operations and to cover the fill with twelve inches of material capable of sustaining vegetation. After receiving this letter, claimant called Bubenicek and was told that the site had been closed.

Sometime in 1989, Bubenicek told the Priscos that he had been running a "sting" operation in order to obtain information on organized crime involvement in the waste hauling industry.

In January, 1990, the DEC sent the Priscos a proposed Consent Order providing for a civil penalty of $805,000, of which $755,000 was to be suspended, leaving an actual fine of $50,000, and threatening legal action if the Priscos did not consent. That proposed order was rejected by the Priscos but no action against them ensued. To date, the only legal proceedings arising out of the subject facts have been the two actions brought by the Priscos: the federal action, which resulted in a judgment of dismissal after trial and an appellate affirmance of that judgment, and the instant claim. The State has not brought any proceedings against the Priscos or sought to recover any fine or penalty, other than by sending the proposed Consent Order, which was rejected.

In 1989 and 1990, State Assemblyman Maurice Hinchey held hearings concerning the waste management industry, during which Bubenicek's improper role in the operation of the Prisco site was revealed. Bubenicek was subsequently suspended, and then discharged. Inspections of the site by State officials confirmed contamination by non-C&D materials and hazardous substances. On October 18, 1990, the Priscos filed the instant claim.

THE CLAIM
Claimant seeks damages for the alleged "operation on claimants' property *** by the defendants[2], of a solid waste management facility," and charges that by reason of various alleged wrongful conduct on the part of "the defendants, their agents, servants and/or employees *** the claimants have been and are now put in jeopardy for the payment of Civil and Administrative sanctions and penalties [and] damages to surrounding and adjacent landowners [and that] claimants have been and will incur damages and expenses to restore and clean up their property *** for the loss of business patronage, loss of business profits, loss of value of business and loss of value of property." The claim further alleges that "the defendants, their agents, servants and/or employees have knowingly, recklessly and carelessly created and maintained a condition as a public nuisance *** by allowing, condoning, sanctioning and discharging, and at all times being the instrumentality in the placement of, pollution, waste and hazardous wastes on said property," specifically with respect to ground water standards, such actions allegedly "putting claimants in jeopardy for the payment of fines and penalties *** and also subjecting the claimants to potential criminal prosecution."

All of the above allegations are contained in the "first cause of action" of the claim. The second cause of action seeks damages for the "decimation [sic] and publication by the defendants, their agents, servants and/or employees of false, libelous, slanderous and defamatory statements found within the New York Newsday article ‘The DEC and the Dump,' a copy of which is annexed hereto and made a part hereof, that illegal activities, including the disposal of cocaine processing by-products were conducted on claimants' property, which property was and is used by the claimants in the conduct and operation of a flea market and a restaurant, as a result of which the claimants' reputation and good names were damaged and their businesses were damaged."

THE FEDERAL COURT DECISIONS
In addition to initiating the instant claim, the Priscos brought an action in the United States District Court, Southern District of New York, arising out of the same set of facts and circumstances, against the State of New York, various State agencies, employees and officials including Bubenicek and Ward, and a dozen carting companies. A combined bench and jury trial was held, and on January 25, 1996,
the jury returned a verdict in favor of private defendants on the state common law claims of negligence, trespass, public nuisance, and misrepresentation. The court reserved its decision on plaintiff's claims under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (1995) ("CERCLA") and the Resource Conservation and Recovery Act, 42 U.S.C. § 6972 et seq. (1995) ("RCRA"). (Prisco v State of New York, 1996 WL 596546, 1 [S.D.N.Y.]).
In an extensive written decision issued on October 16, 1996, United States District Judge Robert L. Carter addressed the CERCLA and RCRA claims against the State and the private defendants. Judge Carter found that, although it was clear that "non-C&D solid waste was deposited on the Prisco site during the time of its operation as a landfill," and "there is clear evidence that hazardous substances, as defined by federal law, are present on the site," the relevant issue was whether plaintiff had proved that a particular defendant "actually transported hazardous materials to the Prisco site," and held that plaintiff "has failed, however, to show any direct connection between any individual defendant and any hazardous substance." (id., at 6, 10, 12). Thus, she had failed to show that any defendant was a "responsible party" within the meaning of the statute. In discussing the potential liability of defendants James LaBate and A.F.C. Transfer Corp., who handled the day-to-day management of the site on behalf of Bubenicek and Ward (the State employees whose alleged actions are the sole basis of liability herein), Judge Carter noted as follows:
Plaintiff showed at trial that defendants LaBate and AFC were deeply involved with the day-to-day operations of the landfill from the fall of 1987 until its closure, particularly the financial side (Tr. at 1656-58.) However, plaintiff has not shown that it was during LaBate's tenure as an operator of the site that the hazardous materials were deposited. Colandro and Avasariak and Stamford all dumped materials on the site before LaBate became an operator.[3] Plaintiff's own expert testified that it is impossible to separate the waste materials to determine who dumped what materials and when. (id., at 12).

The failure to connect the private defendants to any hazardous materials on the site was fatal to the claims brought pursuant to CERCLA against the private defendants and such failure of proof similarly barred plaintiff from any relief pursuant to RCRA against any of the private defendants. As to potential State liability pursuant to RCRA[4], Judge Carter wrote:

Plaintiff's RCRA claims against state defendants stem from Bubenicek and Ward's involvement with the landfill operation. Plaintiff argues that state officials knew that the site was being maintained as an informant operation by Bubenicek and Ward; that they authorized or ratified Bubenicek's and Ward's establishment and operation of the site; and that they failed to close it in the face of numerous violations because they did not want to interrupt the flow of information. Her arguments are premised on the theories of ratification, apparent authority, and respondeat superior. (id., at 15).
The court went on to find that the facts proven at trial were insufficient to establish State liability for the actions of Bubenicek and Ward under the three proferred legal theories; that Bubenicek's and Ward's superiors did not have "material knowledge" of their activities (precluding liability under a ratification theory); that the State never communicated to the Priscos any basis for a belief that Bubenicek and Ward's activities in operating the landfill were done with the imprimatur of State authority and that any reliance by the Priscos on Bubenicek's assurances in that regard was unreasonable (precluding liability under an apparent authority theory); and that "Bubinecek's and Ward's acts in operating the site were clearly outside of the scope of their employment" (id., at 20) (precluding liability under a respondeat superior theory).

The district court's judgment was affirmed by the United States Court of Appeals for the Second Circuit (Prisco v A&D Carting Corp., 168 F.3d 593). On the question of potential liability of the private defendants under CERCLA, that court found that "the district court therefore correctly required Prisco to prove that specific defendants in fact transported hazardous substances to the Prisco landfill *** [and] the district court finding that Prisco had failed to prove that any specific defendant transported hazardous substances to the Prisco site was not clearly erroneous" (id., at 605). A procedural issue that was presented to the appellate court centered around the trial court having held, on a prior motion for summary judgment, that the private defendants were "responsible parties" within the meaning of CERCLA and then reversing itself after trial and holding that they were not "responsible parties" because of the failure to prove a connection between any material dumped by a particular defendant and any hazardous substance present on the site. Although the appellate court found, as noted, that the trial court's resolution of that legal issue was correct, it did note the procedural conundrum caused by the prior ruling on the summary judgment motion: i.e., by leading plaintiff to believe she had already established that element of her cause of action it deprived her of the opportunity to present evidence to that effect at trial. The court addressed this issue as follows:
Commendably candid concessions made by Prisco on appeal, however, plainly establish that she was not in fact prejudiced by the district court's turnaround. She expressly admits that she would not have had proof to establish that any specific defendants had brought hazardous substances to the site, even had she been timely apprised that this was to be a key issue at trial. In her brief, Prisco concedes that she "lacked direct knowledge of what was specifically contained in each waste hauler's materials. *** " At oral argument, Prisco's counsel clarified the extent of Prisco's concession by stating in no uncertain terms that she had no evidence beyond what she introduced at trial to demonstrate that particular defendants conveyed hazardous substances to the landfill. (168 F. 3d 593, 607).
Similarly, the court found that the same failure to "prove that particular defendants were connected to particular waste" (id., at 609) was fatal to plaintiff's RCRA action:
Just as the district court was not clearly in error in finding this evidence unpersuasive in the CERCLA context, however, it was not clearly in error in reaching the same conclusion in the RCRA context. Again, we note Prisco's acceptance of the district court's findings of fact and her conceded inability to adduce evidence linking particular defendants to harmful materials. (id.).
With respect to the RCRA claim against the State, the appellate panel noted that such claim "arose from Bubenicek's and Ward's role in the Prisco landfill operation," and referred to the district court's findings that the proof could not sustain a finding of State liability based on the theories of ratification, apparent authority or respondeat superior. The court then held:
We do not reach the issues of ratification, apparent authority, or respondeat superior. The decision below must be affirmed in any event on another basis, albeit one not explicitly employed by the district court. *** The state defendants' vicarious liability becomes academic in light of Prisco's inability to prove that the waste material attributable to any particular defendant, private or otherwise, is linked to an imminent and substantial endangerment to health or the environment, as previously discussed. In other words, nothing turns on the question of whether New York and its agencies may be held accountable for the actions of Bubenicek or Ward because Prisco cannot prove that Bubenicek's or Ward's conduct, as operators of the Prisco landfill, triggers RCRA liability. Prisco concedes that she cannot satisfy the requirements of RCRA under the district court's interpretation of the statute, which we hold to be correct. It follows that she could not succeed in establishing RCRA liability as to Bubenicek or Ward, despite the highly questionable nature of their conduct. Consequently, the state and its agencies could not be liable even were we to conclude that the district court erred in rejecting any of Prisco's theories of vicarious liability. We affirm on this ground. (id., emphasis added).
ANALYSIS
"The doctrine of res judicata prohibits a party from relitigating any claim which could have been or which should have been litigated in a prior proceeding" (County of Nassau v New York State Pub. Empl. Relations Bd., 151 AD2d 168, 185; affd 76 NY2d 579). The rule is "founded upon the belief that it is for the interest of the community that a limit should be prescribed to litigation, and that the same cause of action ought not to be brought twice to a final determination." (Ryan v New York Telephone Co., 62 NY2d 494, 500. In the seminal Ryan decision, the Court of Appeals distinguished res judicata from its cousin, collateral estoppel:
The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same. *** We have recently reaffirmed that collateral estoppel allows "the determination of an issue of fact or law raised in a subsequent action by reference to a previous judgment on a different cause of action in which the same issue was necessarily decided." (Gramatan Home Investors. Corp. v Lopez, 46 NY2d 481, 485). What is controlling is the identity of the issue which has been necessarily decided in the prior action or proceeding. (id., emphasis added).
In Kaufman v Eli Lilly and Co. (65 NY2d 449, 455-456), the Court further elucidated the requirements for the application of collateral estoppel:
There are now but two requirements which must be satisfied before the doctrine is invoked. First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination. (id.)
Thus, res judicata is sometimes otherwise referred to as "claim preclusion," while collateral estoppel is also known as "issue preclusion" (see, Pratt v State of New York, 181 Misc. 2d 488, 490). Defendant argues that application of the principle of collateral estoppel to the facts as found by the federal courts in claimant's prior litigation is dispositive of claimant's first cause of action herein and requires summary judgment. Analysis of the federal court decisions and application of the legal principle to the requirements of the various causes of action collectively set forth in the claim's "first cause of action" reveals defendant to be correct. Claimant's opposition is based, almost entirely, on her confusion of these two related, but distinct, principles.

The issue that was decided in the federal litigation brought by claimant against the State of New York and the various other parties she alleged were responsible for the damage to her property, the resolution of which necessarily determines claimant's first cause of action, is whether any of the damage to her property can be attributed to the dumping of materials during the time that she alleges that the landfill was being operated by State employees. That issue was decided against the claimant in the federal action and, since she is precluded from attempting to relitigate it (and indeed, her counsel explicitly conceded before the federal appellate court that she had absolutely no evidence on which to challenge the finding), her first cause of action, in its entirety, must fail, notwithstanding that the causes of action asserted in the federal action were different (Jordan v Matveichik, 265 AD2d 305; Harrison v Stanton, 253 AD2d 537).

Whether characterized as being based on fraud or misrepresentation of the State's employees, negligent, reckless or intentional conduct on the part of said employees, violation of claimant's constitutional rights, creation of a public or a private nuisance, etc., the liability of the State that claimant seeks to prove herein is wholly vicarious, based on the conduct of its employees, as summarized herein and expanded upon more fully in the federal trial and appellate decisions. It is undisputed that the Priscos operated the landfill for many months, on their own, prior to the involvement of Bubenicek and Ward. Two contractors named Colandro and Avasariak deposited materials there commencing in the early spring of 1987, materials that were not inspected prior to the dumping (Prisco v State of New York, 1996 WL 596546, 1). Stamford Wrecking Company deposited materials there from May 1987 through August or September of that year, materials that were inspected by Thomas Prisco and for which the Priscos received fees of approximately $100,000.00 (id.). Sometime in August of that year, the Priscos met Bubenicek and in October of that year, Bubenicek and Ward commenced their operation of the landfill, with Anthony Calvello and James LaBate managing the day-to-day operation on their behalf (id., 2). It was this factual background that led District Judge Carter to conclude that claimant had failed to prove, after a full trial, "that it was during LaBate's tenure as an operator of the site that the hazardous materials were deposited. Colandro and Avasariak and Stamford all dumped materials on the site before LaBate became an operator" (id., 12). The Second Circuit Court of Appeals noted that claimant "lacked direct knowledge of what was specifically contained in each waste hauler's materials" and that "she had no evidence beyond what she introduced at trial to demonstrate that particular defendants conveyed hazardous substances to the landfill" (Prisco v A&D Carting Corp., 168 F.3d 593, 607) and affirmed the District Court's finding that "Prisco had failed to prove that any specific defendant transported hazardous substances to the Prisco site" (id., at 605). Thus, claimant cannot distinguish what materials were dumped on her property during the period the landfill was operated without even the allegation of State involvement from those materials that were dumped after Bubenicek and Ward assumed stewardship of the enterprise. Since any liability on the part of the State herein would necessarily be vicarious, based on claimant's argument that the State should be held liable for the conduct of Bubenicek and Ward, her failure of proof on the factual question of whether any of the damage to her property occurred during the time that those gentlemen operated the landfill is fatal to her cause of action (see, Bechtel v State of New York, 105 AD2d 677).

Claimant argues that because the liability at issue in the federal litigation concerned only the environmental statutes that were the basis of that action, and because the liability that she seeks to impose herein is broader, encompassing state common law and constitutional claims, she therefore did not have a "full and fair opportunity to litigate all of her distinct claims in the federal proceeding" (Claimant's Supplemental Brief dated October 31, 1997, at 6). Judge Carter only addressed the questions of liability under the CERCLA and RCRA statutes, this argument goes, and did not and in fact could not address the causes of action that claimant has brought in the Court of Claims. This argument reflects claimant's confusion of claim preclusion with issue preclusion.
Collateral estoppel ‘"will bar the relitigation of an issue of law or fact that was raised, litigated, and actually decided by a judgment in a prior proceeding between the parties, if the determination of that issue was essential to the judgment, regardless of whether or not the two proceedings are based on the same claim." N.L.R.B. v United Technologies Corp., 706 F.2d 1254, 1260 (2d Cir. 1983)(citations omitted). Collateral estoppel can be applied to preclude relitigation of issues raised between the same parties in a subsequent litigation, regardless of the underlying claims from which those issues arose. *** Under New York law collateral estoppel [applies] when the issues in both proceedings are identical, there was [a] full and fair opportunity to litigate in the prior proceeding, and the issue was necessarily raised and decided. Kosakow v New Rochelle Radiology Associates (88 F. Supp. 2d 199, 210; S.D.N.Y., 2000), emphasis added. See also, Harrison v Arlington Central School District , 60 F. Supp. 2d 186 (S.D.N.Y., 1999).
Clearly, claimant's inability to connect the damage to her property to any conduct of any of the defendants in the federal action, an inability that a fortiori encompasses her inability to attribute any of the damage to the period before, or after, the State allegedly became involved, was a necessary and indeed decisive resolution of the issue with respect to her federal claims, and just as clearly, she had a full and fair opportunity to litigate that issue. The resolution of that factual issue was fatal to her federal claims, and it is just as fatal to all of the claims that she asserts herein. While the claims are different, the issue is the same, and the failure to establish that any damage occurred during the time when the State was allegedly responsible for the operation of the landfill requires a finding that the State is entitled to summary judgment on the first cause of action.

Although this court, like the Second Circuit Court of Appeals, need not address the District Court's findings on the issues of respondeat superior, ratification and apparent authority, defendant's contention that such findings are entitled to preclusive effect is not without merit (see,e.g., Markoff v New York Life Ins. Co., 530 F.2d 841 [9th Cir., 1976]; In Re Markarian, 228 B.R. 34 [1st Cir. Bankruptcy Panel, 1998] and cases cited at 44), particularly since claimant has offered absolutely nothing to indicate that those findings were erroneous or that any other result would obtain if claimant had the opportunity to try those issues again, in the Court of Claims. Nevertheless, as the Court of Appeals noted, claimant's more basic and fundamental failure of proof renders the question of whether the State of New York can be held liable for the conduct of its employees academic, since claimant cannot establish any damages resulting from any such conduct.

And finally, with respect to the first cause of action, the court cannot help but observe claimant's failure to submit any proof of any pecuniary damages resulting from the activities that form the basis of the claim. Claimant speaks of being put "in jeopardy" for the payment of civil and administrative sanctions and the payment of damages to surrounding landowners, but it is now over 12 years since the facts surrounding the operation of the landfill became known and no such penalties have been imposed, notwithstanding DEC's rejected attempt to have claimant agree to a consent order providing for a fine, nor have any civil suits been brought against claimant, at least to the court's knowledge. With respect to DEC's failure, to date, to attempt to levy any sort of fine or penalty against the claimant, the court notes that while the facts and the law do not provide a basis for the imposition of liability on the State for the actions of Bubenicek or Ward, in view of the aura of State involvement in this affair it might be unseemly, at least, or perhaps even unsupportable for the State to attempt to assess such a penalty. But, as defendant notes, should such an assessment be attempted at this late date, the merits will be litigated in an appropriate forum, not in the Court of Claims. And finally on this point, claimant does not challenge defendant's contention, supported by figures supplied by the claimant at her deposition, that there was no proof that her business suffered any impact from the disclosure of the events surrounding the operation of the landfill.

Claimant's second cause of action alleges that she and her husband were defamed by statements made in a DEC report and repeated by Assemblyman (now U.S. Congressman) Maurice Hinchey to a Newsday reporter and that appeared in an article in that newspaper on January 26, 1990. To begin with, the claim is defective in that it does not comply with the requirement that "the particular words complained of shall be set forth in the complaint" (CPLR 3016[a]). Claimant might argue that she complied with this statute by attaching a photocopy of the Newsday article to the claim as an exhibit, but (1) "[t]he requirement that the defamatory words must be quoted verbatim is strictly enforced (see, Gardner v Alexander Rent-a-Car, 28 AD2d 667, 280 N.Y.S. 2d 595)" (Erlitz v Segal, Liling & Erlitz, 142 AD2d 710); and (2) it leaves the court to divine exactly what the claimant considers defamatory by reference to her characterization of what was said rather than by quoting the allegedly defamatory statement(s).

In any event, claimant alleges that the article was defamatory in that it alleged that "illegal activities, including the disposal of cocaine processing by-products were conducted on claimants' property" (Claim, at p 5, unnumbered paragraph). The sole portion of the article that relates to illegal activity, which the court infers must be the portion to which claimant intends to refer in her paraphrase, is as follows:
In an interview, Assemblyman Maurice Hinchey (D-Kingston), the committee chairman, said there is evidence of hazardous materials leaking at the Patterson dump. DEC tests of water samples taken at the Patterson site show levels of acetone and methyl ethyl ketone. Both are used commercially, but the DEC report sent to Hinchey said they may be the by-products of illegal cocaine processing. The report said substances had leaked into nearby wetlands.
As the Court of Appeals has held, "[w]hether particular words are defamatory presents a legal question to be resolved by the court in the first instance ***. 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" (Aronson v Wiersma, 65 NY2d 592, 593-594). The quoted paragraph was contained in an 18-paragraph article, entitled "The DEC and the Dump - Officials Used Site to Gather Information," the main thrust of which was that the DEC may have been using the dump to gather information on possible connections between organized crime and the waste hauling industry, and was the sole mention of cocaine or any other illegal activities. The only mention of the claimant, much later in the article, was: "Mrs. Thomas Prisco, whose family owns the site, said she was unaware of the DEC using the landfill for intelligence."

No reasonable person reading the Newsday article would be led to conclude that claimant or her family were in any way being accused of involvement in illegal drug manufacture, as opposed to owning a landfill where people who may (or may not) have been involved in such activity were dumping their waste products. The point being made by the article was that the DEC may have been involved in the operation of a landfill, attempting to uncover information about organized crime, and in the process contributing to the pollution of the environment. The reference to cocaine processing was clearly in relation to the organized crime angle. No reasonable interpretation of the quoted paragraph, when read in its context, would involve even the implication that claimant or her family were involved in the manufacture of illegal drugs. To the extent that the article implied anything about the Priscos, it was that they were perhaps less vigilant than they should have been about the materials that were being dumped on their property, resulting in wetlands pollution. Claimant, not surprisingly, does not contend that that implication was defamatory, or false.

Moreover, it is fundamental that truth is a complete defense to an action founded on defamation (see, Jung Hee Lan Han v State of New York, 186 AD2d 536). In that regard, defendant has submitted an affirmation from Warren Reiss, Assistant Counsel with the DEC, advising the court that (1) during 1991, various DEC staffers supplied Assemblyman Hinchey with information relating to the Priscos' landfill, and (2) the chemicals referred to in the article are commonly used in the illegal manufacture of drugs, knowledge based upon his career in law enforcement and environmental protection. Claimant has submitted nothing to challenge the information provided by Mr. Reiss. Thus, the sole portion of the article that claimant identifies as being defamatory is in fact true. Indeed, claimant would be hard pressed to identify any statement in the entire article that was not accurate, at least as far as was known at the time it was written. These chemicals are sometimes used in illegal drug manufacture (and, as the article noted, sometimes used for legitimate activities), the Priscos' property was used as a landfill, and Bubenicek, a DEC official, was using the landfill in an attempt to gather information about organized crime and, it should be noted, as a money-making vehicle (which was hinted at in the article), an activity that resulted in successful criminal charges being brought against him (which occurred subsequent to the article being published). Since the statements of which claimant complains were true, and since they did not defame the claimant in any way, her second cause of action must fail.

Within the myriad of papers that a ten-year lawsuit has inspired are charges and counter-charges by claimant's counsel against defendant's counsel, cries for sanctions, and allusions to foul play that resound as the battles of Achilles and Hector. The court finds that both sides were well and aggresively represented and finds no fault on either side.

Accordingly, for the foregoing reasons, claimant's motion for summary judgment is denied in all respects and the defendant's motion for summary judgment is GRANTED. All other motions are also denied. The Clerk of the Court is directed to close the file. Thus ends this Trojan War.


September 25, 2000
White Plains, New York

HON. ANDREW P. O'ROURKE
Judge of the Court of Claims

The court read and considered the following filed papers:


1. Defendant's Notice of Motion

2. Affirmation of Warren Reiss dated June 1, 1995

3. Claimant's Notice of Cross-Motion

4. Affirmation of Michael Sclafani, Esq, dated November 27, 1995

5. Affidavit of Filomena Prisco sworn to November 24, 1995, and exhibits

6. Supplemental Affirmation of Gregory Nolan, Esq. dated October 29, 1997, and exhibits

7. Supplemental Affirmation of Gregory Nolan, Esq. dated June 23, 1999, and exhibits

8. Further Affirmation of Michael Sclafani, Esq. dated September 10, 1999 and exhibits

9. Affirmation of Michael Sclafani, Esq. dated May 1, 2000


Additionally, the court considered the various Briefs, Memoranda of Law, and correspondence submitted by counsel.


[1].Claimant also seeks permission to add a cause of action for "private nuisance" to her claim.

[2].Since the filing of the claim, the caption has been amended to remove the superfluous reference to the New York State Department of Environmental Conservation.

[3].Colandro and Avasariak dumped material on the site commencing in early spring 1987, and Stamford dumped materials there from May through August or September of that year, all of which preceded Bubenicek and Ward's involvement.

[4].The CERCLA claims against the State were dismissed based on the decision in Seminole Tribe of Florida v Florida (517 U.S. 44), which held that Congress cannot abrogate a state's Eleventh Amendment immunity when it legislates pursuant to the Interstate Commerce clause of the United States Constitution; that such immunity can only be avoided by state waiver or by Congressional action pursuant to the Fourteenth Amendment. The RCRA claims survived Eleventh Amendment challenge because that statute speaks of remedial action to prevent continuing and ongoing harm and thus does not run afoul of the Eleventh Amendment pursuant to the principles enunciated in Ex parte Young (209 U.S. 123).