New York State Court of Claims

New York State Court of Claims

GRUBER v. STATE OF NEW YORK, #2002-018-146, Claim No. 102174, Motion No. M-64816


Synopsis


Defendant's motion for summary judgment granted. A cause of action for slander did fall into any of the categories under 42A NY Jur 2d §4, and claimant did not plead special damages.

Case Information

UID:
2002-018-146
Claimant(s):
SUSAN H. GRUBER The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
GRUBER
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102174
Motion number(s):
M-64816
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
RICHARD J. P. HANLON, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: CHRISTOPHER WILES, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 18, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Defendant brings a motion for summary judgment. Claimant opposes the motion. Depositions of claimant and Ms. Ryan have been completed and are attached to defendant's motion documents as exhibits.

The claim seeks damages for slander and for a breach of confidentiality pursuant to Workers' Compensation Law §110-a. The claim asserts that on or about September 18, 1999, claimant's Colorado dentist had a telephone conversation with Karen Ryan, a caseworker for the New York State Insurance Fund in Syracuse, New York who allegedly told the dentist that claimant was "crazy." It is alleged that this comment was unrelated to the purpose the dentist called. Claimant asserts that this statement was slanderous and caused her to suffer anxiety, damaged her reputation, self-esteem, and morale and caused her financial loss. She further contends that the statement violated Workers' Compensation Law §110-a. Claimant seeks both compensatory and punitive damages.

Defendant seeks summary judgment arguing that claimant cannot, as a matter of law, establish her cause of action for slander since she has suffered no special damages. To support its position, defendant has attached claimant's deposition testimony. Defendant further argues that §110-a of the Workers' Compensation Law has no application here because the law was designed to prevent employers from accessing workers' compensation records of potential employees under consideration for employment.

Claimant submits the affirmation of her attorney in opposition, asserting that claimant showed in her deposition that she suffered economic injury: special damages. Claimant's attorney also takes exception to defendant's characterization of §110-a of the Workers' Compensation Law, asserting instead that the law was designed to prohibit disclosure of claimant's records and information and is thus actionable under these facts.

To establish a cause of action for slander claimant must show that 1) a false and defamatory statement was uttered, and the statement was about and concerning the claimant, 2) the statement was published by defendant to a third party, 3) fault on the part of the defendant, and 4) injury resulted. (43A NY Jur 2d, defamation and privacy, §4) Additionally, claimant must plead and prove special damages, unless the alleged slanderous words fall within one of the slander per se categories.(
Liberman v Gelstein, 80 NY2d 429; 43A NY Jur 2d, defamation and privacy, §3) Slander per se involves language which by its very substance renders the injurious nature apparent, and it falls into four categories: language which 1) imputes the commission of a criminal offense, 2) injures claimant in her trade, business or profession, 3) indicates claimant contracted some loathsome disease, or 4) imputes unchaste conduct to a woman. (Liberman v Gelstein, supra at 435; Tourge v City of Albany, 285 AD2d 785, 786) If the allegations do not fit into one of the enumerated categories, then special damages must be alleged with specificity. "Special damages consist of ‘the loss of something having economic or pecuniary value' which ‘must flow directly from the injury to reputation caused by the defamation; not from the effects of defamation' and it is settled law that they must be fully and accurately identified ‘with sufficient particularity to identify actual losses'" (Matherson v Marchello, 100 AD2d 233, 235)(citations omitted)
Claimant did not plead special damages. Nor did claimant adequately specify special damages in her bill of particulars or deposition testimony. The general assertions that she sustained financial damage and the loss of the financial support of her husband are insufficient to meet the stringent pleading requirements. (
Matherson v Marchello, supra)
Moreover, the words allegedly used by Ms. Ryan do not fit into one of the four per se categories. The Court has before it the sworn testimony of Ms. Ryan, stating that she told claimant's dentist that "[claimant] was crazy if she thought I [the State Insurance Fund] was going to pay for her medical bill for her teeth." (Exhibit C, Ryan deposition, page 12, lines 13-14). Claimant has come forward with no proper evidentiary proof that anything else was said, or that the context was any different than as Ms. Ryan testified . [1]letters of Aurora Ruman Saddler, the Colorado dentist (the first letter is also unsigned Exhibit A) and a form granting claimant's counselor permission to release confidential information to the insurance company and certain other persons.
Whether words are defamatory, presents a legal question. (Tracy v Newsday, Inc., 5 NY2d 134, 136; Aronson v Wiersma, 65 NY2d 592, 593) "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, supra at 594) The reference to claimant as "crazy" in the context as described by Ms. Ryan is not defamatory. (Compare, O'Brien v Lerman, 117 AD2d 658; Rojas v Debevoise & Plimpton, 167 Misc 2d 451, 457)
Based upon Ms. Ryan's sworn testimony of what she told claimant's dentist, Ms. Ryan did not release any information from claimant's workers' compensation file in violation of Workers' Compensation Law §110-a.[2]

Accordingly, based upon the foregoing, defendant's motion is GRANTED and the claim is DISMISSED.


June 18, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:

Notice of Motion........................................................................................1

Affirmation of Christopher Wiles, Esquire, Assistant Attorney General

in support, with all exhibits attached thereto..................................2

Affirmation of Richard J. P. Hanlon, Esquire, in opposition,

with all exhibits attached thereto....................................................3


Defendant's Memorandum of Law.............................................................4


Claimant's Memorandum of Law...............................................................5


Filed Documents:


Claim...........................................................................................................6


Answer.........................................................................................................7


Claimant's verified Bill of Particulars.........................................................8



[1]Claimant has submitted in opposition the affirmation of her attorney, the unsworn

[2]The Court does not reach the issue of whether claimant has the right to bring an individual suit underthat section of the Workers' Compensation Law.