New York State Court of Claims

New York State Court of Claims

NATIONAL LATINO OFFICERS ASSN. V. THE STATE OF NEW YORK, #2005-030-939, Claim No. 110942, Motion Nos. M-70317, CM-70566


Case Information

NATIONAL LATINO OFFICERS ASSOCIATION OF AMERICA, INC. and ANTHONY MIRANDA The court has stricken the other named defendants from the caption (see infra.)
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has stricken the other named defendants from the caption (see infra.)
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Cronin & Byczek, LLPby Christina A. Leonard, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Ellen Matowik, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 29, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on defendant's motion to dismiss the claim and claimants' cross-motion for permission to interpose an amended claim: Notice of Motion, Affirmation and Exhibits; Notice of Cross-Motion, Affirmation and Exhibits; Affirmation in Opposition.

According to the claim:
This is a claim for declaratory relief and pecuniary damages seeking redress for defamation and slander, and for violations of claimants' Fourteenth Amendment and First Amendment rights under 42 U.S.C. §1983.

On or about March 6, 2005, and thereafter, defendant, COURTNEY BROWN, an employee of defendants, NEW YORK STATE and NEW YORK STATE DIVISION OF HUMAN RIGHTS, made defamatory and slanderous statements specifically directed at claimants NATIONAL LATINO OFFICERS ASSOCIATION OF AMERICA, INC ("LOA"), and ANTHONY MIRANDA
The claim goes on to detail the circumstances of the alleged defamation. Defendant moves to dismiss the claim on a number of grounds.

To begin with, the Court of Claims has no jurisdiction over any individual and the New York State Division of Human Rights is not an entity subject to suit but rather a State agency. The sole proper defendant herein is the State of New York, and the motion to dismiss is granted to the extent of dismissing the claim against the other two named defendants.

Additionally, the Court of Claims has no jurisdiction to grant declaratory relief, other than against an insurance company in circumstances not present here, and the court also has no jurisdiction over claims alleging a violation of Federal Constitutional rights (see Zagarella v State of New York, 149 AD2d 503). The motion to dismiss is also granted with respect to the request for declaratory relief and with respect to those portions of the claim alleging constitutional violations.

What remains is the claim for pecuniary damages arising out of alleged defamation and slander. The claim alleges that on or about March 6, 2005 and thereafter, Courtney Brown made defamatory statements in two separate telephone conversations with a "charging party who had filed charges of racial and ethnic employment discrimination against the New York State Department of Correctional Services." Said statements consisted of Brown stating that claimants were "using," duping" and "screwing" the charging party. The claim further alleges that on May 25, 2005, Brown and another State employee accused claimants, in open court, of sending a "threatening" letter to the Governor.

Defendant maintains that the claim should be dismissed "on the ground that the claim lacks merit" (Affirmation in Support of Motion, ¶1). Defendant alleges that the statements contained in the claim are not susceptible of defamatory meaning, citing Aronson v Weirsma (65 NY2d 592), where the Court held that 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" and that "[t]he mere expression of unhappiness with plaintiff's fulfilling her duties as a legislative assistant is not libelous per se" (id. 594). Defendant also relies on Gruber v State of New York (Ct Cl, Fitzpartick, J., decision and order dated June 18, 2002, UID No. 2002-018-146) in which the court held that calling the claimant "crazy" could not constitute slander per se, stating:
"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)."
Claimants' counsel explains that claimants, National Latino Officers Association, and its chairman, Anthony Miranda, customarily engage in assisting members of the association in prosecuting discrimination complaints and that the defamatory statements were intended to impair claimants' ability to function in that regard. Claimants request permission to interpose an amended claim that reflects, in more detail, the circumstances surrounding the allegedly defamatory statements.

In opposition to the cross-motion, defendant submits that the cross-motion must be denied on the ground that "the jurisdictional defects that render the claim subject to dismissal cannot be cured by amendment of the claim" (Affirmation in Opposition, ¶5), a statement that confuses two totally distinct concepts.

Defendant's motion to dismiss the claim was not based on any allegation that the court lacked jurisdiction, other than with respect to declaratory relief, punitive damages and federal civil rights violations. Otherwise, the word "jurisdiction" does not appear in the original motion papers, and there is no mention of Court of Claims Act §11, other than in a single paragraph alleging that the claim should be dismissed for failure to comply with §11 because the "charging party" was not named in the claim. Counsel's affirmation in support of the motion concludes with the request that the claim be dismissed "since the claim fails to allege a cause of action for slander, and the actions of corrections counsel as alleged are protected by qualified immunity" (Affirmation in Support of Motion).

It is one thing to suggest that a claim must be dismissed for lack of jurisdiction arising from a failure to comply with §11. It is quite another to maintain that a claim should be dismissed because it fails to state a cause of action (i.e., here, because the allegedly defamatory words are not capable of a defamatory construction). As the court held in Cannon v State of New York (163 Misc 2d 623):
The failure to alleges facts sufficient to constitute a cause of action is . . . capable of correction by amendment and does not, in and of itself, render the proceedings jurisdictionally defective. . . In permitting an amendment we must make a distinction between permission to amend a claim to remedy a pleading deficiency and an amendment to cure a jurisdictional defect (id. 625-626).
Although defendant has not moved to dismiss for lack of jurisdiction, the court finds that any such motion would have to be denied because the allegations of the timely served and filed claim are sufficiently detailed to enable the State to conduct a thorough investigation of the relevant facts and circumstances, the "guiding principle" informing §11(b) (Lepkowski v State of New York, 1 NY3d 201; see also Klos v State of New York, 19 AD3d 1173; Rodriguez v State of New York, 8 AD3d 647; Heisler v State of New York, 78 AD2d 767). The fact that the "charging party" was not named in the claim does not impair this conclusion, in view of the other details of the alleged events that are set forth in the claim, as that omission would not have had any effect on the State's ability to investigate. Thus, defendant's contention that some lack of jurisdiction prevents amendment of the claim (to more fully set forth the surrounding circumstances, including the name of the charging party) is incorrect.

Rather, the decisive factor on the cross-motion is whether defendant would suffer prejudice from the requested amendment (see e.g. Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959; Harding v Filancia, 144 AD2d 538). No such prejudice is alleged by defendant and the court perceives none.

The relevant consideration is, as stated by defendant, whether the allegedly defamatory statements could rise to the level of defamation per se. Construing the statements in their context, it seems clear that the accusation that an association and its president – who customarily engage in assisting complainants in discrimination cases – do so for illegitimate reasons ("using, "duping" and "screwing" the people they ostensibly are protecting) could be construed as injuring claimants in their trade business or profession. Such conclusion is particularly apt given the early nature of these proceedings; i.e., a pre-answer motion to dismiss that necessarily assumes the truth of the relevant factual allegations.

The court finds no merit to defendant's contention that the claim fails to state a cause of action, and further finds that there is no reason not to permit the requested amendment of the claim. Thus, the instant motion must be, and hereby is, denied and the cross-motion granted. Claimants may serve and file the amended claim within 30 days of the filing date hereof.

December 29, 2005
White Plains, New York

Judge of the Court of Claims