Defendant State of New York (hereinafter “defendant”) moves for
dismissal of the claim and/or for summary judgment. Claimant, who appeared pro
se, has not responded to the motion.
This claim alleges that a New York State Education Department
(“NYSED”) employee released false information to the media regarding
claimant and her daughter which concerns an underlying dispute with the
daughter's school district. The claim seeks damages for slander and defamation.
During the 2003-2004 and 2004-2005 school years, claimant's daughter was a
student at Corning Free Academy in the City of Corning School District
(“District”) in Steuben County, and claimant was in continuous
disagreement with school officials and teachers of the District. Claimant
repeatedly expressed dissatisfaction and frustration with teaching methods,
grading policies, student elections, and other similar matters. Claimant sought
redress for her claims, including the removal of the District Superintendent and
the school principal, through three formal petitions and appeals to the
Commissioner of NYSED (“Commissioner”). Simultaneously, claimant
was also involved in proposing a charter school for the district. While public
discussions and hearings were being held regarding the charter school formation
issue, a newspaper reporter asked a NYSED representative to confirm information
regarding claimant's appeals to the Commissioner.
In her claim, claimant alleges that on November 9, 2004, NYSED spokesman Thomas
Dunn advised the media of the following:
[Claimant] asked [the Commissioner] to intervene because [claimant's] daughter,
now 13 and an eighth-grader, earlier received an A instead of an A-plus on a
paper; [claimant] asked the commissioner to remove [the District Superintendent]
as superintendent because she did not see to it that the A was changed to an
A-plus; [claimant] also asked that [the District Superintendent] be removed
because [claimant] was not allowed to observe student body election that she
feels were rigged [sic] because her daughter
A newspaper article about the potential charter school formation, which
contained the exact language quoted above, was published on November 10, 2004 in
the Elmira Star-Gazette.
A local television
news station, Newschannel 36, WENY, carried the story on its 11:00 p.m. news on
November10, 2004, and again at 6:00 a.m. on November 11,
Claimant's petitions and appeals were
ultimately dismissed by NYSED,
also withdrew her application for a charter school.
The claim purports to set forth five causes of action, all of which generally
allege defamation against defendant, through Mr. Dunn, based on the newspaper
article and television news segments. Defendant moves to dismiss the claim for
defective pleading pursuant to CPLR 3016 (a), and further moves for summary
judgment for lack of merit.
Defendant asserts that Mr. Dunn is entitled to qualified immunity, that
claimant has made no showing of malice, and that therefore summary judgment
should be granted on the claim. A party moving for summary judgment must bear
the heavy burden of showing entitlement to judgment as a matter of law by
tendering evidence sufficient to demonstrate the absence of any material issues
of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Failure to
make such a showing requires denial of the motion, regardless of the sufficiency
of the opposing papers (id. at 853). Further, the evidence
submitted must be viewed by the Court in the light most beneficial to the
non-moving party (Robinson v Strong Mem. Hosp., 98 AD2d 976).
Mr. Dunn is an employee in NYSED's Office of Communications, and his duties are
to respond to inquiries from reporters regarding matters pending before NYSED
(Affidavit of Thomas Dunn in support of motion, ¶ 1). Statements to the
press relating to governmental matters made by governmental representatives in
the course of their duties are subject to a qualified privilege (see
Feldschuh v State of New York, 240 AD2d 914, 915). Accordingly, in
responding to a reporter's inquiry about claimant’s appeals pending before
the Commissioner, Mr. Dunn was clearly acting within the scope of his duties and
the statement is entitled to a qualified privilege (see generally Stukuls v
State of New York, 42 NY2d 72; Feldschuh, supra).
Since defendant has established that the complained-of communication is
entitled to a qualified privilege, “the burden shifts to the [claimant] to
show that the defendant was motivated by actual malice or ill will”
(Feldschuh, supra, at 915-916). Although claimant has generally alleged
malice and ill will in her claim, as previously noted she submitted no papers in
response to defendant's motion and thus does not meet her burden of showing
malice or ill will. Moreover, malice cannot be inferred from the alleged
statements as the information was reported in the newspaper article and
television segments, and the statements “do not appear to be beyond those
necessary for the purpose of the privileged communication or to be gratuitously
extravagant or vituperative” (id., at 916; see also, Herlihy v
Metropolitan Museum of Art, 214 AD2d 250, 259-260). Defendant's motion for
summary judgment could be granted solely on this basis.
However, defendant also contends that the words which claimant apparently
attributes to Mr. Dunn are not slanderous or libelous per se, and that
since special damages are not alleged, the claim should be dismissed.
“Whether particular words are defamatory presents a legal question to be
resolved by the court in the first instance” (Aronson v Wiersma, 65
NY2d 592, 593). In this case, the words claimant imputes to Mr. Dunn do not
imply misconduct, immorality, criminal conduct or otherwise “expose
[claimant] to hatred, contempt, or aversion, or * * * induce an
evil or unsavory opinion of [her] in the minds of a substantial number of the
community” (Mencher v Chesley, 297 NY 94, 100; see McCart v
Morris, 58 AD2d 700, 701).
“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, supra at 594).
As a matter of law, Mr. Dunn's alleged statements are not defamatory on their
face, and thus special damages would have to be alleged in order to state a
cause of action. Claimant's failure to plead special damages and the lack of
evidence of malice or ill will require dismissal of the claim (see
Liberman v Gelstein, 80 NY2d 429; Feldschuh, supra).
For the foregoing reasons, defendant's motion to dismiss and/or for summary
judgment is granted.