New York State Court of Claims

New York State Court of Claims

JO v. THE STATE OF NEW YORK, #2006-044-510, Claim No. 110456, Motion No. M-71771


Defendant’s motion to dismiss the claim for defamation by a school district spokesman is granted on the basis of qualified immunity and lack of special damages.

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:
MEE JO, pro se
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 30, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


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 lost.[1]

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.[2] 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, 2004.[3] Claimant's petitions and appeals were ultimately dismissed by NYSED,[4] and claimant 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.

October 30, 2006
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion for dismissal of the claim and/or for summary judgment:
1) Notice of Motion filed May 25, 2006; Affirmation in Support of Joseph F. Romani, AAG dated May 23, 2006 with annexed Exhibits A through J; and Memorandum of Law dated May 23, 2006.

Filed Papers: Claim filed February 4, 2005; Verified Answer filed March 14, 2005.

[1].Claimant's allegations concerning Mr. Dunn's statement use the exact words printed in the newspaper (see Claim, ¶ 5). In paragraph 6 of Mr. Dunn's affidavit in support of the motion, he appears to deny that the newspaper quoted him directly. Defendant moves to dismiss the claim on the ground that Mr. Dunn's exact words were not stated in the claim (presumably because claimant did not know what the words were); however, because defendant's motion for summary judgment is granted herein, the motion to dismiss on that particular basis is moot.
[2].Defendant's motion for dismissal/summary judgment, exhibit E.
[3].Defendant's motion for dismissal/summary judgment, exhibit F.
[4].Defendant's motion for dismissal/summary judgment, exhibits G, H & I.