New York State Court of Claims

New York State Court of Claims

ACKERMAN v. THE STATE OF NEW YORK, #2007-016-010, Claim No. 111432, Motion No. M-72253


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):

Alan C. Marin
Claimant’s attorney:
Becker & D’Agostino, P.C.By: Michael D’Agostino, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Victor J. D’Angelo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 19, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for summary judgment dismissing the claim of Fredda E. Ackerman for defamation. Ms. Ackerman alleges that while she was assigned as a therapist/drug counselor to a specialized part of Supreme Court, Criminal Division in Bronx County (the “Bronx Treatment Court”), on August 25, 2005, employees of defendant stated that she was “high on heroin,” “her eyes were pinpoints,” and that “she nodded off and was scratching.” Defendant argues that the claim should be dismissed because the statements made were true, or in any event, are shielded by a qualified privilege that cannot otherwise be overcome. As of August 25, 2005, Ms. Ackerman was employed as a counselor by Full Circle Health, Inc., a company which had contracted with the State of New York to provide mental health services to persons in the criminal justice system. Full Circle had assigned claimant to work at the Bronx Treatment Court, counseling persons charged with drug offenses.

On August 25th, claimant’s second day of her assignment, she attended an 11 a.m. meeting with various staff members. According to Ms. Ackerman, she had been receiving treatment for back pain for five years, and was taking Actiq, Duragesic and two other pain medications. In addition, she states that she had probably taken Benadryl the night before for allergies. Claimant recalls that at the meeting, she was in a lot of pain, was very tired, and had a hard time keeping her eyes open.

There are some discrepancies as to exactly what was said after the meeting – specifically as to whether Ms. Ackerman was accused of having used heroin – but it is essentially agreed that after the meeting, William Rosario, the Resource Coordinator for the Court, reported to Martha Epstein, the Court’s Project Director, that he had observed Ms. Ackerman scratching herself, appearing sleepy and nodding off, and that she appeared to be under the influence of drugs.

Thereafter, Ms. Epstein called claimant’s employer Darcel Dillard-Suite, a principal of Full Circle, and reported what Mr. Rosario had told her, saying that she was concerned: “I am sending her back to you. You better look into this. I don’t want her back until you look into this.” See ¶14 of the October 2, 2006 affirmation of Michael D’Agostino (the “D’Agostino Aff.”).
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In Liberman v Gelstein, 80 NY2d 429, 437, 590 NYS2d 857, 862 (1992) (citations omitted), the Court of Appeals stated that:
Courts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether . . . One such conditional, or qualified, privilege extends to a “communication made by one person to another upon a subject in which both have an interest” . . .

The scope of this qualified privilege is “widespread in its application”; it arises when

a person makes a bona fide communication on a subject about which he or she has “an interest,

or a legal, moral, or social duty to speak, and the communication is made to a person having a

corresponding interest or duty . . ..” Garson v Hendlin, 141 AD2d 55, 60, 532

NYS2d 776, 779 (2d Dept 1988), lv denied 74 NY2d 603, 543 NYS2d 396 (1989) (citations omitted); see also Silverman v Clark, 35 AD3d 1, 10, 822 NYS2d 9, 16 (1st Dept 2006).

A qualified privilege obtains here, where Mr. Rosario, Ms. Epstein and Ms.

Dillard-Suite all had a common interest in Ms. Ackerman’s performing her duties in a

professional manner. In any event, claimant does not dispute that a common interest for

purposes of the privilege exists.

The common interest privilege may be overcome if claimant can demonstrate that the alleged defamatory statements were made with actual malice. See, e.g., Toker v Pollak, 44 NY2d 211, 405 NYS2d 1 (1978). Two types of malice may be shown: constitutional malice and common law malice. As to constitutional malice, claimant must show that the statements were made with a “high degree of awareness of their probable falsity.” As to common law malice, claimant must show spite or ill will, not just with regard to defendant’s general feelings about claimant, but as to the speaker’s motivation for making the defamatory statements. Liberman, supra.

Claimant argues that Ms. Epstein’s allegation of heroin use “pushed the conversation into a different sphere” and constituted malice, as Ms. Epstein, an experienced drug counselor, should have known that there could be any number of reasons for claimant to appear as she did, including the proper use of prescription medications. See ¶25 of the D’Agostino affirmation.

Such argument is unavailing as claimant has failed to present any evidence of either a high degree of awareness of probable falsity or spite or ill will as to the motivation for making the statements. Ms. Ackerman points to nothing specific in the record that supports her allegation of malice; she instead maintains that the words stated necessarily imply malice. Such is insufficient to make a showing of either constitutional or common law malice. See, e.g., Sanderson v Bellevue Maternity Hosp., Inc., 259 AD2d 888, 686 NYS2d 535 (3d Dept 1999); Kilcoin v Wolansky, 75 AD2d 1, 428 NYS2d 272 (2d Dept 1980).

In view of the foregoing, defendant’s arguments concerning truth as an absolute defense need not be reached. Accordingly, having reviewed the submissions[1], IT IS ORDERED that motion no. M-72253 be granted and claim no. 111432 be dismissed.

March 19, 2007
New York, New York

Judge of the Court of Claims

  1. [1]The following were reviewed: defendant’s notice of motion with affirmation in support and exhibits A through J; defendant’s memorandum of law in support; claimant’s “Attorney’s Answering Affirmation”; and defendant’s “Affirmation in Reply.”