New York State Court of Claims

New York State Court of Claims

DANKERT v. THE STATE OF NEW YORK, #2008-032-118, Claim No. 112724, Motion No. M-74793


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:
Donald G. McGrath, PLLCBy: Donald G. McGrath, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Glenn C. King, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
September 29, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose on May 18, 2006 when the Comptroller of the State of New York, Alan G. Hevesi, issued a press release which erroneously stated that the Court Clerk of the Town of Perrysburg, New York had pled guilty to a misdemeanor and paid a restitution in the amount of $5,147.00. Claimant Lori A. Dankert, who was at the time (and continues to be) the Court Clerk for the Town of Perrysburg, notified the Comptroller’s Office of the error and was told that the information on the Office’s web site would be changed. The Comptroller refused, however, to issue a correcting Press Release. Claimant then commenced this action for defamation, alleging that she has neither committed a crime, pled guilty to a misdemeanor, nor been ordered to pay restitution. The claim seeks damages in the amount of $1 million for the resulting damage to her good name and reputation.

In its answer, defendant acknowledged that the press release was issued by mistake but raised, as its second affirmative defense, the following:
The acts complained of in the claim as defamatory were made in the discharge of a public duty and therefore are protected by a qualified or absolute privilege.
Defendant now moves for summary judgment in its favor on the ground that its action in issuing the press release was protected by qualified immunity and that claimant has failed to establish actual malice which is necessary to overcome the immunity.

In Feldschuh v State of New York, (240 AD2d 914 [3d Dept 1997]), an employee of the NYS Department of Health (hereinafter “DOH”) responded to a newspaper request by providing copies of letters and other information about charges that had been filed against a certain laboratory and blood bank. When DOH was sued for defamation by the laboratory, the Third Department summarized the applicable law in as follows:
[W]here a defendant has a duty to impart certain information to another person, the communication is qualifiedly privileged provided the communicator has a good-faith belief that the information is true. Following this rule, qualified immunity has been bestowed upon press statements made by governmental representatives concerning governmental affairs.
(240 AD2d at 915 [citations omitted].) In that case, the DOH employee who released the information was charged with the responsibility of responding to inquiries from the press regarding claimants, and consequently the Court determined that the communication was qualifiedly privileged.
Once the defendant establishes that a communication is entitled to a qualified privilege, the burden shifts to the plaintiff to show that the defendant was motivated by actual malice or ill will. This requires a showing that the statements were made with a high degree of awareness of their probable falsity (the constitutional standard of malice) or that malice was the one and only cause for the publication (the common-law standard).
(Id. at 915-916 [citations omitted].)

Similarly, in Mee Jo v State of New York, (14 Misc 3d 1202 [A], 2006 WL 3615208 [Ct Cl 2006]), a spokesman for the State Education Department supplied to the press information about three complaints filed with the Commissioner by a dissatisfied parent. The parent subsequently sued the State, alleging that the information released had been defamatory. In granting summary judgment dismissing that claim, the Hon. Catherine Schaewe found that, because it was a duty of the spokesman to respond to inquiries from reporters regarding matters pending before the Department, the information he conveyed qualified as a statement relating to a governmental matter made by a governmental representative in the due course of his duties, and thus was entitled to a qualified privilege. Because the claimant in that action failed to offer any proof of malice, and malice could not be inferred from the statements themselves, the claim was dismissed.

In support of the instant motion, defendant has provided the claim, answer, a verified bill of particulars, and a memorandum of law. There is no submission, however, to identify the person or office that issued the press release and to establish that such action fell within the ordinary course of his or its duty. Such a finding must be made before it can be determined that the actor is entitled to a qualified privilege and the burden shifted claimant to come forth with evidence of malice or ill will, so as to overcome the privilege.

Defendant’s motion is denied.

September 29, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:
1. Notice of Motion and Supporting Affirmation of Glenn C. King, AAG, with annexed Exhibits and Memorandum of Law;

2. Memorandum of Law in Opposition of Donald G. McGrath, Esq.;

3. Reply Affirmation of Glenn C. King, AAG.

Filed papers: Claim