New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2008-044-559, Claim No. 107225, Motion No. M-74609


Defendant’s motion to dismiss granted; claimant failed to plead special damages in defamation claim, and alleged statement did not constitute defamation per se.

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:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim alleging the Department of Correctional Services (DOCS) provided false information on the Inmate Population Information Search section of its Website[1] (the Website) concerning claimant’s criminal convictions. Defendant State of New York (defendant) answered and asserted various affirmative defenses. Defendant now moves to dismiss the claim on the grounds that the pleading is defective, and further, fails to state a cause of action. Claimant has not responded.

In the claim, claimant alleges that on January 10, 2003, he received a letter from his friend, Evelyn McKinnon, stating that she searched his name on the Website and was provided with information that claimant had been convicted of “(a) [r]ape in the first degree – Crime – Class ‘C’ [sic].” Claimant states that he has not been convicted of the crime of rape, and asserts causes of action for negligence and defamation,[2] as well as several violations of the State Constitution.

Defendant argues that because a cause of action for defamation is available to claimant, the Court should not recognize a constitutional tort in this claim. Defendant also contends that because claimant has not set forth the defamatory statement with specificity as to the time, place, and manner of that statement as required by CPLR 3016 (a), the claim should be dismissed on procedural grounds. Lastly, defendant asserts that information contained on the DOCS Website is subject to a qualified privilege, and claimant’s failure to allege special damages is fatal.

With respect to the alleged violations of the State Constitution, the Court of Appeals recognized the existence of a constitutional tort as a “narrow remedy” to assure a constitutional provision’s effectiveness and to further its purpose (see Brown v State of New York, 89 NY2d 172, 184 [1996]). However, it is not necessary to recognize a constitutional tort in situations where a claimant has an adequate, alternate remedy in common-law tort (see Martinez v City of Schenectady, 97 NY2d 78 [2001]; Augat v State of New York, 244 AD2d 835, 837 [1997],

lv denied
91 NY2d 814 [1998]). In this claim, claimant has an adequate remedy for defendant’s allegedly wrongful conduct, specifically his cause of action for defamation. Accordingly, the Court need not, and will not, recognize a constitutional tort claim under the State Constitution in this matter (see Martinez v City of Schenectady, supra; Bullard v State of New York, 307 AD2d 676 [2003]). The causes of action alleging constitutional violations are therefore dismissed.

Claimant’s cause of action for negligence is also without merit. “[A] defamation cause of action is not transformed into one for negligence merely by casting it as [such]” (Iafallo v Nationwide Mut. Fire Ins. Co., 299 AD2d 925, 927 [2002]). Claimant alleges an injury to his reputation as a result of defendant’s purported statement that he was convicted of rape in the first degree.[3] Consequently, claimant “is relegated to whatever remedy he might have under the law of defamation and cannot recover under principles of negligence” (Colon v City of Rochester, 307 AD2d 742, 744 [2003], appeal dismissed and lv denied 100 NY2d 628 [2003]; see also Butler v Delaware Otsego Corp., 203 AD2d 783 [1994]; Virelli v Goodson-Todman Enters., 142 AD2d 479 [1989]). Accordingly, the negligence cause of action is also dismissed.

In order to set forth a cause of action for defamation, claimant must allege (1) that defendant published a false statement to a third party; (2) defendant published said statement without authorization or privilege; (3) fault, judged at a minimum by a negligence standard; and (4) special harm or defamation per se (see Salvatore v Kumar, 45 AD3d 560 [2007], lv denied 10 NY3d 703 [2008]; Dillon v City of New York, 261 AD2d 34, 38 [1999]). Where a statement is defamatory per se, damages are presumed and a claimant is not required to plead and prove special damages (Liberman v Gelstein, 80 NY2d 429 [1992]). In order for a statement to be defamatory per se, it must fall within one of four categories which “consist of statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman” (id. at 435)[4]4 Moreover, a pleading in an action for defamation must also set forth the particular words complained of, and the manner and persons to whom the publication was made (CPLR 3016 [a]; see Salvatore v Kumar, supra, at 562-563).

With respect to the procedural requirements of CPLR 3016 (a), claimant has clearly set forth the particular words alleged to be defamatory, that is that his conviction was erroneously listed as “(a) [r]ape in the first degree – Crime – Class ‘C’ [sic].” Claimant has also set forth that the statement was published to McKinnon through the Website. However, claimant has completely failed to set forth the time of the alleged publication. Notwithstanding that he was informed by McKinnon on January 10, 2003, there is no allegation concerning the time that the statement was published to her.[5] Accordingly, the claim could be dismissed solely on this basis.

Further, claimant’s failure to plead special damages is fatal to his cause of action for defamation. Even though charging an individual with a serious crime will generally constitute defamation per se, the statement at issue does not. The Court must accept the facts as alleged to be true on this motion to dismiss for failure to state a cause of action, that is that defendant falsely stated claimant had been convicted of rape in the first degree, a class C felony,[6] when in fact, claimant had been convicted by a jury verdict of attempted rape in the first degree, a class C felony (People v Johnson, 181 AD2d 914 [1992], lv denied 80 NY2d 833 [1992]).[7]

“A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00). In order for claimant to be convicted of attempted rape in the first degree, it was established that he intended to commit the crime of rape in the first degree and that he engaged in conduct to carry out that intent – that is he took action to “carry the project forward within dangerous proximity to the criminal end to be attained” (People v Bracey, 41 NY2d 296, 300 [1977] quoting People v Werblow, 241 NY 55 [1925]). Although claimant’s criminal responsibility is less for the attempted rape in the first degree, it is clearly and necessarily dependent upon the crime of rape in the first degree – which defendant was in “dangerous proximity” of completing (Penal Law § 110.05; People v Johnson, supra).

As set forth previously in this Decision and Order, the allegedly false statement listing claimant’s conviction for rape in the first degree incorrectly described that crime as a class C crime. However, and perhaps ironically, claimant’s properly listed conviction for attempted rape in the first degree is a class C crime – and properly designated as such on the Website. The Court finds that defendant’s statement that claimant was convicted of a class C felony, even though it was not the accurate crime, does not constitute defamation per se in light of the fact that his actual conviction was for a class C felony.

Claimant has failed to state a cause of action for defamation, and defendant’s motion is accordingly granted. Claim No. 107225 is dismissed in its entirety.

June 30, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion:

1) Notice of Motion filed on March 4, 2008; Affirmation of James E. Shoemaker, Assistant Attorney General, dated February 29, 2008, and attached Exhibits A through F.

Filed papers: Claim filed on January 21, 2003; Verified Answer filed on February 24, 2003.

[2]. Claimant actually alleges a cause of action for slander. However, because the allegedly defamatory statement was written rather than spoken, the cause of action is one for libel rather than slander (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 379 [1977], cert denied 434 US 969 [1977]).
[3]. Claimant was actually convicted of attempted rape in the first degree.
[4]. The only arguably applicable category in this case is that the statement charged claimant with a serious crime.
[5]. Although not raised by defendant, there is a question as to whether this claim is timely based upon the single publication rule – which in this case would require that this action for defamation be commenced within one year of the date upon which the incorrect information was first obtained on the Website, regardless of whether it was McKinnon who first accessed that information (Firth v State of New York, 98 NY2d 365 [2002]).
[6]. The Court notes that rape in the first degree is a class B felony (Penal Law § 130.35).
[7]. Claimant was convicted of attempted rape in the first degree by a jury verdict (People v Johnson, supra). Pursuant to claimant’s Description of Pattern of Criminal Behavior, he forcibly grabbed a female complainant around her neck, placed a gun to her head, and at some point during the ordeal climbed on top of her while undoing his shirt and stated “ ‘I’m going to teach you a lesson, all bitches are alike’ ” (Defendant’s Motion to Dismiss, Exhibit D).