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
(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
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
). 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 ; Augat v State
of New York, 244 AD2d 835, 837 ,
91 NY2d 814 ). 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 ). 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.
299 AD2d 925, 927 ). 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.
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 ,
appeal dismissed and lv denied
100 NY2d 628 ; see also Butler v
Delaware Otsego Corp.,
203 AD2d 783 ; Virelli v Goodson-Todman
142 AD2d 479 ). 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 , lv denied
10 NY3d 703
; Dillon v City of New York,
261 AD2d 34, 38 ). 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,
429 ). 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.
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,
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.
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
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 , lv denied
“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  quoting
People v Werblow, 241 NY 55 ). 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.