|Claimant short name:||DANKERT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Donald G. McGrath, PLLC
By: Donald G. McGrath, Esq.
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Glenn C. King, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||March 18, 2010|
|See also (multicaptioned case)|
Claimant has been the Chief Court Clerk of Perrysburg, New York since 1999. On May 19, 2006, she received a phone call from another court clerk to inform her that the New York State Comptroller's Office (Comptroller's Office) had issued a press release that indicated that the court clerk of Perrysburg had pled guilty to a misdemeanor and paid restitution in the amount of $5,147.00 (Exhibit 1). The statement was not true. Claimant's supervisor had, in fact, pled guilty and paid the restitution. Claimant called the Comptroller's Office and received a return call from Deputy Press Secretary Dan Weiller. Claimant informed him that she wanted a retraction of the statement because of the positions that she held with the Town and with the State as an instructor for court clerks and local judges.(1) Claimant believed that the problem was resolved. Two weeks later, however, her husband read in the Gowanda Pennysaver that the Perrysburg Court Clerk had pled guilty to a misdemeanor and paid $5,147.00 in restitution (Exhibit 2).
In 2006, Jennifer Freeman-Loshbaugh was an Assistant Press Secretary for the local government unit for the Comptroller's Office. In the spring of that year, this unit concluded an audit of 12 judges in the southern tier of New York. Loshbaugh's responsibilities included writing a press release about that audit and some reforms the then Comptroller was submitting to address problems the unit had found in these offices. When she learned about the mistake in the press release regarding claimant, she reviewed her notes and determined that "Justice" and "Court Clerk" for the Town of Perrysburg and the Village of Perry had been erroneously flipped. Specifically, she had written "Court Clerk" when referencing the Town of Perrysburg and "Justice" when referencing the Village of Perry, when it should have been the "Justice" of the Town of Perrysburg and the "Court Clerk" of the Village of Perry. She testified that smaller newspapers like the Pennysaver simply downloaded press releases and used them in their publications. The press release would have been sent out to several hundred newspapers and television stations statewide. She said the usual protocol with this type of mistake would have been a correction to the press release online and a phone call to the local newspapers with the correction. However, in this case, the press release went out on May 18, 2006, one day prior to the error being brought to her attention. Accordingly, if the daily newspapers were going to use the information, they would have done so the previous day.
Defamation is defined as the making of a false statement which tends to "expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society" (Foster v Churchill, 87 NY2d 744 , citing Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 379 , citing Sydney v MacFadden Newspaper Publ. Corp., 242 NY 208, 211-212 ; Matovcik v Times Beacon Record Newspapers, 46 AD3d 636 [2d Dept 2007]). "Defamation is the injury to one's reputation, either by written expression (libel) or oral expression" (slander) (Penn Warranty Corp. v DiGiovanni, 10 Misc 3d 998, 1002 [Sup. Ct., NY County 2005], citing Morrison v National Broadcasting Co., 19 NY2d 453 ). The elements of defamation are: (1) a false statement; (2) publication without privilege or authorization to a third party; (3) constituting fault as judged by, at a minimum, a negligence standard; (4) the statement causes special damages or constitutes defamation per se (Dillon v City of New York, 261 AD2d 34, 38 [1st Dept 1999]). There are four categories of statements that are libelous per se. These statements: (1) charge plaintiff with a serious crime; (2) tend to injure plaintiff in her place of business, or in her trade or profession; (3) promote the idea that plaintiff has some loathsome disease; or (4) impute unchastity. (Penn Warranty Corp. v DiGiovanni, supra; Liberman v Gelstein, 80 NY2d 429 ). If a statement is libelous per se, the law presumes that damages result and need not be separately proved (Penn Warranty Corp v Di Giovanni, supra).
The defenses of absolute privilege or qualified privilege must be pled and proved (Garriga v Townsend, 285 App Div 199 [3d Dept 1954]). Defendant has pled these defenses and the Court finds that a qualified privilege applies, but not an absolute privilege. Absolute privilege would extend to a principal executive of a State or local government or one who is entrusted by law with administrative or executive policy-making responsibilities of considerable dimensions (Stukuls v State of New York, 42 NY2d 272 ). Whereas absolute privilege would attach to the official audit reports issued by the Division of Audit and Accounts on behalf of the State Comptroller (Ward Telecom. and Computer Servs.v State of New York, 42 NY2d 289 ), press statements made by governmental representatives concerning governmental affairs are covered by qualified privilege (Feldschuh v State of New York, 240 AD2d 914 [3d Dept 1997], citing Buckley v Fitzsimmons, 509 US 259 ; Chase v Grilli, 127 AD2d 728 [2d Dept 1997]; Mee Jo v State, 2006 WL 3615208 [N.Y. Ct.Cl.]). As noted in Ward Telecom. and Computer Servs.v State of New York, supra, there is a significant distinction between actions of employees of the State Executive Departments undertaken in the discharge of their official duties and actions performed by delegation on behalf of the Department head. This distinction is exemplified by the summation of an official audit with a recommendation for corrective legislation by the Comptroller's press office and an official report issued by the Comptroller's Office. In the instant case, the only proof offered was the press release, which is covered by qualified privilege. No official report signed by the Comptroller, that would qualify for absolute privilege, was offered by defendant.
The defense of qualified privilege will be defeated if a defendant spoke with malice (Foster v Churchill, 87 NY2d 744 ). Qualified privilege is inapplicable where the motive for making such statements was where the statements were made with a high degree of awareness of their probable falsity (constitutional malice) or spite, ill will or culpable recklessness or negligence (common-law malice) (Foster v Churchill, supra, citing Liberman v Gelstein, 80 NY2d 429 ). For constitutional malice to be found, claimant must set forth evidence that defendant had serious doubts as to the truth of the publication (Liberman v Gelstein, supra, citing St. Amant v Thompson, 390 US 727 ). For the common-law standard of malice, spite, ill or culpable recklessness or negligence will overcome the qualified privilege (Greenfield v Kanwit, 546 F Supp 220, 227 [DCNY 1982]). "Mere falsity is not enough, unless it is also shown that the defendant knew, or at least was culpably reckless in not knowing that the statement was false." (Greenfield v Kanwit, supra. Conclusory allegations, surmise, conjecture and suspicion are insufficient to defeat qualified privilege (Ferguson v Sherman Sq. Realty Corp., 30 AD3d 288 [1st Dept 2006]). Either the constitutional or common-law standard will defeat a qualified privilege (Liberman v Gelstein, supra).
Here, a qualified privilege applies and claimant has not proved that the press release was published with either the constitutional or common law standard of malice. The Court believes Ms. Freeman-Loshbaugh that the switching of the titles attributable to the Town of Perrysburg and the Village of Perry was an inadvertent mistake. The Court does not infer from the documentary or testimonial evidence, or from the observation of Ms. Freeman-Loshbaugh's demeanor, that any ill will or knowledge of falsity is attributable to the preparation and publication of the press release.(2) She was not solely motivated by a desire to injure claimant (Liberman v Gelstein, 80 NY2d 429 ; Stukuls v State of New York, 42 NY2d 272 ; Ferguson v Sherman Sq. Realty Corp., 30 AD3d 288 [1st Dept 2006]). It was simply a mistake. After considering all the evidence, including the observance of the witnesses' demeanor and the exhibits admitted as evidence, the Court finds that claimant has failed to establish a viable cause of action against defendant. The claim is, therefore, dismissed and the Chief Clerk is directed to enter judgment. Any applications on which the Court previously reserved judgment or which were not previously decided are denied.
Let judgment be entered accordingly.
March 18, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Claimant's testimony concerning Weiller's statements to her regarding the retraction is not admitted (Tr. 20-24).
2. Claimant's argument that Deputy Press Secretary Dan Weiller's alleged inaction concerning the retraction, is irrelevant as the actual tort is the publication of a falsity. There was no proof offered by claimant as to Weiller's role in the publication.