Opinion
35145/06.
Decided August 31, 2007.
Upon the foregoing papers, defendants Jane Hallum, Robert Miller and Arnold Kahn (s/h/a Khan) move, pursuant to CPLR 3211, for an order dismissing plaintiff Ade Oluwo's complaint on the ground that it fails to state a cause of action and is also subject to dismissal on the basis of documentary evidence which conclusively establishes a defense to some of his asserted claims. Plaintiff opposes the instant motion on the ground that he adequately has pled his defamation causes of action.
Defendants also initially asserted that defendant Miller had not been served, but conceded in their reply papers that he was properly served after the instant motion was filed.
Plaintiff and defendants are members of a labor union, the Public Employees Federation, AFL-CIO (PEF). PEF is the duly certified collective bargaining representative of the approximately 53,000 members of the Professional, Scientific and Technical Services Unit of New York State employees. During the time period relevant to plaintiff's complaint, defendant Hallum was the Secretary-Treasurer of PEF. Plaintiff and defendants Kahn and Miller were also co-employees at the New York State Department of Insurance during the relevant time period.
On November 21, 2005, another Insurance Department employee, Lewis Shayne, was murdered outside of his home in Queens, New York. Prior to his death, Shayne and plaintiff were in a close and contentious election race for a local union position, which Shayne won by a slim margin. The instant action arises out of alleged defamatory statements concerning plaintiff which were allegedly made by Hallum to several newspapers in the aftermath of Shayne's death, as well as alleged defamatory statements concerning plaintiff which he claims were made by Kahn and Miller to co-workers during the same time period.
In his complaint, plaintiff avers that on or about December 5, 2005, Hallum made the following statements concerning plaintiff which were published in The Chief Leader, a weekly union oriented newspaper, in the context of an article reporting on the slaying of Shayne entitled "PEF Activist Slain Outside His Home":
"He [plaintiff] told me, You're only listening to the Jewish stewards.'"
"That the plaintiff . . . made those and other loud and threatening' anti-Semitic comments [in] phone conversations."
"You can't have a [union] leader making anti-Semitic remarks."
Hallum also allegedly informed the Chief Leader that she had filed a formal complaint based upon such alleged anti-Semitic comments to the PEF Ethics Committee. Plaintiff alleges that the Ethics Committee subsequently ruled that said allegations were baseless and without merit.
Plaintiff also alleges that on November 22, 2005, in a New York Post article entitled "Forest Hills Killer Struck Like Savage," the following statement, attributed to Hallum, appeared:
"Shayne, a CPA who worked as a state insurance examiner in Manhattan, had been the target of anti-Semitic remarks since being elected to a post in the [PEF], according to an official of the union, Jane Hallum."
Finally, with respect to the alleged defamatory statements made to local newspapers, plaintiff claims that on November 23, 2005, in an article in New York Newsday entitled "Cops Investigate Multiple Theories in Brutal Slaying," Hallum allegedly stated the following:
"Shayne had accused a union official of threatening and assaulting him before he died."
With respect to the aforesaid statements, plaintiff avers that "Hallum knew that [they] were false or acted in reckless disregard for the truth or falsity of such statements and said statements were maliciously meant to imply that the plaintiff was involved or participated in the murder of Shayne." Accordingly, such statements allegedly exposed plaintiff to "public contempt, ridicule, disgrace, and to induce an evil opinion of him in the minds of right thinking persons and to deprive him of friendly intercourse in society and the workplace." As a result, plaintiff claims that he has suffered "pain, emotional distress, mental anguish, damage to his professional reputation and standing in the community."
With respect to plaintiff's defamation causes of action against defendants Miller and Kahn, plaintiff avers that both defendants, knowing such statements to be untrue and acting with malice, stated, shortly after Shayne's death, to various named co-workers that plaintiff had made threatening anti-Semitic comments to Shayne and also had made death threats against Shayne. Plaintiff claims that he suffered the same damages from such statements that he allegedly suffered as a result of the statements of defendant Hallum which were published in the previously discussed newspaper articles.
The court notes that it has relied upon the subject newspaper articles, submitted by both plaintiff and defendant, to remedy any defects or omissions in the complaint for purposes of the instant motion to dismiss ( see Vorel v NBA Properties, Inc., 285 AD2d 641, 641-642 [2001]["[A] court may consider evidentiary material submitted on the motion [to dismiss] to remedy any defects in the complaint"]).
"It is well settled that on a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the pleading is to be liberally construed, accepting all the facts as alleged in the pleading to be true and according the plaintiff the benefit of every possible inference" ( Avgush v Town of Yorktown, 303 AD2d 340, 341; see also Bernberg v Health Mgt. Sys., Inc., 303 AD2d 348, 349; Old Salem Dev. Group, Ltd. v Town of Fishkill, 301 AD2d 639, 639; Scheider v Hand, 296 AD2d 454, 454; Marec v Lynch, 289 AD2d 541, 541; Gruen v County of Suffolk, 187 AD2d 560, 562). The only issue for the court to determine on a motion to dismiss the complaint is "whether the facts as alleged fit within any cognizable legal theory" ( Hynes v Griebel, 300 AD2d 628, 628; see also PT Bank Central Asia v ABN Amro Bank, N.V., 301 AD2d 373, 375; Gruen v County of Suffolk, 187 AD2d at 562). Accordingly, "[t]he pleading is deemed to allege whatever can be implied from its statements by fair and reasonable intendment" ( Components Direct, Inc. v European American Bank and Trust Co., 175 AD2d 227, 232). Stated differently, "if from [the complaint's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" ( Guggenheimer v Ginzburg, 43 NY2d 268, 275). Moreover, "[t]he criterion is whether the plaintiff has a cause of action and not whether he [or she] may ultimately be successful on the merits" ( One Acre, Inc. v Town of Hempstead, 215 AD2d 359). The dismissal of a complaint pursuant to CPLR 3211(a) (7), therefore, "will be warranted only in those situations in which it is conclusively established that there is no cause of action" ( Town of North Hempstead v Sea Crest Construction Corp., 119 AD2d 744, 746). Additionally, the dismissal of an action pursuant to CPLR 3211 (a) (1), on the ground that a defense to the asserted claims exists which is based on documentary evidence, "is warranted only if the documentary evidence conclusively establishes a defense to the asserted claims as a matter of law" ( Leon v Martinez, 84 NY2d 83, 88; see also Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314, 326).
"The elements [of defamation] are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se" ( Dillon v City of New York, 261 AD2d 34, 38). It is well settled that "a defamatory statement is libelous per se, and a plaintiff need not plead or prove special damages, if the statement 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'" ( Gjonlekaj v Sot, 308 AD2d 471, 473, quoting Rinaldi v Holt, Rinehart Winston, 42 NY2d 369, 379). "In addition, a defamatory statement is libelous per se if it imputes fraud, dishonesty, misconduct, or unfitness in conducting one's profession" ( id.). It is also well established that words constitute slander per se if they "impute the commission of a serious crime . . . or if they affect the plaintiff in his trade, occupation, or profession" ( Sterling Doubleday Enterprises, L.P. v Marro, 238 AD2d 502, 503; Warlock Enterprises v City Center Assocs., 204 AD2d 438, 438). "An action in libel per se may be maintained when a publication is defamatory upon its face while an action premised upon libel innuendo, which requires special damages, is necessary when the publication requires extrinsic evidence to explain its defamatory meaning" ( Luisi v JWT Group, Inc. 128 Misc 2d 291, 294, affd 67 NY2d 914). Where defamation per se is not alleged, however, actual proof of pecuniary loss or loss of good reputation must be proffered ( see Bytner v Capital Newspaper, Division of the Hearst Corp., 112 AD2d 666, 668, affd 67 NY2d 914). Moreover, "[s]pecial damages must be alleged with sufficient particularity to identify actual losses and be related causally to the alleged tortious [, as well as] fully and accurately stated" ( Lincoln First Bank of Rochester v Siegel, 60 AD2d 270, 280; see also L.W.C. Agency, Inc. v St. Paul Fire and Marine Ins. Co., 125 AD2d 371, 373 ["In pleading special damages, actual losses must be identified and causally related to the alleged tortious act"]).
In construing a defamation complaint, "[a] court making a determination as to whether [the alleged] statement[s] are defamatory must not isolate the allegedly defamatory words, but must consider them in context, and give the language a natural reading rather than strain to read it as mildly as possible at one extreme, or to find defamatory innuendo at the other" ( Lenz Hardware Inc. v Wilson, 263 AD2d 632, 633 [internal quotation marks and citation omitted], affd 94 NY2d 913; accord Serratore v American Port Servs., Inc., 293 AD2d 464, 465). Stated differently, the alleged defamatory words must be "construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, as opposed to having a forced, artificial construction imposed upon them" ( Porter v Saar, 260 AD2d 165, 167 [internal quotation marks and citation omitted]). "The determination whether statements which are not defamatory on their face may in fact be defamatory because of the use of innuendo is one which must be made by the court" ( WDM Planning, Inc. v United Credit Corp., 47 NY2d 50, 53). As an initial matter, the court finds that statements made by Hallum to the Chief Leader that she had filed a formal complaint with the PEF Ethics Committee concerning alleged threatening anti-Semitic remarks made by plaintiff, and to Newsday that Shayne had accused a union official of threatening and assaulting him prior to his death, are not defamatory. It is well settled that truth is an absolute defense to a defamation cause of action ( see Silverman v Clark, 35 AD3d 1, 12; Kamalian v Reader's Digest Association, Inc., 29 AD3d 527, 528; Cahill v County of Nassau, 17 AD3d 497, 498; Proskin v Hearst Corp., 14 AD3d 782, 783). Here, sufficient documentary evidence has been submitted to the court to demonstrate that Hallum did, in fact, file a formal complaint with the PEF Ethics Committee concerning plaintiff and Shayne also had filed a complaint that plaintiff verbally threatened him on or about April 7, 2005 and physically assaulted him on April 11, 2005. Although a plaintiff may state a colorable claim for "defamation by implication" based upon misleading omissions or false suggestions emanating from truthful statements ( see Silverman, 35 AD3d at 20-21; see also Armstrong v Simon Schuster, 85 NY2d 373, 380-381 [noting that" [d]efamation by implication' is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements"]), the plaintiff in this case has failed to plead the existence of same. Plaintiff, in essence, avers that the totality of Hallum's statements were maliciously meant to imply that the plaintiff was involved or participated in the murder of Shayne. However, with respect to the statements made by Hallum concerning the complaints made against him by both Hallum and Shayne, plaintiff has not identified any misleading omissions or false suggestions related to same. Rather, the newspaper articles cited also stated that Hallum's complaint was still pending while Shayne's complaint was found to be unsubstantiated, thereby undercutting any negative connotations allegedly implied by the statement that such complaints had been filed against plaintiff. Accordingly, any defamation claims premised upon statements made by Hallum to the Chief Leader and Newsday with respect to the filing of said complaints are hereby dismissed on the basis of documentary evidence which conclusively establishes that such statements were true.
With respect to Hallum's alleged statements that plaintiff had made threatening anti-Semitic remarks, however, the court finds that plaintiff adequately has pled a cause of action for libel per se. The court agrees with defendant that the attribution of anti-Semitic remarks to Oluwo, whether such remarks were allegedly directed toward Shayne or stated more generally, cannot, either by resort to the extrinsic evidence of Shayne's murder or by consideration of any alleged innuendo in this regard — even in affording the complaint a liberal construction and every favorable inference — be construed as accusing plaintiff of committing a crime, particularly one as serious as murder, conspiracy to murder or some related felonious act. However, in construing the allegations of the complaint as true and affording them a liberal reading, the court finds that such allegedly false statements could prove injurious to plaintiff in his business or profession. Given that one of the statements attributed to Hallum in the Chief Leader — again, construed as true for purposes of this motion — was "you can't have a [union] leader making anti-Semitic remarks" — the court finds that the alleged defamatory statements concerning such remarks could be detrimental to plaintiff's further union membership and involvement, particularly in light of his prior active role in said union and his attempt to gain a leadership position in same and, concomitantly, could also adversely affect his reputation at his workplace among his fellow union members and co-workers. The Chief Leader article noted that the PEF has an active Jewish Committee which maintains a website and sponsors events. Moreover, the fact that plaintiff is also a public employee for the large and diverse city and state of New York further bolsters the potentially injurious nature of such accusatory statements of anti-Semitic bias ( see generally Herlihy v Metropolitan Museum of Art, 214 AD2d 250, 261). Accordingly, affording all favorable inferences to the allegations of the complaint, the court finds that the complained-of statements can be construed as tending to expose the plaintiff to public contempt, ridicule, aversion or disgrace, to induce an evil opinion of him in the minds of right-thinking persons, to deprive him of their friendly intercourse in society and to impute to him misconduct and unfitness in conducting his profession and related union activities ( see Gjonlekaj, 308 AD2d at 473). As a result, plaintiff has stated a cause of action for libel for pe and need not plead special damages with respect to such claim ( see generally Luisi, 128 Misc 2d at 294).
Liberally construing the complaint, the court finds that the gravamen of plaintiff's claims against Hallum concerns her allegedly defamatory statements to the various newspapers cited and so rejects defendants' contentions that Hallum's alleged statements to co-workers lack the specificity required of defamation pleadings pursuant to CPLR 3016. Rather, the court views plaintiff's allegations that Hallum made defamatory statements to co-workers merely as background information pertaining to plaintiff's claim that identical statements were ultimately made to the subject newspapers and, therefore, allegedly constitute libel per se.
To the extent plaintiff is not named in the New York Post article, the court construes that given the widespread coverage of Shayne's death and the attribution to plaintiff of anti-Semitic remarks in the Chief Leader article, the court finds that plaintiff would be susceptible to identification on this basis and so construes the New York Post article to contain colorably defamatory statements also based upon plaintiff's alleged anti-Semitic remarks.
The court notes that plaintiff has also submitted several affidavits from co-workers which state that said co-workers believed that Hallum's statements to the press attributed the murder of Shayne to plaintiff. The court, however, has disregarded such affidavits as any affidavits submitted in opposition to a motion to dismiss are to be used solely to remedy defects in the pleading and may not be used as evidentiary support for properly pleaded claims ( see Nonnon v City of New York, ___ NY3d ___; 2007 Slip Op. 05578, *1 [2007]; accord Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]).
With respect to the defamation causes of action asserted by plaintiff against Miller and Kahn, the court finds that their statements concerning death threats allegedly made by plaintiff to Shayne are not actionable as defamatory. It is well settled that verbal threats to kill another, under the New York Penal Law, are considered "[h]arassment . . . a relatively minor offense . . . and thus the harm to reputation of a person falsely accused of committing harassment would be correspondingly insubstantial" ( Liberman, 80 NY2d 429, 436; accord Warlock Enterprises, 204 AD2d at 438 [noting that a verbal threat to kill another is classified as a violation pursuant to New York law and, therefore, is beyond the definition of slander per se because the harm to the reputation of a person falsely accused of making such threat is "insubstantial" and "at worst, reflects generally upon [the plaintiff's] character or qualities and does not relate to his trade, business or profession"]).
Here, the court finds that, in keeping with the aforementioned precedent, any statements allegedly made by Miller or Kahn that plaintiff made death threats to Shayne would similarly be insufficient to support a claim for slander per se given the insubstantial nature of any harm to plaintiff's reputation which would result. The court is mindful that, unlike the subjects of the threats in the Liberman and Warlock Enterprises cases, Shayne was actually killed by an unknown assailant. However, even given that the alleged statements were made shortly after Shayne's death, the court notes that such statements are plainly limited to the alleged death threats and do not, in and of themselves, contain additional innuendo accusing plaintiff of an exponentially more serious crime, such as murder or conspiracy to murder or some related felony. After all "[i]nnuendo may help to explain, but it cannot enlarge the meaning of words" ( Jaszai v Christie's, 279 AD2d 186, 190 [internal quotation marks and citation omitted] and its "admitted purpose . . . is to explain matter that is insufficiently expressed" ( S.L.C. Consultants/Constructors, Inc. V Raab, 177 AD2d 965, 965). In the instant case, the statements alleged clearly are limited and specific — as were Hallum's statements concerning plaintiff's alleged anti-Semitic remarks — and, likewise, do not, in and of themselves, imply the commission of any crime other than the previously discussed "harassment," a violation which is, as previously discussed, insufficient to sustain a cause of action for slander per se. Accordingly, as plaintiff also has failed to plead special damages, a necessary element of defamation when slander per se is not available as a claim, his causes of action based upon the alleged statements of Miller and Kahn that he made death threats to Shayne must be dismissed ( see generally Dillon, 261 AD2d at 38).
However, the court finds that the alleged statements of Miller and Kahn that plaintiff made anti-Semitic comments and threats to Shayne are actionable as slander per se for which he need not plead special damages. Although, taken in the context of the allegedly contentious labor election between plaintiff and Shayne, the alleged death threats, which in any event constituted a mere violation, could potentially be construed as "rhetorical hyperbole," particularly given that "[i]n an acrimonious contest, the audience may anticipate [the use] of epithets, fiery rhetoric and hyperbole" ( Horowitz v Mannoia, 10 Misc 3d 467, 471 [internal quotation marks and citation omitted]), the alleged statements by Miller and Kahn concerning alleged anti-Semitic comments and threats made by plaintiff to Shayne, much like those statements allegedly made by Hallum, tend to impact upon plaintiff's interrelated union activities and workplace interactions, particularly given the statement, construed as true, by Hallum, that "you can't have a [union] leader making anti-Semitic remarks," the presence of an active Jewish committee in the subject union and plaintiff's status as a public employee serving the diverse population of New York City and State. Accordingly, the court finds that plaintiff's defamation claims, based upon alleged statements by Miller and Kahn that he made anti-Semitic threats and comments to Shayne, are not subject to dismissal at this juncture.
As a result, the defendants' motion to dismiss is granted in part and denied in part in accordance with the instant decision.
The foregoing constitutes the decision and order of the court,