Aronson v. Wiersma

• Decision Date: 12 September 1985
• Citation: 483 N.E.2d 1138,65 N.Y.2d 592,493 N.Y.S.2d 1006
• Parties: , 483 N.E.2d 1138, 54 USLW 2231, 12 Media L. Rep. 1150 Gayle H. ARONSON, Appellant, v. Ronald J. WIERSMA, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 1006

493 N.Y.S.2d 1006

65 N.Y.2d 592, 483 N.E.2d 1138, 54

USLW 2231,

12 Media L. Rep. 1150

Gayle H. ARONSON, Appellant, v. Ronald J. WIERSMA, Respondent.

Court of Appeals of New York.

Sept. 12, 1985.

Edward F. Beane, White Plains, for appellant.

George W. Scapolito, Mount Vernon, for respondent.

OPINION OF THE COURT

TITONE, Judge.

In this defamation action, plaintiff appeals from an order of the Appellate Division, 110 App.Div.2d 610, 487 N.Y.S.2d 364, Second Department, which, by a divided court, reversed an order of Special Term and directed dismissal of the complaint. The issue is whether she has stated a cause of action. We agree with the Appellate Division that she has not, and affirm the order of dismissal.

Plaintiff, who describes herself as a linguist completing studies to earn a Ph.D., was employed by the City of Mount Vernon as a legislative assistant to the Mount Vernon City Council. The City Council terminated her employment by resolution duly passed, and plaintiff thereafter commenced this action, sounding in defamation, against defendant, the City Council President.

The complaint sets forth three causes of action, two sounding in libel, one sounding in slander, all involving incidents transpiring prior to plaintiff's termination. The causes of action sounding in libel revolve around a letter, dated June 11, 1982, which "expressed dissatisfaction with [plaintiff's] * * * performance", explained that certain chores she had been directed to undertake had not been completed, and stated that if these matters were not attended to by a specified council meeting date, she would be terminated. Defendant signed that letter on behalf of the City Council and circulated it to Council Members on two occasions.

The oral defamation allegedly occurred while defendant was having his hair cut. Plaintiff claims that, in the presence of barbers, hair stylists, and others, defendant stated "I've got to fire a person * * * one of my workers * * * I can't get her to hand in time sheets * * * I can't get her to do anything * * * The person is neglectful in her job * * * The person isn't doing their job * * * I've got to let her go * * * That's it".

Special Term denied defendant's motion to dismiss. The Appellate Division reversed, by a divided court, and plaintiff appeals. We now affirm.

Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance (Tracy v. Newsday, Inc., 5 N.Y.2d 134, 182 N.Y.S.2d 1, 155 N.E.2d 853; Sprecher v. Dow Jones & Co., 88 A.D.2d 550, 450 N.Y.S.2d 330, affd. 58 N.Y.2d 862, 460 N.Y.S.2d 527, 447 N.E.2d 75). The words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction (see, e.g., Carney v. Memorial Hosp. & Nursing Home, 64 N.Y.2d 770, 485 N.Y.S.2d 984, 475 N.E.2d 451; James v. Gannett Co., 40 N.Y.2d 415, 419-420, 386 N.Y.S.2d 871, 353 N.E.2d 834; November v. Time Inc., 13 N.Y.2d 175, 178, 244 N.Y.S.2d 309, 194 N.E.2d 126; Tracy v. Newsday, Inc., supra, 5 N.Y.2d p. 136, 182 N.Y.S.2d 1, 155 N.E.2d 853; Schermerhorn v. Rosenberg, 73 A.D.2d 276, 426 N.Y.S.2d 274).

As a matter of law, the June 11, 1982 letter cannot be read as defamatory (Moran v. Hearst Corp., 40 N.Y.2d 1071, 392 N.Y.S.2d 253, 360 N.E.2d 932; Mencher v. Chesley, 297 N.Y. 94, 100, 75 N.E.2d 257; Wehringer v. Allen-Stevenson School, 46 A.D.2d 641, 360 N.Y.S.2d 429, affd. 37 N.Y.2d 864, 378 N.Y.S.2d 46, 340 N.E.2d 478, cert. denied 424 U.S. 924, 96 S.Ct. 1135, 47 L.Ed.2d 333). The mere expression of unhappiness with plaintiff's fulfilling her duties as a legislative assistant is not libelous per se (see, Tufano v. Schwartz, 95 A.D.2d 852, 464 N.Y.S.2d 211; Shaw v. Consolidated Rail Corp., 74 A.D.2d 985, 426 N.Y.S.2d 182; Fink v. Horn Constr. Co., 58 A.D.2d 574, 395 N.Y.S.2d 113; Amelkin v. Commercial Trading Co., 23 A.D.2d 830, 259 N.Y.S.2d 396, affd. 17 N.Y.2d 500, 267 N.Y.S.2d 218, 214 N.E.2d 379). The letter also appears to be absolutely privileged for it was written and published by the President of the City Council, a public officer, in the course of official duties (see, Clark v. McGee, 49 N.Y.2d 613, 427 N.Y.S.2d 740, 404 N.E.2d 1283; Murphy v. News Syndicate Co., 12 N.Y.2d 1092, 240 N.Y.S.2d 160, 190 N.E.2d 533; Duffy v. Kipers, 26 A.D.2d 127, 271 N.Y.S.2d 338; 2 N.Y. PJI 119 [1984 Supp.]; Ann., 26 A.L.R.3d 492).

The alleged oral utterance made by defendant while he was having his hair cut is similarly not actionable. Aside from the question of whether the statement can be read to be "of and concerning plaintiff" (see, Allen v. Gordon, 56 N.Y.2d 780, 452 N.Y.S.2d 25, 437 N.E.2d 284, affg. 86 A.D.2d 514, 446 N.Y.S.2d 48; Julian v. American Business Consultants, 2 N.Y.2d 1, 17, 155 N.Y.S.2d 1, 137 N.E.2d 1), it does not, on its face, defame plaintiff in her trade, business or profession and thus does not constitute slander per se, actionable without proof of special damages (Prosser and Keeton, Torts § 112, at 791 [5th ed.] )....