City Firefighters Union, Local 28 v. Duci

• Decision Date: 21 December 1976
• Docket Number: No. 1,No. 2,1,2
• Citation: 428 N.Y.S.2d 772,104 Misc.2d 498
• Parties: CITY FIREFIGHTERS UNION, LOCAL 28, Donald L. Berger, Rocco T. Verrigni, Stanley E. Johnson, Edward G. Varno, Paul Viscusi, James Wolfe and David Schettine, Plaintiffs, v. Frank J. DUCI, Defendant. (Action) SCHENECTADY PATROLMEN'S BENEVOLENT ASSOCIATION, Michael Ferraro, Michael Andriano, Van Stathis, Frank Marro, Richard Nelson, A. J. Mountain, Robert Lubrant, Joseph Figiola, Frank Ranucci and Alexander Grasso, Jr., Plaintiffs, v. Frank J. DUCI, Defendant. (Action)
• Court: New York Supreme Court

Page 772

428 N.Y.S.2d 772

104 Misc.2d 498

CITY FIREFIGHTERS UNION, LOCAL 28, Donald L. Berger, Rocco

T. Verrigni, Stanley E. Johnson, Edward G. Varno,

Paul Viscusi, James Wolfe and David

Schettine, Plaintiffs, v. Frank J. DUCI, Defendant. (Action No. 1.)

SCHENECTADY PATROLMEN'S BENEVOLENT ASSOCIATION, Michael

Ferraro, Michael Andriano, Van Stathis, Frank Marro, Richard

Nelson, A. J. Mountain, Robert Lubrant, Joseph Figiola, Frank Ranucci and Alexander Grasso, Jr., Plaintiffs, v. Frank J. DUCI, Defendant. (Action No. 2.)

Supreme Court, Schenectady County.

Dec. 21, 1976.

Grasso & Grasso, Schenectady, for plaintiffs.

Harold E. Blodgett, Schenectady, for defendant.

At Special Term, September 14, 1976 ¹

JAMES GIBSON, Justice.

The defendant moves to dismiss for legal insufficiency (CPLR 3211(a)(7)) the complaints in two actions brought to recover damages for alleged libel. ²

The plaintiffs in action No. 1 comprise the city firemen's union and seven of its officers; and those in action No. 2 the city police patrolmen's union and ten of its officers. The defendant is the city's Mayor.

The provisions of the applicable labor relations contract between the city and the firemen's union (art. XIII, § 6) relating to leaves of absence for union representatives are, so far as here pertinent, identical with the corresponding provisions of the patrolmen's contract (there also, art. XIII, § 6); the former being as follows:

6. Leaves of Absence for Union Representatives :

Union officers, representatives, and delegates will be allowed all released time with pay to participate in negotiations with the employer, adjustment of grievances, arbitrations hearings, and other functions relative to the operation of this agreement. They will also be given leave with pay to attend Union and executive board meetings. Paid leave to participate in and attend conferences and conventions of affiliated unions, associations, and organizations, shall be limited to nine hundred sixty (960) man hours in any year. * * *

Each of the two actions stems from the publication in a Schenectady newspaper of two articles. The first, that of May 20, 1976, reported statements made by the Mayor at a press conference had the day before "that taxpayer subsidized union activities are taking too many public safety workers away from their jobs" ³ the officials of the patrolmen's union taking "1,708 hours, or the equivalent of 11 months" and the firemen's union officials, "649 hours, or the equivalent of four months of actual man-hours so far this year". There followed the alleged libel: "He called both tallies 'stealing from the taxpayers.' " The second article, published June 9, 1976, reported that the Mayor had "asked the City Council's public safety committee to investigate allegations that heads of city police and fire unions have abused contract provisions that allow paid time-off for union activities" and that in a letter to the committee's chairman had "complained that he has had to stand alone in his charges that leaders of the public safety unions are 'stealing from the taxpayers.' "

The Mayor does not contend that he was not correctly quoted and in neither case do the plaintiffs contend that the Mayor's count of absences was in error. Thus, the simple issue presented by each action is the meaning and legal effect of the Mayor's assertions that in taking leaves of absence to the number of man hours indicated by him, the union officials were "stealing from the taxpayers".

In each complaint it is alleged that

by the words quoted * * * the defendant meant and intended to mean by those who read or heard them that the plaintiffs were committing crimes, engaged in illegal and unlawful practices, and plaintiffs were guilty of the crime of malfeasance as employees of the City of Schenectady, New York and were unworthy to hold positions of public office and plaintiffs were thereby held up to ridicule and disgrace among their friends, acquaintances and others.

The defendant denies any such connotation, asserting in his moving affidavit in each case

that by the use of the words, "stealing from the taxpayers", such language was not used in the generic or legal meaning of the word "steal", but as intended that the plaintiffs were indifferent to the taxpayers of the City and were using a great deal of their time for which they were being paid without benefit of the taxpayers or doing the work and performing duties for which they were paid and hired; that the defendant made such remarks without malice which was within his legal qualified privilege in doing a job for which he was elected as Mayor.

The Court of Appeals in a very recent case has dealt with the issue here presented, holding that "whether the words complained of would constitute a libel per se or a libel per quod, it is for the court to decide whether the words are susceptible of the meaning ascribed to them. (Citations.) The court must decide whether there is a reasonable basis for drawing the defamatory conclusion. If the contested statements are reasonably susceptible of a defamatory connotation, then 'it becomes the jury's function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader.' (Citation.)" (James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 874, 353 N.E.2d 834, 837-838.)

Outlining the judicial process to be applied in determining the meaning to be ascribed to the words, it is stated: "In analyzing the words in order to ascertain whether a question of fact exists for resolution upon trial, the court will not pick out and isolate particular phrases but will consider the publication as a whole "; and, further, that: "(t)he statement complained of will be 'read against the background of its issuance' with respect to 'the circumstances of its publication' "; and, finally that the construction "is to be derived as well from the expressions used as from the whole scope and apparent object of the writer.' (Citations.)" (James, supra, pp. 419, 420, 386 N.Y.S.2d p. 875, 353 N.E.2d at p. 838, emphasis supplied).

Applying these tests, it is to be noted that the occasion for the Mayor's statements published May 20, 1976 was a press conference and that the subject of the press conference was evidently the adequacy of the police and fire protection afforded the people of the city by the diminished number of men on duty. Indeed, as the news item indicated, certain officers of the patrolmen's union had themselves complained of a manpower shortage and police department officials had conceded that the department was operating "with a contractual minimum manpower figure", and this at a time when layoffs of policemen and firemen appeared imminent. Police officials assigned various causes but the Mayor "charged that taxpayer subsidized union activities (were) taking too many public safety workers away from their jobs" and continued: "With unlimited sick leave, unlimited leaves of absence, holidays and vacation time, I just wonder how many law enforcement officers we have on the streets at all times?" The Mayor's references to "taxpayer subsidized union activities" and to "unlimited leaves of absence" seem to have focused on what he considered the overgenerous or even improvident provisions of the collective bargaining agreement which the city itself had negotiated, and not upon individual delinquencies of police and fire personnel, whose acceptance and exercise of the broad, if not, indeed, "unlimited" privileges conferred upon them by the contract could not well be deemed criminal. The references to the union activities as contractually permitted are too clear and emphatic to be mistaken as accusations of crime.

The June 9, 1976 news article was prompted by the Mayor's request for a committee investigation of "allegations that heads of city police and fire unions have abused contract provisions that allow paid time-off for union activities"; and, although there is further reference to "stealing from the taxpayers", the "contract provisions" again bear the brunt of the attack.

Upon following the guides to which the James decision directs us being the consideration of the publication as "a whole", its "background", and the "circumstances" of its issuance, giving thought, at the same time, both to the particular "expressions" used and to the "whole scope and apparent object" of the speaker it is clear that the term "stealing from the taxpayers" was not...