Covino v. Hagemann

• Decision Date: 21 April 1995
• Citation: 627 N.Y.S.2d 894,165 Misc.2d 465
• Parties: Lee S. COVINO, Plaintiff, v. Raymond E. HAGEMANN, Defendant.
• Court: New York Supreme Court

Page 894

627 N.Y.S.2d 894

165 Misc.2d 465

Lee S. COVINO, Plaintiff, v. Raymond E. HAGEMANN, Defendant.

Supreme Court, Richmond County IAS Part 1.

April 21, 1995.

Edward L. Larsen, Staten Island, for plaintiff Lee Covino.

Richard D. Emery, P.C., New York City, for defendant Raymond Hagemann.

LOUIS SANGIORGIO, Justice.

Before the Court is a motion to dismiss the three causes of action asserted in the Complaint pursuant to CPLR 3211(a)(7), and to further dismiss plaintiff's claim for attorneys' fees.

The salient facts are not in dispute. In July of 1994, both plaintiff and defendant were officials in the Office of the Staten Island Borough President. Plaintiff was (and remains) the Director of Contract Oversight, and defendant was Chief Investigator of the office's Investigations Unit. A disagreement arose between the parties over the handling of a matter concerning one Ed Watkins, who is not a party to this action. Mr. Watkins, an African-American, is a basketball coach who runs the Rising Stars Athletic Program, and he negotiated with the Borough President's office for public funding for this program. When anticipated funds were not immediately forthcoming, Mr. Watkins arrived at the Borough President's office on or about July 13, 1994 to discuss the matter with someone responsible for the funding. At that time, plaintiff Lee Covino was not in the building, having business elsewhere. Mr. Watkins was escorted out of Borough Hall by a police officer who would not permit him to remain in the waiting room of Borough President Guy Molinari.

Defendant then authorized and dispatched a four page note to plaintiff, apparently blaming him for this incident. ¹ It demanded that plaintiff apologize to Mr. Watkins "for exhibiting unprofessional, racially insensitive attitudes toward him (Watkins) in your official capacity here at Borough Hall".

Plaintiff then commenced this action, alleging defamation.

The first cause of action asserting libel, alleges that defendant composed, published, and distributed the note in question to Borough President Guy Molinari in which plaintiff is characterized as "racially insensitive", and charges that this is false, scandalous, malicious, defamatory, and libelous. The Complaint also asserts that this note, directly and indirectly, and by innuendo, charges plaintiff "with being prejudiced and discriminatory against racial minorities".

The second cause of action, sounding in slander, alleges that defendant asserted the "racially insensitive" statements to employees of the Staten Island Advance, a daily newspaper.

The third cause of action, also sounding in slander, alleges that defendant repeated the "racially insensitive" statements to employees of the New York Daily News.

Only false assertions of fact may be the subject of an action for defamation; an expression of opinion is not actionable as a defamation, no matter how offensive, vituperative, or unreasonable it may be (Weiner v. Doubleday and Co., 74 N.Y.2d 586, 550 N.Y.S.2d 251, 549 N.E.2d 453, cert. den. 495 U.S. 930, 110 S.Ct. 2168, 109 L.Ed.2d 498) since it cannot be subjected to the test of truth or falsity (McManus v. Doubleday & Co., 513 F.Supp. 1383, 1385). The proper inquiry, as to whether a particular statement is one of fact or one of opinion, is whether the reasonable reader could have concluded that the statements were conveying facts about the plaintiff (Gross v. New York Times Co., 82 N.Y.2d 146, 152, 603 N.Y.S.2d 813, 623 N.E.2d 1163, citing 600 West 115th Street Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139, 589 N.Y.S.2d 825, 603 N.E.2d 930). This inquiry entails an examination of the challenged statement "with a view toward (1) whether this specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to 'signal.... readers or listeners that what is being read or heard is likely to be opinion, not fact' ", (Gross v. New York Times Co., supra, 82 N.Y.2d at 153, 603 N.Y.S.2d 813, 623 N.E.2d 1163, citing Steinhilber v. Alphonse, 68 N.Y.2d 283, 292, 508 N.Y.S.2d 901, 501 N.E.2d 550).

Accusations of racism and prejudice and the like have been found in other jurisdictions to constitute nonactionable expressions of opinion.

In Stevens v. Tillman, 855 F.2d 394, 400, (7th Cir.1988), cert. den. 489 U.S. 1065, 109 S.Ct. 1339, 103 L.Ed.2d 809, a school principal brought an action in defamation against the president of the parent teacher association. Part of the statements made by defendant found to constitute protected opinions were:

"We found in our investigation that our principal must be removed.... Our principal is very insensitive to the needs of our community, which happens to be totally black. She made very racist statements during the boycott. She is a racist. She must go. We cannot have racist people around our children.... She made numbers of very racist statements, so many that I would use all of my time to explain to you some of the statements that were made.

Our children are afraid of her. I think discipline is fine. The child must respect the principal; he or she must respect the teachers. But I mean there is no sense--and our children feel as though they are on a plantation. And there is no reason in 1981 why we should have a principal making such racist statements. The teachers of the school have brought to most of our attention that it has been run as a dictatorship, and we do not need a dictatorship in our children's school.... They're being degraded and put down, and it's all because of a dictatorship with Miss Stevens.

We have exposed the Mollison pollution.... Since 1975, the quality of education has gone down at Mollison School and Miss Stevens has sat and watched it. She did nothing about it.... Miss Stevens is insensitive to the children, the parents and the community. We can no longer allow her to destroy our children's minds."

The Seventh Circuit affirmed the District Court's finding that such statements are necessarily those of an opinion. It rejected plaintiff's claim that a statement of this nature is libel per se, and further rejected plaintiff's claim that it was actionable because it marked her as unfit to be a principal. The Court in Stevens rationalized the usage of such terms in a realistic approach to contemporary political discourse:

"Accusations of 'racism' no longer are 'obviously and naturally harmful'. The word has been watered down by overuse, becoming common coin in political discourse. Tillman called Stevens a racist; Stevens issued a press release calling Tillman a 'racist' and her supporters 'bigots'. Formerly a 'racist' was a believer in the superiority of one's own race, often a supporter of slavery or segregation, or a fomenter of hatred among the races. Stevens, the principal of a largely-black school in a large city, obviously does not believe that blacks should be enslaved or that Jim Crow should come to Illinois; no one would have inferred these things from the accusation. Politicians sometimes use the term much more loosely, as referring to anyone (not of the speaker's race) who opposes the speaker's political goals--on the 'rationale' that the speaker espouses only what is good for the jurisdiction (or the audience), and since one's opponents have no cause to oppose what is beneficial, their opposition must be based on race.... When Stevens called Tillman a 'racist', Stevens was accusing Tillman of playing racial politics in this way rather than of believing in segregation or racial superiority. That may be an unfortunate brand of politics, but it also drains the term of its former, decidedly opprobrious, meaning....

.... So long as any part of the old meaning lingers, there is a tendency to invoke the word for its impact rather than to convey a precise meaning. We may regret that the language is losing the meaning of a word, especially when there is no ready substitute. But we serve in a court of law rather than of language and cannot insist that speakers cling to older meanings. In daily life 'racist' is hurled about so indiscriminately that it is no more than a verbal slap in the face; the target can slap back (as Stevens did). It is not actionable unless it implies the existence of undisclosed, defamatory facts, and Stevens has not relied on any such implication." (Id, at 402).

In Kimura v. Superior Court and Vandenberg, 230 Cal.App.3d 1235, 281 Cal.Rptr. 691, a letter was published protesting a decision by University of California officials, and plaintiff in particular, to cancel an event known as Filipino College Night because it was scheduled for December 7, 1988, the anniversary of the attack on Pearl Harbor. The author of the letter, who was of Japanese descent, accused plaintiff's actions of reinforcing "the view that (the University) is extremely racist, a growing campus view held by people of color and by enlightened faculty, staff, students, and campus administrators". It went on to state that plaintiff's decision demonstrates "an incredible level of bigotry" and that plaintiff was a "perfect example ... of what enlightened people of all ethnic and cultural backgrounds define as 'racist' and 'bigoted' ".

After reviewing the case law, the Sixth District Court of Appeal of California concluded that matters of race are a matter of public concern, and the use of the epithet "racist" does not have the tone of a reasoned accusation, but rather is more like the emotional rhetoric characteristic of debate in this area", and cited Stevens v. Tillman, supra in support.

In accord with this rationale is Pritchard v. Herald Company, 120 A.D.2d 956, 503 N.Y.S.2d 460, in which a description of plaintiff as "controversial" and a "black activist" was not actionable since, "when judged by the temper of the...