Follendorf v. Brei

• Decision Date: 23 August 1966
• Citation: 51 Misc.2d 363,273 N.Y.S.2d 128
• Parties: William FOLLENDORF, Plaintiff, v. B. Leland BREI, Wyoming County Commissioner of Public Welfare and the County of Wyoming, Defendants.
• Court: New York Supreme Court

Page 128

273 N.Y.S.2d 128

51 Misc.2d 363

William FOLLENDORF, Plaintiff, v. B. Leland BREI, Wyoming County Commissioner of Public

Welfare and the County of Wyoming, Defendants.

Supreme Court, Wyoming County.

Aug. 23, 1966.

[51 Misc.2d 364] Brown & Brown, Warsaw (Louis R. James, Warsaw, of counsel), for plaintiff.

Stakel, Suttell & Found, Batavia (Wallace J. Stakel, Batavia, of counsel), for defendants.

OPINION

MICHAEL CATALANO, Justice.

Plaintiff moves to strike paragraphs 4 through 14 inclusive of defendants' answer, containing a first complete defense of privilege, a second complete defense of fair comment, a first partial defense of privilege, a second partial defense of fair comment, and a third partial defense of mitigating circumstances.

The complaint alleges, in effect, that plaintiff resides and conducts a drug business under the name of 'Wyoming Rexall Drug' in Warsaw, Wyoming County, New York; that defendant Brei is Commissioner of Public Welfare of defendant County; that on April 12th, 1966 Brei was interviewed by newspaper reporters concerning a state audit criticizing excessive expenditures '* * * and in his official capacity as County Commissioner of Public Welfare, made the following statement to said reporters:

'The Wyoming Rexall Pharmacy transacted, for the period examined, business in the amount of $1,831.00, or 53% Of the total expenditures of $4,354.00 for all vendors * * * I checked and found that linensaver underpads for which this store charged us $28.00 a case carried a wholesale price of only $8.00 a case. That's some markup";

that Brei intended it to be published and it was published in newspapers of general circulation; that it was intended and understood as applying to plaintiff's business; that it was made with malice and intent to injure plaintiff's business and reputation to plaintiff's resultant damage.

The affirmative defenses alleged, in effect, that Brei acted as such Commissioner under the supervision of the State Board of Social Welfare, which regularly examined the '* * * records of his office and has made audits and reports thereon;' that such an audit and report stated, in part, 'The Wyoming Rexall Pharmacy transacted, for the period examined, business in the amount of $1,831.00 or 53% Of the total expenditures of $4,354.00 for all vendors. Of this sum of $1,831.18, $857.70 accounted for 30 cases, each containing 200 Loress linen saver underpads at a cost of $28.59 per case * * *'; that his comments thereon '* * * were privileged by reason of the official nature of the documents and the questions directed to the interpretation thereof.'

The alleged defamation in the complaint narrows down to these words (which Brei denies having said): 'I checked and found that linensaver underpads for which this store charged us $28.00 a case carried a wholesale price of only $8.00 a case. That's some markup.'

CPLR 3211, 'Motion to dismiss,' (b) 'Motion to dismiss defense' provides: 'A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.'

Civil Rights Law, § 78, 'Mitigating circumstances in action for libel or slander,' provides, in part: 'In an action for libel or slander the defendant may prove mitigating circumstances, including the sources of his information and the grounds for his belief, whether or not he has pleaded or attempted to prove any defense. * * * Matter tending only to mitigate or reduce damages is a partial defense and may be set forth in the answer.'

When public officials, in the performance of their duties, speak on matters of public interest, they are protected by constitutional safeguards of freedom of speech, as is the private citizen; such statements printed in the press of general circulation are shielded by the freedom of the press; albeit a citizen be defamed thereby. (Gilberg v. Goffi, 21 A.D.2d 517, 519, 251 N.Y.S.2d 823, 825, affd. 15 N.Y.2d 1023, 260 N.Y.S.2d 29, 207 N.E.2d 620. See authorities cited.)

Each State department head, including the State Board of Social Welfare, shall make an annual report to the Governor and Legislature, and the head of any department may require any board or subordinate officer or employee of the department to make such reports when deemed necessary. (Executive Law, § 164. See also: Social Welfare Law, § 17(d).)

Intra-department reports should be freely made without fear of civil suit for damages, especially when based upon facts and figures which become public documents on a matter of public...