Mink Hollow Development Corp. v. State

• Decision Date: 24 May 1976
• Citation: 87 Misc.2d 61,384 N.Y.S.2d 373
• Parties: MINK HOLLOW DEVELOPMENT CORP., Claimant, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 373

384 N.Y.S.2d 373

87 Misc.2d 61

MINK HOLLOW DEVELOPMENT CORP., Claimant, v. The STATE of New York, Defendant.

Court of Claims of New York.

May 24, 1976.

Jacob Oliner, New York City, for claimant.

Louis J. Lefkowitz, Atty. Gen. by Kenneth J. Connolly, Asst. Atty. Gen., for the State.

MEMORANDUM-OPINION

FRANK S. ROSSETTI, Judge.

The claim herein is for money damages arising from an alleged defamatory statement by a New York State Health Department official that land owned by claimant was part of an unapproved subdivision (per Public Health Law, §§ 1115--1120) and could not be sold.

Defendant's instant cross motion for dismissal of the claim is on the grounds of lack of subject matter jurisdiction (CPLR 3211(a)(2)) and failure to state a cause of action (CPLR 3211(a)(7)). The State argues this Court lacks subject matter jurisdiction because claimant is 'in reality' asking for a declaratory judgment and we are without jurisdiction to grant such relief. It contends the claim fails to state a cause of action because: (a) the allegations of the claim do not make out an action for slander of title; and (b) the statement by the Health Department employee was absolutely privileged.

We find no merit to defendant's jurisdictional argument. The claim clearly requests money damages and money damages only. The fact the determination of the claim may involve the judicial interpretation of the applicable statutes does not change the nature of the requested relief. Such interpretation would only be an adjunct to said relief, not a substitute for it.

We also find the claim states a cause of action. It is unquestioned that modern pleading does not require the claim to have the correct label. Pleadings are to be liberally construed (CPLR 3026) and if the facts alleged state a cognizable cause of action, the claim must be sustained. (See e.g., Harder v. Auberge Des Fougeres, Inc., 40 A.D.2d 98, 99, 338 N.Y.S.2d 356, 357.) Whether called slander of title or injurious falsehood, it is beyond dispute that a cause of action exists for false disparagement of title resulting in an impairment of vendibility. (Lampert v. Edelman, 24 A.D.2d 562, 563, 261 N.Y.S.2d 450, 451; Joseph v. Siegel, 200 Misc. 214, 215, 105 N.Y.S.2d 690, 691, affd. sub nom. Joseph v. Lutzky, 279 App.Div. 574, 107 N.Y.S.2d 553, affd. 304 N.Y. 553, 106 N.E.2d 613.) Such action is based on the general principle that one who willfully injures without cause or excuse is liable for damages caused thereby. (Joseph v. Siegel, supra, 200 Misc. at 215, 105 N.Y.S.2d at 691.) The required elements are falsity, malice and special damages. (Kendall v. Stone, 5 N.Y. 14, 18, 19; Felt v. Germania Life Ins. Co., 149 App.Div. 14, 16, 133 N.Y.S. 519, 521.) These are indisputably within the allegations of the instant claim. ¹

It is noted, parenthetically, the binder agreement was referable only to $33,000 of claimant's total alleged damages of $116,000 and there are no allegations in the claim revealing the special nature of the other $83,000 of damages. However, while there is authority for dismissing parts of a cause of action (see Myer v. Myer, 271 App.Div. 465, 476, 66 N.Y.S.2d 83, 93, affd. 296 N.Y. 979, 73 N.E.2d 562; Forse v. Turner, 55 Misc.2d 810, 812, 286 N.Y.S.2d 538, 541; Gordon v. Pushkoff, Sup., 67 N.Y.S.2d 873, 874, affd. 272 App.Div. 872, 72 N.Y.S.2d 402), we do not think it proper where such relief was not requested (see Fernwood Trout Hatchery v. State, 50 A.D.2d 1035, 376 N.Y.S.2d 719) and where the instant application was addressed to the entire claim. (See Richardson v. Coy, 28 A.D.2d 640, 280 N.Y.S.2d 623.) CPLR 3211(a) does not by its language permit dismissal of part of a cause of action, an omission whose significance is underlined by the express provision for partial summary judgment in the succeeding rule. (See CPLR 3212(e).) A similar case, which permitted dismissal of that part of the claimed damages found legally non-recoverable, did so only by converting the dismissal motion therein to a summary judgment motion under subdivision c of CPLR 3211. (Amaducci v. Metropolitan Opera Assn., 33 A.D.2d 542, 543, 304 N.Y.S.2d 322, 323; see also Tow v. Moore, 24 A.D.2d 648, 649, 262 N.Y.S.2d 134, 137.) Affidavits sufficient for such conversion were not submitted herein (the damage issue was not discussed) and we believe a motion under CPLR 3024(b) (see Goldman v. City Specialty Stores, 285 App.Div. 880, 137 N.Y.S.2d 693) or CPLR 3212(e) (see Amaducci v. Metropolitan Opera Assn., supra; see also Sondak v. Dun & Bradstreet, Inc., 39 Misc.2d 13, 15, 239 N.Y.S. 697, 699) would permit a fairer and more complete determination of the issue.

As to absolute privilege, we find it inapplicable here. The doctrine of absolute privilege completely immunizes certain classes of persons from liability for defamatory statements, even though maliciously uttered. (Hyman v. Press Pub. Co., 199 App.Div. 609, 611, 192 N.Y.S. 47, 48.) The privilege is accorded to some government executives as to statements made in and related to the exercise of their official duties. (Lombardo v. Stoke,18 N.Y.2d 394, 400, 276 N.Y.S.2d 97, 101, 222 N.E.2d 721, 723; Cheatum v. Wehle, 5 N.Y.2d 585, 592, 593, 186 N.Y.S.2d 606, 610, 611, 159 N.E.2d 166, 169, 170; see also Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780.) This executive immunity is based on policy considerations which posit that efficient government requires officials who are not subject (unjustly or otherwise) to the distracting inconveniences of civil litigation arising from the performance of their official duties. Such immunity permits the selected officials to discharge their duties without fear of civil retaliation, even though individuals may suffer injury from such discharge without being able to recover therefor. (Lombardo v. Stoke, supra, 18 N.Y.2d at 400, 401, 276 N.Y.S.2d at 101, 102, 222 N.E.2d at 723, 724; Cheatum v. Wehle, supra, 5 N.Y.2d at 592, 593, 186 N.Y.S.2d at 610, 611, 159 N.E.2d at 169, 170; see also Scheuer v. Rhodes, 416 U.S. 232, 238--243, 94 S.Ct. 1683, 40 L.Ed.2d 90; Barr v. Matteo, 360 U.S. 564, 568--576, 79 S.Ct. 1335, 3 L.Ed.2d 1434.)

The privilege does not extend to all who perform governmental functions (Peeples v. State, 179 Misc. 272, 276, 38 N.Y.S.2d 690, 695) and, because of the possibilities of abuse and injustice, it should not be facilely extended. (see Pecue v. West, 233 N.Y. 316, 321, 135 N.E. 515, 516; Andrews v. Gardiner, 224 N.Y. 440, 448, 121 N.E. 341, 344; concurring opinion of Keating, J., in Lombardo v. Stoke, supra, 18 N.Y.2d at 402, 276 N.Y.S.2d at 102, 222 N.E.2d at 725, cited in McAulay v. Maloff, 82 Misc.2d 447, 450, 369 N.Y.S.2d 946, 948.) In determining which officials should be immunized, the key test is the nature and extent of the duties they perform. (Smith v. Helbraun, 21 A.D.2d 830, 831, 251 N.Y.S.2d 533, 535; see also Scheuer v. Rhodes, supra, 416 U.S. at 242--248, 94 S.Ct. 1683; Barr v. Matteo, supra, 360 U.S. at 573, 574, 79 S.Ct. 1335), with the importance of those duties being a significant factor therein. (See Lombardo v. Stoke, supra, 18 N.Y.2d at 400, 276 N.Y.S.2d at 101, 222 N.E.2d at 723; Sheridan v. Crisona, 14 N.Y.2d 108, 112, 249 N.Y.S.2d 161, 163, 198 N.E.2d 359, 360; Smith v. Helbraum, supra; McAulay v. Maloff, supra, 82 Misc. at 450, 369 N.Y.S.2d at 948.) Also significant is the form of the statement and the context in which it is made. Absolute privilege will not attach if the statement is deemed unwarranted (see Lombardo v. Stoke, supra, 18 N.Y.2d at 401, 276 N.Y.S.2d at 102, 222 N.E.2d at 724) or outside the course of official duty (see Cheatum v. Wehle, supra; Jacobs v. Herlands, 257 App.Div. 1050, 13 N.Y.S.2d 707 and 51 Misc.2d 907, 908, 17 N.Y.S.2d 711, 712, affd. 259 App.Div. 823, 19 N.Y.S.2d 770), although, if wholly outside the scope of employment, the State would not be liable. (Goodyear Aluminum Prods. v. State, 12 A.D.2d 692, 693, 207 N.Y.S.2d 904, 905.) ² The limits of absolute privilege are not clear, however (Pecue v. West, supra, 233 N.Y. at 320, 135 N.E. at 516; McAulay v. Maloff, supra, 82 Misc. at 449, 369 N.Y.S.2d at 947), particularly since in most situations an official not entitled to absolute privilege should be able to invoke some form of qualified privilege. (See concurring opinion of Van Voorhis, J., in Cheatum v. Wehle, supra, 5 N.Y.2d at 598--600, 186 N.Y.S.2d at 615--17, 159 N.E.2d at 173--74; dissenting opinion of Scileppi, J., in Lombardo v. Stoke, supra, 18 N.Y.2d at 402--404, 276 N.Y.S.2d at 102--104, 222 N.E.2d at 725--26; Ward Telecommunications and Computer Services v. State, 83 Misc.2d 331, 341, 372 N.Y.S.2d 423, 433; McAulay v. Maloff, supra, 82 Misc. at 450, 369 N.Y.S.2d at 948; Follendorf v. Brei, 51 Misc.2d 363, 273 N.Y.S.2d 128; see also dissenting opinions of Warren, Ch. J., and Brennan, J., in Barr v. Matteo, supra, 360 U.S. at 578--586 and 586--592, 79 S.Ct. 1335, respectively.) The situation is thus not usually a black and white one and we believe any determination of the reach of absolute privilege should analyze the subject official's duties in the context of the above-stated policy considerations and ascertain whether such duties require the application of the extreme protection afforded by absolute privilege.

On the record before us, we do not believe the State employee has been shown entitled to absolute privilege. Generally privilege is an affirmative defense to be pleaded and proved by defendant (Ostrowe v. Lee, 256 N.Y. 36, 41, 175 N.E. 505, 506) and the defendant thus has the burden of proof. (Bounds v. Mutual of Omaha Ins. Co., 37 A.D.2d 1008, 325 N.Y.S.2d 573.) Although the State is not required to answer herein (see 22 NYCRR 1200.14, prior to 10/24/75 amendment), we believe the instant cross motion has properly raised the defense of absolute privilege. Also, it need not be particularly pleaded if discernible from the claim. (See Duffy v. Kipers, 26 A.D.2d 127, 129, 271...