Moore v. Dormin

• Decision Date: 16 July 1998
• Citation: 676 N.Y.S.2d 90,252 A.D.2d 421
• Parties: , 1998 N.Y. Slip Op. 7095 Ronald MOORE, Plaintiff-Respondent-Appellant, v. John DORMIN, Defendant-Appellant-Respondent. The New York State District Attorney's Association, Amicus Curiae.
• Court: New York Supreme Court — Appellate Division

Page 90

676 N.Y.S.2d 90

252 A.D.2d 421, 1998 N.Y. Slip Op. 7095

Ronald MOORE, Plaintiff-Respondent-Appellant, v. John DORMIN, Defendant-Appellant-Respondent The New York State District Attorney's Association, Amicus Curiae.

Supreme Court, Appellate Division First Department.

July 16, 1998.

Joseph P. Baumgartner, for Plaintiff-Respondent-Appellant.

Gina Mignola, for Defendant-Appellant-Respondent.

Richard A. Brown, Michael J. Miller, Glenn Green, for amicus curiae.

Before ROSENBERGER, J.P., WALLACH, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (David Saxe, J.), entered August 1, 1997, which granted defendant's motion for summary judgment to the extent of dismissing the second and third causes of action, unanimously modified, on the law, to the extent of further granting the motion to dismiss the first cause of action for defamation, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

ROSENBERGER, J.P., and WILLIAMS, J., concur in a memorandum by ROSENBERGER, J.P., as follows:

ROSENBERGER, Justice Presiding (concurring).

Summary judgment should be granted to the defendant. The facts are as set forth in Justice Tom's concurrence. As a prosecutor, the defendant is entitled to absolute immunity for his decision to pursue administrative remedies rather than starting criminal proceedings against one accused of perjury.

The fact that the assault case against the plaintiff was closed did not terminate the defendant's quasi-judicial role. Had the defendant decided to bring a second case against the plaintiff, this time for perjury, the defendant would unquestionably have been entitled to absolute immunity from civil suits based on his decision to prosecute (Johnson v. Town of Colonie, 102 A.D.2d 925, 926, 477 N.Y.S.2d 513). Naturally, absolute immunity also attaches to the decision not to prosecute (Schloss v. Bouse, 876 F.2d 287, 290 [2d Cir.] ), as well as to otherwise administrative acts that are intertwined with this prosecutorial decision (id. at 291). If the prosecutor chooses to refer a suspected offender to an administrative agency for a non-criminal disposition, this decision is immunized as well (Davis v. Grusemeyer, 996 F.2d 617, 630 [3d Cir.]; Brightful v. Township of Haverford, 1994 WL 114907, U.S. Dist. Ct., ED PA, April 5, 1994, Yohn, J., at * 3), as even the plaintiff admits.

This case differs from cases in which the prosecutor was not given the benefit of immunity because he was acting outside the scope of the law (see, e.g., Rodrigues v. City of NY, 193 A.D.2d 79, 85, 602 N.Y.S.2d 337 [no immunity for prosecutors who issued subpoenas to conduct their own investigation of plaintiffs before convening Grand Jury] ). Here, the prosecutor was not gratuitously disparaging an ordinary citizen to the latter's employer. The agencies to which the defendant complained exist to monitor the fitness of police officers such as the plaintiff. If any civilian has immunity when making a complaint to the Internal Affairs Division or the Civilian Complaint Review Board (see, e.g., Campo v. Rega, 79 A.D.2d 626, 433 N.Y.S.2d 630), a prosecutor should receive no less protection. In fact, because she or he will often need to rely on police officers as witnesses for the People, a prosecutor has a special interest in assuring the integrity of the police force.

As for qualified privilege, the plaintiff clearly did not raise a triable issue as to the defendant's motivation, under either the constitutional or the common-law definition of malice. Under the standard of New York Times Co. v. Sullivan, 376 U.S. 254, 286, 84 S.Ct. 710, 729, 11 L.Ed.2d 686, statements are made with malice when the speaker exhibits reckless disregard of whether or not they are false. Whether or not his interpretation of the inconsistencies in the plaintiff's Grand Jury and trial testimony was correct, this defendant was clearly not indifferent to the question of truth. Rather, he took great pains to substantiate his claims by comparing each of the plaintiff's apparently perjurious statements to other evidence in the record. Where it is evident that the speaker took care to provide a factual basis for his allegations, the fact that he felt strongly about the subject is simply irrelevant to the constitutional question of malice.

Similarly, although a finding of common-law malice simply requires spite or ill will, in the context of a defamation action, it is not enough that the defendant may have generally disliked the plaintiff. "If the defendant's statements were made to further the interest protected by the privilege, it matters not that defendant also despised plaintiff. Thus, a triable issue is raised only if a jury could reasonably conclude that 'malice was the one and only cause for the publication' " (Liberman v. Gelstein, 80 N.Y.2d 429, 439, 590 N.Y.S.2d 857, 605 N.E.2d 344 [citation omitted] ). In Liberman, the landlord sued a tenant for telling the board of governors of the tenants' association that the landlord bribed police officers and assaulted tenants (id. at 433, 590 N.Y.S.2d 857, 605 N.E.2d 344). On the issue of common-law malice, the Court of Appeals granted summary judgment to the defendant. The main deciding factor was that the tenant, rather than announcing his suspicions to the public at large, confidentially relayed them to a person who was in a position to investigate and with whom he shared a common interest (id. at 439, 590 N.Y.S.2d 857, 605 N.E.2d 344). As Justice Tom's concurrence recognizes, however reluctantly, the identical analysis applies to the case at bar.

We do not share our colleagues' dismay at the burden placed on potential plaintiffs by the Court of Appeals in Liberman. Given the importance of freedom of speech, especially on topics of public concern, the criteria for tort liability must be strict enough to avoid chilling the exercise of this right. The Liberman standard is hardly an insurmountable burden to defamation actions based on a common-law malice theory. Several cases have denied summary judgment to defendants based on that standard (e.g., Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 260, 633 N.Y.S.2d 106; Rabushka v. Marks, 229 A.D.2d 899, 902, 646 N.Y.S.2d 392). Nor does Liberman require the plaintiff to account at the outset for every possible legitimate motive for defendant's statements. As we recognized in Herlihy, supra, at 260, 633 N.Y.S.2d 106, to defeat a motion for summary judgment, a plaintiff need only show that "if [defendant's] alleged statements were false, [defendant's statements] could well be determined, by a trier of fact, to have been made solely to harm plaintiff."

As plaintiff herein failed to meet this burden, summary judgment dismissing plaintiff's first cause of action should be granted, and that cause of action dismissed.

WALLACH and TOM, JJ., concur in a memorandum by TOM, J., as follows:

TOM, Justice (concurring).

Plaintiff, a New York City police officer, was arrested and charged with assault as a result of an altercation with four teenage boys while he was off duty on March 17, 1992. The boys, during a school lunch break, were throwing items into the street when plaintiff drove by. Plaintiff contends that a 10-pound cobblestone hit and damaged his car while the boys later asserted that a piece of mattress stuffing hit the car. Plaintiff pursued and caught two of the boys. They later claimed that plaintiff had assaulted them while they were in detention, one receiving stitches for a head injury, and the other claiming that plaintiff had hit him in the mouth. Defendant in the present case was the Assistant District Attorney who presented the case to the 1992 Grand Jury, that indicted plaintiff, and who later prosecuted plaintiff at his March 1994 trial, which resulted in an acquittal. However, the relationship of the parties, now antagonists, did not end there.

By letter dated April 19, 1994, on District Attorney letterhead, defendant wrote to the Police Department's Deputy Commissioner for Internal Affairs, with a copy to the Civilian Complaint Review Board. That letter initially advised the Police Department of the prior month's acquittal, but then departed into a discussion of plaintiff's testimony at the Family Court proceeding arising from the boys' arrests and the subsequent Grand Jury proceeding that gave rise to the criminal charges against plaintiff. Defendant noted in the letter that the jury failed to find plaintiff guilty beyond a reasonable doubt, but offered his own view that plaintiff was guilty of assault and, further, that he was guilty of additional violations of law (generally perjury arising from plaintiff's sworn testimony), and of the Department's guidelines. The letter recited some of plaintiff's Grand Jury and Family Court testimony concerning the incident with the boys, which defendant characterized as being "replete with false statements," and, following a listing of "the officer's most egregious fabrications," then used additional trial evidence to point up the asserted falsity of the testimony. However, instead of simply offering the testimony side by side with the purportedly inconsistent evidence, defendant followed each item of testimony with the declaration that the testimony was false. Defendant also offered his belief that plaintiff, in filling out a line-of-duty report indicating that he injured his knee while arresting one of the boys, was trying to defraud the Police Department by converting an off-duty injury to an on-duty injury. However, defendant in the letter conceded that the District Attorney's office declined to further prosecute, but recommended that the Police Department "seek an appropriate remedy." Later in the letter, defendant left no doubt what remedy would be appropriate: plaintiff's "false statements ... reveal him to be wholly unworthy to wear the uniform of a New York City...