Patane v. Griffin

• Decision Date: 21 November 1990
• Docket Number: No. 2,No. 1,1,2
• Citation: 164 A.D.2d 192,562 N.Y.S.2d 1005
• Parties: John S. PATANE, Appellant, v. Donna GRIFFIN, Respondent. (Action) John S. PATANE, Appellant, v. Fred BROOKS, et al., Respondents, et al., Defendants. (Action)
• Court: New York Supreme Court — Appellate Division

Page 1005

562 N.Y.S.2d 1005

164 A.D.2d 192

John S. PATANE, Appellant, v. Donna GRIFFIN, Respondent. (Action No. 1.)

John S. PATANE, Appellant, v. Fred BROOKS, et al., Respondents, et al., Defendants. (Action No. 2.)

Supreme Court, Appellate Division Third Department.

Nov. 21, 1990.

William R. Morgan, Syracuse, for appellant.

Bond, Schoeneck & King (S. Paul Battaglia, of counsel), Syracuse, for Donna Griffin, respondent.

MacKenzie, Smith, Lewis, Michell & Hughes (Leslie A. Bowser, of counsel), Syracuse, for Fred Brooks, respondent.

Before MAHONEY, P.J., and KANE, CASEY, LEVINE and MERCURE, JJ.

MERCURE, Justice.

These actions arise out of a controversy surrounding plaintiff's land acquisition practices. In 1980, when plaintiff was Town Supervisor of the Town of Lenox and a member of the Madison County Board of Supervisors, he began acquiring land parcels in the Peterboro Swamps in the Town of Smithfield, Madison County, which were listed on tax maps as "owner unknown". Plaintiff, himself describing his methods as "unconventional", would pay delinquent taxes on the various lots and obtain quitclaim deeds from individuals who may or may not have had any ownership interest in the property, in an attempt to develop sufficient indicia of ownership to eventually acquire title.

In the fall of 1986, several Smithfield residents, citing interference with the downstream water supply, objected to plaintiff's rebuilding of a beaver dam on one of his acquired properties. Thereafter, defendants Donna Griffin, Scott Griffin, Fred Brooks and other citizens questioned plaintiff's land acquisition practices because of concern that his political office may have provided access to inside information and an unfair advantage in the acquisition of the lands. Eventually, a group known as the Concerned Citizens of Madison County forwarded a letter dated October 20, 1986 signed by 14 persons, including the Griffins and Brooks, to the District Attorney requesting a full Grand Jury investigation "to determine if there are any unethical dealings" in plaintiff's land acquisitions.

Plaintiff thereafter commenced action No. 1, asserting causes of action for prima facie tort and defamation, against Donna Griffin in September 1987. At about the same time, action No. 2, also asserting causes of action for prima facie tort and defamation, was commenced by plaintiff against, among others, Brooks and Scott Griffin. Following motions by defendants ¹ and the submission of an affidavit by plaintiff's attorney stating that plaintiff "has elected not to oppose" summary judgment in defendants' favor, Supreme Court granted summary judgment dismissing the complaints and ordered plaintiff to appear for an examination under oath on the issue of whether he had a reasonable basis to commence the actions. After the examination, defendants moved for sanctions and plaintiff cross-moved to reopen the award of summary judgment and for sanctions against defendants. Supreme Court denied plaintiff's cross motion and, after an inquest, awarded defendants certain amounts to reimburse them for their counsel fees and costs. Plaintiff now appeals.

Turning first to plaintiff's defamation claims, it is well settled that plaintiff, as a public official (see, Duffy v. Kipers, 26 A.D.2d 127, 271 N.Y.S.2d 338), must demonstrate by clear and convincing evidence that the complained of statements were made, their falsity, their defamatory meaning and that their publication by defendants was with actual malice, i.e., "with knowledge that [they were] false or with reckless disregard of whether [they were] false or not" (New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686). Further, criticism regarding the official conduct of a public official (see, Duffy v. Kipers, supra), and even the private actions of such an official which involve his official position (see, Gilberg v. Goffi, 21 A.D.2d 517, 526, 251 N.Y.S.2d 823, affd. 15 N.Y.2d 1023, 260 N.Y.S.2d 29, 207 N.E.2d 620), is entitled to a qualified privilege.

As to plaintiff's first claim that Donna Griffin told Robert Haskell that plaintiff "has added parcels to the deeds he has obtained prior to recording them", plaintiff concedes that these words were never stated but claims, instead, that Haskell was shown a tax map of "owner unknown" lands upon which was written "[plaintiff] paid taxes, title ???". We agree with Supreme Court that the notations on the map, without more, would not cause the average person to believe that plaintiff was being defamed (see, James v. Gannett Co., 40 N.Y.2d 415, 386 N.Y.S.2d 871, 353 N.E.2d 834). The second allegedly defamatory statement, that Ted Lawrence and Chris Lawrence were told that plaintiff had obtained land from the County "after the County took title and before it could reach the auction block", cannot sustain a determination of defamation by defendants. This accusation is refuted by the affidavit of Ted Lawrence, who stated that although plaintiff's land acquisitions were discussed, there was no mention of illegality or any implication that such activity was illegal. Moreover, even if the statement was intended to charge illegal conduct, plaintiff has not demonstrated that the statement was made with actual malice (see, Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 382, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456).

The third allegation of defamation claims that defendants coauthored a flyer which stated "that [p]laintiff had killed off all the beaver, the mink and the otter in the vicinity of the Miller Lake Goose Preserve". Plaintiff has failed to produce not only the flyer, but also any evidence to show that the flyer existed, that its contents were as plaintiff claimed or that defendants authored the material with actual knowledge of the falsity of the contents. As to the letter sent to the District Attorney, it suffices to note that a qualified privilege protects good-faith communications to a prosecutor regarding possible criminal activity prior to the commencement of a criminal proceeding (Toker v. Pollak, 44 N.Y.2d 211, 221, 405 N.Y.S.2d 1, 376 N.E.2d 163) and there has been no demonstration of bad faith on the part of defendants. Our review of the record demonstrates that plaintiff's other defamation claims are similarly meritless.

Supreme Court also properly dismissed the causes of action sounding in prima facie tort because plaintiff failed to allege specific damages, instead making rather broad, conclusory allegations such as "irreparable injury to his reputation" a...