Roth v. TEACHERS UNITED FEDN.

• Decision Date: 09 July 2004
• Citation: 5 Misc.3d 888,788 N.Y.S.2d 603
• Parties: GWEN ROTH, Plaintiff,<BR>v.<BR>UNITED FEDERATION OF TEACHERS, Also Known as UFT, et al., Defendants.
• Court: New York Supreme Court

5 Misc.3d 888

788 N.Y.S.2d 603

GWEN ROTH, Plaintiff,

v.UNITED FEDERATION OF TEACHERS, Also Known as UFT, et al., Defendants.

July 9, 2004.

James R. Sandner, New York City (Bryan D. Glass of counsel), for defendants.

Edward Roberts, Brooklyn, for plaintiff.

OPINION OF THE COURT

DAVID I. SCHMIDT, J.

Defendants United Federation of Teachers (UFT), UFT President Randi Weingarten and Herbert Michael^[1] move pursuant to CPLR 3016 (a) and 3211 (a) (1) and (7) for an order dismissing the plaintiff's complaint on the grounds that plaintiff has failed to set forth the defamatory words complained of with particularity in the complaint; that she has no actionable defamation claim in light of the documentary evidence (i.e., the written resolution and newspaper article at issue); and otherwise fails to state a cause of action.

Background

Plaintiff Gwen Roth has served as principal of the Urban Peace Academy (UPA), a New York City public high school, since July 2001. Michael, a teacher and chapter leader at UPA, was removed from said school on October 29, 2002 and reassigned to another alternative high school by the superintendent; according to the complaint, such action was taken following Roth's receiving a "plethora" of oral and written complaints concerning Michael's expressed political opinions, which she turned over to the superintendent's office.^[2]

Roth further alleges that, at an official meeting of the UFT Delegate Assembly held on June 11, 2003 at the Brooklyn Marriott Hotel, a written resolution drafted by Michael was introduced for adoption by the UFT.^[3] As to what plaintiff alleges in the complaint to constitute defamatory statements for which she now seeks damages, the following was purportedly stated in the resolution:

(A) that Roth had sent four teachers including the UFT chapter leader and his successor to the alternative superintendent's office to await investigation of allegations of unprofessional conduct;

(B) that Principal Roth had "removed UFT members from the Urban Peace Academy [sic]";

(C) that Principal Roth had "use prevarication and intimidation against staff, students, and parents;"

(D) that Principal Roth had "launched an attack on the leadership of the UFT at Urban Peace Academy."

The complaint goes on to allege that the resolution proposed, among other measures, that the UFT name Roth "Principal from Hell," and that a mass picket line be held in front of UPA two days later. Plaintiff further alleges that the resolution also named plaintiff as "Satan" and "carried the message that for seven to eight months she had refused to conduct an investigation or bring charges against 2 teachers who had been removed from UPA."

Plaintiff, in the complaint, goes on to charge that Weingarten, as president of the UFT, as well as the (unnamed) officials of the UFT,

"without investigation, either knowing that the alleged facts were false or with reckless disregard for the truth or falsity of the allegations permitted a vote to be taken and supported this vote. The UFT by this vote adopted the Resolution . . . as the UFT's own official statement of fact and authorized its publication and circulation."

In further alleging that the UFT also officially labeled and branded and named plaintiff as the "Principal from Hell," plaintiff asserts that the UFT also adopted the position that it would support and convene a picket line outside of UPA as a protest against plaintiff.

Plaintiff avers that the resolution was posted and distributed in schools, and was sent to reporters from (unnamed) daily newspapers. It was further allegedly distributed at the demonstration which was purportedly conducted on June 13, 2003, and, as alleged, published in the June 18, 2003 edition of New York Teacher, the official publication of the UFT.

Thus, in her first cause of action, plaintiff alleges, and requests judgment, severally and jointly, for slander, libel and defamation, "including slander per se, libel per se, and defamation per se." In her second cause of action, she seeks compensation for "exemplary damages" based upon defendants' intent to cause injury, including physical and mental injury, extreme emotional distress and continuing mental trauma, severe anxiety and pain and suffering.

Parties' Contentions

Defendants allege that based upon a review of the documentary evidence consisting of the resolution annexed to the motion (but not to the complaint itself), plaintiff has failed to demonstrate that she has an actionable defamation claim, and that in failing to annex a copy of the resolution to her complaint, she has failed to plead with specificity the exact defamatory statements at issue. They further contend that the complaint must be dismissed "against defendant UFT and the individual defendants in their representative capacities because the alleged conduct was not authorized or ratified by each and every single member of the 140,000-plus member UFT," and that the disputed contents of the resolution represent either statements of constitutionally protected opinion, made within the context of a labor dispute, or are otherwise not actionable at law because the language complained of is not reasonably susceptible of defamatory connotation. Defendants also allege that any statement in the resolution which could be construed as factual is substantially true, and that a qualified privilege attaches to the communication at issue based on the nature of the positions of plaintiff, as principal, and defendant Michael, as union chapter leader, as well as the overall context in which the resolution was distributed and published. They go on to assert that because plaintiff has not pleaded actual malice in the complaint, the qualified privilege defeats any actionable claim for defamation.

In response, plaintiff argues that the allegations contained in her complaint are sufficient to withstand defendants' dismissal motion at this early stage of the lawsuit. Through her attorney, she asserts that this was "at best a personal complaint from Michael about the action of a district superintendent within his legitimate jurisdiction. It in no way affected the general membership of the UFT and should have been resolved privately and expeditiously." She avers that at trial, the minutes of the June 11, 2003 UFT Assembly, as well as the published article, will provide the context of the defendants' defamatory remarks, and that the plaintiff was in fact the UFT's scapegoat in a labor dispute whose true target was the Mayor of the City of New York and the Chancellor of the Department of Education.

Defendants' CPLR 3211 (a) (1) Motion

In order to prevail on a motion to dismiss based on documentary evidence pursuant to CPLR 3211 (a) (1), the documents relied upon must definitively dispose of plaintiff's claim (see Bronxville Knolls v Webster Town Ctr., 221 AD2d 248 [1995]). A defendant must show that the documentary evidence upon which the motion is predicated resolves all factual issues as a matter of law (Unadilla Silo Co. v Ernst & Young, 234 AD2d 754 [1996]). In the instant motion, defendants have failed to demonstrate that the resolution upon which they rely and which they contend is a document disposes of all factual issues. Accordingly, the court denies the motion as asserted under said paragraph.

Defendants' CPLR 3211 (a) (7) Motion

On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (CPLR 3026). The court should accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Morone v Morone, 50 NY2d 481, 484 [1980]; Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]).

Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance (see Weiner v Doubleday & Co., 74 NY2d 586 [1989], cert denied 495 US 930 [1990]; Aronson v Wiersma, 65 NY2d 592, 593 [1985]). It is well settled that an opinion cannot form the basis of a claim for defamation, since "expressions of an opinion `false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions'" (Steinhilber v Alphonse, 68 NY2d 283, 286 [1986], quoting Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 380 [1977], cert denied 434 US 969 [1977]). However, language is actionable if it is a "mixed opinion," i.e., a statement of opinion implying that it is based upon facts which justify the opinion, but which are unknown to those hearing or reading it (Steinhilber, 42 NY2d at 289-290 [citations omitted]).

The determination of whether a statement constitutes fact or protected opinion has been the subject of considerable analysis and legal evolution in recent years (see generally Gross v New York Times Co., 82 NY2d 146 [1993]). Under either federal or New York law, the dispositive inquiry is" `whether a reasonable [reader] could have concluded that [the articles were] conveying facts about the plaintiff' "(id. at 152, quoting 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 139 [1992], cert denied 508 US 910 [1993]). In distinguishing between actionable factual assertions and nonactionable opinion, the court must consider:

"(1) whether the 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" (Brian v Richardson, 87 NY2d 46, 51 [1995] [internal quotation marks omitted; citations omitted]).

It is also well established that statements that "tend[] to expose a person to hatred, contempt or aversion, or...