Stuart v. Porcello

• Decision Date: 10 November 1993
• Parties: , 22 Media L. Rep. 1700 Charles E. STUART, Appellant, v. Frederick A. PORCELLO et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 597

603 N.Y.S.2d 597

193 A.D.2d 311, 22 Media L. Rep. 1700

Charles E. STUART, Appellant, v. Frederick A. PORCELLO et al., Respondents.

Supreme Court, Appellate Division Third Department.

Nov. 10, 1993.

Law Offices of Gary Greenwald (Gary Greenwald, of counsel), Goshen, for appellant.

Law Offices of Daniel A. Whalen (Paul J. Connolly, of counsel), Albany, for respondents.

Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and MAHONEY, JJ.

CREW, Justice.

Appeals (1) from an order of the Supreme Court (Harris, J.), entered April 9, 1992 in Albany County, which granted defendants' motion for summary judgment dismissing the amended complaint, and (2) from an order of said court, entered September 14, 1992 in Albany County, which denied plaintiff's motion for reconsideration.

At all times relevant hereto, plaintiff was a State Trooper and president of the New York State Troopers Police Benevolent Association Inc. (hereinafter the PBA), a State Police labor union. On July 17, 1979, plaintiff was arrested by defendants Steven L. Sleurs and Donald J. Greeley, also State Troopers, on charges of grand larceny in the third degree (Penal Law former § 155.30) and falsifying business records in the first degree (Penal Law § 175.10). The charges stemmed from plaintiff's alleged misappropriation of PBA funds. The matter was subsequently brought before an Albany County Grand Jury, which declined to indict plaintiff.

Plaintiff thereafter commenced this action setting forth in his amended complaint causes of action sounding in defamation, false arrest, malicious prosecution and intentional infliction of emotional distress. Following joinder of issue and discovery, defendants moved for summary judgment. Supreme Court granted defendants' motion and plaintiff moved for reconsideration. Supreme Court denied plaintiff's motion and these appeals by plaintiff followed. ¹

With respect to plaintiff's defamation causes of action, we must first determine whether the statements complained of are reasonably susceptible to a defamatory connotation (see, e.g., Samuels v. Berger, 191 A.D.2d 627, 628-629, 595 N.Y.S.2d 231; Sweeney v. Prisoners' Legal Servs. of N.Y., 146 A.D.2d 1, 4, 538 N.Y.S.2d 370, lv. dismissed 74 N.Y.2d 842, 546 N.Y.S.2d 558, 545 N.E.2d 872). To that end, we must construe the statements "in the context of the article or publication as a whole * * * and from the standpoint of the average reader" (Samuels v. Berger, supra, 191 A.D.2d at 629, 595 N.Y.S.2d 231 [citation omitted]; see, James v. Gannett Co., 40 N.Y.2d 415, 419-420, 386 N.Y.S.2d 871, 353 N.E.2d 834). A statement may be deemed defamatory if it imputes to the plaintiff improper or illegal conduct (see, Sweeney v. Prisoners' Legal Servs. of N.Y., supra, 146 A.D.2d at 5, 538 N.Y.S.2d 370).

Here, plaintiff has alleged that he was defamed by two statements made or adopted by defendants: (1) a letter dated August 16, 1979 from Greeley to certain members of the PBA stating that plaintiff "has lied to you, stolen from you, defrauded and misrepresented you, your PBA, the [State Police] and the people of this State", and (2) a press release, which was published on August 24, 1979 in the Albany Times Union, indicating that plaintiff was removed from the PBA by its governing body and that "[t]he evidence against [plaintiff was] convincing and more than sufficient to warrant his removal from membership in [the PBA]". Viewing each communication as a whole and from the standpoint of an ordinary reader, we conclude that both the August 16, 1979 and the August 24, 1979 statements are reasonably susceptible to a defamatory interpretation and, hence, are actionable in the first instance.

Having so concluded, we must next consider whether defendants' statements are subject to any privilege. Contrary to plaintiff's assertion, we are of the view that Supreme Court properly determined that plaintiff was a public official. It is true that the conduct underlying the defamatory statements did not occur in the course of plaintiff's employment as a State Trooper (compare, Malerba v. Newsday Inc., 64 A.D.2d 623, 406 N.Y.S.2d 552; Orr v. Lynch, 60 A.D.2d 949, 401 N.Y.S.2d 897, affd. 45 N.Y.2d 903, 411 N.Y.S.2d 10, 383 N.E.2d 562). There is, however, a sufficient nexus between plaintiff's capacity as a State Trooper and his status as president of the PBA to cast plaintiff in the role of a public official, and both defendants' August 16, 1979 and August 24, 1979 statements directly implicated plaintiff's ability to serve in his official capacity (see, e.g., Scacchetti v. Gannett Co., 123 A.D.2d 497, 507 N.Y.S.2d 337; Dally v. Orange County Publs., 117 A.D.2d 577, 497 N.Y.S.2d 947). Thus, to prevail, plaintiff was required to establish "by clear and convincing evidence that the defendant[s] published the defamatory statement[s] with actual malice, i.e., with 'knowledge that [they were] false or with reckless disregard of whether [they were] false or not' " (Masson v. New Yorker Mag., 501 U.S. ----, ----, 111 S.Ct. 2419, 2429, 115 L.Ed.2d 447, quoting New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686). Our review of the record before us indicates that plaintiff's proof in this regard fell far short of the required standard and, therefore, defendants' motion for summary judgment on the defamation causes of action was properly granted on this basis.

Additionally, we agree with Supreme Court's determination that the August 16, 1979 statement is also subject to the qualified "common interest" privilege. Simply stated, "[a] bona fide communication made upon any subject matter in which the party communicating has an interest or duty is protected by a qualified privilege when it is made to a person having a corresponding interest or duty" (Licitra v. Faraldo, 130 A.D.2d 555, 515 N.Y.S.2d 289; see, Liberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344; Rabideau v. Albany Med. Ctr. Hosp., 195 A.D.2d 923, 600 N.Y.S.2d 825; Clark v. Somers, 162 A.D.2d 982, 557 N.Y.S.2d 209). The protection afforded by this privilege may be dissolved, however, if it can be established that the statement was made with "malice" as that term is defined under either the actual malice standard set forth in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, supra or the common-law definition ( see, Liberman v. Gelstein, supra, 80 N.Y.2d at 437-438, 590 N.Y.S.2d 857, 605 N.E.2d 344).

Here Greeley, who had been elected to the PBA Board of Directors by members of the State Bureau of Criminal Investigation (Eastern Division), made...