Sweeney v. Prisoners' Legal Services of New York, Inc.

• Decision Date: 02 March 1989
• Citation: 146 A.D.2d 1,538 N.Y.S.2d 370
• Parties: Walter SWEENEY, Respondent, v. PRISONERS' LEGAL SERVICES OF NEW YORK, INC., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 370

538 N.Y.S.2d 370

146 A.D.2d 1

Walter SWEENEY, Respondent, v. PRISONERS' LEGAL SERVICES OF NEW YORK, INC., et al., Appellants.

Supreme Court, Appellate Division,

Third Department.

March 2, 1989.

Harris, Beach, Wilcox, Rubin & Levey (Patricia A. Hulley, of counsel), Rochester, for appellants.

Rowley, Forrest and O'Donnell (Robert S. Hite, of counsel), Albany, for respondent.

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

LEVINE, Justice.

Defendant Prisoners' Legal Services of New York, Inc. (hereinafter PLS) is a private not-for-profit organization funded by the State to provide, inter alia, civil legal services for indigent State prison inmates, to defend them in administrative disciplinary hearings and to report on conditions at State correctional facilities. In March 1987, defendant Tom Terrizzi, managing attorney at the PLS office in Tompkins County, and defendant Neil H. Golder, a legal assistant at the same office, wrote a letter to Roland Miles, Superintendent of Elmira Correctional Facility, concerning their study of prisoner complaints of unnecessary and excessive violence perpetrated by correction officers at that facility, particularly taking place at the special housing unit (hereinafter SHU). The letter made recommendations to ameliorate the problem, including the transfer from SHU or outright dismissal of "guards who use excessive or unnecessary force on inmates". Attached to the letter was a computer printout setting forth a list of the dates of some 38 violent incidents and the names of the inmate and the correction officers involved. In the first of such incidents listed, plaintiff was included as one of three identified correction officers, "plus 7-8 unknown COs". Copies of the letter and attached list were circulated to the Chief Counsel of the Department of Correctional Services, that Department's Commissioner for Facility Operations and the various complaining inmates at the Elmira facility.

Plaintiff then commenced this suit, setting forth three causes of action arising out of the circulation of the letter and list, the first two sounding in defamation and the third for intentional infliction of emotional distress. Before answering the complaint, defendants moved to dismiss the complaint for legal insufficiency (CPLR 3211[a][7] ). They now appeal from Supreme Court's denial of their motion in its entirety.

As to plaintiff's first cause of action, defendants claim that it is insufficient on alternate grounds. The first of these is that, reading the subject documents in their entirety, the language complained of is not reasonably susceptible to a defamatory meaning, as a matter of law. Defendants assert that, at most, the letter and attachment can only be interpreted as a report of prisoners' complaints of alleged guard brutality with a suggestion that, as a statistical matter, a general problem of that nature may exist at the facility and a recommendation for further investigation and preventive action by prison authorities. Defendants argue that this cannot be translated into any imputation that plaintiff, in particular, was guilty of criminal or professional misconduct in abusing prisoners. It may well be that the letter and list are subject to defendants' interpretation. However, the motion to dismiss must be denied if the communication at issue, taking the words in their ordinary meaning and in context, is also susceptible to a defamatory connotation, in which case the issue of the statement's meaning to the average reader must go to the jury (see, Carney v. Memorial Hosp. & Nursing Home of Greene County, 64 N.Y.2d 770, 772, 485 N.Y.S.2d 984, 475 N.E.2d 451; Silsdorf v. Levine, 59 N.Y.2d 8, 12-13, 462 N.Y.S.2d 822, 449 N.E.2d 716,cert. denied 464 U.S. 831, 104 S.Ct. 109, 78 L.Ed.2d 111). In making this preliminary determination, the "courts 'will not strain' to interpret such writings 'in their mildest and most inoffensive sense to hold them nonlibelous' * * *. The words are to be construed not with the close precision expected from lawyers and judges * * *. 'The casual reader might not stop to analyze, but could readily conclude that plaintiff is a crook and let it go at that' " (November v. Time, Inc., 13 N.Y.2d 175, 178-179, 244 N.Y.S.2d 309, 194 N.E.2d 126 [citations omitted] ).

Applying these principles, we find that the language used in defendants' communication is susceptible to a defamatory connotation. The letter clearly implies that it was not designed merely to pass on to correction officials the complaints of inmates. The writers assert that they "attempted to gather all the relevant information [they] could", although prevented from interviewing guards or reviewing their reports. They unqualifiedly express their conviction that a "significant and serious problem" of unnecessary and excessive use of force by prison guards exists at the Elmira facility's SHU. They also flatly assert that "[b]ased upon our investigation", the implementation of their recommendations "would significantly reduce the use of unnecessary and excessive force" at the facility. The letter also points out a pattern of incidents occurring "when a single inmate is alone with several guards". The writers name several specific correction officers particularly suspect because of the frequency of their involvement in incidents of physical violence used on inmates. Then, the attached list, unequivocally entitled "UNNECESSARY/EXCESSIVE USE OF FORCE BY GUARDS AT ELMIRA CORRECTIONAL FACILITY", not merely alleged incidents and complaints but names plaintiff as a participant in an incident involving the familiar pattern of the single inmate beset by numerous guards, in this instance, no less than 10 correction officers, among whom was one previously identified in the letter as being suspect. We think that an average reader could readily interpret the documents together as an accusation that, at the least, there was a likelihood that plaintiff had in fact participated in an incident in which an inmate was assaulted without justification or with excessive force. Like the defendant author's allegation in Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 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 that the plaintiff was "probably corrupt", the foregoing language could well be interpreted in a defamatory manner, i.e., as imputing to plaintiff illegal or unprofessional conduct (see also, Carney v. Memorial Hosp. & Nursing Home of Greene County, supra, 64 N.Y.2d at 772, 485 N.Y.S.2d 984, 475 N.E.2d 451). Notably absent here was any language in the communication disclaiming or negating such an import (cf., James v. Gannett Co., 40 N.Y.2d 415, 420-421, 386 N.Y.S.2d 871, 353 N.E.2d 834).

Defendants' alternate ground for dismissal of plaintiff's first cause of action is that, even if defamatory, their communication is constitutionally immune as an expression of pure opinion (citing, inter alia, Steinhilber v. Alphonse, 68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d 550). This argument fails for two reasons. First, as we have already concluded, the letter and list can be read as accusing plaintiff of participating in an unjustified assault against an inmate, obviously criminal behavior (see, Penal Law § 120.00). Even pure expressions of...