Cite as: Levy v. Smith, 2019/13, NYLJ 1202637953874, at *1 (Sup., Putnam, Decided December 18, 2013)

2019/13

Justice Lewis J. Lubell

Decided: December 18, 2013

ATTORNEYS

Attorney for Plaintiff By: Michael H. Sussman, Esq., Sussman & Watkins, Goshen, New York.

Attorneys for Defendant By: Adam I. Kleinbeg, Esq., Sokoloff Stern, LLP, Carle Place, New York.

The following papers were considered in connection with this motion by defendant for an order pursuant to CPLR 3211 (a) (7) dismissing plaintiff's complaint in its entirety, with prejudice; and pursuant to CPLR 3024 (b) striking certain alleged immaterial, impertinent, and scandalous allegations from plaintiff's complaint and awarding defendant such other and further relief as this Court deems just, equitable and proper:

DECISION & ORDER

 

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Plaintiff, Adam B. Levy ("Levy"), the District Attorney of Putnam County, brings this defamation action in his individual capacity against Donald B. Smith ("Smith"), the Sheriff of Putnam County, in his individual capacity, in response to a series of public statements made by Smith about Levy regarding Levy's alleged

 

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interference with Smith's investigation and arrest of one Alexandru Ionut Hossu ("Hossu") for the alleged 2010 rape of a then twelve-year-old girl. Smith's statements are in the nature of "News Releases", some portions of which were republished by various news organizations, as well as a March 26, 2013, interview with the Putnam County News and Reporter.

Smith's first "News Release" is dated March 21, 2013. Therein, Smith announced the March 20, 2013, arrest of Hossu, "aged 35, of 70 Indian Wells Road in Southeast" (Levy's residence address) on charges of "forcible rape" of a twelve-year-old girl. Smith further indicated that "the defendant is in the United States unlawfully…,[and] has been working in the Putnam County area as a personal fitness trainer for several years…" In closing, Smith thanked his investigators and deputies, the Child Advocacy Center Team and the Westchester County District Attorney's Office for their assistance.

Upon recognizing that Hossu's publicized address was the same as Levy's residence address, Levy began receiving "multiple inquiries from the media". In response, Levy issued a March 22, 2013, "Statement from Putnam County District Attorney Adam Levy." Therein, and to the extent relevant to this motion, Levy noted that "[his] family had known [Hossu] for years" and that, upon learning of the investigation of and allegations against Hossu, he "immediately requested the appointment of an independent prosecutor". Levy commented on the address issue as follows: "Smith issued a press release that omitted the place of Mr. Hossu's arrest as his residence at 221 Clock Tower Commons Drive and instead, erroneously listed Mr. Hossu's address as 70 Indian Wells Road, my address".

In direct response to Levy's statement of March 22, Smith issued his "News Release" of same date.

Among other things addressed therein, Smith, in his capacity as Sheriff: defends the actions of his office in its investigation of the crime; explains the basis for attributing Levy's residence address to Hossu; and sets forth his version of the events surrounding Levy's recusal from the case.

In contrast to Levy's version, Smith asserts that it was an assistant district attorney from Levy's office who, during her investigation of the crime with the investigative team comprised of herself, an investigator from the Sheriff's Office and a caseworker from the Putnam County Child Advocacy Center, determined that "Levy's office could not properly continue to participate in the investigation in any way" upon learning that "Mr. Hossu and Mr.

 

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Levy [knew] each other, [and] that Mr. Hossu was his live-in personal trainer".

Continuing, Smith states:

In actuality it appears that [Levy] has failed to honor or abide by the recusal decision of the investigative team. Rather, he is apparently trying to influence and effect the investigation, which could be perceived as an ethical violation of his official duties and perhaps even an attempt to undermine it.

Furthermore, Smith proclaims that Levy's official statements addressing Hossu's address constitute "further indications of Mr. Levy's ongoing and improper involvement in this case…despite his acknowledged conflict of interest." Declaring that some of the information publically released by Levy was not yet public record, Smith declares that "[Levy] or his minions have made active inquiries into the case to mine for information…[which provide] more indications of what can be perceived as him improper, unethical and perhaps even illegal interference in the case."

Smith sums up this "News Release" by asserting, "Sadly, [Levy] is trying to distract the citizens from what the case is really about…[and] what really bothers Mr. Levy is that the investigation of Mr. Hossu…has uncovered facts that may be very inconvenient truths for him." Finally, "In my view…,if [Levy] could have it his own way, Mr. Hossu would never have been brought to justice for his crime and Mr. Levy's relationship with him would have never been brought to the light of public scrutiny."

Smith now moves pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action on the grounds that he enjoys absolute immunity, Levy's failure to identify facts alleged to be untrue and which can be attributed to Smith, duplicity, and that any surviving statements constitute nonactionable expressions of opinion.

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must "'accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord [the plaintiff] the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory'"

 

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(Whitebox Concentrated Convertible Arbitrage Partners, L.P. v. Superior Well Servs., Inc., 20 N.Y.3d 59, 63, 956 N.Y.S.2d 439, 980 N.E.2d 487, quoting Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414, 729 N.Y.S.2d 425, 754 N.E.2d 184).

(Pollack v. Cooperman, 109 AD3d 973, 974-75 [2d Dept 2013]). As such, the issue of the truthfulness or falsity of the statements is not now before the Court.

ABSOLUTE PRIVILEGE

At the threshold is the issue of whether Smith, as the Sheriff of Putnam County, enjoys an absolute privilege providing him immunity from this suit for defamation. The Court answers the question in the negative.

An absolute privilege affords a speaker or writer immunity from liability for an otherwise defamatory statement to which the privilege applies, regardless of the motive with which the statement was made [citations omitted]. Thus, the protection of an absolute privilege, unlike a qualified privilege, "is not conditioned upon the honest and reasonable belief that the defamatory matter is true or upon the absence of ill will on the part of the actor" (3 Restatement [Second] of Torts, at 243). Absolute privilege has been recognized in "a very few situations where there is an obvious policy in favor of permitting complete freedom of expression, without any inquiry as to the defendant's motives" [Prosser & Keaton, Torts §114, at 816 (5th ed.)].

(Sexter & Warmflash, P.C. v. Margrabe, 38 AD3d 163, 170-71 [1st Dept 2007]).

There is no dispute that Smith occupies a public office which, under proper circumstances, would enjoy an absolute privilege with respect to defamatory statements. However, the inquiry does not end there.

Public office does not carry with it a license to defame at will, for even the highest officers exist to serve the public, not to denigrate its members. Although the needs of

 

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effective government mandate that certain important officials be absolutely privileged with respect to statements made in the course of and concerning their public responsibilities, it is yet true that "balance must be struck between this objective and the right of an individual to defend himself against attacks upon his character" [citation omitted]. For these reasons, the privilege is not to be extended liberally, and instead must be carefully confined to that type of situation in which the protection provided by the privilege will serve a necessary societal function [citations omitted]. Thus, even a public official who is otherwise entitled to immunity "may still be sued if the subject of the communication is unrelated to any matters within his competence…or if the form of the communication — e.g., a public statement — is totally unwarranted (Lombardo v. Stoke, 18 NY2d 394, 401…,).

(Clark v. McGee, 49 NY2d 613, 618-19 [1980]).

Although Smith has established that a county sheriff qualifies for this type of privilege (Monroe v. Schenectady County, 266 AD2d 792, 795 [3d Dept 1999] [absolute privilege providing sheriff immunity in defamation action attaches to sheriff acting "wholly within the scope of his duties (as alleged in plaintiff's complaint) in publishing the charges in a disciplinary action"]), he has failed to come forward with any authoritative support that the "allegedly defamatory remarks related to his responsibilities and [were] made during the course of the performance of his duties" (Clark v. McGee, 49 NY2d 613, 619 [1980]). Notably, Smith's only support in this regard is his reference to various paragraphs in the complaint which simply recount his alleged actions. They do not provide authoritative support for the proposition that the issuance of "news releases" and the conducting of interviews with the press fall within the ambit of the responsibilities and the performance of duties of a county sheriff.

Even if Smith established that, he has not persuaded the Court that (what he describes as the expression of) mere opinion is otherwise appropriate to incorporate into a county sheriff's news or press release where one might expect to be informed about newsworthy facts or events. A comparison between Smith's March 21 and 22 "News Releases" is notable in this regard.

 

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Smith has not met his burden of establishing the propriety of the particular forums through which his remarks were made (Clark v. McGee, 49 NY2d 613, 619 [1980]), that they were "made during the performance of an essential part of [his] duties" (Doran v. Cohalan, 125 AD2d 289, 291 [2d Dept 1986]) and that the communication relates to "matters within his competence" (Lombardo v. Stoke, 18 NY2d 394, 401 [1966]).

This Court recognizes that there may exist circumstances where a public official, such as Smith, "might well be required to make a public statement as a part of his public obligations…[to, for example, address]…a direct attack upon the integrity of [his or her office]" (Clark v. McGee, supra at 621; citing Lombardo v. Stoke, 18 NY2d 394, supra). This is not such a case.

The most scathing comment made by Levy in his March 22 press release about Smith or his office is Levy's claim that Smith had "erroneously listed Mr. Hossu's address as 70 Indian Wells Road". The overall nature, tone and contents of Smith's "News Release" in response goes well beyond what can arguably be said to be a proper response to Levy's "direct attack" on his office. Perhaps a different conclusion would have been reached had Smith's statement been limited to addressing how the sheriff's office determined Mr. Hossu's address and perhaps what Smith believed initiated Levy's recusal.

In sum, given the nature, tone and contents of Smith's March 22, 2013, "News Release" and the manner and means through which it was publicized, the Court rejects Smith's assertion that it constitutes a permissible public statement made in response to a direct attack upon the integrity of Smith's office. To the contrary, the March 22, 2013, publication constitutes an unwarranted and disproportionate response to Levy's statement of same date such that Smith may be called upon to answer for same. This, of course, is without prejudice to the assertion of a "qualified privilege".

"Attribution of Statements"

Even upon reading the complaint as a whole and upon affording plaintiff the benefit of all reasonable inferences to be drawn therefrom, the Court finds that, except as to paragraph "85 (6)", the alleged defamatory statements found in paragraphs "85" through "87" are either re-publications of Smith's March 22, 2013, "News Release", or are statements which cannot properly be attributed to Smith in the context of this action, even at this pleading stage.

"One who makes a defamatory statement is not responsible for its recommunication without his authority or request by another over

 

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whom he has no control" (Hoffman v. Landers, 146 A.D.2d 744, 747, 537 N.Y.S.2d 228 [1989]). There is no allegation in the complaint that Smith asserted any authority over or otherwise controlled the various media that republished his earlier "News Releases" or otherwise editorialized them.

As such, except as to paragraph "85 (6)", the Court dismisses the complaint to the extent Levy relies on any such alleged defamatory statements contained in paragraphs "85" through "87" and, as such, said portions of the complaint are hereby stricken.

Duplicity

Smith's motion to dismiss Levy's second cause of action is granted.

Levy fails to identify the source of the defamatory publication underlying paragraph "97", treated as the "second cause of action". Therefore, it is hereby presumed to derive from a publication underlying paragraph "96", the "first cause of action". As such, it is dismissed as duplicative since "[t]here can be only one cause of action for one publication of a libel no matter how many separate and distinct defamatory charges the plaintiff may claim it contains" (Hoffman v. Landers, 146 AD2d 744, 747 [2d Dept 1989] citing Kern v. News Syndicate Co., 6 A.D.2d 404 1st [Dept 1958]).

Scandalous or Prejudicial Matter CPLR 3024 (b)

Smith moves to strike various paragraphs from the "General Background" and "Specific Background to Defamatory Statements" sections of the complaint on the ground that they do not relate to the alleged defamatory statements or to the investigation underlying the action.

"In reviewing a motion pursuant to CPLR 3024 (b) the inquiry is whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action…" (Soumayah v. Minnelli, 41 AD3d 390, 392-93 [1st Dept 2007]). Language should be stricken where, for example, it is "unnecessary to [plaintiff's] causes of action and [is] seriously prejudicial to the defendant" (Van Caloen v. Poglinco, 214 AD2d 555, 557 [2d Dept 1995]). Nonetheless, "[s]hould the facts related therein become relevant at trial, their admissibility should be determined by the Trial Judge in light of the posture of the case at that juncture" (Van Caloen v. Poglinco, supra, citing Wegman v. Dairylea Coop., 50 AD2d 108; Schachter v. Massachusetts Protective Assn., 39 AD2d 540; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3024:4, at

 

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322-323).

Given the plethora of paragraphs sought to be stricken, the Court refers this aspect of the motion to a conference to be held along with or after the Preliminary Conference herein scheduled.

Balance of Motion

To any further extent, the Court finds that, upon accepting the allegations in the complaint as true, Levy has alleged statements made by Smith "that could be reasonably susceptible of a defamatory connotation" so as to state a cause of action for defamation per se, and, as required by CPLR 3016 (a), are set forth with sufficient particularity (G.L. v. Markowitz, 101 AD3d 821, 823 [2d Dept 2012]). As such, "it becomes the jury's function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader" (Mencher v. Chesley, 297 NY 94, 100 [1947]; see also, G.L. v. Markowitz, supra at 822-23; James v. Gannett Co., 40 NY2d 415, 419 [1976]).

Upon reaching this determination, the Court has considered but rejects defendant's assertion that it is only statements of opinion that are left for the Court's consideration. Such an approach ignores, at the very least, a "cardinal principle" in the law of libel that "…the publication must be considered as a whole, that its meaning depends, not upon isolated and detached statements, but upon 'the whole scope and apparent object of the writer'" (Julian v. Am. Bus. Consultants, Inc., 2 NY2d 1, 22-23 [1956] quoting More v. Bennett, 48 N.Y. 472, 476). Just as "[t]here can be only one cause of action for one publication of a libel no matter how many separate and distinct defamatory charges the plaintiff may claim it contains" (Hoffman v. Landers, supra at 747 [2d Dept 1989] citing Kern v. News Syndicate Co., 6 A.D.2d 404), a publication need only contain one statement reasonably susceptible of a defamatory meaning in order to be properly considered within the context of the claim. Therefore, the Court will not isolate individual sentences from the March 22 publication or from any other publication herein under consideration in order to render piecemeal determinations of their individual viability.1

To any further extent, the motion is denied.

Based upon the foregoing, it is hereby

ORDERED, that the motion be and is hereby granted to the extent herein indicated and is otherwise denied; and, it is further

ORDERED, that defendant shall serve his answer to the complaint within fifteen days of the date hereof; and, it is further

ORDERED, that, the parties are directed to appear before the Court for a Preliminary Conference at 9:30 A.M. on February 10, 2014.

The foregoing constitutes the Opinion, Decision, and Order of the Court.

Dated: Carmel, New York

December 18, 2013

1. The Court notes that Smith does not argue that any statement is "a statement of opinion accompanied by a full recitation of the facts on which it is based" such as would constitute nonactionable expressions of "pure opinion" (Clark v. Schuylerville Cent. School Dist., 24 AD3d 1162, 1163 [3d Dept 2005]), and the Court has no reason to infer same.