Opinion
114948/05.
December 16, 2008.
Defendants Greek Orthodox Archdiocese of America (the Archdiocese) and Bishop of Troas Chancellor of the Greek Orthodox Archdiocese of America Savas (Bishop Savas) move, pursuant to CPLR 3211 (a) (7), for an order dismissing the action against them for failure to state a cause of action; or alternatively, pursuant to CPLR 3212, for an order granting summary judgment in their favor based on the defendants' qualified immunity.
Defendants the Greek Orthodox Church of the Assumption (Port Jefferson) (Port Jefferson church), Chrysanthie Argeropoulos (Argeropoulos, sued here as Argyropoulos) and Reverend George Matsis (Rev. Matsis) cross-move, pursuant to CPLR 3211 (a) (7) and 3212, for an order granting summary judgment and dismissing the complaint and all cross claims against them.
In this defamation action, the complaint alleges that from 1995 through 1999, and again in 2004, plaintiff George Martinos (Martinos) was the president of the Parish Council of the Port Jefferson Church. The complaint further alleges that over the years, Martinos spent both time and his own money to promote the welfare of the church, and assisted in raising funds and obtaining financing, enabling the Port Jefferson church to accomplish several building projects that were important to the church.
George Martinos, now deceased, has been replaced as plaintiff by his widow, Dorothy Martinos, as Executrix of his estate.
On September 2, 2004, Bishop Savas wrote to the Vice President, Assistant Treasurer, and Recording Secretary of the Port Jefferson church directing them:
to have frozen immediately all banking activities related to your various accounts (with the exception of payroll and utility checks) pending a corporate resolution to remove Mr. George Martinos, President of the Parish Council, from among the accounts' signatories. You are also hereby directed to address this matter at your forthcoming Parish Council meeting on September 7, 2004.
Letter from Savas, Bishop of Troas, to John E. Damianos, Peter Pagonia, and Chrysanthie Argeropoulos, Complaint, Exh. B.
After learning that he was no longer permitted to sign checks, on September 11, 2004, Martinos resigned as president of the Parish Council. On October 25, 2004, however, Martinos withdrew his resignation.
On November 11, 2004, Bishop Savas wrote to Martinos, with copies to Rev. Matsis and Argeropoulos, noting his resignation as Parish Council President "following allegations of financial irregularities" and informing him that:
you are not eligible to run for election to the Parish Council of your parish, or of any other parish in the Archdiocese, or to serve by appointment on any committee of your parish or any other parish, pending the completion of an investigation of these allegations.
Letter from Savas, Bishop of Troas, to George Martinos, November 11, 2004 (November 11, 2004 Letter).
On November 12, 2004, Robert R. Meguin, Martinos's attorney, wrote to Bishop Savas, with copies to Rev. Matsis and Argeropoulos, objecting to the November 11 Letter and stating that any claim of financial "irregularities" is without merit, and that, despite the passage of two months, no investigation of the alleged irregularities had been conducted. The letter, therefore, directed Bishop Savas, Father Matsis, and President Argeropoulos "to cease and desist from publishing the contents of your November 11, 2004 Letter to Mr. Martinos to any member of the General Assembly or anyone thereafter including all members of the Parish Council in any form or manner." Letter from Robert R. Meguin to Savas, Bishop of Troas, dated November 12, 2004. The letter further asked that the Bishop rescind the determination declaring that Martinos was ineligible to seek election to the Parish Council.
The complaint alleges that despite the cease and desist letter, on Sunday November 14, 2004, members of the Parish Council showed the Bishop's November 11, 2004 Letter to members of the congregation at the Port Jefferson church's General Assembly, and told them that Martinos was being investigated for financial irregularities that allegedly took place while he was president of the Parish Council in 2004. Then, according to the complaint, on January 1, 2005, during the coffee hour following the New Year's Day Liturgy, defendants distributed a flyer to all members of the congregation which alleged the following:
As some of you are already aware, the Suffolk County District Attorney's Office was requested to assist the Church. Several factors necessitated their involvement including:
a) threats to Father George, certain Board members, and to other individuals of the congregation
b) financial irregularities including the manipulation of church funds, improper record keeping, hidden bank accounts and forgery
c) the use of contractors and vendors without bids or Board approval
d) assistance in identifying other mistakes and protecting the integrity of the Church
It is up to you to condemn the destructive practices of the past and to implement the necessary changes in an ethical and honorable manner.
Sincerely,
Parishioners United for Change
Flyer dated January 1, 2005, Complaint, Exh. E (Flyer).
The complaint alleges that the allegations against Martinos are false and that defendants made those allegations with knowledge that they were false and with reckless disregard of their truth or falsity. As a result, Martinos was accosted and confronted by members of the parish who accused him of wrongdoing with respect to the church's finances. The complaint further alleges that Martinos's reputation has been injured and that he has suffered embarrassment and mental agony. The complaint asserts six causes of action: 1) defamation I for the publication and dissemination of the November 11, 2004 Letter; 2) defamation II for the publication and distribution of the January 1, 2005 flyer; 3) libel per se I for publishing the contents of the November 11, 2004 Letter, before, during and after November 14, 2004; 4) libel per se II for the publication and distribution of the January 1, 2005 flyer; 5) slander per se I for verbally disseminating the contents of the November 11, 2004 Letter; and 6) slander per se II for verbally disseminating the allegations set forth in the Flyer of January 1, 2005, all despite plaintiff's cease and desist letter of November 12, 2004. The complaint seeks $1,000,000 in compensatory damages against all of the defendants jointly and severally, as well as $10,000,000 in punitive damages against each of the defendants.
On February 1, 2006, in a pre-answer motion, the Archdiocese and Bishop Savas moved to dismiss the complaint, based on a claim of qualified privilege. Their motion was denied, on the basis that "discovery is necessary to determine whether the [September 2, 2004] letter was sent solely based on malice towards plaintiff." Martinos v Greek Orthodox Archdiocese of America, Sup Ct, NY County, August 15, 2006, Acosta, J., index No. 114948/05 (Acosta Decision). Martinos's deposition was taken on June 20, October 10 and October 12, 2007. On or about October 10, 2006, defendants answered the complaint, and on or about October 5, 2007, defendants Port Jefferson Church, Argeropolous and Rev. Matsis responded to plaintiff's First Set of Interrogatories. Now, pursuant to CPLR 3211 (a) (7), the Archdiocese and Bishop Savas move for an order dismissing the action against them for failure to state a cause of action; or alternatively, pursuant to CPLR 3212, for an order granting summary judgment in their favor based on the defendants' qualified immunity. In the affidavit of counsel in support of their motion, the Archdiocese and Bishop Savas also indicate that they are moving to renew, pursuant to CPLR 2221.
The Archdiocese and Bishop Savas argue first that plaintiff has failed to state a cause of action against them because in the first, third and fifth causes of action, which allege malicious publication and dissemination of the information contained in the
November 11, 2004 Letter, there is no allegation in the complaint that either the Archdiocese or the Bishop actually published the contents of the letter to the congregation. Rather, the complaint alleges that "members of the parish council showed the November 11, 2004 Savas letter to members of the congregation." Complaint, ¶ 45; see also id. at 47. With respect to the second, fourth and sixth causes of action, which allege malicious publication and dissemination of the January 1, 2005 flyer, there is no allegation that the Archdiocese or the Bishop had anything to do with the alleged publication.
These defendants also argue that the November 11, 2004 Letter is not defamatory as a matter of law, and certainly not defamatory per se, that truth is a complete defense, and that they are protected by a qualified privilege with respect to the November 11, 2004 Letter. Finally, they argue that the allegations in the complaint fail to meet the specificity requirements of CPLR 3016 (a).
Plaintiff opposes the motion of the Archdiocese and Bishop Savas, as procedurally defective in that it asks the judge currently on the case to review the February 2006 decision of Justice Acosta denying defendants' previous motion to dismiss. Plaintiff contends that this motion should be transferred, pursuant to CPLR 2217, to Justice Acosta who denied the earlier motion to dismiss. Plaintiff further contends that defendants did not comply with the requirements of CPLR 2221 governing motions to renew or reargue, or of CPLR 3212 (b), requiring the inclusion of all papers germane to their motion for summary judgment, specifically the motion papers on their prior motion to dismiss. Thus, plaintiff argues, defendants' motion should be dismissed. Finally, plaintiff contends that there are issues of material fact in connection with all of plaintiff's causes of action concerning whether:
B. Savas' November 11, 2004 letter is true or false.
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C. genuine issues of material fact on the issue of whether the publication of the November 11, 2004 and the January 1, 2005 Flyer to the Greek Orthodox Church of the Assumption parish community at large is in fact attributable to Defendants.
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D. the publication is protected under the theory of "qualified privilege."
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E. the November 11, 2004 [sic] is defamatory per se. Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss, at 26, 31, 34, and 37.
Plaintiff is correct that, to the extent that defendants seek to characterize their motion as one for renewal, they have not satisfied the requirements of such a motion. They have, however, also moved for summary judgment pursuant to CPLR 3211 (a) (7) and 3212. In his August 5, 2006 decision, Justice Acosta indicated that he was denying defendants' motion to dismiss because "discovery is necessary to determine whether the letter [of September 2, 2004] was sent solely based on malice towards plaintiff." Acosta Decision, supra. Martinos's deposition has now been conducted and defendants Greek Orthodox Church of the Assumption, Argeropoulos and Matsis have responded to Plaintiff's First Set of Interrogatories, dated April 10, 2007. On the basis of that discovery, defendants may properly move for summary judgment in their favor.
The elements of defamation are "a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum a negligence standard, and, it must either cause special harm or constitute defamation per se." Dillon v City of New York, 261 AD2d 34, 38 (1st Dept 1999) . Truth constitutes a complete defense to a claim of defamation. Id. at 39. Furthermore, "[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." Matter of Kantor v Pavelchak, 134 AD2d 352, 353 (2d Dept 1987).
The essence of the November 11, 2004 Letter is the statement that Martinos had resigned as Parish Council President following allegations that he had been involved in financial irregularities, and the directive that, until an investigation of the allegations had been carried out, he was not entitled to run for office within the parish or serve on any parish committees. Although Martinos denied that he had committed financial irregularities, he conceded in his deposition that he was aware that such allegations had been made. Deposition of George Martinos, dated June 20, 2007, at 88-89. In addition, in response to plaintiff's First Set of Interrogatories, defendants Port Jefferson church, Argeropoulos and Rev. Matsis have indicated that on September 2, 2004, Argeropolous, Savas Karakatsanis, John Damianos, and Irene Byrd informed Bishop Savas of alleged financial irregularities by Martinos. Defendants' Response to Plaintiff's First Set of Interrogatories, ¶ 21. After those allegations were made on September 2, 2004, and the matter was discussed at the Parish Council's September 7, 2004 meeting as directed by Bishop Savas, Martinos did resign as President of the Parish Council, though he later sought to revoke his resignation. Thus, plaintiff has failed to raise a question of fact as to whether the statements in the November 11, 2004 Letter were untrue, that allegations of financial irregularities had been made and that Martinos had resigned as President of the Parish Council. The second statement in the letter, that Martinos was prohibited from running for office or taking a volunteer position was a directive by Bishop Savas, and plaintiff fails to raise a question of fact as to whether that statement is false.
The November 11, 2004 Letter was sent not to the entire membership of the parish, but to Martinos himself with copies to the parish priest and the president of the Parish Council. Certainly such church officials constitute interested persons, and, therefore, Bishop Savas's letter to them was covered by a qualified privilege. See Berger v Temple Beth-El of Great Neck, 41 AD3d 626 (2d Dept 2007) (qualified privilege applied to statements disclosing and explaining the termination of plaintiff's membership in the defendant temple, in that they were made in the discharge of a private duty, and in furtherance of a common interest of a religious organization). Such a privilege can be defeated by a showing of malice. Liberman v Gelstein, 80 NY2d 429, 437; Kantor v Pavelchak, 134 AD2d 352, supra. It is presumably for that reason that Justice Acosta denied defendants' February 2006 motion to dismiss. The burden is on the plaintiff, however, to raise a factual issue of malice. Liberman v Gelstein, 80 NY2d at 439. Mere allegations of malice are insufficient to establish a question of fact for the jury. "Those questions are for the jury only where there is evidence in the case warranting their submission to the jury, and the burden of proof is on the plaintiff." Stukuls v State of New York, 42 NY2d 272, 279 (1977); see also Berger v Temple Beth-El of Great Neck, 41 AD3d at 627 (plaintiff failed to raise an issue of fact to defeat qualified immunity of temple).
In his decision dated August 15, 2006, Justice Acosta denied defendants' pre-answer motion to dismiss to enable plaintiff to take discovery regarding whether Bishop Savas's letter of September 2, 2005 was sent solely based on actual malice. In light of both Martinos's testimony and co-defendants' interrogatory responses regarding allegations of financial irregularities made to Bishop Savas on September 2, 2004 by members of the Port Jefferson church, plaintiff fails to raise a question of fact regarding whether Bishop Savas's September 2, 2004 letter to Damianos, Pagonis, and Argeropoulos, directing them to freeze certain banking activities and remove Martinos as an account signatory, was based on actual malice of Bishop Savas. In the two years following Justice Acosta's decision, plaintiff has failed to come forward with such evidence. Therefore, to the extent that the complaint alleges that the sending of the November 11, 2004 Letter to plaintiff, and defendants Argeropoulos and Rev. Matsis is actionable, the letter is covered by a qualified privilege, and the first, third and fifth causes of action are dismissed as against the Diocese and Bishop Savas.
With respect to the allegations that the Archdiocese and Bishop Savas disseminated the November 11, 2004 Letter to persons other than the three to whom it was addressed, in order to comply with the specificity requirements of CPLR 3016 (a), the complaint must set forth not only the specific words complained of, but it must state the particular person or persons to whom the allegedly defamatory statements were made. See Simpson v Cook Pony Farm Real Estate, 12 AD3d 496, 497 (2d Dept 2004) (failure to state particular person or persons to whom the allegedly defamatory statements were made warrants dismissal); see also Bell v Alden Owners, Inc., 299 AD2d 207, 208 (1st Dept 2002); Dillon v City of New York, 261 AD2d at 38 (the complaint "must allege the time, place and manner of the false statement and specify to whom it was made"); Williams v Varig Brazilian Airlines, 169 AD2d 434, 437 (1st Dept 1991) (stating without particularity that 66 persons were present when defamatory statement made is insufficiently specific). Finally, the complaint must state by whom the statements were made. See Trim-A-Way Figure Contouring, Ltd. v National Better Bus. Bur., Inc., 37 AD2d 43, 46 [1st Dept 1971]). The complaint fails to specifically allege the Archdiocese or Bishop Savas were in any way involved in that dissemination on November 14, 2004 or any other time, and in their Verified Answer, they deny disseminating the letter. Verified Answer, ¶¶ 3 4. Thus, the Archdiocese and Bishop Savas are entitled to summary judgment dismissing those causes of action relating to the November 11, 2004 Letter for that reason as well.
With respect to the January 1, 2005 flyer, which is signed Parishioners United for Change, again, plaintiff fails to specifically allege that Bishop Savas or the Archdiocese was in any way involved with the Flyer or with the group Parishioners United for Change. To the contrary, in answer to the question "Do you have any reason to believe that the archbishop or the Archdiocese or the Bishop had any involvement in the drafting of this letter" Martinos answered "I don't believe so." Martinos Deposition, at 306. Finally, the Archdiocese and Bishop Savas denied the allegations in the three causes of action relating to the Flyer. Verified Answer, ¶¶ 18, 24 30. Thus, plaintiff fails to raise any questions of fact with respect to the involvement of the Archdiocese or Bishop Savas in the January 1, 2005 flyer that would defeat their motion for summary judgment. The motion for summary judgment of the Archdiocese and Bishop Savas with respect to the causes of action addressing the Flyer is, therefore, granted as well, and, for the purposes of their motion, the court need not reach the question of whether the Flyer is defamatory.
Defendants Port Jefferson church, Argeropoulos and Rev. Matsis (cross-movants) cross-move for summary judgment dismissing the complaint as against them, pursuant to CPLR 3211 (a) (7) and 3212.
Cross-movants argue that neither the November 11, 2004 Letter, nor the January 1, 2005 flyer are defamatory, and therefore, the complaint must be dismissed.
To determine whether a statement is defamatory
[t]he words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction.
Aronson v Wiersma, 65 NY2d 592, 594 (1985). Additionally, cross-movants contend that the complaint must be dismissed because the statements involved here are not per se defamatory and thus plaintiff must, but has not, alleged special damages.
Citing Liberman v Gelstein ( 80 NY2d at 435) cross-movants argue that pleading special damages can be dispensed with only with respect to statements:
(1) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman.
Cross-movants further argue that since Martinos had retired from his profession before the events complained of occurred and charges of "financial irregularities" do not constitute charges of a serious crime, the pleading of special damages was required.
The Court in Liberman v Gelstein, however, specifically applies the standard relied on by cross-movants to cases involving slander. Here the complaint contains both causes of action for libel and slander, as well as causes of action for libel per se and slander per se relating to both the November 11, 2004 Letter and the January 1, 2005 flyer. Although the standards for libel (written word) and slander (spoken word) are often discussed interchangeably, as by the movants and cross-movants, there is a historic distinction between libel and slander based upon the "permanence of form" attached to a writing. Locke v Gibbons, 164 Misc 877, 880 (Sup Ct, NY County 1937), affd 253 App Div 887 (1st Dept 1938).
As a general rule, slander is not actionable unless the plaintiff has suffered "'the loss something having economic or pecuniary value.'" Liberman v Gelstein, 80 NY2d at 434-435 (citation omitted). Where libel is alleged, however, some courts have ruled that special damages need not be pleaded or proved:
if the defamatory statement "tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society."
Donati v Queens Ledger Newspaper Group, 240 AD2d 696, 697 (2d Dept 1997), quoting Rinaldi v Holt, Rinehart Winston, 42 NY2d 369, 379, cert denied 434 US 969 (1997), other citations omitted.
This court has already concluded that the November 11, 2004 Letter itself is not actionable in defamation, because it does not state that Martinos is guilty of financial irregularities, but rather, that Martinos had resigned as president of the Parish Council following such allegations, and that statement is, in fact true. Even assuming it could be argued that circulating the letter beyond those persons to whom it was addressed by Bishop Savas was actionable, plaintiff has only made the general allegation that unnamed "members of the parish council showed the November 11, 2004 Savas Letter to [unnamed] members of the congregation," at the Congregation's General Assembly on Sunday, November 14, 2004, and told those members that Martinos was being investigated by the Archdiocese for financial irregularities. Complaint, ¶ 45. See also plaintiff's general allegations that defendants published the contents of Bishop Savas's letter. Complaint, ¶¶ 61, 71 and 81. Both defendants Ageropoulos and Rev. Matsis have submitted sworn denials to those allegations in their Verified Answer (see ¶ 3) and have stated under oath that they kept Bishop Savas's letter confidential. See Defendants' Response to Plaintiff's First Set of Interrogatories, ¶ 30. Given the specificity requirements of CPLR 3016 (a) governing defamation actions, and in the face of those sworn denials of plaintiff's allegations, plaintiff was obliged to come forward with some evidence showing that these individual cross movants in fact published the contents of the Bishop's letter.
With respect to the January 1, 2005 flyer, it alleges that the Suffolk County District Attorney had been asked to investigate, among other things, allegations of "financial irregularities including the manipulation of church funds, improper record keeping, hidden bank accounts and forgery." Flyer, supra. Such an allegation, particularly the allegation of forgery, which is a serious crime, could certainly "expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons." Donati v Queens Ledger Newspaper Co., 240 AD2d at 697.
Cross-movants argue that because Martinos is not specifically named, plaintiff fails to state a cause of action in connection with the Flyer. CPLR 3016 (a) requires that "in an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally."
It is not necessary that [the person] be named in the publication, if the allusion is apparent. "Where the person defamed is not named in a defamatory publication, it is necessary, if it is to be held actionable as to him, that the language used be such that persons reading it will, in the light of the surrounding circumstances, be able to understand that it refers to the person complaining."
Giaimo v Literary Guild, 79 AD2d 917, 917 (1st Dept 1981) (citation omitted); see also DeBlasio v North Shore Univ. Hosp., 213 AD2d 584, 584 (2d Dept 1995). Under the circumstances alleged here, it is certainly likely that a reader could understand that at least some of the allegations contained in the Flyer were referring to Martinos.
Plaintiff is, nonetheless faced with the additional requirements, pursuant to CPLR 3016 (a), discussed above, of specifying to whom and by whom the defamatory statements were made. In his deposition, Martinos stated that he did not know who prepared the Flyer. Martinos Deposition, at 305. Thus, as with respect to the Archdiocese and Bishop Savas, plaintiff has failed to show that the Port Jefferson church, Argeropoulos and Rev. Matsis are responsible for the Flyer.
For the reasons set forth above, both the motion for summary judgment of the Archdiocese and Bishop Savas and the cross motion of the Port Jefferson church, Rev. Matsis and Argeropoulos must be granted. Nonetheless, the court takes notice of the fact that, despite the fact that Bishop Savas considered the allegations of financial irregularities that were made against Martinos sufficiently serious to bar him from running for office or serving in any voluntary capacity for the Parish Council pending the completion of an investigation of the allegations, it appears that no such investigation was ever conducted. According to Martinos's sworn testimony, the various allegations against him resulted in damage to his reputation including accusations by members of the church that he was a thief. Martinos Deposition, at 252, 253, 260, 264 and 280-281. Martinos is no longer alive, and it is troublesome that the defendants failed, during his lifetime, to give him the opportunity to at least try to clear his name. Though the court is not in a position to so order, it would seem just for the church to permit his Estate such an opportunity.
Accordingly, it is hereby
ORDERED that the motion for summary judgment of defendants Archdiocese and Bishop Savas and the cross motion for summary judgment of defendants Port Jefferson Church, Rev. Matsis and Chrysanthie Argeropoulos are granted and the complaint is dismissed as to all of them with costs and disbursements to defendants as taxed by the Clerk of the Court upon submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.