Opinion
32496/2006.
Decided on August 22, 2007.
WECHSLER COHEN, ESQS., NEW YORK, NY, PLTF'S ATTORNEY.
WILSON, ELSER, MOSKOWITZ, LLP, THREE GANNETT DRIVE WHITE PLAINS, NY, DEFT'S ATTORNEY.
ORDERED that the motion (001) by the defendants for summary judgment is granted and the complaint is dismissed in its entirety; and it is further
ORDERED that the cross motion (002) by the plaintiff to compel discovery is denied as moot; and it is further
ORDERED that the defendants are directed to serve copies of this decision and order upon counsel for the plaintiff pursuant to CPLR 2103(b)(1), (2) or (3) within 30 days of entry with the Clerk of the Court.
This is a defamation action arising out of a purported dispute on July 11, 2006 among adults during a youth baseball game on a playing field under the supervision of the Town of Huntington's Parks and Recreation Department (hereinafter the Parks Department).
In brief, the plaintiff, John Phelan (hereinafter Phelan) is the coach of an independent youth travel team (the Huntington Phillies) with a town-issued permit for the field in question for the hours 8 pm to 10 pm. The defendants are the Huntington Tri-Village Little League (hereinafter HTV) and its director John Zamillo (hereinafter Zamillo), who wears several hats for numerous positions in the organization. HTV had a permit for the field for the preceding two hours, that is; from 6 pm to 8 pm.
The following facts are not in dispute: On the day in question, HTV could not start its game at 6 pm due to inclement weather and, instead, started at 6:30 pm. With the 8 pm cut-off time approaching, and needing only to complete the inning in progress to have an official game, the HTV people (umpires and coaches) refused Phelan's request to vacate the field. Phelan wanted to have the field at 8 pm (as he was entitled to) because he did not want to jeopardize his ability to finish his game before the 10 pm curfew.
An employee of the Parks Department was called and after making no headway with the participants at the field, Zamillo, who was not present at the field, was called and he resolved the matter by directing his people to abide by the respective field permits and to immediately vacate the field. This was done and Phelan thought that was the end of the matter; and, apparently, so did Zamillo.
What is disputed, however, is how Phelan conducted himself during the incident. According to the HTV umpires and coaches, as evidenced in the alleged defamatory letter written by Zamillo to the Director of the Parks Department, Phelan, inter alia, cursed at one of the umpires, his "foul language and disruptive behavior was [sic] disgraceful" and Phelan's "unacceptable and despicable language and behavior"were an "embarrassment to [the HTV] organization as well as the Town of Huntington that [Phelan] said he represented."
Phelan denies each and every allegation of inappropriate language or conduct and suggests that the motive behind the defendants causing this letter to be written and published was, inter alia, spite and malice against Phelan due to Phelan's team siphoning players from HTV with the resulting loss in revenues to HTV.
The problem with this contention by Phelan is that there is no indication that HTV or Zamillo took any affirmative independent steps to bring the so-called incident to anyone else's attention — which is what they might be expected to do if they had spiteful or malicious intentions with regard to Phelan. Instead, what happened here is that on the day after the incident, Zamillo received an apparently unsolicited call from an employee of the Parks Department inquiring as to what information Zamillo had about the incident in question.
After Zamillo shared what he had been told, the Parks Department employee suggested that Zamillo put it down in a letter and send it to the Director of the Parks Department. This was done. Again, it was the Parks Department which called Zamillo, not vice versa, and it was at the behest of the Parks Department, which has responsibility for the use of the town fields and the conduct of those participants, that Zamillo wrote the letter to the department's Director rather than of his own independent initiative. Copies of this letter were also sent to two town employees — the Parks Department person who had called Zamillo and the Lighting Supervisor for the town (who, presumably, had responsibility for the lighting of the fields and imposing the curfews [by having the lights extinguished]). A copy was not indicated as being sent to anyone in the General Services Department in which Phelan worked (according to his affidavit) notwithstanding Phelan's general statement that a copy was sent to "the Town of Huntington, my employer."
The defendants now move for summary judgment arguing that Zamillo was "required" to file an incident report (the letter) by the terms of the field-use permit and by the Parks Department employee, that the defendants are entitled to an absolute privilege as well as a qualified privilege for the letter and that there is no basis for libel per se as a matter of law.
On a motion for summary judgment, the moving party has the burden of making a prima facie showing of entitlement to summary judgment as a matter of law and must offer sufficient evidence to show the absence of material issues of fact ( Winegrad v New York University Medical Center , 64 NY2d 851, 487 NYS2d 316; Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595). If the moving party fails in meeting this burden, the motion must be denied. If, however, this burden is satisfied, then the burden shifts to the opposing party to establish the existence of material issues of fact requiring a trial ( see Zuckerman v City of New York, supra ).
Here, in addition to the affidavit of Zamillo and other exhibits, the defendants present legal arguments as to the issues involved. The court finds that the defendants have sustained their burden of making a prima facie showing of entitlement to summary judgment on the basis of having a qualified privilege as to the letter and, thus, they are entitled to summary judgment dismissing the complaint. Furthermore, and in any event, there is no basis for an allegation of libel per se as a matter of law and, although there is no need to address the defendants' contention of entitlement to an absolute privilege, the court notes that a meritorious argument is made in this regard ( see Rosenberg v Metlife, Inc. , 8 NY3d 359, 365, 834 NYS2d 494, 442-443 [applies absolute privilege in the context of comments within a public function which may include executive proceedings in its preliminary or investigative stages, particularly where a compelling public interest is as stake]).
The defendants are, however, clearly entitled to a qualified privilege under the facts and circumstances of this case. The key to the application of a qualified privilege is that the statements in issue were made upon a subject the writer had an interest in or a legal, moral or societal duty to convey and that the communication was made "to a person having a corresponding interest or duty" ( Brockman v Frank , 149 Misc 2d 399, 400-401, 565 NYS2d 426, 427 [Sup Ct, New York County 1991]) and that there is the absence of malice ( see Stukels v State of New York , 42 NY2d 272, 397 NYS2d 740). In addition, there is "no reason to limit the privilege to professional or employment settings" ( Brockman v Frank , 149 Misc 2d at 401, 565 NYS2d at 427).
Here, Zamillo, as the head of the HTV, had a clear interest in the alleged misconduct which would obviously have an adverse effect upon the young players as well as the adults involved; he also had a societal interest, at the very least, to bring it to the attention of the entity with responsibility for use of the facilities (the Parks Department), and more to the point, he had a responsibility to respond to the Parks Department which issued the use permit to HTV when it sought the information from him and "suggested" that he put it in writing to the Parks Department Director. Needless to say, the official to whom the communication was sent was a person having a corresponding interest and duty ( see Brockman v Frank , supra).
Accordingly, this is a clear instance of a qualified privilege being applicable to a communication between parties with a common interest, that is: the interests in having the participating children engage in recreational activities in an atmosphere free from unsportsmanlike conduct by adults. Indeed, public policy requires that persons in such situations be able to communicate regarding such incidents without exposure to tort liability ( Id.).
As to libel per se, the complaint and Phelan's affidavit on these motions fail to provide any of the elements necessary for pleading this allegation. There are no allegations that Phelan was charged with a serious crime that tended to injure him in his trade, business or profession, that he had a loathsome disease or that he was a woman whose chastity was imputed ( see Liberman v Gelstein , 80 NY2d 429, 590 NYS2d 857). Accordingly, that part of his complaint alleging libel per se, even without the qualified privilege, would fail as a matter of law.
The burden now shifts to the plaintiff to come forward with evidence of material issues of fact requiring a trial ( Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595). As part of that burden, in order to overcome the qualified privilege the defendants have shown they are entitled to, Phelan also has the burden to show malice ( see Brockman v Frank , 149 Misc 2d at 401, 565 NYS2d at 427).
Phelan argues, inter alia, that the defendants are not entitled to a qualified privilege because there was no duty to make the alleged defamatory statements to another with a common interest in the matter and that the statements were motivated out of spite, ill will and malice. In support of this contention, Phelan posits his supposition that the defendants had malice or ill will against him because, as he sees it, they resented him for depriving the defendants of players and, thus, revenue. Phelan, however, offers no hard evidence in this regard and relies upon his mere suppositions and the otherwise innocuous efforts of HTV to acquire the use of more fields and more time for the use of the fields.
Phelan also argues that, in any event, the court should not grant summary judgment because he needs to conduct discovery and take depositions in order to uncover facts essential to his opposition which may exist but which cannot as yet be stated ( see CPLR 3211[f]). The problem with this argument is that it "should appear from affidavits submitted in opposition to the motion" that such is the case ( Id.) and that is not shown here.
And while the Court of Appeals has held in the past that where alleged defamatory remarks were based upon rumor, the plaintiff was entitled to further discovery to establish if ill will was behind the publishing of such rumor-based statements ( see Stukels v State of New York , 42 NY2d 272, 397 NYS2d 740), here, there are no rumor-based statements. Rather, the statements in the letter in question were based upon observations from actual participants and eye witnesses made directly to Zamillo and not rumor. Furthermore, the court finds it significant, as stated before, that Zamillo did not contact the Parks Department on his own — it contacted him — and he did not write the letter of his own independent volition but at the suggestion of the Parks Department employee. This lacks the ingredients necessary for a recipe of ill will and malice. Accordingly, unlike the Stukels case ( Id.), there would be no point to discovery in this regard and there is no basis for either a denial or a continuance of the motion for summary judgment in this case pursuant to CPLR 3211(f).
In conclusion, Phelan has not met his burden in presenting any material issues of fact in opposition to this motion for summary judgment including his failure to make any sufficient showing of malice. Accordingly, the defendants have satisfied the court as to their entitlement to a qualified privilege for the contents of the letter in issue, the plaintiff has failed to establish the existence of any material facts requiring a trial and, thus, the complaint is dismissed in its entirety.
In view of this dismissal of the action, the plaintiff's cross motion seeking an order compelling discovery is denied as moot.
This decision constitutes the order of the court.