Opinion
2021–05127 Index No. 607753/20
07-05-2023
Faith RIGGIO, appellant, v. COUNTY OF NASSAU, et al., respondents.
Levine & Blit, PLLC, New York, NY (Russell S. Moriarty of counsel), for appellant. Thomas A. Adams, County Attorney, Mineola, NY (Robert F. Van der Waag of counsel; Haejin Park on the brief), for respondents.
Levine & Blit, PLLC, New York, NY (Russell S. Moriarty of counsel), for appellant.
Thomas A. Adams, County Attorney, Mineola, NY (Robert F. Van der Waag of counsel; Haejin Park on the brief), for respondents.
MARK C. DILLON, J.P., JOSEPH J. MALTESE, LARA J. GENOVESI, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Nassau County (Diccia T. Pineda–Kirwan, J.), entered June 16, 2021. The order granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
In March 2019, the plaintiff was arrested at her home. In the days thereafter, the defendant Laura Curran, the then Nassau County Executive, made statements to news media regarding the enforcement of laws and the distribution of illegal drugs. The plaintiff, who asserts that she never distributed drugs, claims that Curran was referring to the plaintiff in these statements. The plaintiff thereafter commenced this action against Curran and the defendant County of Nassau, alleging defamation. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order entered June 16, 2021, the Supreme Court granted the motion. The plaintiff appeals.
" ‘The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se’ " ( Bowen v. Van Bramer, 205 A.D.3d 674, 674–675, 168 N.Y.S.3d 107, quoting Greenberg v. Spitzer, 155 A.D.3d 27, 41, 62 N.Y.S.3d 372 ; see Emby Hosiery Corp. v. Tawil, 196 A.D.3d 462, 463–464, 151 N.Y.S.3d 406 ; Kasavana v. Vela, 172 A.D.3d 1042, 1044, 100 N.Y.S.3d 82 ). "Since falsity is a necessary element of a defamation cause of action and only ‘facts’ are capable of being proven false, ‘it follows that only statements alleging facts can properly be the subject of a defamation action’ " ( Gross v. New York Times Co., 82 N.Y.2d 146, 152–153, 603 N.Y.S.2d 813, 623 N.E.2d 1163, quoting 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139, 589 N.Y.S.2d 825, 603 N.E.2d 930 ; see Bowen v. Van Bramer, 205 A.D.3d at 675, 168 N.Y.S.3d 107 ). However, "an opinion that ‘implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, ... is a mixed opinion and is actionable’ " ( Davis v. Boeheim, 24 N.Y.3d 262, 269, 998 N.Y.S.2d 131, 22 N.E.3d 999, quoting Steinhilber v. Alphonse, 68 N.Y.2d 283, 289, 508 N.Y.S.2d 901, 501 N.E.2d 550 [internal quotation marks omitted]; see Kasavana v. Vela, 172 A.D.3d at 1045, 100 N.Y.S.3d 82 ).
Here, construing the complaint liberally and accepting the facts alleged therein as true (see Board of Mgrs. of Brightwater Towers Condominium v. Vitebsky, 207 A.D.3d 694, 170 N.Y.S.3d 879 ), the plaintiff has alleged that a reasonable reader or listener would have understood the subject statements as referring to her (see Udell v. NYP Holdings, Inc., 169 A.D.3d 954, 956, 94 N.Y.S.3d 314 ) and that they were at least a mixed statement of opinion and were therefore actionable (but see Bowen v. Van Bramer 205 A.D.3d at 675–676, 168 N.Y.S.3d 107 ; Kasavana v. Vela, 172 A.D.3d at 1047, 100 N.Y.S.3d 82 ).
Absolute privilege protects communications made by "individuals participating in a public function, such as judicial, legislative, or executive proceedings" in order to "ensure that their own personal interests—especially fear of a civil action, whether successful or otherwise—do not have an adverse impact upon the discharge of their public function" ( Stega v. New York Downtown Hosp., 31 N.Y.3d 661, 669, 82 N.Y.S.3d 323, 107 N.E.3d 543 [internal quotation marks omitted]; see Gugliotta v. Wilson, 168 A.D.3d 817, 818, 92 N.Y.S.3d 309 ). Accordingly, " ‘[a]bsolute privilege is based upon the personal position or status of the speaker and is limited to the speaker's official participation in the processes of government’ " ( Gugliotta v. Wilson, 168 A.D.3d at 818, 92 N.Y.S.3d 309, quoting Park Knoll Assoc. v. Schmidt, 59 N.Y.2d 205, 209, 464 N.Y.S.2d 424, 451 N.E.2d 182 ; see Gottlieb v. Colonel, 180 A.D.3d 877, 879, 118 N.Y.S.3d 669 ).
Absolute privilege protects " ‘an official [who] is a principal executive of State or local government or is entrusted by law with administrative or executive policy-making responsibilities of considerable dimension’ " ( Clark v. McGee, 49 N.Y.2d 613, 617, 427 N.Y.S.2d 740, 404 N.E.2d 1283, quoting Stukuls v. State of New York, 42 N.Y.2d 272, 278, 397 N.Y.S.2d 740, 366 N.E.2d 829 ; see Spring v. County of Monroe, 169 A.D.3d 1384, 1385, 92 N.Y.S.3d 509 ; Santavicca v. City of Yonkers, 132 A.D.2d 656, 657, 518 N.Y.S.2d 29 ). Here, since it is clear that Curran made the subject statements while acting in her role as the Nassau County Executive and regarding her duties in that role (see Schell v. Dowling, 240 A.D.2d 721, 662 N.Y.S.2d 771 ), the Supreme Court correctly determined that the statements were protected by absolute privilege and directed dismissal of the complaint on that basis. In light of the foregoing, we need not reach the plaintiff's remaining contention.
DILLON, J.P., MALTESE, GENOVESI and TAYLOR, JJ., concur.