| Matovcik v Times Beacon Record Newspapers |
| 2007 NY Slip Op 09740 [46 AD3d 636] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Gerard Matovcik, Appellant, v Times Beacon RecordNewspapers, Also Known as The Village Beacon Record, et al.,Respondents. |
—[*1] Henry R. Kaufman, P.C., New York, N.Y., for respondents.
In an action to recover damages for libel, the plaintiff appeals, as limited by his brief, from somuch of an order of the Supreme Court, Suffolk County (Costello, J.), dated June 2, 2006, asgranted that branch of the defendants' motion which was to dismiss the amended complaintpursuant to CPLR 3211 (a) (1) and (7).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendants' motion which was to dismiss the amended complaint pursuant to CPLR3211 (a) (1) and (7) is denied.
On May 13, 2004 the defendants wrote and published an article in the Village Beacon Record(hereinafter the newspaper) asserting that the plaintiff, the former head of the Miller Place HighSchool (hereinafter MPHS) English Department, had "misappropriated" funds "that came directlyfrom the pockets of students." Specifically, the article stated that the plaintiff told students thatthey had to pay $5 for workbooks. However, the workbooks had already been paid for by "districttaxpayers," and the plaintiff turned the money he collected into a "slush fund for the EnglishDepartment." The article asserted that the plaintiff "got away" with the misappropriation becausehe maintained the financial records of the English Department, and that his actions had been"discovered" by school district officials in the fall semester of 2003 when students attempted topay their book fees directly to the MPHS principal. The article named only two specificpurchases made by the plaintiff with the money he collected: an air conditioner for a teachers'room and lunches for faculty meetings.[*2]
On the same day it ran the article, the newspaperpublished a related piece, labeled as an editorial, which set forth the statutory definition of thecrime of scheme to defraud in the second degree and then posed the following question: "When ateacher tells his students they must give him cash to pay for workbooks and spends the cash onlunches and appliances, does that fit the description above?" The editorial called for the SuffolkCounty District Attorney to investigate the matter. The plaintiff commenced this libel actionbased on the article and editorial, and the defendants moved, inter alia, to dismiss the amendedcomplaint pursuant to CPLR 3211 (a) (1) and (7).
The Supreme Court improperly granted that branch of the defendants' motion which was todismiss the plaintiff's amended complaint pursuant to CPLR 3211 (a) (1) and (7). "The essence ofthe tort of libel is the publication of a statement about an individual that is both false anddefamatory" (Brian v Richardson, 87 NY2d 46, 50-51 [1995]). A defamatory statement islibelous per se if the 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, andto deprive him of their friendly intercourse in society" (Rinaldi v Holt, Rinehart &Winston, 42 NY2d 369, 379 [1977], cert denied 434 US 969 [1977] [internalquotation marks omitted]). Additionally, a defamatory statement is libelous per se if it imputesfraud, dishonesty, misconduct, or unfitness in conducting one's profession (see Kotowski v Hadley, 38 AD3d499, 500 [2007]; Gjonlekaj v Sot, 308 AD2d 471, 473-474 [2003]; Wasserman vHaller, 216 AD2d 289 [1995]).
As a general rule, on a motion to dismiss the complaint for failure to state a cause of actionunder CPLR 3211 (a) (7), the complaint must be construed in the light most favorable to theplaintiff and all factual allegations must be accepted as true (see Gruen v County ofSuffolk, 187 AD2d 560, 562 [1992]). Here, the article and editorial asserted that the plaintiffengaged in misconduct in the course of his employment as a teacher at MPHS, and the plaintiffalleged in the amended complaint that the defamatory facts set forth in the article and editorialwere false (see Brian v Richardson, 87 NY2d at 50-51). Accepting the allegations of theamended complaint as true, the plaintiff stated a legally cognizable cause of action to recoverdamages for libel (see generally Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).
Moreover, the documentary evidence submitted by the defendants failed to establish, as amatter of law, the truth of certain facts set forth in the article and the editorial. Where, as here,the defendants move pursuant to CPLR 3211 (a) (1) to dismiss an action asserting the existenceof a defense founded upon documentary evidence, the documentary evidence must be such that itresolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim (see Fleming v Kamden Props., LLC, 41AD3d 781 [2007]; Martin v NewYork Hosp. Med. Ctr. of Queens, 34 AD3d 650 [2006]; M. Fund, Inc. v Carter, 31 AD3d620, 621 [2006]).
Truth is an absolute defense to a libel action, regardless of the harm done by the statements(see Kamalian v Reader's Digest Assn.,Inc., 29 AD3d 527, 528 [2006]; Love v Morrow & Co., 193 AD2d 586, 587[1993]). Even if a publication is not literally or technically true in all respects, the defense oftruth applies as long as the publication is "substantially true," and minor inaccuracies areacceptable (Kehm v Murtha, 286 AD2d 421 [2001]; see Carter v Visconti, 233AD2d 473, 474 [1996]; Love v Morrow & Co., 193 AD2d at 587). The test of whether astatement is substantially true is "whether the libel as published would have a different effect onthe mind of the reader from that which the pleaded truth would have produced" (Love vMorrow & Co., 193 AD2d at 588 [internal quotation marks omitted]).[*3]
Here, the documentary evidence proffered by thedefendants failed to establish, as a matter of law, that school district officials were unaware of thepractice of collecting workbook fees until the fall of 2003 (see generally Fleming v Kamden Props., LLC, 41 AD3d 781[2007]). To the contrary, the defendants' submissions provided some evidence that the practice ofcollecting and spending workbook funds predated the plaintiff's tenure as head of the MPHSEnglish Department and had been condoned, accepted, and encouraged by school districtadministrators. A reader would be likely to view the plaintiff's actions in a different light if he orshe knew that the school district had known of and sanctioned the collection practice (cf.Love v Morrow & Co., 193 AD2d at 588), and the defendants failed to submit evidencesufficient to resolve all factual issues as to whether the plaintiff had collected workbook feesfrom the students without the school district's knowledge, as the article asserted.
Additionally, by citing only the lunches and the air conditioner as examples of the plaintiff'spurchases, the article left the reader with the impression that the plaintiff had used moneycollected from students to purchase items which benefitted only the faculty (see Gatz v OtisFord, 262 AD2d 280, 281 [1999]). However, the documentary evidence suggested that theplaintiff spent the money largely on books and other classroom supplies used by or for thestudents, and this fact would have significantly altered the conclusion drawn by the reader (cf.Rinaldi v Holt, Rinehart & Winston, 42 NY2d at 383).
Accordingly, the Supreme Court should have denied that branch of the defendants' motionwhich was to dismiss the amended complaint pursuant to CPLR 3211 (a) (1) and (7). Santucci,J.P., Krausman, Florio and Lifson, JJ., concur.