| Nekos v Kraus |
| 2009 NY Slip Op 03824 [62 AD3d 1144] |
| May 14, 2009 |
| Appellate Division, Third Department |
| Steven B. Nekos, Appellant, v Dean R. Kraus,Respondent. |
—[*1] Raymond Ragues, Mt. Tremper, for respondent.
Rose, J. Appeals (1) from an order of the Supreme Court (Work, J.), entered March 14, 2008in Ulster County, which granted defendant's motion for summary judgment dismissing thecomplaint, and (2) from an order of said court, entered July 11, 2008 in Ulster County, whichdenied plaintiff's motion for reconsideration.
Plaintiff was convicted in a town justice court of sexual abuse in the third degree, falselyreporting an incident in the third degree and certain traffic infractions. On appeal to CountyCourt (Czajka, J.), those convictions were reversed on procedural grounds and all charges,except the sexual abuse charge, were dismissed. Plaintiff later pleaded guilty to disorderlyconduct in satisfaction of the remaining charge. During plaintiff's later campaign for election tothe office of town justice, defendant distributed flyers opposing plaintiff and describing thealleged conduct that had led to his initial convictions. The flyers also stated that the later reversalof those convictions on appeal "solely on technicalities . . . doesn't mean theunderlying facts aren't true." Plaintiff then commenced this defamation action asserting thatdefendant's flyer falsely implied that he was guilty of the original charges.[FN1] After issue was [*2]joined, defendant moved for summaryjudgment dismissing the complaint based upon his claim that, among other things, the factualstatements in his flyer were true. Supreme Court granted defendant's motion and later deniedplaintiff's motion for reargument, giving rise to these appeals.[FN2]
In support of his motion, defendant submitted an affidavit averring that the statements in hisflyer were an accurate account of the charges against plaintiff and the subsequent reversal of hisconvictions on appeal. Defendant also submitted a newspaper article from 1999 which set forththe details of plaintiff's arrest and convictions, and the County Court decision which reversedthose convictions, as proof that there was a factual basis for his statements. Inasmuch as truth isa complete defense to a defamation action and a "basically accurate account is not actionable"(Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 383 [1977]; see Proskin v Hearst Corp., 14 AD3d782, 783 [2005]), Supreme Court properly concluded that defendant had met his burden toshow that the flyer's statements were substantially true (see Ingber v Lagarenne, 299AD2d 608, 609-610 [2002], lv denied 99 NY2d 507 [2003]).
Defendant's submissions shifted the burden to plaintiff to lay bare his proof of the falsity ofthe statements in defendant's flyer (see id. at 610). Plaintiff, however, submitted only hisown affidavit denying that he committed any of the underlying criminal conduct and assertingthat the flyer's statement, that "[j]ust because the [District Attorney's] office bungled thisprosecution doesn't mean the underlying facts aren't true," would lead an average reader toconclude that he did, in fact, commit the criminal acts alleged. The flyer's words, however, arenot literally false. Rather, they accurately state the fact that the reversal of a criminal convictiondue to procedural errors does not render judgment upon the substantive merits of the charges.While the flyer's statement may, to some, suggest plaintiff's guilt, innuendo or adverse inferencesare insufficient to establish libel (see Roche v Hearst Corp., 53 NY2d 767, 769 [1981];Proskin v Hearst Corp., 14 AD3d at 784). In addition, plaintiff did not assert that theflyer's additional allegations (specifically that the victim of the sexual assault was male and thatplaintiff "was out partying" with a State Trooper) had never been made against him in the courseof the underlying criminal investigation. Thus, plaintiff failed to meet his burden of raising asubstantive factual question as to the falsity of the statements in the flyer (see Immuno AG. vMoor-Jankowski, 77 NY2d 235, 245-246 [1991]; Saunders v County of Washington,255 AD2d 788, 790-791 [1998]). Accordingly, Supreme Court properly dismissed plaintiff'sdefamation claims.
While plaintiff further alleges that defendant's distribution of the flyer violated the courtorder which sealed his criminal case file pursuant to CPL 160.50, we note that even if that statutewere construed to create a private right of action for its violation, plaintiff presented no evidencethat defendant knew of the sealing order or obtained copies of any of the sealed papers after thesealing order was filed. We have considered plaintiff's remaining contentions and found them tobe equally unavailing.[*3]
Kane, Stein and McCarthy, JJ., concur. Ordered that theorder entered March 14, 2008 is affirmed, with costs. Ordered that the appeal from the orderentered July 11, 2008 is dismissed.
Footnote 1: Plaintiff also alleged thatdefendant had distributed another flyer with a different accusation, but his brief does not addressdismissal of the claim based upon that flyer and, thus, any challenge thereto has been abandoned(see Vitvitsky v Heim, 52 AD3d1103, 1104 n [2008]).
Footnote 2: Inasmuch as no appeal lies fromthe denial of a motion to reargue, plaintiff's appeal from Supreme Court's second order must bedismissed (see Matter of Linney v Cityof Plattsburgh, 49 AD3d 1020, 1022 [2008]).