John L. Brooks, Plaintiff(s),
Jackie Anderson and Riverbay Corporation, Individually and d/b/a Co-Op City Times and Co-Op City Times, Defendant(s).
This case is not published in a printed volume and its disposition appears in a table in the reporter.
Nelson S. Roman, J.
Defendants move seeking an Order granting them summary judgment over plaintiff. Defendants contend that the instant action alleging defamation must be dismissed inasmuch as the allegedly defamatory statement made and/or attributable to defendants was substantially true and/or qualifiedly privileged. Plaintiff opposes the instant motion asserting that defendants to the extent that defendants published a statement they knew to be false, they defamed the plaintiff and that said statement was not subject to any privilege. Plaintiff cross-moves seeking an Order granting him partial summary as to liability. Plaintiff seeks summary judgment for the very same reasons he opposes defendants' motion for summary judgment. Plaintiff also seeks an Order striking defendant's answer for their purported failure to provide the names of the witnesses defendants have used to support their motion for summary judgment. Defendants oppose plaintiffs' motion for summary judgment for the very same reasons they seek summary judgment. Defendants oppose plaintiff's motion seeking to have defendants answer stricken asserting that while defendants never actually exchanged the names of the witnesses at issue, plaintiff was well aware that these individuals were witnesses in the within action.
For the reasons that follow hereinafter defendants' motion is hereby granted and plaintiff's cross-motion is hereby denied as moot.
The instant action is for alleged defamation. Within his complaint, plaintiff alleges that on November 8, 2003, defendant JACKIE ANDERSON (Anderson), a member of defendant RIVERBAY CORPORATION's (Riverbay) Board of Directors, published an article in defendant CO-OP CITY TIMES' (Times), a newspaper published by Riverbay. It is alleged that Anderson authored the article at issue titled "How The Riverbay Board Fell Apart! Part 1, Conflicts of Interest." Said article stated that plaintiff, treasurer of Riverbay, had been "removed" from said position for "taking money," which constituted a "major violation." Plaintiff alleges that the statement within said article asserting that he was "removed from the position of treasurer of the Riverbay Corporation by a vote from the board," is false and was published with knowledge of its falsity. Plaintiff asserts that said article was negligently published and/or was published with reckless disregard of its accuracy. As a result of the publishing of the article plaintiff alleges that he was defamed insofar as said article accuses him of dishonesty and implies that he was responsible for theft or misuse of money. As such, plaintiff alleges that he has suffered contempt, ridicule, aversion and disgrace and his reputation in the community has been damaged.
In support of the instant motion defendants submit a portion of plaintiff's deposition transcript wherein he testified, in pertinent part, as follows . Plaintiff authored a letter dated September 29, wherein he thanked Nat Weiss (Weiss) for an educational contribution, in the amount of $250, made by Weiss to the education of plaintiff's daughter. The contribution was the result of a discussion Weiss had with Cooperator's Appeal Committee where Weiss stated that he was charitable and contributed to education and different charitable organizations. Thereafter, Marie Heath (Heath), a board member, gave plaintiff an envelope and stated that it was from Weiss. The envelope contained a check. Upon discovering that it was against regulations to accept the check, plaintiff returned the same to Weiss. Plaintiff told Riverbay about the check and thereafter resigned as treasurer. An executive meeting was held where the letter and its contents thereof were discussed. There was discussion as to how the receipt of money by a board member would be viewed. It was agreed that plaintiff would return the money so as to quell any issue of impropriety. Plaintiff was not forced to resign but did so to avoid impropriety and so as not have anyone think he was an improper person. On November 17, 2003, plaintiff wrote an email to Miss Filizzola, wherein he apologized for the situation.
Defendants submit a portion of Anderson's deposition transcript wherein she testified, in pertinent part, as follows. Anderson and other board members were shown documents regarding plaintiff. Some members wanted him terminated, but it was agreed that plaintiff should resign instead. Plaintiff was not removed, he was asked to resign, which to Anderson is akin to removal. While the by-laws have a procedure for removal of a board member, a vote was brought to the table and it was agreed that plaintiff would resign. Anderson characterized it a s forceful resignation, meaning that she voted on forcing plaintiff to resign. Anderson authored an article in the Times on a weekly basis.
Defendants submit a portion of Riverbay's deposition transcript wherein William Stuttig (Stuttig) testified, in pertinent part as follows. The Times is a weekly newspaper, which is circulated to all residents of Co-Op City. As such, approximately 15,000 people receive the same. Some former residents, business people, and associates of the area also receive the Times.
Defendants submit an affidavit from Al Shapiro (Shapiro) wherein he states, in pertinent part, the following. Shapiro is the first vice president of Riverbay's board of directors. Riverbay owns and operates a residential community known as Co-Op City and also publishes a community newspaper titled the Times. In October 2003, Shapiro was president of Riverbay and plaintiff was treasurer. On September 29, 2003, plaintiff delivered a letter to RiverBay's board of directors along with a check from Weiss made out to plaintiff in the amount of $250 and a money order made out to the St. Mary Star of the Sea School. Within his letter plaintiff explains that he had received the aforementioned check from Weiss, a resident of Co-Op City, and had applied the same to pay for his daughter's school related expenses. Based upon the contents of plaintiff's letter, it appeared that he had violated Riverbay Board Resolution No.83-34, which among other things, prohibited members of the board from accepting gifts from residential or commercial tenants. On October 8, 2003, the board held an executive session following its regular meeting where the contents of plaintiff's letter were addressed. It was decided that plaintiff should not retain his position as treasurer. Because the Board cannot record an official vote at an executive session, plaintiff was asked to resign and issue an apology. On November 14, 2003, plaintiff tendered a written resignation and on November 17, tendered a written apology. Had plaintiff not resigned, he would have been officially removed.
Annexed to Shapiro's affidavit, defendants' submit a host of documents, plaintiff's letter, the check he received from Weiss, the money order referred to by Shapiro, a copy of resolution # 83-34, plaintiff's resignation letter and his subsequent apology. Said documents are not certified, sworn, and no foundation for the same's admission is laid .
Defendants submit eight affidavits. The affidavits are from Alonzo Newton, Iris Baez, Oscar Alvarado, Carmen Howell, Saul Weber, Letitia Morales, Othelia Jones, and Denise Grant. All the individuals just mentioned are members of Riverbay's board and within their affidavits, which are nearly identical, they reiterate the contents of Shapiro's affidavit with regard to plaintiff's letter dated September 29, 2003, the executive meeting wherein it was decided that plaintiff resign and apologize, and plaintiff's resignation and apology.
Defendants submit some handwritten documents purportedly memorializing the executive session whereat plaintiff was asked to resign. The same are not certified, sworn, and no foundation for the same's admission is laid.
In opposition to the defendants' motion and in support of his motion for summary judgment, plaintiff submits several documents: a copy of a Time's article dated November 8, 2003, a copy of two resolutions, a copy of Riverbay's by-laws, a copy of plaintiff's resignation, and a copy of a Time's article dated November 15, 2003. Said documents are not certified, sworn, and no foundation for the same's admission is laid.
Plaintiff submits portions of Stuttig's deposition transcript, already submitted by defendants and additional portions, wherein he testified, in pertinent part as follows. Stuttig was associate editor with the Times. Management was allowed to publish an article in the times as was the board under a section called viewpoint. Back in 2003, there was a policy at the Times to have the legal department review any content for publication within the Times, if the same was a personal attack or accusation. With regard to the article at issue, upon receipt of the same from Anderson, Sttutig requested that the same be reviewed by the legal department. Stuttig showed the article to Miss Filizzola who asked Anderson to make some changes. Anderson's articles were routinely the subject of review by the legal department.
Plaintiff submits the portion of his deposition transcript, already submitted by defendant.
Plaintiff submits a copy of Anderson's deposition transcript, which includes the portion already submitted by defendants, wherein besides testifying to what was already discussed she testified, in pertinent part, as follows. Anderson was on Riverbay"s board of directors from 1997 through 2003. In 2003, Anderson ran for reelection on a slate or group with common interests and who agreed with the viewpoints she would publish in the Times. Anderson and the aforementioned group were also united in their goal to get rid of the Marion Scott Management Realty (Realty), who managed Co-Op city since 1999. Realty had been managing Co-Op City since 1999 and Anderson assistant treasurer at the time had voted to have Realty manage Co-Op City. Plaintiff was the treasurer who was elected to the board while Anderson was already on the board. Riverbay's by-laws, which Anderson received upon being elected to the board, had a procedure for removing an officer and/or director from the board and removal was warranted for violation of the by-laws. Plaintiff was ultimately removed as treasurer from the board because he accepted a check from Weiss, a resident at Co-Op City. By removal Anderson meant that by a vote of the board at an executive session, he was forced to tender his resignation. Anderson doesn't recall whether plaintiff was given notice that the board intended to remove him or force him to resign. Anderson does not recall seeing a resolution regarding the same.
While on the board, Anderson was aware of a group of people named the Marion Scott Majority (Majority), who would vote in favor of all matters benefitting Realty without researching or verifying the same. At times Anderson would vote with the Majority. During her first year on the board she considered herself part of the majority but her third year, she no longer felt the same. When Anderson lost re-election to the board, she ran on anti-Realty slate and lost. Plaintiff was not part of the majority slate. During her first tenure with the board, Anderson worked for Realty as a junior accountant. Realty had been hired as manager of Co-Op City about a year prior to Anderson's employment with Realty and Anderson had voted to hire Realty. She was employed by Realty for nine months and resigned upon learning that according to
River bay's by-laws it was a conflict of interest to sit on the board while employed by Realty. Anderson also resigned due to her disagreement with the way Realty was managing Co-Op City. In connection with her employment with Realty she had to give testimony pursuant to an investigation being conducted by the New York State Inspector General. Said investigation was focused on bribery related to Realty in connection with its management of Co-Op City. Anderson also developed negative feelings regarding the Majority, felling that some of them were liars, cheats, and dishonest people. She voiced her opinions regarding the Majority in the viewpoint articles she published in the Times. With regard to Anderson's viewpoint articles, she along with other board members were told to refrain from defaming anyone therein. Her articles had been subjected to review by
River bay's legal department prior to publication and she had been accused of lying within said articles by other board members.
On November 8, 2003, Anderson published a viewpoint article in the Times wherein she stated that plaintiff had been removed from his position as treasurer from the board. The article did not state that plaintiff had resigned insofar as Anderson equated removal with being forced to resign. Anderson described a resolution by the board dated October 14, 2003. Said resolution was for purposes of deciding whether to accept plaintiff's resignation. She had not seen said resolution prior to publishing her article.
Plaintiff submits a portion of River bay's deposition transcript wherein Rozann Boone testified, in pertinent part as follows. Neither she nor
River bay's legal department cross checked the minutes created at meetings to determine if what was published in the Times was accurate.
The Law and Standard on Summary Judgment
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 A.D.2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 A.D.2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 A.D.2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 A.D.2d 886 (4th Dept. 1959). Consequently any such ...