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Shulman v. Hunderfund

March 26, 2009


The opinion of the court was delivered by: Smith, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

In this action for libel by a public figure, the record does not clearly and convincingly show that the statements in question were made with "actual malice," as required by New York Times Co. v Sullivan (376 US 254 [1964]). We therefore hold that plaintiff's complaint against defendant James Hunderfund must be dismissed.


In May of 1999, plaintiff, Larry Shulman, a member of the Commack Board of Education, was a candidate for re-election. Hunderfund, the school superintendent, believed that Shulman wanted him fired and was opposed to his candidacy. On the eve of the election, Hunderfund participated with others in preparing and circulating an anonymous flyer attacking Shulman. The flyer made several accusations, said to be the result of "[a]n investigation of Mr. Shulman's record" by "Concerned Citizens of Commack." Only the first of the accusations is now at issue. In a paragraph bearing the caption (in bold capital letters) "BROKE THE LAW," the flyer said:

"Shulman flagrantly broke the law when he awarded a lucrative food service contract to one of his business associates. Concerned Citizens has verified the fact that Shulman NEVER revealed his business relationship with the food service company PRIOR to the awarding of this contract. Shulman's disregard of ethical principles and conflict of interest laws has cost the District dearly."

After losing the election, Shulman sued Hunderfund and another defendant for libel. The jury found for the co-defendant, but awarded $100,000 in punitive damages against Hunderfund. Supreme Court set aside the verdict for Shulman and entered judgment in Hunderfund's favor; the Appellate Division reversed and ordered that judgment be entered in accordance with the verdict (Shulman v Hunderfund, 48 AD3d 449 [2d Dept 2008]). We granted leave to appeal, and now reverse the Appellate Division's order and reinstate so much of Supreme Court's judgment as dismissed the complaint against Hunderfund.


Hunderfund argues that the statement that "Shulman flagrantly broke the law" is a statement of opinion, and therefore not actionable (see, e.g., Steinhilber v Alphonse, 68 NY2d 283 [1986]). Shulman maintains that the statement was presented as one of fact, noting that the flyer purported to be the result of a careful investigation. We find it unnecessary to resolve this issue. Even assuming that the statement is one of fact, it cannot, under the circumstances of this case, support a recovery for libel.

It is undisputed that Shulman, a public official running for re-election, was a public figure and that this case is governed by the rule of New York Times v Sullivan, which interpreted the First Amendment to the United States Constitution as embodying "the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials" (376 US at 270). The Constitution, as interpreted in the New York Times case, bars Shulman "from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' that is, with knowledge that it was false or with reckless disregard of whether it was false or not" (id. at 279-280; see also Mahoney v Adirondack Publ. Co., 71 NY2d 31, 35-36 [1987]). Actual malice must be proved by "clear and convincing evidence" (Bose Corp. v Consumers Union of U.S., Inc., 466 US 485, 511 n 30 [1984]; see also Freeman v Johnston, 84 NY2d 52, 56-57 [1994]).

Here, the jury found that Hunderfund's statement was made with actual malice. The Appellate Division upheld the verdict on the ground that it was supported by "legally sufficient evidence in the record" (48 AD3d at 450). The Appellate Division, however, applied the wrong standard. The usual deference paid by courts to jury verdicts is inapplicable in cases subject to the New York Times v Sullivan rule. The New York Times Court said:

"In cases where [the] line [between protected and unprotected speech] must be drawn, the rule is that we examine for ourselves the statements in issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect. We must make an independent examination of the whole record, so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression."

(Id. at 285 [citations, quotation marks and ellipsis omitted].)

Therefore, in a case like this we are not limited, as we ordinarily are, to a review of legal issues (Mahoney, 71 NY2d at 39). "[W]e must scrutinize the evidence of actual malice for 'convincing clarity'"(Prozeralik v Capital Cities Communications, 82 NY2d 466, 475 [1993][citations omitted]). We find no such clarity here. The record does not convincingly show that Hunderfund knew the ...

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