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Cholowsky v. Civiletti

October 6, 2009

MICHAEL CHOLOWSKY, APPELLANT-RESPONDENT,
v.
DENISE CIVILETTI, ET AL., RESPONDENTS-APPELLANTS.



APPEAL by the plaintiff, in an action to recover damages for libel, as limited by his brief, from so much of an order of the Supreme Court (Paul J. Baisley, Jr., J.), dated September 5, 2007, and entered in Suffolk County, as granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, and CROSS APPEAL by the defendants, as limited by their brief, from stated portions of the same order.

The opinion of the court was delivered by: Chambers, 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.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL and CHERYL E. CHAMBERS, JJ.

(Index No. 1444/07)

OPINION & ORDER

At issue here is whether the plaintiff's action to recover damages for libel based upon the publication of two articles by the defendant Times/Review Newspapers Corporation (hereinafter the defendant newspaper) , which were written by the defendant Denise Civiletti, was properly dismissed.

In 2004, the plaintiff obtained a permit from the New York State Department of Environmental Conservation (hereinafter DEC) to operate a solid waste facility after incorrectly stating on his application that he was never convicted of a crime involving fraud, bribery, or an offense against public administration.

The newspaper articles published by the defendant newspaper in December 2006, upon which the plaintiff's causes of action are predicated, reported that in 1999, the plaintiff pleaded guilty to a felony count of conspiracy to defraud the United States and was sentenced to probation for a period of one year, and "evidence gathered by federal investigators established that" the mastermind of the scheme, Joseph Provenzano, was using the plaintiff's hauling permit to dump hazardous waste in the Brookhaven land fill. The articles further stated that the plaintiff was involved in a "bribery scheme" to gain access to the Brookhaven landfill. The defendants further reported that the plaintiff testified in 1999 that he paid $20,000 in bribes to Republican Party leader John Powell for the right to dump at the town landfill in Yaphank.

The records of the federal judicial action indicated that in 1999, the plaintiff was charged in federal court with conspiracy under 18 USC § 371 to make corrupt payments, for making cash payments to Joseph Lapienski, an agent of the Town of Brookhaven, to gain access to the Brookhaven landfill. The plaintiff pleaded guilty in the federal action, acknowledging during his plea colloquy that he allowed other truckers to enter the Brookhaven landfill using his permit. He further acknowledged that he made payments of $2,000 per month for 10 months (totaling $20,000) to John Powell. The judgment entered in the case stated that the plaintiff pleaded guilty to "conspiracy to make corrupt payments, a class D felony," and the plaintiff was sentenced to probation for a period of one year.

As a term of his plea of guilty, no criminal charges would be brought against him for his "heretofore disclosed participation in . . . tax fraud." We note that the plaintiff failed to plead the allegedly libelous statements about tax fraud in the complaint, therefore such statements, if any, are not before us (see Hausch v Clarke, 298 AD2d 429).

Although the scheme did not involve defrauding the United States, the computerized docket in the Federal court described the crime as "conspiracy to defraud the United States." The mastermind of the scheme, Provenzano, was indicted in federal court, and the indictment described the plaintiff as John Doe # 1 and the plaintiff's company as Hauling Company A. The initial criminal complaint against Provenzano stated that wiretaps disclosed that Provenzano was discussing dumping hazardous waste in the landfill, using Hauling Company A.

In 2007, the DEC revoked the plaintiff's permit and the plaintiff commenced the instant action to recover damages for libel. The defendants moved, inter alia, to dismiss the complaint pursuant to CPLR 3211(a)(1) based upon documentary evidence, and CPLR 3211(a)(7) for failure to state a cause of action. The defendants asserted that (1) the allegedly defamatory statements were protected by an absolute privilege under Civil Rights Law § 74 for "fair and true" reports of judicial or official proceedings, (2) the plaintiff, as a public figure with respect to his permit applications, was required to prove actual malice, but failed to make such a showing, and (3) this action was a strategic lawsuit against public participation, thereby entitling the defendants to the special protections afforded under Civil Rights Law § 76-a (hereinafter the anti-SLAPP statute).

In an affidavit in support of the motion, Civiletti stated that in writing her article, she relied upon the criminal docket in the federal case, as well as articles previously published in Newsday about the criminal prosecution. The plaintiff, in opposition, asserted that he was not involved in a conspiracy to commit bribery, but was actually the victim of extortion and never ...


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