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6609-Evelyn Konrad, 6610-Plaintiff-Appellant v. William Brown

New York Supreme and/or Appellate Courts Appellate Division, First Department


January 24, 2012

6609-EVELYN KONRAD, 6610-PLAINTIFF-APPELLANT,
v.
WILLIAM BROWN, DEFENDANT-RESPONDENT.

Konrad v Brown

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.

Decided on January 24, 2012

Tom, J.P., Friedman, DeGrasse, Richter, Manzanet-Daniels, JJ.

Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered September 30, 2010, dismissing the amended complaint, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered September 14, 2010, which granted defendant's motion for summary judgment pursuant to CPLR 3211(c), unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Order, same court and Justice, entered on or about February 18, 2011, which granted plaintiff's motion to renew and adhered to the prior determination, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered on or about April 25, 2011, which denied plaintiff's motion for leave to amend the amended complaint, unanimously dismissed, without costs, as abandoned.

The motion court correctly found that defendant's allegedly defamatory statements in his letter to the editor were either not susceptible to a defamatory meaning, true or substantially true or pure opinion. The assertion that plaintiff had made a false statement before an administrative tribunal was substantially true, as shown by the video and transcript of the hearing; this was a complete defense (see Panghat v New York Downtown Hosp., 85 AD3d 473 [2011]. Considered as a whole, in context and based on its tone and apparent purpose (see Sandals Resorts Intl. Ltd. v Google, Inc., 86 AD3d 32, 42 [2011]) as well as the lack of any implication that it was based on undisclosed facts in light of defendant's reference to the videotape and transcript (see Steinhilber v Alphonse, 68 NY2d 283, 289 [1986]; Guerrero v Carva, 10 AD3d 105, 112 [2004]), it was also pure opinion. Defendant's assertion that plaintiff had made a false statement in an article 78 proceeding was both substantially true and his opinion of the news article reporting such conduct. The assertion that plaintiff, an attorney, had been discharged by a client, was true, as supported by the transcript of plaintiff's quantum meruit fee request wherein she stated that she had been discharged, and, in any event, was not susceptible of a defamatory meaning because defendant did not mention any reason for the discharge.

The court's alternative ground for dismissal, that plaintiff failed to show malice, was also appropriate, as plaintiff was a limited public figure (see Huggins v Moore, 94 NY2d 296, 301-302 [1999]) and defendant's statements were based on documents or articles he had read and thus were not made with knowledge of their falsity or reckless disregard of whether or not they were true (see Kipper v NYP Holdings Co., Inc., 12 NY3d 348, 353-354 [2009]). Nor did plaintiff show that defendant's statements were actuated by ill will (see id. at 354 fn 4), her conclusory assertions to that effect notwithstanding.

Although the court correctly determined that plaintiff failed to justify her failure to submit her purported new evidence in opposition to defendant's motion, and that such evidence would not have warranted a different outcome, the court granted renewal and adhered to its initial determination. Accordingly, we need not disturb that result.

We have considered plaintiff's other contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 24, 2012

CLERK

20120124

© 1992-2012 VersusLaw Inc.



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