Appeal from an order of the Supreme Court, Chautauqua County (James H. Dillon, J.), entered September 14, 2010.
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 31, 2012
SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.
The order granted the motion of defendants for summary judgment dismissing the complaint.
It is hereby ORDERED that the order so appealed from is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking, inter alia, damages for allegedly defamatory statements made by then 13-year-old Sarah Nazzaro (defendant) and her father, defendant Charles Nazzaro (hereafter, father), who is sued individually and as parent and natural guardian of defendant. Those statements were made in connection with an incident that occurred during a return bus ride from a gymnastics meet. Supreme Court granted defendants' motion seeking summary judgment dismissing the complaint. We affirm.
We reject plaintiff's contention that the court erred in granting that part of the motion with respect to the cause of action for defamation per se. In determining whether defendant's statement during the incident is actionable, the statement must be "considered in its applicable context" (Gross v New York Times Co., 82 NY2d 146, 155) and "in terms of [its] effect upon the average listener" (Park v Capital Cities Communications, 181 AD2d 192, 195, appeal dismissed 80 NY2d 1022, lv dismissed in part and denied in part 81 NY2d 879). Defendant's statement that plaintiff was an "abuser," viewed in the context of the heated incident on the bus, "amounted to no more than name-calling or a general insult, a type of epithet not to be taken literally and not deemed injurious to reputation" (DePuy v St. John Fisher Coll., 129 AD2d 972, 973, lv denied 70 NY2d 602; see Ram v Moritt, 205 AD2d 516).
The court properly determined that the statements made by the father in connection with the investigation of the incident are protected by a qualified privilege (see Mancuso v Allergy Assoc. of Rochester, 70 AD3d 1499, 1500-1501). We further conclude that defendant's statements to school officials and the police about what transpired during the incident on the bus are similarly protected by a qualified privilege, and plaintiff failed to raise a triable issue of fact whether those statements of defendant and her father were motivated solely by malice (see id.). In addition, defendants established that defendant made no further statements about the incident at school, and plaintiff's submissions in opposition to the motion are based upon hearsay and thus insufficient to raise a triable issue of fact (see Scaccia v Dolch, 231 AD2d 885).
Finally, we note that plaintiff does not contend in her brief that the court erred in granting those parts of defendants' motion seeking summary judgment dismissing the remaining causes of action, and we therefore deem abandoned any issues with respect thereto (see Ciesinski v Town of Aurora, 202 AD2d 984).
All concur except Carni, J., who dissents in part and votes to modify in accordance with the following Memorandum: I respectfully disagree with the conclusion of my colleagues that Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint in its entirety. Inasmuch as I conclude that there are questions of fact whether Sarah Nazzaro (defendant) uttered words concerning plaintiff that are either defamatory per se or susceptible of a defamatory meaning, I dissent in part and would modify the order by denying that part of the motion for summary judgment dismissing the cause of action for defamation per se against defendant and defendant Charles Nazzaro, as parent and natural guardian of defendant (hereafter, father).
In October 2007, plaintiff was employed as a physical education teacher and varsity girls gymnastics coach by the Jamestown City School District (School District). Plaintiff also owned and operated a gymnastics instructional business. Defendant was in the seventh grade and was a member of the varsity gymnastics team. During a return bus ride from a gymnastics meet, plaintiff, in her capacity as gymnastics coach, had a dispute with defendant in the presence of the team concerning defendant's performance and behavior at the meet. The parties sharply dispute whether plaintiff attempted to pull defendant out of her seat to make her sit in the front of the bus. Plaintiff testified at her deposition that she tripped on the rubber matting on the floor of the bus and fell forward, landing partially on the seat occupied by defendant and partially on defendant herself. Although defendant initially reported to the police that plaintiff attempted to "choke" her during the incident, she later testified at her deposition that such conduct did not occur. Defendant admitted, however, that she called plaintiff a "f*** abuser" in the presence of the team during the incident. One member of the team that witnessed the incident testified at her deposition that defendant called plaintiff a "child abuser."
As a result of defendant's statements and allegations, the School District filed a report of suspected child abuse with law enforcement authorities. Plaintiff was suspended from her employment for approximately six months and a criminal investigation ensued, although no criminal charges were ever brought against plaintiff. Plaintiff retired from teaching, as she had previously planned, at the end of the 2007-2008 school year. She thereafter commenced this action seeking, inter alia, damages for the alleged false and defamatory words, i.e., "child abuser," allegedly spoken by defendant ...