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February 24, 2016

In a lawsuit brought by a public official alleging defamation, the official must show actual malice on the part of the alleged defamer in order to prevail

In a lawsuit brought by a public official alleging defamation, the official must show actual malice on the part of the alleged defamer in order to prevail
Eastwood v Hoefer, 2016 NY Slip Op 00674, Appellate Division, Second Department

Kenneth W. Eastwood, the former Superintendent of the Oswego City School District, sued Francis E. Hoefer, then a member of the Board of Education, to recover damages for defamation. Eastwood alleged the Hoefer had defamed him when he published three statements on an Internet website.

The first alleged defamatory statement was that "[i]t wasn't until [Eastwood] packed his bags for Middletownthat the Oswego School District discovered that our reserve accounts had been depleted." The second allegedly defamatory statement was that there had been "allegations of [Eastwood’s] abuse of a young honor student and [a] subsequent cover up." The third allegedly defamatory statement was that the Eastwood "use[d] . . . his position to acquire enhanced grades for his daughter."

Following a jury trial, the jury returned a verdict in favor of Eastwood, finding that all three of the statements were defamatory and that Hoefer had published the three statements with actual malice.

In the appeal that followed the Appellate Division, noted that Eastwood did not dispute the characterization that he was a public figure. Accordingly, said the court, this case was governed by the rule of New York Times Co. v Sullivan, 376 US 254, in which the Supreme Court of the United States 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."

The Times decision, said the court, bars a plaintiff "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" and "[T]he appellate court must make a de novo review of the entire record and determine whether the proof before the trial court supports the finding of actual malice with convincing clarity."*

Contrary to Hoefer’s contention, the Appellate Division found that “record demonstrates, by clear and convincing evidence, that the third statement he made was made with actual malice.” However, the court, upon its independent review of the record, concluded that the evidence does not establish, with "convincing clarity," that Hoefer published the first and second statements with actual malice.

Accordingly, the court ruled that Supreme Court properly granted Hoefer’s motions,  which were made pursuant to CPLR 4404(a),** to set aside so much of the verdict as was in favor of the Eastwood with respect to Hoefer’s first and second statements.

As to the third statement, the Appellate Division said that the Supreme Court properly denied that branch of Eastwood’s CPLR 4404(a) motion to set aside so much of the verdict as was in favor of Eastwood with respect to the third statement.

* See Sweeney v Prisoners' Legal Servs. of N.Y., 84 NY2d 786

** As relevant here, a motion by a party after a trial by jury to set aside all or part of the jury's verdict. 

The decision is posted on the Internet at: