ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

November 21, 2017

Suing public officials and government entities for allegedly making defamatory statements concerning an individual


Suing public officials and government entities for allegedly making defamatory statements concerning an individual
Brummel v Board of Trustees of the Village of E. Hills, et al., N.Y., 2017 NY Slip Op 07971, Appellate Division, Second Department

Richard A. Brummel, alleging that the village's mayor made defamatory statements about him to another person and that person reported those statements in an article published in a local newspaper, sue the mayor, the village board, the newspaper and the editor of the newspaper.

The newspaper and its publisher moved to dismiss Brummel's complaint for failure to state a cause of action. The mayor and the defendant village board separately moved to [1] dismiss the complaint against the major and [2] for failure to state a cause of action and [3] to require Brummel seek leave of court to commence any future actions against it.

Supreme Court granted the motion of the Blank Slate defendants and that branch of the motion of the Village defendants to dismiss the complaint but did not address that branch of the Village's motion that would require Brummel to seek leave of court to commence any future actions against them. Brummel appealed and the mayor and the village cross-appealed.

The Appellate Division ruled that Supreme Court properly granted the motion of the Blank Slate defendants and that branch of the motion of the Village defendants seeking to dismiss the complaint insofar as asserted against each of them for failure to state a cause of action. The court, citing Gross v New York Times, 82 NY2d 146, explained that as "falsity is a necessary element of a defamation cause of action and only facts 'are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action.'"

In this regard, distinguishing between fact and opinion is a question of law for the courts, to be decided based on "what the average person hearing or reading the communication would take it to mean." In so doing, the Appellate Division said that courts must consider:

1. whether the specific language has a precise meaning that is readily understood;

2. whether the statement is capable of being proven true or false;

3. whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact; and

4. [quoting from Gross] "whether a reasonable [reader] could have concluded that the [articles were] conveying facts about the plaintiff."

Accepting the allegations in the complaint as true and affording Brummel the benefit of every favorable inference, the Appellate Division concluded that Brummel "did not state a cause of action to recover damages for defamation as some of the statements alleged to have been made 'do not have a precise meaning' while others are hyperbolic and incapable of being proven true or false."

Considering the context of the alleged statements, the court opined that "a reasonable reader would have concluded that he or she was reading an opinion, and not a fact, about [Brummel]."

The decision is posted on the Internet at:

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com