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September 08, 2021

Matters of public concern alleged to be defamatory uttered by a public official are entitled to a qualified privilege of immunity from liability if they involve the discharge of a public duty

In deciding this action brought by an individual [Plaintiff] alleging he had been defamed by a public officer, the Appellate Division observed that the elements of a cause of action to recover damages for defamation are the making of [1] a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace; [2] published without privilege or authorization to a third party; [3]  amounting to fault as judged by, at a minimum, a negligence standard; and [4] either causing special harm or constituting "defamation per se".*

However, as the Court of Appeals said in Stega v New York Downtown Hosp., 31 NY3d 661, an allegedly defamatory "statement is subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his [or her] interest is concerned." Further, a plaintiff may defeat the claimed qualified privilege by showing either common-law malice - "spite or ill will", or may show actual malice, - "knowledge of the falsehood of the statement or a reckless disregard for the truth."

The Plaintiff in this action sought to recover damages for alleged defamatory statements about the Plaintiff by a county executive officer [Respondent] to the media and in a written press release, which Plaintiff claimed, among other things, had injured Plaintiff's reputation.

Respondent moved for summary judgment dismissing the complaint contending that the allegedly defamatory statements were subject to a qualified privilege. Supreme Court agreed and granted Respondent's. Plaintiff appealed but the Appellate Division sustained the lower court's ruling.

The court explained that Respondent had established that his statements "constitute a matter of public concern and are thus entitled to a qualified privilege of immunity from liability" and that Plaintiff "failed to raise a triable issue that the statements were motivated by either common-law or actual malice."

Accordingly, said the Appellate Division, "Supreme Court properly granted the [Respondent's] motion for summary judgment dismissing the complaint."

* The defamation per sein New York are statements which: charge the plaintiff with a serious crime; state false facts that tend to injure the plaintiff in his or her business trade or profession; allege that the plaintiff has a loathsome disease; or impute that the plaintiff is unchaste.

Click HERE to access the Appellate Division decision.

 

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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.
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