Second Department--Defamation Is As Defamation Does

The Second Department recently handed down an interesting decision regarding a defamation claim.  In  Kotowski v Hadley. 2007 NY Slip Op 01834, the plaintiff, a general manager of a cooperative apartment complex, alleged that the defendant, a tenant of the apartment complex, defamed him in a series of emails over the course of a year.  The mails were distributed to approximately 100 people who were tenants and shareholders of the apartment complex via an email distribution list maintained by the defendant. 

Among the alleged defamatory statements were allegations that the plaintiff illegally wiretapped telephones at the apartments, violated fire safety laws, and falsified crime statistics during his former employment with the NYC police department.

The Second Department first concluded that the alleged statements  "were reasonably susceptible of a defamatory meaning and did not constitute personal opinion since they reasonably appeared to contain assertions of objective fact which do not fall within the scope of protected opinion."

The Court then determined that although the people on the email distribution list shared a common interest, thus affording the defendant's communications a qualified privilege, the privilege was overcome by the plaintiff's showing of actual malice sufficient to withstand a motion to dismiss:

Contrary to the defendant's contention, the complaint sufficiently pleaded malice. Specifically, the plaintiff alleged, inter alia, that certain specified communications (the content of which was contained in the complaint) were made with malice, that the defendant continued to publish them notwithstanding their falsity, and that he did so solely to discredit the plaintiff and injure the plaintiff's good name and reputation so as to cause the termination of his employment at NST. Moreover, the plaintiff had no obligation to show evidentiary facts to support these allegations of malice on a motion to dismiss pursuant to CPLR 3211(a)(7)...

I come across decisions addressing this particular tort fairly infrequently, so this opinion was of particular interest to me.  While the holding wasn't exactly ground breaking, it's always useful to review the law regarding claims that are not litigated as frequently as your typical slip and fall or car accident.

Comments

[Rick Durand]

Interesting Case.

[Glen Kotowski]

October 20, 2008

Please find attached a letter of apology from Fred Hadley concerning the many false emails he sent discrediting Glen Kotowski and Kris Debysingh over the past several years to the members of our community in an attempt to have them lose faith in us as employees who serve North Shore Towers. This letter is part of a settlement in our lawsuits against him. Other parts of the settlement include:

-Distribution of this letter to local newspapers and North Shore Towers Shareholders.
-Payments from Hadley to both Kris and I for amounts which he has requested us to keep confidential.
-Hadley vacating his apartment at North Shore Towers by October 7, 2008.
-Agreement of no future emails, writings etc. including aiding others to do the same.
-Agreement of no future emails, writings, etc. to include Board Members, North Shore Towers Apartments Incorporated, the management company, employees, Glen Kotowski, Kris Debysingh or any third parties with an interest in North Shore Towers.
-All of the above is part of a permanent restraining order signed by a judge in the New York State Supreme Court.

Kris and I hope this closes what has been a difficult time during our careers at North Shore Towers which has caused us, our families and our community great untold stress and disharmony.

I would like to especially thank Errol Brett for his acute understanding of the negative effects that this situation was causing to the well being of North Shore Towers and for taking this situation head on for the betterment of North Shore Towers. Many current and former Board Members were also the subject of many of these false and many times derogatory emails. It is our hope that now that this issue is resolved, residents who may have been reluctant to serve on the Board of Directors out of fear of being the subject of these false and derogatory emails will now be able to serve without concern.

Kris and I thought that it was important that we share this information with you. Now that this issue is behind us, We look forward to focusing our new found time to serving the Board of Directors and residents of North Shore Towers to the best of our abilities.

Sincerely,

Glen Kotowski