McCormack v. Port Washington Union Free School District

225 A.D.2d 531, 638 N.Y.2d 488, 638 N.Y.S.2d 488, 1996 N.Y. App. Div. LEXIS 1901

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 1996
• Status: Published

Opinion

The plaintiffs, who are married to each other, commenced this action, inter alia, to recover damages for an allegedly defamatory statement uttered by the defendant Amy Bass, a member of the Board of Education of the defendant Port Washington Union Free School District (hereinafter the school district). The complaint alleges that, at a social gathering in May of 1993, Bass stated to a group of approximately five other people that the school district "had a teacher that hit a kid” and that the disciplinary proceeding was "going on forever.” At that time, there were pending disciplinary charges against the plaintiff John J. McCormack alleging that he had hit students. One person who was present during the conversation knew that Bass was referring to the plaintiff John J. McCormack and responded, "I know John McCormack and he would never hit a student” or words to that effect.

The Supreme Court properly found that the statement made by the defendant Amy Bass is reasonably susceptible of a defamatory connotation. Thus, there is a question of fact to be determined by the trier-of-fact (see, Aronson v Wiersma, 65 ; James v Gannett Co., 40 NY2d 415, 419). Furthermore, we note that, although truth is a complete defense to an action for defamation, the defendants failed to demonstrate by documentary evidence that John J. McCormack had hit a student. Thus, they failed to establish the truth of Bass’s statement (see, Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Licitra v Faraldo, 130 AD2d 555). The defendants’ remaining contentions are either unpreserved for appellate review or without merit. Ritter, J. P., Thompson, Pizzuto and Hart, JJ., concur.