Silsdorf v. Levine

85 A.D.2d 297, 447 N.Y.S.2d 936, 8 Media L. Rep. (BNA) 1394, 1982 N.Y. App. Div. LEXIS 14974
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 16, 1982
StatusPublished
Cited by4 cases

This text of 85 A.D.2d 297 (Silsdorf v. Levine) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Silsdorf v. Levine, 85 A.D.2d 297, 447 N.Y.S.2d 936, 8 Media L. Rep. (BNA) 1394, 1982 N.Y. App. Div. LEXIS 14974 (N.Y. Ct. App. 1982).

Opinions

OPINION OF THE COURT

Bloom, J.

This case arises out of a political campaign conducted in the Village of Ocean Beach, Fire Island, New York. Plaintiff was a candidate for re-election as Mayor of the village. [298]*298Defendants are of two categories. One group consists of four individuals who, at one time or another, had served as village trustees while plaintiff was Mayor. The other group consists of the officers of the Citizens Party of Ocean Beach, an unincorporated association which opposed the re-election of plaintiff and sponsored the election of another candidate.

Approximately a month and a half before the date of the election the individual defendants addressed an open letter to their neighbors in the village, on the stationary of the Citizens Party, calling for the defeat of plaintiff and the election of the candidate of the Citizens Party. In that letter they charged that plaintiff, who is an attorney with offices in New York City, had conducted, in the early days of his mayoralty, little legal business affecting the residents of the village. However, as time progressed, business promoters saw the opportunity to make money in the village. By consequence “more and more of the mayor’s law practice has been taken up representing discotheques, bars, fast food operators and others who would profit from increased day-and-night traffic in Ocean Beach”. In addition to asserting that plaintiff, in opposition to the will of the trustees, favored the interests of those seeking increased traffic in the village the letter charged plaintiff with establishing one-man rule; granting written authorization to a restaurant to bring in excursion boats in violation of a village ordinance; failing to intervene in a proceeding brought by the State Liquor Authority to revoke the license of a bar, and, in fact, representing the bar operator in those proceedings before the SLA; seeking to issue, improperly, a building permit to one of his clients and compelling residents of the village to institute court proceedings to prevent the issuance of the permit; and claiming credit for providing a youth center whereas, in truth, he had voted against the rental of village property, known as “Windswept”, to the youth center and had endeavored to sell the property “out from under the village. It was only after strenuous efforts by mothers from the youth group that other trustees outvoted the mayor by a 3-2 vote on September 6, 1969. ‘Windswept’ was saved, and rented [299]*299to the youth group. Mayor Silsdorf voted against renting it to the youth group”.

The letter draws to a close with a recognition of plaintiff’s services to the village in the past. This is followed by two sentences which include the famous quotation from Lord Acton’s letter to Bishop Mandell Creighton: “[b]ut we also recognize that ‘power tends to corrupt, and absolute power corrupts absolutely.’ There is no longer any question about the corruptness of Arthur Silsdorf’s administration of the affairs of the Village of Ocean Beach”.

The election resulted in plaintiff’s defeat. Thereafter, he brought this action alleging defamation. The complaint asserts one cause of action in libel. Defendants moved to dismiss. Special Term denied the motion asserting that “the complaint meets the minimal statutory pleading requirements to state a cause of action for libel”. We disagree. Accordingly, we reverse and dismiss the complaint.

Two issues are tendered by the parties; first the scope of permissible judicial review on a motion to dismiss a complaint upon the ground that it fails to state a cause of action; and, secondly, whether the complaint, judged by those standards, sets forth a cause of action.

I

The Civil Practice Law and Rules gives greater depth to a motion to dismiss than did the. Civil Practice Act by according the court the power to treat such a motion as a motion for summary judgment (CPLR 3211, subd [c]). However, the right to do so is limited by the condition that before so doing the court must give adequate notice to the parties. Here, Special Term expressly abstained from giving such notice. Hence, our focus is limited to the complaint itself (Guggenheimer v Ginzburg, 43 NY2d 268; Rovello v Orofino Realty Co., 40 NY2d 633). We are required to read the publication as a unitary whole (James v Gannett Co., 40 NY2d 415) and to assume the truth of the facts alleged and to construe them liberally (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506; Barr v Wackman, 36 NY2d 371). If, upon any reasonable construction of these facts, the allegations would entitle plaintiff to a recovery judicial inquiry comes to an end and the com[300]*300plaint must be adjudged to be sufficient (Guggenheimer v Ginzburg, 43 NY2d 268, supra; 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506, 509, supra).

Accordingly, we treat with the complaint facially, giving to the facts alleged therein a liberal and reasonable intendment for the purpose of determining whether it asserts a cause of action in libel.

II

It would be pointless to trace, in detail, the manifold changes wrought in the law of defamation by the seminal case of New York Times Co. v Sullivan (376 US 254). It is sufficient for our purposes to start with the principle laid down in Gertz v Robert Welch, Inc. (418 US 323, 339-340), that: “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem we depend for its correction not on the conscience of the judges and juries but on the competition of other ideas”. The New York courts have added but one element. They have required that the facts constituting the basis for the opinion be set forth so that the reader might judge for himself the validity of the opinion. “Opinions, false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions, provided that the facts supporting the opinions are set forth”. (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 380, cert den 434 US 969; see, also, Rand v New York Times Co., 75 AD2d 417; Holy Spirit Assn, for Unification of World Christianity v Sequoia Elsevier Pub. Co., 75 AD2d 523.)

There are occasions when the distinction between fact and opinion becomes blurred and differentiation between them becomes difficult (50 Am Jur 2d, Libel and Slander, § 289). Nevertheless, the question remains one of law, to be determined by the court (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 381, supra).

Here, no such problem exists. There is a clear line of demarcation between fact and opinion. The open letter plainly sets forth both the opinions of the writers as well as the facts upon which those opinions are based and each is separate. While the entire letter is appended to the complaint as an exhibit, it is noteworthy that the particular [301]*301portions excerpted in the complaint

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85 A.D.2d 297, 447 N.Y.S.2d 936, 8 Media L. Rep. (BNA) 1394, 1982 N.Y. App. Div. LEXIS 14974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silsdorf-v-levine-nyappdiv-1982.