Viza v. Town of Greece

Appellate Division of the Supreme Court of New York

Viza v. Town of Greece

104 A.D.2d 718, 480 N.Y.S.2d 659, 1984 N.Y. App. Div. LEXIS 20135

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 21, 1984

StatusPublished

This text of 104 A.D.2d 718 (Viza v. Town of Greece) 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

Viza v. Town of Greece, 104 A.D.2d 718, 480 N.Y.S.2d 659, 1984 N.Y. App. Div. LEXIS 20135 (N.Y. Ct. App. 1984).

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Opinion

— Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term properly dismissed plaintiff’s causes of action for false arrest, malicious prosecution, assault and battery and trespass. The court also dismissed a"cause of action for defamation, but did so without prejudice, thus permitting plaintiff to replead such cause of action. This was error.

This case has previously been before us for consideration, albeit involving a civilian defendant (Viza v Town of Greece, 94 AD2d 965). We there dismissed the complaint, observing insofar as the complaint purported to state a defamation cause of action, “[a]n examination of the statements attributable to defendant as defamatory reveals that they do no more than relate a narrative of the events witnessed and contain no accusation of criminal conduct by plaintiff nor is any expression of the quality of plaintiff’s conduct alluded to” (Viza v Town of Greece, supra, p 966). The legal principles which applied to the previous case exist with equal import to the present appeal.

An examination of the documents which plaintiff relies upon as defamatory (newspaper accounts) reveals nothing which could be characterized as defamatory or false. These publications contain nothing more than a factual description of events which took place, obtained from an eyewitness to the event, which resulted in a homicide and the eventual routine laying of criminal charges against plaintiff. If anything, the newspaper [719]*719statements attributable to defendants herein are guarded and undramatic. Nothing contained therein rises to the level of defamation.

On a motion for summary judgment, plaintiff is obliged to present evidence which would be admissible at trial in order to demonstrate the existence of a factual question (see Scacchetti v Gannett Co., 90 AD2d 985, 986). This plaintiff has failed to do, and there appears no reason to permit him to pursue the matter further in light of his failure to controvert adequately defendant’s motion for summary judgment. (Appeal from order of Supreme Court, Monroe County, Boehm, J. — summary judgment.) Present — Dillon, P. J., Doerr, Green, Moule and Schnepp, JJ.

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— Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term properly dismissed plaintiff’s causes of action for false arrest, malicious prosecution, assault and battery and trespass. The court also dismissed a"cause of action for defamation, but did so without prejudice, thus permitting plaintiff to replead such cause of action. This was error.

This case has previously been before us for consideration, albeit involving a civilian defendant (Viza v Town of Greece, 94 AD2d 965). We there dismissed the complaint, observing insofar as the complaint purported to state a defamation cause of action, “[a]n examination of the statements attributable to defendant as defamatory reveals that they do no more than relate a narrative of the events witnessed and contain no accusation of criminal conduct by plaintiff nor is any expression of the quality of plaintiff’s conduct alluded to” (Viza v Town of Greece, supra, p 966). The legal principles which applied to the previous case exist with equal import to the present appeal.

An examination of the documents which plaintiff relies upon as defamatory (newspaper accounts) reveals nothing which could be characterized as defamatory or false. These publications contain nothing more than a factual description of events which took place, obtained from an eyewitness to the event, which resulted in a homicide and the eventual routine laying of criminal charges against plaintiff. If anything, the newspaper [719]*719statements attributable to defendants herein are guarded and undramatic. Nothing contained therein rises to the level of defamation.

On a motion for summary judgment, plaintiff is obliged to present evidence which would be admissible at trial in order to demonstrate the existence of a factual question (see Scacchetti v Gannett Co., 90 AD2d 985, 986). This plaintiff has failed to do, and there appears no reason to permit him to pursue the matter further in light of his failure to controvert adequately defendant’s motion for summary judgment. (Appeal from order of Supreme Court, Monroe County, Boehm, J. — summary judgment.) Present — Dillon, P. J., Doerr, Green, Moule and Schnepp, JJ.

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104 A.D.2d 718, 480 N.Y.S.2d 659, 1984 N.Y. App. Div. LEXIS 20135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/viza-v-town-of-greece-nyappdiv-1984.

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