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In a decision giving a green light to a defamation case arising from last year’s bitter Putnam County sheriff’s race in New York, a state judge has ruled that the fact that a person is a political candidate does not convert his allegations of facts into opinions. Putnam County Supreme Court Justice S. Barrett Hickman last week denied defendant Peter Convery’s motion to dismiss a defamation suit, Thoubboron v. Convery, 1293/01, which was brought by former Sheriff Robert Thoubboron. Convery was challenging Thoubboron for the Republican nomination for sheriff when he issued a news release on April 26, 2001, asserting that the sheriff bought an airplane from a deputy sheriff at taxpayer’s expense and had the deputy fly him to Atlantic City, Block Island and the sheriff’s farm in upstate New York. Convery said the airplane was “an obvious waste of taxpayers’ money for a county the size of Putnam,” and vowed to sell it immediately if he won the office. Thoubboron, who lost his bid for a fifth four-year term in November to the then-deputy county executive, Donald Smith, sued Convery, asserting the press release was totally false. Convery had dropped out of the Republican primary in which Smith defeated Thoubboron. Thoubboron ran against Smith again in the general election and lost. Justice Hickman took judicial notice that after the election, Smith appointed Convery as Putnam County’s undersheriff. Among the arguments made by Convery for dismissal of the defamation claim was his assertion that his statements in the press release were constitutionally protected statements of opinion. The complaint reproduced the press release in its entirety, including Convery’s assertion that “the planes [sic] whereabouts has been kept secret, and county officials have been kept in the dark about the plane’s costs and operating expenses. “Any claims by Thoubboron that the airplane has a legitimate law enforcement purpose is absurd. The sheriff’s refusal to ‘come clean’ about the plane is cover up for the plane’s actual use,” the release said. ASSERTIONS OF FACT Justice Hickman found that the statements about the airplane were assertions of fact. “It is evident … that the language utilized by Convery in his press release has a precise meaning which is readily understood . … [I]f there is some ambiguity as to whether the words used conveyed a defamatory meaning, there is a question of fact for the jury,” the judge wrote. Convery asserted that the broad context and the surrounding circumstances of the election established that the statements were only opinions, but the judge rejected that contention. “The fact that Convery was then a candidate for the Republican nomination for Sheriff — part of the broader social and political context – does not serve to convert statements of fact, whether true or false, into assertions of opinion,” he said. Thoubboron is represented by Tendy & Zarcone of Putnam Valley. Spain & Spain in Mahopac was counsel for Convery.

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