DECISION AND ORDER Plaintiff is the attorney for the Village of Hudson Falls, Washington County (hereinafter the Village). He also serves on the Board of Phoenix Rising, a nonprofit dedicated to improving the Village community. Defendant is a local property developer. The two met for the first time in September 2017 while attending unrelated proceedings at the Kingsbury Town Court. Defendant had recently attended a tax sale and purchased certain abandoned property located in the Village at 6 and 12 Center Street. The property was comprised of a large cement block structure that had once contained a bowling alley, and a small brick structure that had once contained an apartment and a bar. During this first meeting, defendant expressed his desire to sell the abandoned property. Plaintiff advised that the Village might be interested in purchasing it and converting it into a parking lot, as the cement block structure was a “tear down.” Plaintiff advised defendant that he would inquire whether the Village might be interested in moving forward with the purchase. Plaintiff then spoke with the Mayor and, on September 30, 2017, the parties met Michael Fiorello — the head of the Village’s Department of Public Works — for a walk-through at the property. At that time, Fiorello advised that — if the Village decided to acquire the property — his Department could demolish the existing cement block structure and convert that portion of the property to a parking lot. Defendant initially offered to sell the property for $15,000.00 on September 30, but he then reduced the asking price to $10,000.00, plus back taxes. He and plaintiff engaged in further negotiations via email, with plaintiff ultimately advising defendant that — with $14,428.44 owed in back taxes — the purchase was “way out of [their] financial reach, so [they would] have to bow out.” Defendant thereafter agreed to pay the back taxes himself and, on October 11, 2017, the parties signed a Real Estate Option Agreement (hereinafter the Agreement) with a sale price of $10,000.00. Sandy Hill Vision LLC (hereinafter Sandy Hill) was listed as the purchaser in the Agreement, with plaintiff signing as a “Member” of Sandy Hill. It is at this point the parties’ stories diverge. Defendant believed that plaintiff was negotiating at all times on behalf of the Village, and that Sandy Hill was a not-for-profit affiliated with the Village. According to defendant, plaintiff told him that Sandy Hill was purchasing the property because it was eligible for certain grants that the Village could not receive. In fact Sandy Hill is a for-profit corporation wholly owned by plaintiff. Defendant contends that he discovered this on November 16, 2017 when he read a newspaper article indicating that plaintiff planned to restore the small brick structure and use it for a commercial enterprise — namely a brewhouse for local veterans. Defendant visited the property on that same date and saw work being done there by plaintiff. He then sent an email to plaintiff advising that he wanted to push the closing date back. Plaintiff responded that he wanted to close immediately, with defendant then asking plaintiff to cease all work at the property. Defendant then sent an email to plaintiff on November 17, 2017 canceling the transaction altogether. In contrast to defendant’s version of events, plaintiff contends that he “and defendant did negotiate and arrive at a price of $10,000[.00], but [he] did not negotiate or make the agreement ‘in his capacity as a representative of the Village.’” Rather, “he told [defendant] that [his] LLC would be purchasing the property.” According to plaintiff, the Village is not in the business of buying properties like 6 and 12 Center Street, and “even if it was inclined to buy, it would not be in position to proceed before ‘approving it in next year’s budget.’” Sandy Hill apparently “contracted to acquire the [p]roperty in the first instance because ‘it was much more flexible to have the LLC take title initially….’” Plaintiff contends “it was a possibility that Sandy Hill…would transfer the [p]roperty to Phoenix Rising and that it would do so if ‘it made sense to do so.’” On November 17, 2017 — within hours of receiving defendant’s email canceling the transaction — plaintiff commenced an action against defendant seeking specific performance relative to the Agreement. Defendant then sent an email to Assemblywoman Carrie Woerner on November 20, 2017. In sum, defendant laid out his version of events relative to the sale of 6 and 12 Center Street, concluding the email as follows: “Assemblywoman Woerner I understand that you are involved in a grant for buying the old Washington County courthouse, which is owned by George Dunnigan, whom I know very well. Prior to Mr. Dunnigan entering into an [sic] contract with Sandy Hill Vision he received multiple code violations that pushed him in the end to agree to Mr. Nikas’ terms. George Dunnigan is in his late seventies, and did not have the means or the funds to take care of these things. It is fair to say that these code violations still exist and are not being enforced since this option contract was signed. It seems that this pattern of forcing peoples [sic] hands on behalf of Sandy Hill Vision which seems to becoming [sic] an investment company and not a company for the community interest. In my dealings with Mr. Nikas he deeply misrepresented the agreement to me, and I have reached out to the mayor of Hudson Falls, and I have also spoken with Thomas Van Umam, a previous trustee of the village. I intend to file a complaint with the attorney generals office and the state police to try to prevent this extortion, from Mr. Nikas.” Defendant subsequently sent an email to the Governor on November 24, 2017 and then to the Attorney General’s office on November 26, 2017. He also filed a complaint with the State Police, appearing for a deposition with Investigator Eric Stefanik on December 7, 2017. Following an investigation, Stefanik “did not find anything that was of a criminal nature[and] closed the [case].” Meanwhile the parties met on December 4, 2017, with plaintiff agreeing to discontinue the action for specific performance.1 Defendant then sold the property at 6 and 12 Center Street to another buyer. Plaintiff commenced this action against defendant on November 9, 2018 alleging defamation per se based upon the Woerner email, as well as “similar defamatory per se statements to other entities and individuals in the community…including but not limited to, the New York State Comptroller and the New York State Police.” Issue was thereafter joined and discovery and depositions completed. Presently before the Court is defendant’s motion for summary judgment dismissing the complaint. In the event summary judgment is denied, defendant then seeks leave to amend his answer to add a statute of limitations defense, as well as an Order (1) deeming the amended answer filed and served nunc pro tunc; and (2) granting summary judgment dismissing plaintiff’s allegations stemming from publications other than the Woerner email based upon expiration of the statute of limitations. Turning first to that aspect of the motion which seeks summary judgment dismissing the complaint, “[t]he movant seeking summary judgment has the initial burden to ‘establish its prima facie entitlement to judgment as a matter of law by presenting competent evidence that demonstrates the absence of any material issue of fact’” (Hope v. Hadley-Luzerne Pub. Lib., 169 AD3d 1276, 1277 [2019], quoting Aretakis v. Cole’s Collision, 165 AD3d 1458, 1459 [2018] [internal quotation marks and citations omitted]). “Upon this showing, the burden then shifts to the opposing party to [submit] ‘evidence demonstrating the existence of a triable issue of fact’” (Hope v. Hadley-Luzerne Pub. Lib., 169 AD3d at 1277, quoting Aretakis v. Cole’s Collision, 165 AD3d at 1459 [internal quotation marks and citation omitted]; see CPLR 3212 [b]). As relevant here, “defamation requires proof that the defendant made ‘a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se’” (Dickson v. Slezak, 73 AD3d 1249, 1250 [2010], quoting Roche v. Claverack Coop. Ins. Co., 59 AD3d 914, 916 [2009]; accord Hope v. Hadley-Luzerne Pub. Lib., 169 AD3d at 1277).2 Defendant first contends that the statements in the Woerner email are protected by qualified privilege because (1) he and Woerner share a common interest; (2) plaintiff is a public official; and (3) plaintiff is a public figure. Defendant further contends that, because of this qualified privilege, fault must be measured by more than a negligence standard — with plaintiff required to demonstrate that the statements in the email were motivated solely by malice. According to defendant, plaintiff is unable to make the requisite demonstration. Each of these contentions relative to qualified privilege will be addressed ad seriatim. Turning first to qualified privilege arising from common interest, this applies “‘when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest’” (Scott v. Thayer, 160 AD3d 1175, 1176 [2018], quoting Cusimano v. United Health Servs. Hosps., Inc., 91 AD3d 1149, 1150 [2012] [internal quotation marks and citations omitted], lv denied 19 NY3d 801 [2012]). The qualified common interest privilege “has been applied to statements among employees of an organization in furtherance of the common interest of their employer” (Sanderson v. Bellevue Maternity Hosp., 259 AD2d 888, 889-890 [1999]; see Hammond v. Equinox holdings LLC, 193 AD3d 586, 587 [2021]; Loughry v. Lincoln First Bank, 67 NY2d 369, 376 [1986]; Rabideau v. Albany Med. Ctr. Hosp., 195 AD2d 923, 924-925 [1993]). It has similarly been applied to an email sent by a member the board of trustees of a library to the State Education Department expressing her concerns that the president of the board was misappropriating money (see Macumber v. South New Berlin Lib., 186 AD3d 1864, 1864 [2020]), with the Court reasoning that “[a]s a member of the [b]oard tasked with approving and overseeing the expenditure of library funds, [defendant] had an interest in addressing any misappropriation of those funds by plaintiff, and she raised that issue in an email to state officials with a corresponding oversight role and the authority to take corrective action” (id.). Here, Woerner serves as an Assemblywoman for Assembly District 113, which encompasses the Village. To that end, she certainly has an interest in the wellbeing of the Village. That being said, as an Assemblywoman she is not charged with the investigation of crimes involving extortion, nor does she have any authority to take action with respect to these crimes. Indeed, that is the province of law enforcement. The Court therefore declines to find that the qualified common interest privilege applies to the statements set forth in the Woerner email. To the extent that Woerner was involved in securing the grant for the Village to buy the old Washington County courthouse formerly owned by Dunnigan and arguably did have an interest in that transaction, the Court finds that the qualified common interest privilege does not apply because defendant had no interest in the sale of that building. Briefly, even if defendant’s statements regarding Dunnigan were protected by the qualified common interest privilege, plaintiff has demonstrated triable issues of fact as to whether the statements were “‘motivated by malice alone when [he] made’ [the] statements” (Macumber v. South New Berlin Lib., 186 AD3d at 1865, quoting Mughetti v. Makowski, 162 AD3d 1444, 1446 [2018]; see Hull v. Town of Prattsville, 145 AD3d 1385, 1390 [2016]; Wilcox v. Newark Val. Cent. School Dist., 74 AD3d 1558, 1562 [2010]). In this regard, plaintiff relies upon Dunnigan’s deposition transcript, a copy of which is annexed to the motion papers. Dunnigan testifies that the Village’s Code Enforcement Officer advised him that the courthouse building needed to be painted and he did not have the money to do so, which factored into his decision to sell. He further testifies, however, that he in no way felt pressured by plaintiff — who had very little to do with the sale — and that the courthouse was sold to Phoenix Rising, and not Sandy Hills. Turning now to the qualified privilege applicable to statements against a public official (see Sweeney v. Prisoners’ Legal Servs. of N.Y., 146 AD2d 1, 6 [1989]), plaintiff is not a public official by virtue of his retainer as attorney for the Village (see Porcari v. Gannett Satellite Info. Network, Inc., 50 AD3d 993, 994 [2008] [associate corporation counsel not public official]; Zeck v. Spiro, 52 Misc 2d 629, 631 [Sup Ct, NY County 1966] [attorneys for county not public officials]). The Court therefore finds that the qualified public official privilege does not apply to the statements set forth in the Woerner email. With respect to the qualified privilege applicable to statements against a public figure, “[a] limited-purpose public figure…is an individual who has voluntarily injected himself or is drawn into a particular public controversy with a view toward influencing it” (Gottwald v. Sebert, 193 AD3d 573, 577 [2021]). “[T]he [individual becomes] a public figure by virtue of his purposeful activity amounting to a thrusting of his personality into the ‘vortex’ of an important public controversy” (Naantaanbuu v. Abernathy, 816 F Supp 218, 222 [SDNY 1993] [internal quotation marks omitted]; accord Gottwald v. Sebert, 193 AD3d at 577). “To determine whether a plaintiff is a limited purpose public figure the ‘defendant must show the plaintiff has: (1) successfully invited public attention to his views in an effort to influence others prior to the incident that is the subject of litigation; (2) voluntarily injected himself into a public controversy related to the subject of the litigation; (3) assumed a position of prominence in the public controversy; and (4) maintained regular and continuing access to the media’” (Gottwald v. Sebert, 193 AD3d at 577, quoting Lerman v. Flynt Distrib. Co., Inc., 745 F 2d 123, 136-137 [2d Cir 1984], cert denied 471 US 1054 [1985]). “‘A private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention’” (Gottwald v. Sebert, 193 AD3d at 577, quoting Wolston v. Reader’s Digest Assn. Inc., 443 US 157, 167 [1979]). “‘In order to be considered a public controversy…the subject matter must be more than simply newsworthy…it must be a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way’” (Gottwald v. Sebert, 193 AD3d at 577, quoting Krauss v. Globe Intl., 251 AD2d 191, 192 [1998] [internal quotation marks and citations omitted]). Here, defendant has failed to submit any evidence with respect to the four factors listed above. Moreover, there does not appear to be any public controversy or dispute. Rather, the dispute emanates from a real estate transaction between the parties. The Court therefore finds that the qualified public figure privilege does not apply to the statements set forth in the Woerner email. Defendant next contends that the statements in the Woerner email are protected by qualified privilege because they involve matters of public concern. Defendant further contends that, because of this qualified privilege, fault must be measured by more than a negligence standard — with plaintiff required to demonstrate that the statements in the email were made with gross irresponsibility. According to defendant, plaintiff is unable to make this demonstration. “Where the defendant is a media publisher or broadcaster and the plaintiff is neither a public official nor a public figure, but the statement involves a matter of public concern,” the statement is protected by qualified privilege (Huggins v. Moore, 94 NY2d 296, 302 [1999]; see Chapadeau v. Utica Observer-Dispatch, 38 NY2d 196, 199 [1975]). That being said, “publications directed only to a limited, private audience are matters of purely private concern” (Huggins v. Moore, 94 NY2d at 302 [internal quotation marks and citations omitted]; see Cottom v. Meredith Corp., 65 AD2d 165, 170 [1978]). Here, defendant is neither a media publisher nor a broadcaster. Further, the email at issue was directed only to a limited, private audience — namely Assemblywoman Woerner. It is thus a matter of private concern and the qualified public concern privilege is inapplicable. Defendant next contends that the statements in the Woerner email constitute nonactionable opinion. In this regard, “defamation actions must be based upon assertions of fact. Statements consisting of solely opinion are not actionable” (Hope v. Hadley-Luzerne Pub. Lib., 169 AD3d at 1277; see Immuno AG. v. Moor-Jankowski, 77 NY2d 235, 243-245 [1991]; Gentile v. Grand St. Med. Assoc., 79 AD3d 1351, 1352 [2010]; Brown v. Albany Citizens Council on Alcoholism, 199 AD2d 904, 905 [1993]). Significantly, “a ‘mixed opinion’ — i.e., one that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it — can be the subject of a defamation claim” (Hull v. Town of Prattsville, 145 AD3d 1385, 1387 [2016] [internal quotation marks and citations omitted]). “‘Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact,’ [the Court] must ‘look to the overall context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff’” (Hull v. Town of Prattsville, 145 AD3d at 1387-1388, quoting Davis v. Boeheim, 24 NY3d 262, 270 [2014] [internal quotation marks, ellipsis and citations omitted]; see Brian v. Richardson, 87 NY2d 46, 51 [1995]; Loch Sheldrake Beach & Tennis Inc. v. Akulich, 141 AD3d 809, 815 [2016], lv dismissed 28 NY3d 1104 [2016]). Here, the Woerner email does not constitute non-actionable opinion. Rather, it constitutes a mixed opinion; it is based upon facts which justify defendant’s opinion that plaintiff is engaging in extortion. The Court therefore finds this contention to be without merit. Finally, defendant contends that the statements in the Woerner email are substantially true and are not defamatory per se. Given the very different versions of what transpired relative to the parties’ real estate transaction, defendant certainly has not demonstrated as a matter of law that the statements in the Woerner email are substantially true. Defendant has likewise failed to demonstrate as a matter of law that these statements are not defamatory per se. “A statement is defamatory per se if it (1) charges the plaintiff with a serious crime; (2) tends to injure the plaintiff in her or his trade, business, or profession; (3) imputes that the plaintiff has a loathsome disease; or (4) imputes unchastity to a woman” (Laguerre v. Maurice, 192 AD3d 44, 50 [2020]). Here, the statement charges plaintiff — a licensed attorney — with extortion, and alleges acts which “demonstrate[] a lack of character or total disregard for professional ethics” (Schindler v. Mejias, 100 AD3d 1315, 1317 [2012]). The Court therefore finds that defendant’s final contentions are without merit. Based upon the foregoing, defendant’s motion for summary judgment dismissing the complaint is denied. Plaintiff does not appear to oppose the second aspect of defendant’s motion. This aspect of the motion is therefore granted with defendant permitted to amend his answer to add a statute of limitations defense. The amended answer with counterclaim attached as Exhibit “F” to the motion is further deemed filed and served nunc pro tunc, and summary judgment is granted dismissing plaintiff’s allegations stemming from publications other than the Woerner email based upon expiration of the statute of limitations. Counsel for the parties are hereby directed to appear for a conference via Microsoft Teams on December 8, 2021 at 10:30 A.M. Therefore, having considered NYSCEF document Nos. 40 through 63, 67 through 71, and 73, and oral argument having been heard on November 9, 2021 with Benjamin F. Neidl, Esq. appearing on behalf of plaintiff and Salvatore D. Ferlazzo, Esq. appearing on behalf of defendant, it is hereby ORDERED that the first aspect of defendant’s motion which seeks summary judgment dismissing the complaint is denied; and it is further ORDERED that the second aspect of defendant’s motion which seeks leave to amend his answer to add a statute of limitations defense is granted; and it is further ORDERED that the amended answer attached as Exhibit “F” to the motion is deemed filed and served nunc pro tunc, and summary judgment is granted dismissing plaintiff’s allegations stemming from publications other than the Woerner email based upon expiration of the statute of limitations; and it is further ORDERED that counsel for the parties shall appear for a conference via Microsoft Teams on December 8, 2021 at 10:30 A.M.; and it is further ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied. The original of this Decision and Order has been e-filed by the Court. Counsel for plaintiff is hereby directed serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513. Dated: November 16, 2021
