27 A.D.2d 543 | N.Y. App. Div. | 1966
Order of the Supreme Court, Nassau County, dated June 8, 1966, affirmed, insofar as appealed from by the respective parties, without costs. The time to serve an amended complaint is extended until 20 days after entry of the order hereon. The action is to recover damages by reason of certain allegedly libelous articles published in the Great Neck Becord, a newspaper published and circulated in and about the school district within the jurisdiction of the Great Neck Board of Education, of which board plaintiff was a member. The thrust of the articles is that a member of the board prevailed upon a named teacher to upgrade the marks of that board member’s son, who was a student in said teacher’s mathematics class. This conduct, the articles charged, resulted in the forced resignation of the teacher. The articles, inter alia, quoted a resident as calling for the resignation of the hoard member and indicating concern that mark-tampering has become a common practice. The articles further urged that the board vote a clear-cut declaration regarding “negotiable marking”. Defendants moved to dismiss the complaint for insufficiency, claiming that (a) the articles are within the purview of qualifiedly privileged comment, requiring an allegation of actual malice and (b) the articles are not libelous per se and refer to a single incident within the purview of the single instance rule, thereby requiring an allegation of special damage. Special Term dismissed the complaint with leave to replead so as to allege actual malice. Plaintiff appealed. Defendants cross-appealed from the limited dismissal. In our opinion, the alleged defamation involves a matter of public concern precipitated by the use of one’s official position and is within the periphery of that area of qualifiedly privileged comment, despite