Gerard MATOVCIK, Appellant, v TIMES BEACON RECORD NEWSPAPERS, Also Known as THE VILLAGE BEACON RECORD, et al., Respondents.
Appellate Division of the Supreme Court of the State of New York, Second Department
849 N.Y.S.2d 75
In an action to recover damages for libel, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Costello, J.), dated June 2, 2006, as granted that branch of the defendants’ motion which was to dismiss the amended complaint pursuant to
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was to dismiss the amended complaint pursuant to
On May 13, 2004 the defendants wrote and published an article in the Village Beacon Record (hereinafter the newspaper) asserting that the plaintiff, the former head of the Miller Place High School (hereinafter MPHS) English Department, had “misappropriated” funds “that came directly from the pockets of students.” Specifically, the article stated that the plaintiff told students that they had to pay $5 for workbooks. However, the workbooks had already been paid for by “district taxpayers,” and the plaintiff turned the money he collected into a
On the same day it ran the article, the newspaper published a related piece, labeled as an editorial, which set forth the statutory definition of the crime of scheme to defraud in the second degree and then posed the following question: “When a teacher tells his students they must give him cash to pay for workbooks and spends the cash on lunches and appliances, does that fit the description above?” The editorial called for the Suffolk County District Attorney to investigate the matter. The plaintiff commenced this libel action based on the article and editorial, and the defendants moved, inter alia, to dismiss the amended complaint pursuant to
The Supreme Court improperly granted that branch of the defendants’ motion which was to dismiss the plaintiff‘s amended complaint pursuant to
As a general rule, on a motion to dismiss the complaint for failure to state a cause of action under
Moreover, the documentary evidence submitted by the defendants failed to establish, as a matter of law, the truth of certain facts set forth in the article and the editorial. Where, as here, the defendants move pursuant to
Truth is an absolute defense to a libel action, regardless of the harm done by the statements (see Kamalian v Reader‘s Digest Assn., Inc., 29 AD3d 527, 528 [2006]; Love v Morrow & Co., 193 AD2d 586, 587 [1993]). Even if a publication is not literally or technically true in all respects, the defense of truth applies as long as the publication is “substantially true,” and minor inaccuracies are acceptable (Kehm v Murtha, 286 AD2d 421 [2001]; see Carter v Visconti, 233 AD2d 473, 474 [1996]; Love v Morrow & Co., 193 AD2d at 587). The test of whether a statement is substantially true is “whether the libel as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced” (Love v Morrow & Co., 193 AD2d at 588 [internal quotation marks omitted]).
Here, the documentary evidence proffered by the defendants failed to establish, as a matter of law, that school district officials were unaware of the practice of collecting workbook fees until the fall of 2003 (see generally Fleming v Kamden Props., LLC, 41 AD3d 781 [2007]). To the contrary, the defendants’ submissions provided some evidence that the practice of collecting and spending workbook funds predated the plaintiff‘s tenure as head of the MPHS English Department and had been condoned, accepted, and encouraged by school district administrators. A reader would be likely to view the plaintiff‘s actions in a different light if he or she knew that the school district had known of and sanctioned the collection practice (cf. Love v Morrow & Co., 193 AD2d at 588), and the defendants failed to submit evidence sufficient to resolve all factual issues as to whether the plaintiff had collected workbook fees from the
Additionally, by citing only the lunches and the air conditioner as examples of the plaintiff‘s purchases, the article left the reader with the impression that the plaintiff had used money collected from students to purchase items which benefitted only the faculty (see Gatz v Otis Ford, 262 AD2d 280, 281 [1999]). However, the documentary evidence suggested that the plaintiff spent the money largely on books and other classroom supplies used by or for the students, and this fact would have significantly altered the conclusion drawn by the reader (cf. Rinaldi v Holt, Rinehart & Winston, 42 NY2d at 383).
Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was to dismiss the amended complaint pursuant to
Santucci, J.P., Krausman, Florio and Lifson, JJ., concur.