87 Misc. 2d 61 | New York Court of Claims | 1976
The claim herein is for money damages arising from an alleged defamatory statement by a New York State Health Department official that land owned by claimant was part of an unapproved subdivision (Public Health Law, §§ 1115-1120) and could not be sold.
Defendant’s instant cross motion for dismissal of the claim is on the grounds of lack of subject matter jurisdiction (CPLR 3211, subd [a], par 2) and failure to state a cause of action (CPLR 3211, subd [a], par 7). The State argues this court lacks subject matter jurisdiction because claimant is "in reality” asking for a declaratory judgment and we are without jurisdiction to grant such relief. It contends the claim fails to state a cause of action because: (a) the allegations of the claim do not make out an action for slander of title; and (b) the statement by the Health Department employee was absolutely privileged.
We find no merit to defendant’s jurisdictional argument. The claim clearly requests money damages and money damages only. The fact the determination of the claim may involve the judicial interpretation of the applicable statutes does not change the nature of the requested relief. Such interpretation would only be an adjunct to said relief, not a substitute for it.
It is noted, parenthetically, the binder agreement was referable only to $33,000 of claimant’s total alleged damages of $116,000 and there are no allegations in the claim revealing the special nature of the other $83,000 of damages. However, while there is authority for dismissing parts of a cause of action (see Myer v Myer, 271 App Div 465, 476, affd 296 NY 979; Forse v Turner, 55 Misc 2d 810, 812; Gordon v Pushkoff, 67 NYS2d 873, 874, affd 272 App Div 872), we do not think it proper where such relief was not requested (see Fernwood Trout Hatchery v State of New York, 50 AD2d 1035) and where the instant application was addressed to the entire claim. (See Richardson v Coy, 28 AD2d 640.) CPLR 3211 (subd [a]) does not by its language permit dismissal of part of a cause of action, an omission whose significance is underlined by the express provision for partial summary judgment in the succeeding rule. (See CPLR 3212, subd [e].) A similar case,
As to absolute privilege, we find it inapplicable here. The doctrine of absolute privilege completely immunizes certain classes of persons from liability for defamatory statements, even though maliciously uttered. (Hyman v Press Pub. Co., 199 App Div 609, 611.) The privilege is accorded to some government executives as to statements made in and related to the exercise of their official duties. (Lombardo v Stoke, 18 NY2d 394, 400; Cheatum v Wehle, 5 NY2d 585, 592, 593; see, also, Spalding v Vilas, 161 US 483.) This executive immunity is based on policy considerations which posit that efficient government requires officials who are not subject (unjustly or otherwise) to the distracting inconveniences of civil litigation arising from the performance of their official duties. Such immunity permits the selected officials to discharge their duties without fear of civil retaliation, even though individuals may suffer injury from such discharge without being able to recover therefor. (Lombardo v Stoke, supra, p 400, 401; Cheatum v Wehle, supra, pp 592, 593; see, also, Scheuer v Rhodes, 416 US 232, 238-243; Barr v Matteo, 360 US 564, 568-576.)
The privilege does not extend to all who perform governmental functions (Peeples v State of New York, 179 Misc 272, 276) and, because of the possibilities of abuse and injustice, it should not be facilely extended. (See Pecue v West, 233 NY 316, 321; Andrews v Gardiner, 224 NY 440, 448; concurring opn of Keating, J., in Lombardo v Stoke, supra, p 402, cited in McAulay v Maloff, 82 Misc 2d 447, 450.) In determining which officials should be immunized, the key test is the nature and extent of the duties they perform. (Smith v Helbraun, 21 AD2d 830, 831; see, also, Scheuer v Rhodes, supra, pp 242-248; Barr v Matteo, supra, pp 573, 574), with the importance of
On the record before us, we do not believe the State employee has been shown entitled to absolute privilege. Generally privilege is an affirmative defense to be pleaded and
Accordingly, the State’s cross motion to dismiss this claim is denied.
. We are aware that in both Kendall v Stone (supra) and Felt v Germania Life Ins. Co. (supra), the actions were dismissed because the existence of signed contracts of sale made specific performance available and thereby negated specific damages. Here, however, the claim alleges no contract of sale was executed and only a binder agreement was signed. The papers before us are insufficient to permit a determination of whether said agreement could be specifically performed (see, e.g., 55 NY Jur, Specific Performance, §§ 19-21). Claimant’s affidavit in opposition fails to disclose the terms of the binder agreement, although it does indicate the binder preceded the preparation of a "proposed” contract of sale. One of the two briefs claimant submitted on this cross motion did allude to facts presumably precluding specific performance, but facts thus presented are not properly before us and were not considered.
. In this connection, one of the many cases cited by defendant’s counsel and substantially relied on is Thompson v Union Free School Dist. No. 1 of Huntington (45 Misc 2d 916). There the defendant school district was sued for alleged defamatory statements made by an acting assistant district principal to plaintiff’s employer. Said principal was not sued as a codefendant, but was alleged to be defendant school district’s duly authorized representative. In this posture, on a motion for summary judgment, the court considered the nature and extent of only the school district’s duties and not those of the acting assistant principal. This anomalous analysis can be justified (if at all) only on the narrow ground the acting assistant principal was not acting as such, but rather as a mere conduit for acts of the school district itself. It has no relevance here since the statement of the subject employee can by no realistic reasoning be considered a direct act of the Commissioner of the State Health Department or the Governor of the State of New York.
. Claimant already has such burden in order to establish his cause of action for slander of title. We note the disclosure requested by claimant in its companion motion herein may very well supply such proof (cf. Trails West v Wolff, supra, pp 221, 222).