Nekos v. KrausNekos v. Kraus
Plaintiff was convicted in a town justice court of sexual abuse in the third degree, falsely reporting an incident in the third degree and certain traffic infractions. On appeal to County Court (Czajka, J.), those convictions were reversed on procedural grounds and all charges, except the sexual abuse charge, were dismissed. Plaintiff later pleaded guilty to disorderly conduct in satisfaction of the remaining charge. During plaintiff‘s later campaign for election to the office of town justice, defendant distributed flyers opposing plaintiff and describing the alleged conduct that had led to his initial convictions. The flyers also stated that the later reversal of those convictions on appeal “solely on technicalities . . . doesn‘t mean the underlying facts aren‘t true.” Plaintiff then commenced this defamation action asserting that defendant‘s flyer falsely implied that he was
In support of his motion, defendant submitted an affidavit averring that the statements in his flyer were an accurate account of the charges against plaintiff and the subsequent reversal of his convictions on appeal. Defendant also submitted a newspaper article from 1999 which set forth the details of plaintiff‘s arrest and convictions, and the County Court decision which reversed those convictions, as proof that there was a factual basis for his statements. Inasmuch as truth is a complete defense to a defamation action and a “basically accurate account is not actionable” (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 383 [1977]; see Proskin v Hearst Corp., 14 AD3d 782, 783 [2005]), Supreme Court properly concluded that defendant had met his burden to show that the flyer‘s statements were substantially true (see Ingber v Lagarenne, 299 AD2d 608, 609-610 [2002], lv denied 99 NY2d 507 [2003]).
Defendant‘s submissions shifted the burden to plaintiff to lay bare his proof of the falsity of the statements in defendant‘s flyer (see id. at 610). Plaintiff, however, submitted only his own affidavit denying that he committed any of the underlying criminal conduct and asserting that the flyer‘s statement, that “[j]ust because the [District Attorney‘s] office bungled this prosecution doesn‘t mean the underlying facts aren‘t true,” would lead an average reader to conclude that he did, in fact, commit the criminal acts alleged. The flyer‘s words, however, are not literally false. Rather, they accurately state the fact that the reversal of a criminal conviction due to procedural errors does not render judgment upon the substantive merits of the charges. While the flyer‘s statement may, to some, suggest plaintiff‘s guilt, innuendo or adverse inferences are insufficient to establish libel (see Roche v Hearst Corp., 53 NY2d 767, 769 [1981]; Proskin v Hearst Corp., 14 AD3d at 784). In addition, plaintiff did not assert that the flyer‘s additional allegations (specifically that the victim of the sexual assault was male and that plaintiff
While plaintiff further alleges that defendant‘s distribution of the flyer violated the court order which sealed his criminal case file pursuant to
Kane, Stein and McCarthy, JJ., concur. Ordered that the order entered March 14, 2008 is affirmed, with costs. Ordered that the appeal from the order entered July 11, 2008 is dismissed.