Posted by: Patricia Salkin | January 23, 2019

NY Appellate Court Finds No Immunity for Property Owner’s Public Hearing Statements Impugning Neighbor

This post was authored by Amy Lavine, Esq.

A New York case decided earlier this year addressed some allegedly defamatory statements made by a building permit applicant during the course of a public hearing before the local historic preservation board. The challenged comments were addressed to a neighbor who had voiced his opposition to the application, and they impugned his motivations and morality, as well as hinting that he had deviant sexual tendencies. Although statements made during a public hearing are normally protected from defamation challenges by an absolute privilege, the court held that the comments in this case, which had no bearing or relevance to the building permit at issue before the board, were not entitled to this protection.

The dispute in this case involved a public hearing held by a historic preservation board to consider an application for an exterior staircase addition. The proposal was submitted by Barbara Wilson, and several residents voiced comments in opposition, including her neighbor, Anthony Gugliotta. He raised particular concerns about whether Wilson actually needed the staircase for her daughter’s safety, pointing out that her daughter’s bedroom was on the ground floor. In response to this comment, Wilson made a series of statements regarding Gugliotta and hinting that his interests in her daughter’s bedroom were less than wholesome:
“I’m so glad you’re worried about my daughter.”
“Since he’s so concerned about my daughter, I’ll be enforcing the settlement that we entered into where his camera is not supposed to be… on my daughter’s bedroom window.”
“Just when people bring up my daughter, it’s a little upsetting to me. . . . Especially when grown men want to look at little girls.”
The chairman of the board had attempted throughout the exchange to remind and encourage Wilson to address her comments to the board, not Gugliotta, and to focus on issues relevant to her proposed staircase. Upon her comment about grown men looking at little girls, the chairman exclaimed “Whoa. We don’t want to get into that.” Even after the hearing had been adjourned, but before the video recording was stopped, Wilson was recorded offscreen warning Gugliotta to “stay away from my daughter.” The video of the hearing, the court also be noted, was broadcast on local television.

The court began its analysis of Gugliotta’s defamation claim by setting out the elements of the action: “(a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se.” The court also explained that it was necessary to consider whether any immunity attached that would preclude liability for any defamatory statements. As the court explained: “The absolute privilege generally is reserved for communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings. This protection is designed to ensure that such persons’ own personal interests—especially fear of a civil action, whether successful or otherwise—do not have an adverse impact upon the discharge of their public function.”

Applying these rules to the facts at hand and considering all of the circumstances, the court first concluded that Wilson’s statements tended to expose Gugliotta to public contempt, hatred, ridicule, aversion, and disgrace. As comments made in the context of a public hearing, the court acknowledged that they would ordinarily be subject to absolute privilege and shielded from any liability for defamation. However, the court emphasized that “the absolute privilege embraces only those statements that may possibly be or become material or pertinent to the matters before the Board,” and under the circumstances of this case, the court could find “not one scintilla of evidence present upon which to base the possible pertinency of [the] defendant’s statement[s].” Accordingly, absolute privilege did not apply and the court affirmed the judgment below refusing to grant Wilson’s motion to dismiss.
Gugliotta v Wilson, 168 A.D.3d 817 (NY App. Div. 2d Dept. 1/16/19).

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