Stroup v. Nazzaro , 937 N.Y.2d 794 ( 2012 )

Memorandum: Plaintiff commenced this action seeking, inter alia, damages for allegedly defamatory statements made by then 13-year-old Sarah Nazzaro (defendant) and her father, defendant Charles Nazzaro (hereafter, father), who is sued individually and as parent and natural guardian of defendant. Those statements were made in connection with an incident that occurred during a return bus ride from a gymnastics meet. Supreme Court granted defendants’ motion seeking summary judgment dismissing the complaint. We affirm.

We reject plaintiffs contention that the court erred in granting that part of the motion with respect to the cause of action for defamation per se. In determining whether defendant’s statement during the incident is actionable, the statement must be “considered in its applicable context” (Gross v New York Times Co., 82 NY2d 146, 155 [1993]) and “in terms of [its] effect upon the average listener” (Park v Capital Cities Communications, 181 AD2d 192, 195 [1992], appeal dismissed 80 NY2d 1022 [1992], lv dismissed in part and denied in part 81 NY2d 879 [1993]). Defendant’s statement that plaintiff was an “abuser,” viewed in the context of the heated incident on the bus, “amounted to no more than name-calling or a general insult, a type of epithet not to be taken literally and not deemed injurious to reputation” (DePuy v St. John Fisher Coll., 129 AD2d 972, 973 [1987], lv denied 70 NY2d 602 [1987]; see Ram v Moritt, 205 AD2d 516 [1994]).

The court properly determined that the statements made by the father in connection with the investigation of the incident are protected by a qualified privilege (see Mancuso v Allergy Assoc. of Rochester, 70 AD3d 1499, 1500-1501 [2010]). We further conclude that defendant’s statements to school officials and the police about what transpired during the incident on the bus are similarly protected by a qualified privilege, and plaintiff failed to raise a triable issue of fact whether those statements of defendant and her father were motivated solely by malice (see id.). In addition, defendants established that defendant made no further statements about the incident at school, and plaintiffs submissions in opposition to the motion are based upon hearsay and thus insufficient to raise a triable issue of fact (see Scaccia v Dolch, 231 AD2d 885 [1996]).

Finally, we note that plaintiff does not contend in her brief that the court erred in granting those parts of defendants’ motion seeking summary judgment dismissing the remaining causes of action, and we therefore deem abandoned any issues with respect thereto (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]).

All concur except Garni, J., who dissents in part and votes to modify in accordance with the following memorandum.