        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

135
CA 15-01085
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.


TATTOOS BY DESIGN, INC., DOING BUSINESS AS
“HARDCORE TATTOO”, AND NICHOLE K. HUDSON,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

MARK KOWALSKI, HANS KULLERKUPP, ERIE COUNTY
DEPARTMENT OF HEALTH AND COUNTY OF ERIE,
DEFENDANTS-APPELLANTS.


MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY C. TOTH OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

THE LAW OFFICE OF PARKER R. MACKAY, KENMORE (PARKER R. MACKAY OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered April 29, 2015. The order denied the motion of
defendants for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the amended complaint is dismissed.

     Memorandum: Plaintiffs commenced this action asserting in an
amended complaint causes of action for defamation and tortious
interference with business relations. Plaintiffs alleged that
defendants published a press release associating them with a tattoo
artist whose work had been linked to eight skin infections. The
tortious interference cause of action was subsequently dismissed. We
agree with defendants that Supreme Court erred in denying their motion
for summary judgment seeking dismissal of the amended complaint.

     In 2007, the New York State Department of Health (DOH) began to
investigate a cluster of illnesses related to tattoos given by a
certain tattoo artist. When interviewed by DOH officials, the tattoo
artist stated that he had engaged in tattoo work in the past in Erie
County while affiliated with plaintiff Tattoos By Design, Inc., doing
business as “Hardcore Tattoo” (Hardcore). Although defendants were
unable to confirm that the tattoo artist had been employed by or
affiliated with Hardcore, defendant Erie County Department of Health
issued a joint press release with DOH and the Niagara County
Department of Health, advising that they had identified eight people
who had developed skin infections after receiving tattoos from the
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                                                         CA 15-01085

tattoo artist, and that the tattoo artist had “reported working in
Erie County during 2004 and/or 2005 as an independent contractor for
Hardcore” and had “reportedly performed tattoos at several home
parties while associated with Hardcore.” Earlier drafts of the press
release stated definitively that the tattoo artist had worked for
Hardcore, but one of the individual defendants asked that the press
release be changed to state that the tattoo artist had only reported
that he had worked for Hardcore.

     “The elements of a cause of action for defamation are a false
statement, published without privilege or authorization to a third
party, constituting fault as judged by, at a minimum, a negligence
standard, and it must either cause special harm or constitute
defamation per se” (Accadia Site Contr., Inc. v Skurka, 129 AD3d 1453,
1453 [internal quotation marks omitted]). Here, plaintiffs conceded
in response to the motion that they could not prove that the
statements set forth in the press release are false, thereby conceding
that they could not establish a prima facie case of defamation.

      Even assuming, arguendo, that plaintiffs could establish a prima
facie case of defamation, we conclude that defendants established
their entitlement to summary judgment as a matter of law by
establishing that the statements are protected by a qualified
privilege. “Generally, a statement is subject to a qualified
privilege when ‘it is fairly made by a person in the discharge of some
public or private duty, legal or moral, or in the conduct of his own
affairs, in a matter where his interest is concerned’ ” (Rosenberg v
MetLife, Inc., 8 NY3d 359, 365, quoting Toker v Pollak, 44 NY2d 211,
219). Defendants, as public health officials, had a public duty to
inform the public about the hazards of potential exposure to the
subject tattoo artist’s work (see Public Health Law § 2100; Feldschuh
v State of New York, 240 AD2d 914, 915-916), and it was within the
scope of that duty that the press release containing the allegedly
defamatory statements was issued (see Schell v Dowling, 240 AD2d 721,
722).

     Once defendants established that the statements in the press
release were protected by a qualified privilege, the burden shifted to
plaintiffs to raise a triable issue of fact “whether the statements
were motivated solely by malice” (Mancuso v Allergy Assoc. of
Rochester, 70 AD3d 1499, 1501; Feldschuh, 240 AD2d at 915-916),
meaning “spite or a knowing or reckless disregard of a statement’s
falsity” (Rosenberg, 8 NY3d at 365; see Kondo-Dresser v Buffalo Public
Schs., 17 AD3d 1114, 1115). Plaintiffs failed to meet that burden.
Indeed, plaintiffs conceded that there is no evidence that defendants
acted with spite and, as noted, one of the individual defendants
insisted on changes to a draft of the press release to make it
accurately reflect that the allegedly defamatory statements were based
only on what the tattoo artist had reported, thereby demonstrating
that defendants did not act with reckless disregard of the statements’
falsity.

     In light of our determination, we do not address defendants’
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                                              CA 15-01085

remaining contentions.




Entered:   February 11, 2016         Frances E. Cafarell
                                     Clerk of the Court
