Goldstein v. Gabbit, LLC

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
SETH GOLDSTEIN,
Plaintiff,
v. 	1:25-CV-0318
(GTS/DJS)
GABBIT, LLC,
Defendant.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
LUIBRAND LAW FIRM, PLLC 	KEVIN A. LUIBRAND, ESQ.
Counsel for Plaintiff
950 New Loudon Road
Latham, NY 12110
TRAUB LIEBERMAN STRAUS 	LISA L. SHREWSBERRY, ESQ.
& SHREWSBERRY, LLP
Counsel for Defendant
Mid-Westchester Executive Park
7 Skyline Drive
Hawthorne, NY 10532
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this defamation action filed by Seth Goldstein (“Plaintiff”)
against Gabbit, LLC (“Defendant”), is Defendant’s motion to dismiss Plaintiff’s Amended
Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. Nos. 12, 13.)
For the reasons set forth below, Defendant’s motion is granted.
I. 	RELEVANT BACKGROUND
A. 	Plaintiff’s Amended Complaint
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Generally, in his Amended Complaint, Plaintiff asserts two claims: (1) a claim of
defamation; and (2) a claim of defamation per se. (Dkt. No. 8.) Both of these claims are based
on alleged statements made by representatives of Defendant in an email and two print articles in
the Albany Times Union in which those representatives stated that either Plaintiff specifically or
the Town of Niskayuna had requested that call recordings should be turned on for all phone
extensions (rather than only for phones in the Police Department) as part of the phone system
Defendant was constructing for the Town. (Id.) Plaintiff alleges that Defendant’s statement to
that effect is false because he specifically told Defendant that the call recording was to be turned
on only for phones in the Police Department, and that Defendant’s statements resulted in him
being first suspended, and then later fired, from his job as the Town’s Systems Administrator.
(Id.)
B. 	Parties’ Briefing on Defendant’s Motion to Dismiss
1. 	Defendant’s Memorandum of Law
Generally, in its motion, Defendant makes four arguments. (Dkt. No. 13, Attach. 5.)
First, Defendant argues that, to the extent Plaintiff’s defamation claims arise from statements
made in the email communication between Eric Scher and John Clark (which was shared with
the Town’s attorney), such statements are protected by the common interest privilege. (Id. at 17-
19.) More specifically, Defendant argues that the relevant statement was made in the context of
Mr. Scher answering questions posed by the investigator hired by the Town related to the
unwanted recording of the Town’s phone lines by Defendant Gabbit’s system, a business topic
upon which all the parties involved in that exchange had a common interest, and that Plaintiff
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has not alleged facts to plausibly suggest that Mr. Scher (and by extension Defendant Gabbit)
acted with actual malice in the making of those statements. (Id.)
Second, Defendant argues that, to the extent that Plaintiff’s claims arise from the cited
articles printed by the Albany Times Union, those claims are not based on any defamatory
statement made by Defendant Gabbit. (Id. at 20-21.) More specifically, Defendant argues that a
fair reading of the statements attributed to Defendant Gabbit (through its representatives) in
those articles leads to the conclusion that they are not defamatory because (a) the first article
(from January 14, 2025) gave a reasonable reader the overall impression that Defendant Gabbit
was responsible for the phone system issue, and contained only a single statement from
Defendant Gabbit setting forth its position on the issue (without even naming Plaintiff), and (b)
the second article (from February 27, 2025) gave a reasonable reader the overall impression that
Plaintiff was terminated from his position as System Administrator because he had been held
accountable as the person responsible for the phone system in general, and contained only a
single statement from Defendant Gabbit reiterating that it had followed directions from the Town
to activate the recording feature (again without naming Plaintiff specifically as the source of that
direction). (Id.)
Third, Defendant argues that Plaintiff has also failed to state a claim for defamation
because he has not alleged facts plausibly suggesting the existence of special damages. (Id. at
22-23.) More specifically, Defendant argues that the damages alleged by Plaintiff consist of
legal fees related to defending himself in the disciplinary hearing, lost income in excess of
$200,000, and unspecified compensatory and punitive damages, and that he has not alleged and
cannot allege any direct connection between the alleged damages and the defamatory statements
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because he was suspended from his position before any statement was made and he has not
alleged that any statement by Defendant Gabbit caused him to be unable to find employment.
(Id.)
Fourth, Defendant argues that Plaintiff has failed to state a claim of defamation per se
because the alleged statements neither accuse Plaintiff of any serious crime nor in any way
suggest that Plaintiff is incompetent or dishonest or otherwise unable to perform his chosen
profession, and he has not plausibly alleged that those statements actually injured him in his
profession. (Id. at 24-25.)
2. 	Plaintiff’s Opposition Memorandum of Law
Generally, in his opposition memorandum of law, Plaintiff makes four arguments. (Dkt.
No. 15.) First, Plaintiff argues that the statements made in Mr. Scher’s email are not protected
by the common interest privilege because Plaintiff has plausibly alleged that Defendant acted
with malice in making those statements by alleging that Defendant was aware of the truth and
recklessly disregarded it. (Id. at 8-11.)
Second, Plaintiff argues that Defendant’s statements to the media in the Albany Times
Union articles constitute defamation because a fair reading of those articles generally places the
blame on Plaintiff as a result of Defendant’s untrue statements. (Id. at 11-13.)
Third, Plaintiff argues that he has alleged the existence of special damages sufficient to
state a claim of defamation because he has alleged that the relevant defamatory statements were
the basis for his disciplinary hearing, the disciplinary actions taken against him, and the ultimate
termination of his employment, which has caused damage to his character and reputation, lost
income, lost benefits, legal fees, mental anguish, and emotional distress. (Id. at 14-16.)
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Fourth, Plaintiff argues that he has stated a cause of action for defamation per se because
the relevant statements not only tend to injure him in his profession given that they plausibly
suggest that Plaintiff committed misconduct and was engaged in dishonest behavior, but also
accuse him of committing a serious crime, namely wiretapping pursuant to N.Y. Pen. L. §
250.05. (Id. at 16-21.)
3. 	Defendant’s Reply Memorandum of Law
Generally, in its reply memorandum of law, Defendant makes four arguments. (Dkt. No.
16.) First, Defendant repeats its argument that Plaintiff’s claims based on the statements made in
the email are barred by the common interest privilege. (Id. at 6-8.) More specifically, Defendant
notes that Plaintiff does not challenge that the relevant statements are privileged but rather
asserts only that he has plausibly alleged actual malice to overcome that privilege. (Id.)
Defendant argues that Plaintiff has, however, not provided any sufficient factual allegations
plausibly suggesting actual malice, only a conclusory assertion that Defendant Gabbit was
attempting to avoid blame for the situation. (Id.)
Second, Defendant argues that Plaintiff’s claims arising from the articles must be
dismissed because the statements quoted therein are not defamatory given the fact that both
articles contain only a single statement from Defendant Gabbit stating their position without ever
naming Plaintiff. (Id. at 8-9.)
Third, Defendant argues that Plaintiff has not alleged facts plausibly suggesting his
entitlement to special damages because (a) all he has done is estimate his loss without providing
allegations regarding actual losses, and (b) he has not sufficiently alleged that there is a direct
connection between those purported losses and Defendant Gabbit’s statements. (Id. at 10-11.)
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Fourth, Defendant argues that Plaintiff has not stated a claim for defamation per se for
the following reasons: (a) the relevant statements never accuse Plaintiff of any crime, much less
wiretapping as he now asserts; and (b) the relevant statements do not cause injury to him in his
profession, because they are limited to Defendant’s understanding of a single, discrete aspect of
one decision Plaintiff made in the course of his employment that can hardly be interpreted as
suggesting he is incompetent or dishonest, and because Plaintiff has not alleged how his
reputation has actually been harmed as a result of those statements. (Id. at 11-13.)
II. 	GOVERNING LEGAL STANDARD
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cty., 549 F. Supp.2d 204,
211 nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J.) (adopting Report-Recommendation on de novo
review).
Because such dismissals are often based on the first ground, some elaboration regarding
that ground is appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
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On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212 n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212 n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212 n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213 n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an
appellate decision holding that a complaint had stated an actionable antitrust claim under 15
U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In doing so, the Court
“retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
that “a complaint should not be dismissed for failure to state a claim unless it appears beyond
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doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Twombly, 127 S. Ct. at 560-61, 577. Rather than turn on the conceivability of an
actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an
actionable claim. Id. at 555-70. The Court explained that, while this does not mean that a
pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the
pleading must contain at least “some factual allegation[s].” Id. at 555. More specifically, the
“[f]actual allegations must be enough to raise a right to relief above the speculative level [to a
plausible level],” assuming (of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (internal quotation marks
and citations omitted). However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
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supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
any matter of which the court can take judicial notice for the factual background of the case.1
1 	See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a
pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-573,
2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion to
dismiss for failure to state a claim to a motion for summary judgment is not necessary under Fed.
R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached to the
complaint or answer, [2] documents incorporated by reference in the complaint (and provided by
the parties), [3] documents that, although not incorporated by reference, are “integral” to the
complaint, or [4] any matter of which the court can take judicial notice for the factual
background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)
(explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may
consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and
documents incorporated by reference in the complaint. . . . Where a document is not
incorporated by reference, the court may nevertheless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”)
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III. 	ANALYSIS
A. 	Whether Plaintiff’s Defamation Claims Based on the Email of June 18, 2024,
Are Barred By the Common Interest Privilege
After careful consideration, the Court answers the above question in the affirmative for
the reasons stated in Defendant’s memoranda of law. See, supra, Parts I.B.1 and I.B.3 of this
Decision and Order. To those reasons, the Court adds the following analysis (which is intended
to supplement, and not supplant, Defendant’s reasons).
“‘A communication made by one person to another upon a subject in which both have an
interest is protected by a qualified privilege.’” Ferrara v. Esquire Back, 153 A.D.3d 671, 673
(N.Y. App. Div. 2d. Dept. 2017) (quoting Stillman v. Ford, 22 N.Y.2d 48, 53 [N.Y. 1968]);
accord, Carroll v. Trump, 151 F.4th 50, 75 (2d Cir. 2025). “However, this ‘common-interest
privilege’ may be overcome by a showing of malice.” Ferrara, 153 A.D.3d at 673 (citing
Colantonio v. Mercy Med. Ctr., 115 A.D.3d 902, 982 [N.Y. App. Div. 2d Dept. 2014]). “‘To
establish the ‘malice’ necessary to defeat the privilege, the plaintiff may show either common-
law malice, i.e., ‘spite or ill will,’ or show ‘actual malice,’ i.e., knowledge of falsehood of the
statement or reckless disregard for the truth.’” Ferrara, 153 A.D.3d at 673 (quoting Diorio v.
[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant's motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
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Ossining Union Free Sch. Dist., 96 A.D.3d 710, 712 [N.Y. App. Div. 2d Dept. 2012]). Where a
plaintiff relies on common-law malice to defeat such privilege, he or she must sufficiently allege
that “‘it was the one and only cause for the publication.’” Carroll, 151 F.4th at 76 (quoting
Liberman v. Gelstein, 90 N.Y.2d 429, 439 [N.Y. 1992]). As to actual malice, a plaintiff “must
demonstrate that the statements were made with a high degree of awareness of their probable
falsity.” Halpin v. Banks, 231 A.D.3d 1337, 1341 (N.Y. App. Div. 3rd Dept. 2024) (citing Grier
v. Johnson, 232 A.D.2d 846, [N.Y. App. Div. 3rd Dept. 1996]); accord Gandhi v. New York
State Unified Court Sys., 20-CV-0120, 2024 WL 365119, at *4 (N.D.N.Y. Jan. 31, 2024) (Kahn,
J.). Moreover, for actual malice to exist, “the critical question is the state of mind of those
responsible for the publication.” Hodges v. Lutwin, 595 F. Supp. 3d 12, 20 (S.D.N.Y. 2022)
(quoting Palin v. New York Times Co., 940 F.3d 804, 810 [2d Cir. 2019]).
In this case, Plaintiff appears to have conceded that the email constitutes a situation to
which the common interest privilege applies, given that he has not presented any arguments to
the contrary on that point and instead argues only that such privilege does not bar his claims
because he has alleged that Defendant acted with malice. (Dkt. No. 15, at 8-9.) See also
N.D.N.Y. L.R. 7.1(a)(3) (deeming unopposed arguments as having been “consent[ed] to”).
As a threshold matter, the Court finds that Plaintiff has not alleged facts plausibly
suggesting the existence of common-law malice. Rather, he alleges that Defendant acted with
malice only because it “was seeking to blame someone other than itself” and because it wanted
to “avoid responsibility falling on Gabbit for its improper recording of telephone calls at the
town.” (Dkt. No. 8, at ¶ 40.) In this regard, Plaintiff’s own factual allegations undermine any
plausible suggestion of common-law malice because they plausibly suggest that Defendant was
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not motivated solely by some ill will toward or desire to harm Plaintiff, but rather by its own
self-interest in avoiding responsibility.
As to actual malice, Plaintiff alleges that Defendant knew that the statements it made
were false at the time they were made “because Gabbit had wrongfully set up the system to
record calls against the direction from Plaintiff through Deats.” (Dkt. No. 8, at ¶ 39.) As stated
previously, the relevant statement in the email was made by Mr. Scher, who is noted to be
Defendant’s Vice President and General Counsel in his email signature.2 (Dkt. No. 13, Attach.
2.) As a result, Plaintiff must allege facts plausibly suggesting that Mr. Scher specifically acted
with actual malice. See Palin, 940 F.3d at 810 (noting, in a case in which the plaintiff sued the
newspaper that printed the defamatory statement, that “[b]ecause the Times identified Bennett as
the author of the editorial, it was his state of mind that was relevant to the actual malice
determination”); Dongguk Univ. v. Yale Univ., 734 F.3d 113, 123 (2d Cir. 2013) (“[T]he plaintiff
must identify the individual responsible for publication of a statement, and it is that individual
that plaintiff must prove acted with actual malice.”).
Yet Plaintiff offers no factual allegations plausibly suggesting that Mr. Scher had
knowledge that his statement was false or that he acted in a manner that recklessly disregarded
the truth. Rather, Plaintiff alleges that, “[d]uring the setup of the system, Plaintiff communicated
to Deats [who at the time worked for Fluent Voice, the contractor that had originally been
2 	The Court notes that it may consider this email (which was provided as an exhibit with
Defendant’s motion) because it is clearly integral to the Complaint given that the allegedly
defamatory statement that provides at least part of the basis for Plaintiff’s claims was made
therein. Furthermore, Plaintiff does not raise a dispute regarding the authenticity or accuracy of
the document.
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retained to create the new system] . . . the Town’s decision that the Police Department telephone
calls were to be recorded, and that no other Town telephones were to be recorded.”3 (Dkt. No. 8,
at ¶ 13.) Plaintiff further alleges that, after Fluent was acquired by Defendant in July 2022,
Deats (who had been retained by Defendant but chose to leave that employment) informed
Defendant’s Senior Network Engineer, Jason Taylor, that “in accordance with Plaintiff’s
directive on behalf of the Town, the telephone system should be turned on to record only the
Police Department telephone calls,” an instruction Deats repeated after “[t]he Gabbit
representative setting up the Town telephone system told Deats that he was just going to turn it
all on.” (Id. at ¶¶ 18-21, 23.) Plaintiff acknowledges that he “never had any communication
with . . . Taylor, and only communicated with Gabbit through Deats.” (Id. at ¶ 20.)
While Plaintiff alleges that Mr. Taylor and potentially another unidentified Gabbit
representative who set up the phone system were made aware that Plaintiff had told Ms. Deats
that the system should be set up to record only calls to and from the Police Department, he
notably does not make any factual allegations that would plausibly suggest that Mr. Scher, as the
person responsible for the publication of the statement, was aware of that fact such that his
statements represent a knowing falsehood or reckless disregard for the truth. In particular, there
is nothing to plausibly suggest that either of those individuals with whom Ms. Deats had contact
(or Ms. Deats herself) ever informed Mr. Scher of Plaintiff’s alleged instructions regarding
recording. See Kitani v. New York City Transit, 19-CV-1043, 2022 WL 874781, at *12
(S.D.N.Y. Mar. 24, 2022) (dismissing defamation claims based on privilege where the plaintiff
3 	Plaintiff alleges as part of this fact that Deats was acting as Defendant’s agent at the time
of this conversation, but his own factual allegations do not plausibly suggest whether this
conversation occurred before or after Fluent was acquired by Defendant.
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failed to make any factual allegations to suggest that the defendant who made the statements was
aware of the falsity of those statements or that he had serious doubts about their truthfulness).
Under these circumstances, Plaintiff has not alleged facts to plausibly suggest that Mr. Scher
acted with actual malice in making the relevant statement. He has therefore failed to sufficiently
allege facts to overcome the common interest privilege.
For these reasons, Plaintiff’s defamation claims based on the email statements made by
Mr. Scher must be dismissed.
B. 	Whether the Statements Published in the Albany Times Union Articles of
January 14, 2025, and February 27, 2025, Are Defamatory
After careful consideration, the Court answers the above question in the negative for the
reasons stated in Defendant’s memoranda of law. See, supra, Parts I.B.1 and I.B.3 of this
Decision and Order. To those reasons, the Court adds the following analysis (which is intended
to supplement, and not supplant, Defendant’s reasons).
In addition to being false, “[a] defamatory statement is one that ‘exposes an individual to
public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism,
degradation, or disgrace, or induces an evil opinion of one in the minds of right-thinking persons,
and deprives one of confidence and friendly intercourse in society.’” Graham v. UMG
Recordings, Inc., 25-CV-0399, 2025 WL 2879607, at *4 (S.D.N.Y. Oct. 9, 2020) (quoting Jacob
v. Lorenz, 626 F. Supp. 3d 672, 690 [S.D.N.Y. 2022]). “In an action to recover damages for
defamation, ‘[t]he issue of whether particular words are defamatory presents a legal issue to be
resolved by the court.’” Greenberg v. Spitzer, 155 A.D.3d 27, 44 (N.Y. App. Div. 2d Dept.
2017) (quoting Brach v. Congregation Yetev Lev D’Satmar, 265 A.D.2d 360, 361 [N.Y. App.
Div. 2d Dept. 1999]); see also Aronson v. Wiersma, 65 N.Y.2d 592, 593 (N.Y. 1985) (“Whether
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particular words are defamatory presents a legal question to be resolved by the court in the first
instance.”).
In assessing whether a statement or publication is defamatory, the Second Circuit has
indicated that a court should adhere to the following standards: (1) the court “‘must give the
disputed language a fair reading in the context of the publication as a whole,’” not reading the
statement in isolation, but rather “as the average reader would against the ‘whole apparent scope
and intent’ of the writing”; (2) the court should not “‘strain to interpret such writings in their
mildest and most inoffensive sense to hold them nonlibelous’”; and (3) “‘the words are to be
construed not with the close precision expected from lawyers and judges but as they would be
read and understood by the public to which they are addressed,’” or, in other words, it is “the
meaning reasonably attributable to the intended reader that controls.” Celle v. Filipino Reporter
Enters. Inc., 209 F.3d 163, 177 (2d Cir. 2000) (emphasis in original) (quoting Armstrong v.
Simon & Schuster, Inc., 85 N.Y.2d 373 [N.Y. 1995]; November v. Time Inc., 13 N.Y.2d 175
[N.Y. 1963]); see also Aronson, 65 N.Y.2d at 594 (“The words must be construed in the context
of the entire statement or publication as a whole, tested against the understanding of the average
reader, and if not reasonably susceptible to a defamatory meaning, they are not actionable and
cannot be made so by strained or artificial construction.”) (collecting cases).
Relatedly, “[i]n order to establish a prima facie case of defamation, plaintiffs must show
that the matter published is ‘of and concerning’ them.” Three Amigos SJL Rest., Inc. v. CBS
News Inc., 28 N.Y. 3d 82, 86 (N.Y. 2016) (citing Julian v. Am. Bus. Consultants, 2 N.Y.2d 1, 17
[N.Y. 1956]). “Although it is not necessary for plaintiffs to be named in the publication, they
must plead and prove that the statement referred to them and that a person hearing or reading the
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statement reasonably could have interpreted it as such.” Three Amigos SJL Rest. Inc., 28 N.Y.3d
at 86; see also Elias v. Rolling Stone LLC, 872 F.3d 97, 104-05 (2d Cir. 2017) (indicating that a
statement is of and concerning the plaintiff where “‘the reading public acquainted with the
parties and the subject’ would recognize plaintiff as a person to whom the statement refers”)
(quoting Carlucci v. Poughkeepsie Newspapers, Inc., 57 N.Y.2d 883, 885 [N.Y. 1982]). This is
also a question of law for a court to decide. Three Amigos SJL Rest. Inc., 28 N.Y.3d at 87 (citing
Springer v. Viking Press, 60 N.Y.2d 916, 917 [N.Y. 1983]); Elias, 872 F.3d at 105.
As indicated earlier, the statements in question were present in articles published by the
Albany Times Union on January 14, 2025, and February 27, 2025. More specifically, in the
article from January 14, 2025, a spokesman for Defendant, Ryan Hawkins, is noted as having
“previously said” that “the town had requested the recording feature for all incoming and
outgoing phone calls be activated and be kept on the server for a year instead of the standard
three months.” (Dkt. No. 13, Attach. 3, at 5.) Similarly, in the article from February 27, 2025, it
is noted that the Town Attorney reported that “Gabbit is telling us that he requested they be
turned on,” and that Defendant “has steadfastly told the Times Union that the town had requested
the recording feature to all incoming and outgoing phone calls be activated and be kept on a
server for a year instead of the standard three months.” (Dkt. No. 13, Attach. 4, at 5-6.)
As to the article from January 14, 2025, the Court finds that, although the relevant
statement within the full context of the article just barely meets the “of and concerning”
requirement (in that Mr. Hawkins’ reference to the fact that “the town” had requested the
recordings is provided alongside facts that Plaintiff, by name, was noted to be subject to a
disciplinary hearing related to the phone system recording as well as the implication that he was
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responsible for that phone system generally), it does not constitute defamation. As Defendant
argues, the article as a whole generally focuses on the assertion that Gabbit was responsible for
improperly turning on the recording of all Town phone lines, with the relevant statement by Mr.
Hawkins presented as Defendant’s brief counter-explanation for how that occurred.
Similarly, as to the article from February 27, 2025, although again the relevant statements
meet the “of and concerning” requirement based on the context in which they are presented, they
are not defamatory. While this article focuses less on accusations of fault against Defendant for
the phone system recording and more on the fact that Plaintiff’s employment was terminated
because of those recordings, it certainly does not present a one-sided story, but balances the
statements by Mr. Hawkins and the Town’s attorney (who, as discussed, relayed that Gabbit had
told her that Plaintiff had requested the recording for all lines) with statements by Plaintiff’s
attorney clearly espousing a perspective that Defendant is to blame for the recording being
turned on and that Plaintiff’s disciplinary hearing was not fairly conducted. (Dkt. No. 13,
Attach. 4, at 6-7.) Moreover, the article does not state that Plaintiff’s employment was
terminated specifically because of the relevant statements made by Defendant’s representative,
but that the recordings were occurring for two years before the mistake was discovered and that
Plaintiff was held “solely responsible for the phone systems for the town of Niskayuna.” (Dkt.
No. 13, Attach. 4, at 4-9.) The article further includes statements from Plaintiff’s attorney that,
as already discussed, the disciplinary proceedings were not impartial or fair. (Id.)
Construed in the context of each of these articles, the relevant statements would not be
interpreted as defamatory by an intended reader of the Albany Times Union. Rather, as discussed
above, they merely present Defendant’s explanation for why the recording was turned on for all
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Town phone lines as a counter-balance for other explanations that place the blame for that
mistake on Defendant, and place those competing explanations within the context of Plaintiff’s
role as the overseer of the Town’s phone system. Importantly, neither of these articles suggest
even implicitly that Mr. Hawkins’ version of events is the correct one, nor does the context of the
articles attempt to lead the reader to the conclusion that Defendant’s statements are true. As a
result, even if Defendant’s assertions in these articles that Plaintiff told it to turn on the recording
feature for the entire system were determined to be false after a factfinding proceeding, those
assertions have not reasonably exposed Plaintiff to the sorts of negative reputational
consequences that distinguish a defamatory statement from a merely false one. For these
reasons, Plaintiff’s defamation claims based on the statements in the two articles are dismissed.4
ACCORDINGLY, it is
ORDERED that Defendant’s motion to dismiss (Dkt. Nos. 12, 13) is GRANTED.
Dated: January 26, 2026
Syracuse, New York
4 	Because the Court has found that Plaintiff has not stated a claim of defamation as to any
of the alleged statements, it will not evaluate the parties’ arguments regarding whether Plaintiff
has sufficiently pleaded facts plausibly suggesting the existence of special damages or the
conditions giving rise to defamation per se.
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