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- against ESQUIRE REPORTING COMPANY, INC. MALCOLM L. ELVEY and PHILIP C.
90 Civ. 6419 (RWS)
A P PEA KAYE,
C E S: FIERMAN, HAYS & HANDLER
Attorney for Plaintiff 425 Park Avenue New York, New york 10022
By: JAMES D. HERSCHLErN,
AARON RUBINSTEIN, ESQ. MICHAEL K. ROZEN, ESQ. Of Counsel
PAUL J. CURRAN, ESQ.
Attorney for Defendants 620 Pifth Avenue New York, New York 10020
By: ARTHUR H. CHRISTY,
FRANK J. MONTELEONE, SHARON FELDMAN, ESQ.
MARIA T. GALENO, ESQ. Of Counsel
'6'212 632 55-!5
sweet, D. J.
Defendants in this diversity Co., Inc.
action, Esquire Reporting ("Elvey") and Philip C. the
("Esquire"), Malcolm L. Elvey ("Rizzuti"), have moved to
George M. steinbrenner,
for smnmary judgment.
or, in the the
For the following reasons,
motion for summary judgment is granted, and the case is dismissed.
a Florida resident, is a well-known public
the principal owner and fonner Manaqinq General Partner of
the New York Yankees Partnership, a limited partnership which owns and operates the New York Yankees Major League Baseball Team ("the Yankees").
Esquire is a Delaware corporation
located in New York
which provides stenographic services to the legal industry.
a New York
is the principal
oWner and president
Esquire, and Rizzuti, also a New York resident, is a shorthand or court reporter and licensed notary public who works for Esquire as
This Investigation Commissioner
investigation Vincent, into Jr. ,
act.ivities of Steinbrenner
which were suspected of having
violative of the Major League Agreement ("MIA"), the contract which governs the operation of major league baseball.
a result of the Investigation, the Commissioner issued on JUly
severely curtailed steinbrenner's activities with respect to the Yankees. Following the Decision, on October 4, 1990 Steinbrenner
initiated this action, seekinq daroages in the amount of $530,000 from the parties responsible for transcribing certain interviews
whiCh occurred during the course of the Investigation.
The case was initially assigned to the Honorable John E.
spr Lazo , but was transferred
to this Court on January
following Judge Sprizzo's recusal.
The defendants filed their mot.ion on October 24, 1990, and oral argument was heard on February 1, 1991.
Except as otherwise noted, the followinq facts are not in dispute.
1. The Commissioner1s
Major league baseball is regulate by the KIA, under which all professional baseball clUbs, including the Yankees,
National and American Leagues have delegated certain powers to the Commissioner. and practices These powers include the power to investigate acts that might be IInot in the
baseball," and to impose penalties against parties engaged in such acts.'
found to have
'steinbrenner claims that in exercising any of these powers, the Commissioner is bound by certain of rules of procedure promulgated by prior commissioners, which require that all proceedings be conducted "like judicial proceedings and with due regard for all the principals of natural justice and fair play." If the commissioner directs depositions to be taken, the rules provide that such depositions "will proceed substantially as if the testimony had been taken on an open commission in a judicial proceeding. n The defendants dispute the applicability of the rules, claiming that these rules are intended to govern only adversarial proceedings arising out of claims brought before the commissioner by other parties, rather than unilateral investigations instituted by the commissioner on his own initiative. rn any event, while this may be a factual dispute between the parties, it is simply not material to steinbrenner's claims against these defendants, who are not parties to the MLA. At most, this issue would be relevant to a claim by Steinbrenner that the co~issioner misused his power by employing the defendants in a manner which violated the rules.
2. The Investigation
In March, 1990, the commissio~er began the Investigation to determine whether certain of steinbrenner' s activities
concerning his relationship
with an individual named Howard Spira
("Spira") had been "not in the best interests of baseball."
Commissioner appointed John Dowd ("Dowd") to. conduct a preliminary
a report, which the Commissioner
use to decide whether further proceedings
a. The interviews
The major part of Dowd's Investigation
series Of interviews of steinbrenner and other yankee personnel to learn the facts surrounding steinbrenner's association with Spira.
All of these interviews, which took place throughout the month of May 1990, were transcribed
by Rizzuti, the Esquire stenographer.
Each interview began with Rizzuti swearing the witness in, and the transcripts which the Rizzuti produced were each entitled each "Sworn
concluded with a standard certification signed by Rizzuti that the interviewee "was previously sworn and that [this] deposition is a
true record of the testimony given by such witness."
Prior to taking any interviews, !)owdestablished certain procedures to be followed.
The interviewee~ were allowed to have
own counsel present, but Dowd was the only person who would
___;O:...,:6_.'..:_O:::...3 l 91
12 : 28
be allowed to examine the interviewee.
Copies of the interview
transcripts created by Rizzuti were to be provided on~y to Dowd, for his use in preparing his report to the Commissioner. the participants agreed to abide by these procedures. All of
b. The production of the transcripts
Rizzuti described the procedure by which the interview transcripts were produced 1)
During the interviews, Rizzuti would record keystrokes mechanically on paper and electronically on magnetic tape. The magnetic tape would be fed into a computer, "Which would translate the keystrokes into "raw" text, words with no sentence or paragraph structure and no punctuation. A computer operator would edit the raw text, inserting appropriate punctuation and line breaks and correcting obvious errors, such as the mistranscription of similar sounding words (e.g. I "new" for "knew") or typographical errors, and translating Rizzuti's coded keystrokes, such as those used for personal names or other non-standard
The operator would produce a draft transcript for Rizzuti, who would revieW'it and make further corrections based upon handwritten notes recorded on the paper tape and upon his independent recollection of the interview. These corrections would inclUde such things as deleting colloquy which was transcribed but subsequently designated "off the record" by the parties and correcting transcription errors which was detectable only from the context, such as recording the code for one person's name where the conversation had clearly concerned a different person. At this stage, the transcripts were given to Dowd.
Rizzuti stated that after he had turned over the first transcript
he received a telephone call from Dowd saying that he bad a number of corrections to make to the transcript. As Dowd described the
changes to Rizzuti, Rizzuti reported that he understood that they were all nof a stylistic, qranunatical nature."
While he conceded
he normally would have expected such changes to have been made
by means of an nerrata sheet" circulated to all of the parties, and
especially to the witness, be testified that under the procedures established by Dowd, under which no one else had even received copies of the transcripts, he felt that there was nothing wrong with processing Dowd I s changes based solely on Dowd' s request.
Rizzuti therefore arranged for oowd to communicate his requests to an Esquire computer operator,
Rizzuti testified that he believed that all of the changes proposed
by Dowd did not affect the substance of the transcripts.
Rizzuti also stated that Dowd had never requested that Esquire certify the transcripts as accurate, but that
certification pages were prepared as a matter of routine, despite
the fact that the interviewees were not to be given an opportunity
to review the transcripts for accuracy.
c. The Commissioner's hearing
On June 4, 1990, after receiving and reviewing Do~d's report, the Commissioner decided to hold his own hearings to
investigate further steinbrenner's relation with Spira.
stein]:)renner prepare for the hearing, the commissioner provided to
informing steinbrenner of the decision to hold the hearing, the commissioner stated
The sole judgment I have made to date is that, based on the information gathered by [Dowd,J there is a sufficient cas is to require a hearing to permit you an opportunity to respond.
hearing was scheduled for July 5 and 6. the hearing, the Commissioner
steinbrenner that he should not feel bound by any of his prior statements to Dowd, and that if he wished to change any aspect of his story he was free to do so. to submit statements Steinbrenner was also permitted
of other witnesses and any other materials DUring the hearinq, interview
which be considered relevant to the matter. the Commissioner introduced
as exhibits all. of the
transcripts prepared by Rizzuti.
d. steinbrenner's discovery of the changes in the transcripts
After the Commissioner's hearing, Steinbrenner's counsel noticed that the interview transcripts which had been provided by the Commissioner seemed-not to be entirely accurate records of what had been said at the interviewees. On July 19, steinbrenner
inquired of Rizzuti whether any changes bad been made in the transcripts. Rizzuti responded
describing how Dowd's changes Rizzuti testified that at that
had been received and processed.
--=-=---=O;,..;6~/~O..::...3 '...;;:.' 91
12 : .30
Dowd •s change.s.
believed that under Dowd's procedures Esquire was not to supply any material directly to anyone but Dowd, Rizzuti and Esquire gave the marked-up transcripts to Dowd and suggested that
contact Dowd to obtain further information.
Rizzuti still had his
paper records of the interviews, but by that time the magnetic tapes had been erased.
the counsel for ~e transcripts had commissioner
Commissioner that they had evidence that the altered by Dowd. In response,
directed Esquire to cooperate with steinbrenner
determine what changes had been made.
Rizzuti thereupon made his
paper notes available to steinbrenner, who retained an independent stenographic reporting service to transcribe these notes and
compare the output to the transcripts produced by Esquire. time did steinbrenner's from Dowd. and counsel request the marked-up
At no draft
According to steinbrenner's counsel, the process began on July 25 and was
completed by the evening of July 27.2
2At oral argument, Steinbrenner asserted that at least some of the alterations were not discovered until after the Commissioner's Decision on July 30. Nevertheless, on July 29 steinbrenner's counsel asserted that the review was completed on July 27.
On July 29, steinbrenner's
Commissioner I s counsel
sent a letter
to the were
unquestionably not "true and accurate" as certified by Rizzuti, and identifying several examples of discrepancies between Rizzuti's
notes of the steinbrenner interview and the final transcripts which had been produced to the
commissioner. The letter offerecl
examples of changes from any of the other interviews, but concluded
with the assertion that "the evidence that
comprises the hearinq the Investigation
record is pervasive1y false" and the demand that should be terminated.
e. The Commissioner's decision
that he was denying
investigation and advised steinbrenner of his preliminary decision that, based upon the evidence adduced at the Commissioner's hearing of July 5 and 6 and his review of the record, steinbrenner would from baseball followed by a threeste.inbrenner and the. Commissioner
receive a two-year suspension
ultimately modifying his decision, at Steinbrenner's request, to impose a permanent Managing General restriction of on steinbrenner's Yankees, but to activity
Commiss ioner. 3
defendants assert, and steinbrenner
does not aispute,
that be did
not raise the issue of the alterations
in the transcripts at any
time during these negotiations.
On the evening of July 30, the commissioner
issued the and
Decision, and both he and steinbrenner
signed an agreement
("the Agreement") and an order implementing the Decision
In the eleven-page Decision, the Commissioner set
forth the foundation for his conclusion that steinbrenner's conduct
had been "not in the best interest of baseball" and specifically stated
steinbrenner's team of lawyers have also raised assorted objections to the procedures employed and to the purported biases of Mr. Dowd and myself. I have directly and indirectly through my counsel responded to and rejected this posturing. I will not belabor the point other than to state that Mr. steinbrenner has been afforded a full and fair opportunity to present to me orally and in writing his views and testimony, all of which I have considered with an open mind. In my view, Mr. steinbrenner's dilemma is not with the procedures I have utilized, but with his inability to rewrite history.
steinbrenner souqht to avoid the term "suspension" because be felt that it would adversely affect his membership on the United States Olympic committee, and therefore consented to a longer term of punishInent in exchange for not being suspended.
The Agreement provided that
steinbrenner, recognizing the sole and exclusive authority of the Commissioner and recognizing the benefits to Baseball from a resolution of this matter without further proceedings, agrees to accept the following sanctions imposed by the commissioner:
1. Mr.stainbrenner recognizes, agrees and submits to the sole and exclusive jurisdiction of the commissioner pursuant to the Major League Agreement
2. Mr. steinbrenner acknowledges and accepts the findinqs· of the Decision to which this Agreement is attached and, specifically, that his conduct as described in the Decision was not in the best interests of Baseball. Mr. Steinbrenner further accepts the sanctions imposed on him by the Commissioner and agrees not to challenge the sanctions in court or otherwise. He also agrees he will not institute any legal proceedings of any nature against the commissioner or any of his representatives, either Major Leaque or any Major League ClUb relating to this matter.
AgreeJtlent at 2.
1. The Standard for S~ary
for summaryjudgment is familiar.
is not "to weigh the evidence and determine the truth but to determine whether there is a genuine issue
of the matter
Anderson v. Liberty Lobby, Inc., jud9ll1ent is warranted only if
477 U.S. 242, 249 (1986). "the 11 evidence is such
oJ '" J.~
l.J:..~Ll\ --_ .._ - -_.
reasonable jury party."
could not return a verdict for the nonmoving In order to create a genuine factual issue,
Id. at 248.
the non-movinq party "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586
This is particularly true for those issues on which the
non-moving party would bear the burden of proof at trial. ~orp. v. Catret~, 477 U.S. 317, 322-23 (1986). whether
a genuine issue of fact exists, the court must draw all inferences in favor of the nonmoving party.
698 (2d Cir. 1991).
2. Summary Judgment Based on the Release Contained in the Agreement
Is Not Warranted.
The defendants argue that
judgment is appropriate barred
action. is contractually
provision of the Agreement with the COlDlD.issioner, quoted above, in which Steinbrenner agreed not to "institute any legal proceedings of any nature
representatives of the Commissioner because they were retained ~y DOwd to assist him
transcribe the interviews solely for his Denefit. disputes this contention, asserting that a
55-15__ ." ..
3113 (a)' to be
steinbrenner claims that even if the defendants were acting as the commissioner's representatives, he never intended that the release provision of the agreement would extend to them.
section 101 of the CPLR states that the statute "shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated inconsistent statute.tt steinbrenner
does not and cannot contend
that Dowd's interviews were related to any judicial proceedings in any court, thus the CPLR, including
3113, do not apply.
The evidence adduced thus far clearly indicates that the proceedings before Dowd were not depositions of the word. in the normal sense
Dowd was not only the interrogator, he was also the
person in charge of directing the Investigation and the appointed representative of the ultimate decisionmaker, the Commissioner.
Dowd established the procedures to be followed, including the rule
Conduct of the examination.
La) Persons before whom depositions may be taken. any of. the following persons except an attorney, or employee of an attorney, for a party or prospective party and except a person who would be disqualified to act as a juror because of interest in the event or consanguinity or affinity to a party •••• n
Deposi tions may be taken before
only he was to receive copies of the transcripts,
.which were agreed to by all of the participants.
presence of other counsel, Dowd was the only person to question the interviewees. While a certain amount of colloquy took place
between Dowd and the other lawyers, these exchanges were primarily directed at clarifying the infor.mation elicited by Dowd, rather than attempting to cut off or obstruct the interrogation.
the record discloses occasional
examples of heated or argumentative
exchanges, there are also several instances in which the parties
professed their-mutual ~nterest in cooperating to ensure that all
of the information was accurately disclosed
Dowd more as having
or as an
hearinq officer than as a mere participant deposition. Therefore, it
unreasonable for Rizzuti to have considered himself and Esquire as representatives of the Commissioner,
in much the same way as a
courtroom reporter is generally viewed as a representative
or not, cannot
determine the scope of the release.
between Steinbrenner naturally and the
As the Agreement is a contract
depends not on the understanding
of potential third party
beneficiaries, but rather on the intent of the parties themselves. On this issue, steinbrenner·s affidavit testimony that he did not consider the reporters to have been representatives
is sufficient to create a genuine
which precludes summary judgment based on the release contained in the Agreement.
3. Steinbrenner Has Not Established That the Defendants·
is nevertheless of the the
appropriate because. Steinbrenner has not carried his burden establishing defendants a triable actions factual dispute with concerning
interview transcripts for Dowd were improper.
a. The actual changes to the transcripts were not material.
To the extent that steinbrenner's claims depend on the falsity of the transcripts, he has failed to present evidence
indicating that any of the changes materially altered the substance or tone
the transcripts or that the alterations might reasonably
be considered to have affected the commissioner's Decision.
defendants "have totally failed to make any demonstration
that no of
genuine issue Of material fact exists" as to the significance
the transcript alterations.
As discussed earlier, a party opposing
summary judgment is required to adduce evidence to establish a triable dispute
particularly as to those issues upon which that party would bear
the burden of proof at trial.
celotex Corp., supra, 477 U.S. 317,
cannot prevail based upon a mere assertion
that the changes were material; he must identify those particular changes which COuld reasonably support such a Claim.
Rizzuti bas testified changes
affidavit that a number of the .rere changes made by Esquire or
reported by steinbrenner either Rizzuti
performing the initial transcription, were his own transcribing errors,
to correct what Rizzuti felt places where the transcript
did not accurately render what had occurred in the interview. These corrections included both those Which were obvious on the face of the transcript, such as clear typographical errors, and of the
those which Rizzuti identified based on his recollection
proceedings, including those instances in which he had silnply keyed
in the wrong strokes,
and those places were Rizzuti had transcribed The
material which was later designated as "off the record."
defendants have reviewed Steinbrenner's list of all of the changes
identified by his stenographers and, by compaz-Lsenwith the markedup transcriptswhicb were supplied to Dowd to indicate his changes,
have identified those changes made by Esquire and those made by
"Q"<:12 632 5545
Dowd. However, it is unnecessary
the source of the
in order to conclude that Steinbrenner has failed to show
that they were material.
from of the
"111yselfing" to "missing," steinbrenner
Transcript at 449 line
to the wholesale deletion and modification of remarks by both Dowd and the interviewees. At most, Dowd's changes appear to have been
motivated by a desire to clean up the less-refined language in
interviews and to clarify some of the more confusing and repetitive exchanqes.
Thus he consistently
changed "got," Steinbrenner
as in "you got to
be very carefUl," to "have," ~,
line lines 21, corrected "ain't."
to "isn't," Kleinman Transcript
2-3, and deleted at least one instance of profanity.
removed some of the more argumentative colloquy, but left in more
than enough such material in a tense
that the interviews atlnospbere.
deletions removed remarks which were not relevant the interviews, such as a
to the scope of
Commissioner's prior involvement in an investigation of Pete Rose, steinbrenner Tr. at 593.5
One of the ~ost extensive changes cited
both to the Commissioner's counsel in the .July 29 motion, consisted
and on the present
5Rizzuti testified that at least some of the simple deletions were based on his handwritten notes as to material which was to be left off the record by agreement of all of the participants.
in Dowd' s interview
instruction to one of his principal
aides and investigators, Philip McNiff, ("McNiff"):
AS MODIFIED BY DOWO Q. My question to you is, how can you know what is accurate and inaccurate unless you know the facts, sir? A. I leave that up to his judgment.
Q. That is not what you said, you didn I t say McNiff, you ought to know what is and is not accurate.
Q. My question to you is, how can you know what is accurate and inaccurate unless you know the facts, sir?
A. I leave that up to his [McNiff's] judgment.
That is not what you said, you didn' t say MeN iff, you ought to know what is accurate or inac~rate.
You said you wanted to know what was accurate and inaccura.te, how do you know that unless you know what the facts are? you talking about? All of the things that were mentioned, that 1: told you before, I wanted to be sure that they were accurate.
Q. How were you going to do that, Mr. steinbrenner?
A. What are
How were you going to do that, Mr. steinbrenner?
A. I don't know, that is up to Phil McNiff to do, I was never in law enforcement. Q. We are talking about, you said it again, how did you know what was accurate? A. I said whatever y~u turn over, make sure it loS accurate. That is all 1: told them, that is all I would naturally tell them.
A. r don't know, that is up to Phil McNiff to do, I was never in law enforcement.
Q. We are talking about, you said it aqain, how did you know what was accurate?
A. I said whatever you turn over, make sure it is accurate.
CHRI STY& v I E~ER
Q. You said you wanted to know what was accurate, not what you would turn over. A. If you want to make a play on every little word.
Q. That is the only thing that I can have, are your words.
A. What I meant was, that whatever you are going to deliver, you make sure it is accurate.
That is what I meant was, that whatever you are going to deli vex , . you make sure it is
steinbrenner of the more
Tr. at 230-3l.
repeti ti ve
Thus the alteration eliminated some
by both participants
colloquy about na play on every little
word, I' but did not affect
the substance of Oowd I s question or steinbrenner's
this change, one of the most extensive is
identified by steinbrenner,
not enough to create a triable
of fact as to whether
Dowd's alterations materially altered the substance or the tone of the transcript or in any way affected the Commissioner's Decision.
The only change cited by steinbrenner
which could even
arguably.be described as substantive was found in the transcript
of Dowds interview I
to determine whether
steinbrenner had promised Spira any type of future consideration in exchange for information, Oowd had a short discussion with a Kevin Hallinan ("Hallinan"), a former New York City policeman who
as the director
of security for Major
League Baseball. Dowd be
to the transcript whether
provided to the Commissioner, type of statement might
'0'212 632 55~5
I4J 00 t
considered a npromise.1I
Rizzuti testified that his own review of
his notes indicated that the word used by Dowd was actually ncomm.iment. " Both Esquire I s computer operator and Steinbrenner's t reporters interpreted Rizzuti's keystrokes as indicating that the word was "document. rt Rizzuti testified that upon review of the
draft transcript, he corrected the word to "promise," based on his recollection of the course of the conversation. McNiff testified
by affidavit that Oowd had never used the term "pro~ise" in that
particular context, although he did not go so far as to state that the correct word was "document." While all of this might barely
be enough to create a factual dispute as to which word Dowd really used, there is nothing which even remotely suqqests that this
casual discussion between Dowd and another of tha Commissioner's own representatives, during an interview filled with direct
questions to McNiff concerning steinbrenner's alleged arrangement with Spira, could reasonably be deemed to have affected the
addition, the Commissioner was placed on notice as
early as July 20 that the transcripts had been modified, and on
identifying all of the changes was complete.
Given the day-long
negotiations on July 30, steinbrenner had adequate opportunity to bring any significant changes in the transcripts to the
Commissioner's attention prior to the issuance Qf the Decision. This fact alone would compel the conclusion that none of the
'6'212 632 55-15
eHR! 5TY& VI E.\TER
could have influenced
b. There is no evidence that Rizzuti's certifications
transcripts was improper.
alterations to the transcripts were material, he has not presented evidence sUfficient to create a triable dispute on the issue of whether Rizzuti's certification of the transcripts was proper. His
evidence on this issue consist of the affidavit of Raymond DeSimone ("DeSimoneR), a notary public and court reporter, who asserts that
Rizzuti's certification of the transcript after Dowd's changes had been made was a violation shorthand reportinq of the customs and practices However,
DeSimone's testimony reveals that it is not sufficient to create
a qenuine issue of fact regarding Rizzuti's behavior.
In the first place, DeSimone does not state that it is
'always improper for a reporter to certify a transcript as accurate
after changes have been made, even changes which might render it materially inaccurate as a record of the proceedings, but only
states that the reporter should obtain the consent of all of the parties before doing so. Accapting this assertion as true, it is
necessary to determine how such consent should have been obtained
in the case of the
interview is limited
Unfortunately, of adversarial
'Q'212 632 55-15
in which all parties, including the primary witness,
have access to the transcript and are thus competent to agree with or dispute the proposed changes. DeSimone ~akes no allowance for
the unique procedural rules imposed by Oowd and does not even offer
any suggestion as to how his rule of "no ex parte changes" should be applied where there is only one recognized party, particularly
where that party is both the examiner and an agent of the ultimate dec isionmaker • As Steinbrenner does not dispute that he agreed to Dowd's procedures, his failure to present evidence that under those procedures Rizzuti's behavior was improper is fatal to any claim that the certification of the modified transcripts constituted any type of misconduct.
4. steinbrenner Has Not Established That Proximately Caused by the Defendants' Acts.
Even if Steinbrenner
the existence of
a factual dispute as to whether the defendants acted improperly, sUllUIlary judgment would be appropriate because he has not shown that his damages were proximately caused by the defendants' conduct.
The damages which steinbrenner seeks to recover are the
expenses and legal fees which he incurred in transcribing
Rizzuti r s
original notes of the interviews and comparing those transcripts to the transcripts provided to the commissioner. When Steinbrenner the
first ra.ised the issue of the changes in the transcripts,
'5'212 632 55-45
defendants, in keeping with the rule that all material be provided only to Oowd, turned over to Dowd the marked-up transcripts indicating exactly which changes drafts of the had made.
steinbrenner was encouraged to obtain these drafts from Oowd in order to find out what the changes were, but he chose instead to follow the more laborious and costly route of retranscribing the oriqina~ notes and comparing that output
transcripts which had been provided to the commissioner.
asserts that his
simpler course of obtaining the marked-up drafts from Dowd was reasonable in light of the fact that Dowd was the original source of the "tampering~n and therefore could not be trusted to provide evidence of his own wrongdoing. However, particularly in light of
the preceding finding that none of the alterations was material, steinbrenner has presented no evidence to support this assertion
No proof has been adduced to
or to justify his suspicion of Dowd.
- indicate either that Dowd would not have provided the mark-ups or that they did not in fact identify all of Dowd's changes. While
it may be in some respects understandable that Steinbrenner was reluctant to trust Dowd, that reluctance was based on his
underlying belief that the Investigation was biased against him, and that belief has not been
Particularly with respect to the defendants here, Steinbrenner has simply not created a triable issue as to whether their actions were the proximate cause of his alleged damages.
'a'212 632 55~5
Admi ttedly , there that
New York for the
defendant's acts and the plaintiff's damages is not a grounds for dismissing the plaintiff's claim but only for limiting the amount of recovery. See,~, Clearv..iew Concrete P!Ods. Corn. v. Charles
Gherardi. Inc., 88 A.D.2d 461, 453 N.Y.S.2d 750 (4th Oepft 1985) (plaintiff lnight be enti tled
even though actual damages
were resul t of intervening However,
cause and not proximately related to defendant's acts).
this proposition is inappliCable in the present case because actual damage is a primary element of each of Steinbrenner's claims.
a. Notarial Misconduct
misconduct, is based upon N.Y. Exec. L. § 135: For any misconduct by a notary pUblic in the performance of any of his powers such notary public shall be liable to the parties injured for all damages sustained by them. In order to prevail on such a claim,
a plaintiff must show that
the notary's conduct resulted in an injury, as the statute clearly imposes liability only for such damages. causally related Where the damages are not
to the notary's improper performance of a notarial Cf. Bogensky v. Rosenberg, (notarial
act, the plaintiff's claim must fail. 202 Misc. 652, 652 (N.Y. Sup. ct.
Suffolk Co. 1952)
1r212 632 55-15
misoonduct must be predicated on misconduct in acting as notary, rather than harmful· behavior by person who happens to be notary).
h. Injurious Falsehood
Similarly, an essential element of the tort of injurious
falsehood, upon which steinbrenner t s second cause of action is
premised, is that the alleged false
statement caused actual
Penn-Ohio Steel Corn.
Chalmers Mfg. Co, 7 A.D.2d 441. 444, 184 N.Y.S.2d 58, 61 (1st Oep't
1959) another (nIf [the •••
and it results in actual damage to the plaintiff's legal relationships,
an action may
Distillation Technology. Inc. v. Blasland & Bouck Engineers.
633, 634 (2d Cep't 1988): Restatement
(Second) of Torts
c. Breach of Fiduciary OUty
cause of action of their
is based on the duty
Because the very nature of a fiduciary duty is the
requirement the fiduciary act in good faith and candor to avoid harm to the party who is owed the duty, actual ~, ~, liable damage is a Restatement
necessary component of this cla Im as well.
'5'212 632 55.t5
For all established defendants· whether his Therefore,
of the foregoing reasons, dispute concerninq
Steinbrenner the propriety issue
has not of as the to
a genuine behavior,
nor has he shown a triable
damages were proximate1y caused by the the defendants'
motion for summary judgment dismissing
the complaint is granted.
is so ordered.
New York, H. Y. Hay 1991·
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