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Plaintiff in defamation suit pleading 5th

Author: LegalEase Solutions


Can Plaintiff maintain a defamation suit where Plaintiff, during his deposition, pleads 5th Amendment privilege against self-incrimination when questioned about the scope and extent of his damages?


Defendant may be able to prevail in this action if Plaintiff pleads the fifth and the court construes such silence as an adverse inference. This is because truth is an absolute defense to a defamation claim. If the court infers that Plaintiff has committed the acts he refuses to answer about, Defendant can assert that inference as the basis of a truthfulness defense. In order to attain the negative inference, Defendant will have to produce some evidence other than Plaintiff’s mere silence establishing that Plaintiff committed the acts that form the basis of the suit.  Further, assuming Plaintiff’s claim survives a truthfulness defense, Plaintiff must be able to prove his damages.  Again, Plaintiff’s unwillingness to discuss any mitigation of alleged damages may be used as a negative inference.


In a civil suit, “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment does not preclude the inference where the privilege is claimed by a party to a Civil cause.” Id. at 823. (citing Baxter v. Palmigiano, supra, at 318, 96 S.Ct. 1551). “Refusal to answer questions upon asserting the Fifth Amendment privilege is relevant evidence from which the trier of fact in a civil action may draw whatever inference is reasonable under the circumstances.” Id.

“While courts have held that an inference may be drawn from one’s refusal to testify in a civil matter, they also have held that silence may only be one of a number of factors which the finder of fact considers in making its determination.” Id. A negative inference may only be drawn from a party’s pleading of the fifth “when there is some independent evidence presented which allows the court to make such an inference.” Id. at 822.

“A defamation action is subject to an absolute defense that the alleged defamatory statements are substantially true.” Proskin v. Hearst Corp., 14 A.D.3d 782, 783, 787 N.Y.S.2d 506, 507 (2005). Thus, if Defendants are able to establish an adverse inference based on Plaintiff’s failure to answer questions regarding the criminal conduct, Defendants can also establish the defense of truth and prevail in the action.

As to damages, Plaintiff bears the burden of proving his damages.  Where plaintiff fails to mitigate his damages, CLPR § 3211 permits dismissal. “’[B]are legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on such a motion.’” Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530, 530 [2d Dept 2007] (citing Palazzolo v. Herrick, Feinstein, LLP, 298 A.D.2d 372, 751 N.Y.S.2d 401). Accordingly, a refusal to answer deposition questions about potentially mitigating circumstances, Plaintiff exposes himself to a negative inference regarding his alleged damages. See also Green v Dolphy Const. Co., Inc., 187 AD2d 635, 636-37 [2d Dept 1992].


Thus, “the law is clear that adverse inferences may be drawn against a defendant who invokes the privilege in a civil case however, it does not compel such inferences, nor does it relieve the plaintiff of his obligation to prove a case before he becomes entitled to a judgment.” Access Capital, Inc. v. DeCicco, 302 A.D.2d 48, 55, 752 N.Y.S.2d 658, 664 (2002). Furthermore, the “imposition of a civil sanction may not be based solely upon petitioner’s assertion of the Fifth Amendment.” St. Owner, L.P. at 822-23 (Civ. Ct. 2011). “This may only be done when there is some independent evidence presented which allows the court to make such an inference.” Id. at 692. If Defendants are able to establish the adverse inference, they should be able to establish the defense of truth and prevail on the claim.