Defendants wrote and published an article in the local paper, asserting that plaintiff, the former head of a high school English department, had "misappropriated" funds "that came directly from the pockets of students." Specifically, the article stated that plaintiff told students that they had to pay $5 for workbooks. However, according to the article, the workbooks had already been paid for by district taxpayers, and plaintiff turned the money into a "slush fund" for the English department. The article asserted that plaintiff "got away" with the misappropriation because he maintained the financial records of the department, and that his actions had been "discovered" by school district officials when some students attempted to pay their book fees directly to the school's principal. The article named only two specific purchases made by plaintiff with the money he collected: an air conditioner for a teachers' room and lunches for faculty meetings.

On the same day it ran the article, the newspaper published a related piece, labeled as an editorial, which set forth the statutory definition of the crime of scheme to defraud in the second degree and then posed the following question: "When a teacher tells his students they must give him cash to pay for workbooks and spends the cash on lunches and appliances, does that fit the description above?" The editorial called for the district attorney to investigate the matter. Plaintiff commenced a libel action based on the article and editorial, and the Second Department denied defendant's motion to dismiss, in Matovcik v. Times Beacon Record Newspapers, which was decided on December 11, 2007.

The court noted that the tort of libel is based on the publication of a statement that is both false and defamatory, and that a defamatory statement is libelous per se if it imputes fraud, dishonesty, misconduct, or unfitness in conducting one's profession.

Here, the article and editorial asserted that plaintiff engaged in misconduct in the course of his employment as a teacher, and plaintiff alleged that the defamatory facts set forth in the article and editorial were false. The court concluded that, accepting plaintiff's allegations as true, as it must in considering a 3211 motion, plaintiff stated a legally cognizable cause of action to recover damages for libel.

The court said that defendant's documentary evidence failed to establish, as a matter of law, the truth of certain facts set forth in the article and the editorial. That's a fatal flaw since, on a 3211 motion, the documentary evidence must resolve all factual issues and must conclusively dispose of plaintiff's claim.

Here, defendant's submissions provided some evidence that the practice of collecting and spending workbook funds predated plaintiff's tenure as department head and had been condoned, accepted, and encouraged by school district administrators. A reader would be likely to view plaintiff's actions in a different light if the school district had known of and had approved the collection practice. Additionally, by citing only the lunches and the air conditioner as examples of plaintiff's purchases, the article left the reader with the impression that plaintiff had used the money to purchase items which benefitted only the faculty. However, defendant's documentary evidence suggested that plaintiff spent the money largely on books and other classroom supplies used by or for the students.