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Tuesday, November 20, 2018

Teacher sues to recover damages for alleged defamatory statement contained in an e-mail


Teacher sues to recover damages for alleged defamatory statement contained in an e-mail
2018 NY Slip Op 07701, Appellate Division, Second Department

The tort of defamation may refer to an alleged false statement, communicated orally [slander] or in a writing [libel], that injures an individual's "reputation" or his or her "good name" in the community.

The Plaintiff in this action contended that the Defendant sent an email to the Plaintiffs' adult children in which Defendant alleged Plaintiff, a teacher, had engaged in an act of "professional misconduct" and "communicated the [D]efendant's opinion of the character of the [P]laintiff" to the children.

Supreme Court granted Defendant's motion to dismiss the action and Plaintiff appealed. The Appellate Division sustained the lower court's action.

The court, citing Mann v Abel, 10 NY3d 271, explained that a defamatory statement constituting "pure opinion" is not actionable under New York State Law because expressions of opinion, in contrast to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.

Here, however, the Appellate Division observed that although the subject email communicated the Defendant's opinion of the character of the Plaintiff, the email also set forth disputed allegations of fact that had a precise meaning which were readily understood and which were capable of being proven true or false, and in context, the email could be reasonably understood to proffer assertions of fact. Thus, said the court, the subject email communication contained potentially actionable statements of fact.

In a defamation action the plaintiff must allege that he or she suffered special damages - the loss of something having economic or pecuniary value unless the statement is defamatory per se. Plaintiff in this action, however, did not allege special damages nor did the subject email did not "charge the [P]laintiff with any serious crime" or having any "loathsome disease."

Noting that "one statement in the email referred to alleged professional misconduct by the [P]laintiff," a teacher, the Appellate Division concluded that "under these circumstances that allegation of a single instance of professional misconduct is not actionable" and the email did not contain any other statements that could be deemed defamatory per se.

With respect to statements deemed "defamatory per se", in Geraci v Probst, 15 NY3d 336, the Court of Appeals sustained a trial court's instruction to the jury that Probst's statement was defamatory per se because it alleged that Geraci had committed a crime, in this instance "a violation of the General Municipal Law related to the exercise of [Geraci's] public office" and that the statement was false.

In Golub v Enquirer/Star Group, 89 NY2d 1074, the court opined that "Generally, a written statement may be defamatory 'if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community'", quoting Mencher v Chesley, 297 NY 94. Damages will likewise be presumed for statements that charge a person with committing a serious crime or that would tend to cause injury to a person's profession or business. 

In this action, however, Appellate Division, for the reasons indicated above, sustained the Supreme Court's determination to grant Defendant's motion to dismiss Plaintiff's cause of action alleging defamation.

The decision is posted on the Internet at:


Monday, November 19, 2018

Writ of Mandamus


Writ of Mandamus
2018 NY Slip Op 07694, Court of Appeals

In this action the Court of Appeals affirmed the Appellate Division's dismissing the Plaintiffs' petition seeking a writ of mandamus to compel the New York City Police Department and the New York City Department of Health and Mental Hygiene to enforce certain laws.

The court explained that a writ of mandamus "is an extraordinary remedy 'that is available only in limited circumstances,'" citing Matter of County of Chemung v Shah, 28 NY3d 244. Mandamus, said the Court of Appeals, is available as a remedy "only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law."

Further, although mandamus to compel "is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which [a public] officer may exercise judgment or discretion," as the court held in Matter of Gimprich v Board of Educ. of City of N.Y., 306 NY 401.

As to what constitutes a "discretionary acts" such acts involve the exercise of reasoned judgment which could typically produce different acceptable results in contrast to ministerial acts involving "direct adherence to a governing rule or standard with a compulsory result." Indeed, mandamus may only be used to compel a public officer to execute a legal duty; it may not "direct how [the officer] shall perform that duty," as was noted in People ex rel. Schau v McWilliams, 185 NY 92.

In this action the enforcement of the laws cited by the Plaintiffs would involve some exercise of discretion. Additionally, Plaintiffs did not seek to compel the performance of ministerial duties but, rather, seek to compel a particular outcome. Thus, concluded the Court of Appeals, "mandamus is not the appropriate vehicle for the relief sought."

The decision is posted on the Internet at:


Friday, November 16, 2018

Local police officers in New York State require a warrant to arrest an immigrant solely to transfer custody to federal Immigration and Customs Enforcement authorities


Local police officers in New York State require a warrant to arrest an immigrant solely to transfer custody to federal Immigration and Customs Enforcement authorities
People ex rel. Wells v DeMarco, 2018 NY Slip Op 07740, Appellate Division, Second Department

Susai Francis, an Indian national living on Long Island, had overstayed his visa. Arrested for driving under the influence [DUI] in Nassau County, he was transferred to Suffolk County to complete a criminal proceeding. Francis plead guilty to disorderly conduct to dispose of the criminal charge and was sentenced to "time served." Suffolk County police rearrested Francis at the request of Immigration and Customs Enforcement [ICE] and incarcerated in a jail cell in Riverhead rented by ICE.

The Appellate Division ruled that Suffolk police went beyond their authority in violation of State Law when it honored  ICE's request to hold someone as "local law enforcement officers are not authorized to effectuate arrests for civil law immigration violations."

In contrast, said the Appellate Division, local police could do so if ICE produced a warrant "signed by a judge."

The decision is posted on the Internet at:



Monday, November 12, 2018

State and subdivisions of state are subject to ADEA regardless of its number of employees in contrast to a private sector employer where the law applies only to "an industry affecting commerce" having twenty or more employees


State and subdivisions of state are subject to ADEA regardless of its number of employees in contrast to a private sector employer where the law applies only to "an industry affecting commerce" having twenty or more employees
Mount Lemmon Fire District Petitioner v John Guido, Et Al., Cite as: 586 U. S.____ (2018)

The Mount Lemmon Fire District laid off its two oldest full-time firefighters, John Guido (then 46) and Dennis Rankin (then 54). Guido and Rankin sued the Fire District, alleging that their termination violated the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq.

The Fire District sought dismissal of the suit on the ground that the District was too small to qualify as an “employer” within the ADEA’s as the controlling definition in 29 U. S. C. §630(b), provides that the term "employer" means a person engaged in an industry affecting commerce who has twenty or more employees and the Fire District had fewer that 20 employee.  

The Supreme Court ruled that  in accord with the United States Court of Appeals for the Ninth Circuit, that §630(b)’s two-sentence delineation, and the expression “also means” at the start of the second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees but with respect to a states or a political subdivision of a state, there is not "numerosity limitation" it matters not whether the Fire District had five employees or five hundered employees insofar as the reach of ADEA was concerned.

The Supreme Court agreed and ruled in favor of Guido and Rankin.

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