Concerning an employee's allegations of having been defamed and, or, subjected to violations of New York State's Labor Law and, or its Civil Service Law, and, or 42 USC §1983 by the employer

Addressing the Petitioner's allegations concerning defamation, the Appellate Division explained:

1. "The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se", citing Greenberg v Spitzer, 155 AD3d 27. 

2. "A statement is defamatory per se if it, among other things, "charges the plaintiff with a serious crime" or "tends to injure the plaintiff in her or his trade, business, or profession", citing Laguerre v Maurice, 192 AD3d 44; 

3. "CPLR 3016(a) requires that [i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint", citing Lemieux v Fox, 135 AD3d 713, [internal quotation marks omitted]). Compliance with this requirement is "strictly enforced" and "[a] cause of action sounding in defamation which fails to comply with these special pleading requirements must be dismissed" (id. [internal quotation marks omitted]; (see Tsamasiros v Jones, 232 AD3d 816). 

4. "The complaint must set forth the particular words allegedly constituting defamation, and it must also allege the time when, place where, and manner in which the false statement was made, and specify to whom it was made" (see Nofal v Yousef, 228 AD3d 772, [citation and internal quotation marks omitted]);

5. "While the amended complaint set forth allegedly defamatory remarks that the [Defendants] wrote on or about January 17, 2020, it failed to set forth the place where and to whom these remarks were published (see Oluwo v Mills, 228 AD3d 879, 880)." 

Accordingly, the Appellate Division held that:

a. "Supreme Court erred in denying those branches of the Defendants' motion which were pursuant to CPLR 3211(a) to dismiss the causes of action alleging defamation and defamation per se; and 

b. "The cause of action alleging intentional and willful conduct is, in effect, a demand for punitive damages. '[P]unitive damages may be awarded on proof of actual malice' (Gatz v Otis Ford, Inc., 274 AD2d 449, 450; see Liker v Weider, 41 AD3d 438, 439). However, 'New York does not recognize an independent cause of action for punitive damages' (Gershman v Ahmad, 156 AD3d 868, 868 [internal quotation marks omitted]), and '[a] demand or request for punitive damages is parasitic and possesses no viability absent its attachment to a substantive cause of action' (Podesta v Assumable Homes Dev. II Corp., 137 AD3d 767, 770 [internal quotation marks omitted])."

The Appellate Division concluded that as the Defendants "are entitled to dismissal of the causes of action alleging defamation and defamation per se, they also are entitled to dismissal of the demand for punitive damages."

With respect to the other defenses advanced by the Defendants in the instant action, the Appellate Division held that the allegations in the amended complaint were sufficient to state a cause of action alleging a violation of Civil Service Law §75-b as "Civil Service Law §75-b(2)(a)(ii) provides that adverse employment action may not be taken against a public employee based upon his or her disclosure of information which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action".

Further, the Court found that with respect to the Petitioner's allegation that he was terminated from his employment because of this disclosure, "the amended complaint sufficiently states a cause of action for a violation of Civil Service Law §75-b." However, the Appellate Division noted that at the time this action was commenced, the statute of limitations for a Civil Service Law §75-b cause of action was one year. Thus, only so much of the cause of action as related to the employer's alleged retaliatory act of terminating the Petitioner's employment on March 13, 2020, may be considered timely. 

With respect to Labor Law §215, The Appellate Division pointed out that this provision of law does "not apply to employees of the state or any municipal subdivisions or departments thereof".  As the Petitioner alleged that the employer was a "municipal corporation," he was a municipal employee while employed by the employer and was not protected under Labor Law §215. Likewise, Petitioner cannot maintain a cause of action alleging a violation of Labor Law §193 against the Defendants, as governmental agencies are exempt from this statute as well.

Addressing 42 USC §1983, the Appellate Division observed that two essential elements must be present: (1) the conduct complained of must have been committed by a person acting under color of state law; and (2) the conduct complained of must have deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.

However, Petitioner, an "At-will employee", did not have a property interest in his continued employment. Accordingly, the Appellate Division held that the amended complaint failed to state a cause of action alleging a violation of 42 USC §1983."

Click HERE to access the Appellate Division's decision posted on the Internet.