In this action the plaintiff [Petitioner] sought to recover damages for:
1. His alleged wrongful termination from employment by the Defendant; and
2. For alleged defamatory statements uttered by the Defendant concerning the Petitioner.
The Defendants appealed Supreme Court's denial of Defendants' motion pursuant to CPLR 3211(a) to dismiss the Petitioner's amended complaint.
The Appellate Division modified, on the law, those provisions set out in the Supreme Court's ruling which denied:
[a] Defendants' motion pursuant to CPLR 3211(a) to dismiss the causes of action alleging violations of Labor Law §§193 and 215 and 42 USC §1983;
[b] Defendants' motion to dismiss the alleged defamatory statements it made concerning Petitioner; and
[c] Defendants' motion to dismiss allegations of "Intentional and willful conduct".
The Appellate Division, however, found that, contrary to the Defendants' contention, the Petitioner's allegations in his amended complaint were sufficient to state a cause of action alleging a violation of Civil Service Law §75-b, which section provides that an 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"
In the instant action, said the Appellate Division, Plaintiff alleged that he had investigated "discrepancies and inconsistencies in the activities and financial reports" of the Defendants and that he began experiencing hostility from the [Defendants] after he disclosed his findings to the District's former commissioner. Plaintiff also alleged that he was terminated from his employment with Defendants because of his disclosure of his findings.
The Appellate Division found that the Petitioner's amended complaint "sufficiently states a cause of action for a violation of Civil Service Law §75-b against the [Defendants]."
However, in it decision the Appellate Division noted that at the time this action was commenced the statute of limitations for filing a Civil Service Law §75-b cause of action was one year. As Plaintiff commenced this action on March 9, 2021, only so much of the cause of action as related to the District's alleged retaliatory act of terminating the Plaintiff's employment on March 13, 2020, could be considered timely.
Contrary to the Plaintiff's contention, Executive Order (A. Cuomo No. 202.8 (9 NYCRR 8.202.8) the Appellate Division found that Executive Order did not toll the running of the statute of limitations with respect to claims of alleged adverse employment actions that occurred in 2014 and 2018, as the statute of limitations for those claims had already expired prior to the issuance of the Executive Order. In addition, the Appellate Division noted that Plaintiff's Civil Service Law §75-b cause of action against the non-district Defendants was subject to dismissal pursuant to CPLR 3211(a)(7).
As to other determination by the Supreme Court, the Appellate Division noted that although Labor Law §215 "provides that no employer shall discharge, threaten, penalize, or in any other manner discriminate . . . against any employee because such employee has made a complaint to his or her employer . . . that the employer has engaged in conduct that the employee, reasonably and in good faith, believes violates any provision of this chapter, or any order issued by the commissioner", the Labor Law §215 does "not apply to employees of the state or any municipal subdivisions or departments thereof".
In addition, the Appellate Division noted that although the contention that Labor Law §215 does not apply to Plaintiff was raised for the first time on appeal, it had considered this issue in its ruling "because it presents a pure question of law that appears on the face of the record and could not have been avoided if raised at the proper juncture."
Addressing Plaintiff's cause of action for alleged defamation, the Appellate Division, citing Greenberg v Spitzer, 155 AD3d 27, explained that "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".
The Appellate Division's decision, citing Laguerre v Maurice, 192 AD3d 44), notes that 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" .
In its decision the Appellate Division also notes that:
1. "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" and compliance with this requirement is "strictly enforced";
2. "[A] cause of action sounding in defamation which fails to comply with these special pleading requirements must be dismissed" [Tsamasiros v Jones, 232 AD3d 816]; and
3. "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" ( Nofal v Yousef, 228 AD3d 772).
Although Plaintiff's amended complaint set forth the Defendants' allegedly defamatory remarks, the Appellate Division observed that "it failed to set forth the place where and to whom these remarks were published". Accordingly, opined the Appellate Division, Supreme Court erred when it failed to dismiss those branches of Defendants' motion to dismiss the Petitioner's causes of action alleging defamation.
Click HERE to access the Appellate Divisions decision posted on the Internet.