Communications made by "individuals participating in a public function, such as judicial, legislative, or executive proceedings" are protected by an absolute privilege

In an action to recover damages for defamation,* Plaintiff appealed an order of a Supreme Court which granted that branch of the motion submitted by two Defendants [hereinafter Defendant 1 and Defendant 2 respectively] for summary judgment dismissing the Plaintiff's causes of action to recover damages for alleged slander per se and libel per se insofar as asserted against Defendant 1. 

Two defendants, Defendant 1 and Defendant 2, moved for summary judgment dismissing the causes of action to recover damages for slander per se and libel per se insofar as asserted against Defendant 1. Supreme Court issued an order granting that branch of the Defendants' motion. The Plaintiff appealed.

The Appellate Division affirmed the Supreme Court's order "insofar as appealed from, with costs".

The Appellate Division's decision reports that Defendant 1 was, at relevant times, a council member for the Town and, among others, filed a complaint against Plaintiff with the Grievance Committee for the Ninth Judicial District alleging that Plaintiff represented a party in a taxpayer action commenced against Defendant 1 and the Town. Plaintiff subsequently became counsel for the Town while still representing the party in the taxpayer action. The Attorney Grievance Committee, First Judicial Department [Committee] ultimately disposed of the complaint by issuing an admonition to the Plaintiff.

In addition, the Appellate Division's ruling notes that Defendant 1, among others, released a media advisory to members of the press and to private individuals stating that Plaintiff had been "reprimanded" by the Committee. Further, during a press conference in front of the Town Hall, Defendant 1 stated, among other things, that the Plaintiff had been admonished and had engaged in "illicit quid pro quo."** 

The Appellate Division noted that communications made by "individuals participating in a public function, such as judicial, legislative, or executive proceedings" are protected by an absolute privilege", citing Toker v Pollak, 44 NY2d 211. Further, said the court, "Absolute privilege is based upon the personal position or status of the speaker and is limited to the speaker's official participation in the processes of government", citing Colantonio v Mercy Med. Ctr., 135 AD3d 686'.

The Appellate Division also noted that Defendants' motion for summary judgment dismissing the causes of action to recover damages for slander per se and libel per se insofar as asserted against Defendant 1 was properly granted by Supreme Court [albeit for reasons different than those relied upon by the Supreme Court]. 

In the words of the Appellate Division, "Assuming without deciding that the challenged statements constitute actionable defamatory statements, [Defendant 1] established, prima facie, that he published the challenged statements while acting in his role as a council member for the Town and was therefore protected by absolute privilege" citing Riggio v County of Nassau, 218 AD3d at 503 and other decisions.

In contrast, citing Alvarez v Prospect Hosp., 68 NY2d 320, the Court noted that Plaintiff failed to raise a triable issue of fact".

* In stating causes of action to recover damages for slander per se and libel per se Plaintiff alleged that the statements in a media advisory and at the press conference were defamatory per se. 

** Illicit quid pro quo refers to illegal or unethical exchanges, usually done in secret, in order to gain an unfair advantage.

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

An applicant seeking disability retirement benefits bears the burden of demonstrating a permanent incapacity from performing the duties of the position

In a proceeding pursuant to CPLR Article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System [Board] which denied the Petitioner's application for disability retirement benefits and the Medical Board of the New York City Employees' Retirement System appeal a judgment of the Supreme Court, which granted the Petitioner's amended petition and annulled the Board's determination, the Appellate Division reversed the Supreme Court's ruling "on the law, with costs," denied Petitioner's amended petition and dismissed the proceeding "on the merits".

Petitioner had applied for disability retirement benefits as a result of two work-related incidents claiming that as a result of the injuries he sustained in those incidents, he could no longer work.* In a proceeding pursuant to CPLR Article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System [Board] which denied the Petitioner's application for disability retirement benefits and the Medical Board of the New York City Employees' Retirement System appealed a judgment of the Supreme Court, which granted the Petitioner's amended petition and annulled the Board's determination.

The Medical Board had reviewed Petitioner's applications and medical documentation a number of times and ultimately issued its fourth report, which was substantively similar to the first three reports but more detailed, finding the Petitioner was not disabled. Petitioner then commenced the instant proceeding pursuant to CPLR Article 78 to review determination of the Board of Trustees.

In the words of the Appellate Division, "An applicant seeking disability retirement benefits bears the burden of demonstrating that she [or he] is permanently incapacitated from performing her [or his] job duties", citing Matter of Hannon v New York State Dept. of Human Rights, 170 AD3d 1175 and other decisions.  The Court also noted that "The Medical Board determines whether a member applying for disability retirement benefits is disabled, and the Board of Trustees is bound by the Medical Board's finding that an applicant is, or is not, disabled for duty" (See Matter of Russell v New York City Employees' Retirement Sys., 155 AD3d 1046).

The Appellate Division held that "a Medical Board's disability determination will not be disturbed if the determination is based on substantial evidence", citing Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, noting that "Substantial evidence in this context means some credible evidence", citing Matter of Maxwell v New York City Employees' Retirement Sys., 210 AD3d 1095,

The Appellate Division's decision also noted that "the Medical Board's determination that the Petitioner did not establish a disability as a result of the two work-related incidents was supported by credible evidence and the record indicates that "the Medical Board considered all of the medical evidence submitted by the [Petitioner] and interviewed and physically examined the[Petitioner] three times". In addition the Court's decision states that:

1. "The record further demonstrates that the [Petitioner's] right hip injury was the result of a preexisting condition and was not caused by the two work-related incidents"; and 

2. Petitioner's carpal tunnel syndrome was not considered a disability as the Petitioner chose to forego surgery.

Accordingly, the Appellate Division found that the Board of Trustees' determination adopting the recommendation of the Medical Board was not irrational or arbitrary and capricious and the Supreme Court should have denied the amended petition and dismissed the proceeding on the merits.

* The Petitioner did not have 10 years of service credit at the time of his application for disability retirement benefits and, therefore, was required to demonstrate that he was "physically . . . incapacitated for performance of gainful employment as the natural and proximate result of an accident not caused by his own willful negligence sustained in the performance of his duties" (See Retirement and Social Security Law §605[b][3]).

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

Challenge to the revocation press credentials issued to an individual by a New York City agency sustained

A petition filed by a New York City agency in an effort to revoke press credentials it had earlier issued to an individual [Respondent] was denied by New York City Office of Administrative Trials and Hearing [OATH] Administrative Law Judge [ALJ] Jonathan Fogel, "in a case of first impression".

Judge Fogel dismissed the petition filed by the New York City Mayor’s Office of Media and Entertainment [Petitioner] seeking to revoke a press credential it had previously issued to Respondent. 

Petitioner alleged that Respondent was not acting in a newsgathering capacity and Respondent misused or misrepresented his credential when he wore it to his own court proceedings and protests. 

The ALJ found that Petitioner failed to prove both charges by clear and convincing evidence. 

With respect to the court proceedings, the Administrative Law Judge held that Petitioner’s video evidence of Respondent wearing his credential outside the courthouse, discussing his case, and stating that he wore his badge with “no issues,” was insufficient to establish that Respondent actually wore the credential inside the proceedings or to influence the judge. 

The ALJ opined that Respondent plausibly asserted that he was newsgathering when he wore the credential outside the courthouse because he was reporting on his own court case. 

Respondent also produced proof that Petitioner had approved his newsgathering methods in connection with his application. 

Addressing "the protests," the ALJ found that video evidence supported Respondent’s assertion that he was newsgathering because he appeared to be broadcasting his commentary during the protests and answering questions from an online audience. 

Rejecting Petitioner’s argument that Respondent wasn’t newsgathering because he wasn’t “neutral,” the ALJ found that it is possible for someone to both attend a protest and engage in newsgathering.

Click HERE to access Administrative Law Judge Fogel's findings and decision. 

Selected items posted on blogs during the week ending August 22, 2025

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State and local leaders are navigating significant change

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