Concerning an action to recover damages from a co-worker for alleged defamation

The Plaintiff, a tenured professor at a University, commenced this action against the Respondents, including a named professor [Professor] at the University. Plaintiff alleged that Professor defamed him in course of an investigation of Plaintiff conducted by the University and sought damages.

Citing Porges v Weitz, 205 AD3d 13, the Appellate Division said "The elements of a cause of action [to recover damages] 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, however, noted:

1. "An allegedly defamatory statement is subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his [or her] own affairs, in a matter where his [or her] interest is concerned", citing Braunstein v Day, 195 AD3d at 589-590 [internal quotation marks omitted]", see Stega v New York Downtown Hosp., 31 NY3d 661; and

2. A "common interest" privilege "extends to a communication made by one person to another upon a subject in which both have an interest", citing Liberman v Gelstein, 80 NY2d 429.

The court then opined that to defeat this qualified privilege, "the plaintiff may show either common-law malice, i.e., spite or ill will, or may show actual malice, i.e., knowledge of falsehood of the statement or reckless disregard for the truth".

Here, said the court, Professor established, prima facie, "that the alleged defamatory statements she made in the course of the investigation into the allegations against the Plaintiff by [University] were entitled to a qualified common interest privilege." Further, opined the court, "Plaintiff failed to raise a triable issue of fact with respect to whether Professor's statements were motivated by either common-law malice or actual malice."

In addition, contrary to the Plaintiff's contention, the Appellate Division noted the Plaintiff did not demonstrate how further discovery might reveal the existence of material facts, currently within the exclusive control of Respondents', which would warrant the denial of the Respondents' motion for summary judgment.

Accordingly, the Appellate Division held "the Supreme Court properly granted the Respondents' motion for summary judgment dismissing the complaint.

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

Former assistant clerk alleged to have stolen nearly $4,000 from village

On August 9, 2023, State Comptroller Thomas P. DiNapoli, Chemung County District Attorney Weeden Wetmore and the New York State Police announced the arrest of Tammy Miele, former Assistant Clerk for the Village of Horseheads, for allegedly stealing nearly $4,000 from the Village.* The arrest was the result of a joint investigation between Comptroller DiNapoli’s Office, the Chemung County District Attorney’s Office, and the New York State Police.

“Ms. Miele allegedly used her position to defraud the Village of Horseheads for her personal gain** and altered Village records to cover her theft. My office’s investigation and our partnership with District Attorney Wetmore and the State Police have ensured that she will now be held accountable for her actions,” DiNapoli said. “I extend my thanks to District Attorney Wetmore and the State Police for helping my office combat public corruption through their continued partnership.”

New York State Police Acting Superintendent Steven A. Nigrelli said, “This arrest should serve as a reminder that those who choose to abuse their positions will be brought to justice. The arrest of this individual sends a strong message that we will not tolerate dishonest actions by those who use their position at the expense of the public. I thank the Comptroller’s Office and the Chemung County District Attorney’s Office for their commitment to investigating those who prey on the unsuspecting public for their own gain.”

Miele, 49, was charged with grand larceny and corrupting the government, both felonies.

She served as an assistant clerk for the Village from 2017 to 2022. During that time, she accepted cash payments for the Village, including accepting payments from multiple residents who wished to pay their water bills.

The joint investigation and forensic analysis revealed that Miele accepted residents’ cash payments but never deposited the cash into the Village’s bank account. Instead, she allegedly altered the Village’s accounting system to delete any balances owed by the taxpayer and pocketed the money. She is charged with stealing $3,548 from September of 2017 through September of 2022 through this scheme.

Additionally, the forensic analysis also determined that Miele paid her personal New York State Electric and Gas (NYSEG) bill with Village funds resulting in the Village paying over $450 of her bill.

Miele’s employment with the Village was terminated in September 2022.

Miele was arraigned before Judge Christopher Pelchar in the Village of Elmira Heights Court and is scheduled to appear again on September 6, 2023.

* N.B. The defendant is presumed innocent until proven guilty.

** As noted in previous NYPPL reports of such alleged acts of such misconduct, there is a term for such breaches of the public trust, "jobbery." Mirriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain".

 

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Plaintiff's allegations of unlawful discrimination and retaliation dismissed

The United States District Court for the Southern District of New York dismissed Plaintiff's claims of age, race, and gender discrimination and retaliation within the meaning of the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. §1981.

Plaintiff appealed, contending that the district court had applied an incorrect legal standard to her retaliation claim and that it erroneously concluded that she had failed to demonstrate that her employer, the New York City Transit Authority's [Authority] race neutral explanations for not selecting her for two internal promotions were pretextual.

The Second Circuit of Appeals affirmed the judgment of the district court.

Initially the Circuit Court held that Plaintiff had not demonstrated that the Authority's explanations for her non-promotions were pretextual. 

Second, the Circuit Court opined "although the district court applied an incorrect standard to her retaliatory hostile work environment claim, Plaintiff had, nevertheless, failed to make out a prima facie case of retaliation and did not demonstrate that the Authority non-retaliatory explanations were pretextual"

Click HERE to access the text of the Second Circuit's decision posted on the Internet.

Judicial review of an administrative decision made without a formal hearing is limited

In a hybrid proceeding pursuant to CPLR Article 78 to review a resolution of the Town Board Supreme Court granted branches of a cross-motion of the Town Board pursuant to CPLR 3211 and 3212 to dismiss certain causes of action in the Plaintiffs' petition and complaint. Plaintiffs appealed the court's decision to the Appellate Division.

The Appellate Division, in a 3 to 2 decision, affirmed the Supreme Court's action and judgment, explaining:

1.  In reviewing an administrative determination, this Court must consider only whether the "determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion;" and

2. In instances where judicial review involves an administrative determination made without a formal hearing, such judicial review is limited to whether the determination was arbitrary and capricious, or without rational basis in the administrative record.*

One of the causes of action alleged that the determination of the Town Board was arbitrary, capricious, or irrational. Here the Appellate Division held that the Town Board had demonstrated that its determination to issue the resolution was rational and not arbitrary or capricious and thus was properly dismissed by Supreme Court.

Addressing the other relevant cause of action involving the Plaintiffs' allegation that the resolution of the Town Board was not supported by substantial evidence, the Appellate Division opined that the substantial evidence standard of review "is inapplicable here as the challenged determinations did not arise from a quasi-judicial hearing required by law," citing CPLR 7803[4] and Matter of 1300 Franklin Ave. Members, LLC v Board of Trustees of Inc. Vil. of Garden City, 62 AD3d at 1007. Accordingly, the Supreme Court also properly dismissed this cause of action which sought to annul the Town Board's determination "for lack of substantial evidence".

* See Matter of Peckham v Calogero, 12 NY3d 424.

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