Calendar Date: April 18, 2013
Law Firm of Frank W. Miller, East Syracuse (Frank W. Miller of counsel), for appellants-respondents.
Law Office of Ronald R. Benjamin, Binghamton (Ronald R. Benjamin of counsel), for respondent-appellant.
Before: Lahtinen, J.P., McCarthy, Garry and Egan Jr., JJ.
MEMORANDUM AND ORDER
Cross appeals from an order of the Supreme Court (Tait, J.), entered June 14, 2012 in Tioga County, which partially denied defendants' motion for summary judgment dismissing the amended complaint.
Plaintiff was employed by defendant Newark Valley Central School District (hereinafter NVCSD) as a probationary physical education teacher, and she served as the coach for the girls' varsity field hockey team. Todd Broxmeyer, plaintiff's boyfriend at the time who also served as a volunteer coach for the NVCSD girls' field hockey teams, was arrested and charged with raping a female field hockey player from a different school district. In the course of the investigation, it came to light that plaintiff might have had some involvement in or knowledge of the illegal conduct underlying the allegations against Broxmeyer. Defendants then acted to terminate plaintiff's employment.
Plaintiff commenced this action alleging that defendants maliciously published defamatory oral and written statements about her and that defendants failed to provide her with a name-clearing hearing in violation of her state and federal due process rights . Defendants moved for summary judgment dismissing plaintiff's amended complaint. Supreme Court partially granted the motion to the extent of finding that one statement at issue was protected by a qualified privilege, but the court otherwise denied the motion. Defendants appeal and plaintiff cross-appeals.
When a governmental employer "'fires an employee and publicly charges that she [or he] acted dishonestly or immorally, due process guarantees the employee an opportunity to defend her [or his] good name, reputation, honor or integrity'" (Wilcox v Newark Valley Cent. School Dist., 74 A.D.3d 1558, 1563 , quoting Donato v Plainview-Old Bethpage Cent. School Dist., 96 F.3d 623, 630 [2d Cir 1996], cert denied 519 U.S. 1150  [internal quotation marks and citation omitted]). Accordingly, a probationary employee may be entitled to a posttermination name-clearing hearing where "'the [public] employer creates and disseminates a false and defamatory impression about the employee in connection with his [or her] termination'" (Matter of Lentlie v Egan, 61 N.Y.2d 874, 875 , quoting Codd v Velger, 429 U.S. 624, 628 ). In order to establish his or her entitlement to such a hearing, a plaintiff must allege "'(1) the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiff's status or rights'" (Wilcox v Newark Val. Cent. School Dist., 74 A.D.3d at 1562, quoting Sadallah v City of Utica, 383 F.3d 34, 38 [2d Cir 2004] [internal quotation marks and citations omitted]; see Matter of Swinton v Safir, 93 N.Y.2d 758, 764 ; see also Zarabi v Incorporated Vil. of Roslyn Harbor, 90 A.D.3d 1037, 1038 ). In other words, the plaintiff must establish "an allegedly defamatory governmental action together with a loss of employment and the dissemination of the stigmatizing material" (Guerra v Jones, 421 Fed.Appx 15, 19 [2d Cir 2011]).
Accordingly, plaintiff's stigma-plus due process claims are linked to her defamation per se cause of action. We therefore consider the arguments together. Plaintiff's defamation cause of action is actually based on four separate statements. Plaintiff alleges that defendant Diane Arbes, principal of NVCSD's high school, stated at a meeting with several staff members that plaintiff should avoid private one-on-one conversations with students and should take a leave of absence "for the safety of the students." Arbes also held a meeting with the field hockey team at which, according to plaintiff's allegations, Arbes told the students that plaintiff acquiesced in or did not challenge her termination. Defendant Mary Ellen Grant, NVCSD's superintendent, provided plaintiff with a statement of reasons for recommending termination, pursuant to Education Law § 3031, which stated, among other things, that plaintiff was aware of Broxmeyer's conduct that violated NVCSD's sexual harassment policy and did not report this conduct. Plaintiff also alleges that Grant spoke to parents of field hockey players and advised them that plaintiff acquiesced in or did not challenge her termination.
Defendants bore the initial burden of tendering "sufficient, competent, admissible evidence establishing a prima facie entitlement to judgment as a matter of law"; only if defendants met that burden was plaintiff required to "produce competent admissible evidence establishing the existence of a material issue of fact which would preclude a grant of summary judgment" (Holly v Morgan, 2 A.D.3d 1170, 1171 ; see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 ). In support of their motion, defendants submitted documents, Grant's affidavit, and deposition testimony of plaintiff, Grant and Arbes. Grant testified that she did not state to anyone that plaintiff acquiesced in her termination, and that the statement-of-reasons letter was not placed in plaintiff's personnel file, but in a separate legal file, and would not be disseminated to anyone. Grant also explained that when a potential employer seeks information about a NVCSD employee, the policy is to only provide the employee's position and dates of employment, with no further information. Arbes testified that she made the "safety of the students" remark only regarding private conversations with students, and did not recommend a leave of absence, the statement was not made in a defamatory context and was said in a meeting with only relevant staff and union representatives. This would make that statement privileged under the common interest qualified privilege (see Foster v Churchill, 87 N.Y.2d 744, 752 ). Arbes also testified that she never told anyone that plaintiff acquiesced in her termination, although Arbes had earlier testified that she didn't recall if she ever made such a statement and "might have" said it.
This evidence was sufficient to satisfy defendants' burden of establishing a prima facie case regarding all of the allegedly defamatory statements except Arbes' acquiescence statement. A question of fact exists as to whether Arbes' stated to the field hockey team that plaintiff acquiesced in or did not challenge her termination. Plaintiff was not at the team meeting and did not submit affidavits from any students or faculty who were present, instead relying on her assertion that the statement is false, her own hearsay testimony and equivocal testimony from Arbes' deposition. Arbes was asked whether she had, from a certain date forward, ever said that plaintiff acquiesced in or did not challenge her termination. Arbes testified that she did not recall and, upon further questioning, that she "might have" said it. A break was then taken, after which defendants' counsel noted that Arbes had misunderstood the last question and wanted to correct her answer. Plaintiff's counsel did not allow a correction and, upon later questioning by defendants' counsel, Arbes testified that she did not understand the earlier question, had not said anything about whether plaintiff was challenging her termination, and never made a statement that plaintiff agreed with or did not challenge her termination. Viewing the evidence in a light most favorable to plaintiff, as the nonmovant (see Kumar v Kumar, 96 A.D.3d 1323, 1326 ; Reil v Chittenden, 96 A.D.3d 1273, 1274 ), Arbes' contradictory deposition testimony creates a credibility question. A trier of fact could accept that she was confused by the question and legitimately corrected herself, or could believe that she understood the question and originally answered it correctly but changed her answer after reflection of its implications and discussion with counsel during the break. This contradictory proof raises a question of fact as to whether Arbes made the acquiescence statement (see Yaziciyan v Blancato, 267 A.D.2d 152, 152 ; see also Reil v Chittenden, 96 A.D.3d at 1274; Francis v New York City Tr. Auth., 295 A.D.2d 164, 164-165 ; Meyer v Moreno, 258 A.D.2d 315, 316 ; cf. O'Leary v Saugerties Cent. School Dist., 277 A.D.2d 662, 663 ). Thus, that statement survives as a basis for the defamation per se cause of action and the underlying derogatory statement for the stigma-plus causes of action.
In response to defendants' motion, plaintiff submitted only a memorandum of law. Defendants submitted a reply with affidavits from Arbes and Jill Keeler, a teacher, coach and president of the teachers' union. At oral argument on the motion, plaintiff requested, and Supreme Court granted her, permission to file another affidavit, with defendants given time to respond. Plaintiff then submitted the affidavit of a parent averring that Grant stated to that parent that plaintiff acquiesced in her termination.
Supreme Court did not abuse its discretion by granting plaintiff permission to file a late affidavit. Motion papers must be served in accordance with CPLR 2214 and applicable time frames in order to be "read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct" (CPLR 2214 [c]). A court may, in its discretion, accept late papers, should the delinquent party provide a valid excuse (see Payne v Buffalo Gen. Hosp., 96 A.D.3d 1628, 1629 ). The court may consider "'[a]dditional factors relevant... includ[ing], among others, the length of the delay and any prejudice'" (id., quoting Mallards Dairy, LLC v E & M Engrs. & Surveyors, P.C., 71 A.D.3d 1415, 1416 ). Here, the court did not abuse its discretion by finding that plaintiff proffered a valid excuse, considering the relatively short period of delay experienced by both parties and the lack of prejudice (see Mallards Dairy, LLC v E & M Engrs. & Surveyors, P.C., 71 A.D.3d at 1416). In that affidavit, a parent averred that Grant stated in a phone call that plaintiff acquiesced in her termination. Grant acknowledged speaking to the parent by phone but denied ...