Law Offices of Fausto E. Zapata, Jr., P.C., New York (Michael
Coviello of counsel), for appellant.
Koehler & Isaacs, New York (Howard Wien of counsel), for
Michael Carrube, Keith Blair, Patric Beauford, Thomas
Cummings and Subway Surface Supervisors Association,
B. Henly, Brooklyn (Kathryn E. Martin of counsel), for
Christopher Johnson, respondent.
Acosta, P.J., Friedman, Richter, Kapnick, JJ.
Supreme Court, New York County (Arthur F. Engoron, J.),
entered December 7, 2016, which, in this hybrid CPLR article
78 proceeding and plenary action, denied the petition to
annul the determination of respondent Subway Surface
Supervisors Association (SSSA or the union), dated January 8,
2016, upholding the recommendation of the union's trial
committee that petitioner be removed from her elected
position as Section Vice President, dismissed the proceeding,
and granted defendants' motions to dismiss the libel
claims, unanimously affirmed, without costs.
represents employees of the New York City Transit Authority
(NYCTA) in various titles. Petitioner seeks to annul
SSSA's removal of her from an elected position and from
an appointed position, and asserts libel claims against SSSA,
its president, the chairperson and members of its trial
committee, and the Senior Vice President of NYCTA's
Office of Labor Relations.
removal of petitioner from her elected position is consistent
with its constitution and is rational and not arbitrary and
capricious (see generally Matter of Pell v Board of Educ.
of Union Free School Dist. No. 1 of Towns of Scarsdale &
Mamaroneck, Westchester County, 34 N.Y.2d 222, 231
). Petitioner's June 17, 2015 email to several
NYCTA officials and her persistent use of personal business
cards, email address, and cell phone number, despite
directions to use those provided by SSSA, constitute a
disregard for respondent union president Michael
Carrube's directions and disloyalty to the union (see
Matter of Berich v Ithaca Police Benevolent Assn., Inc.,
23 A.D.3d 904');">23 A.D.3d 904 [3d Dept 2005]; see also Matter of Holmes v
United Mut. Life Ins. Co., 286 A.D. 500, 502 [1st Dept
1955], affd in part, appeal dismissed in part 2
N.Y.2d 1001 ).
record demonstrates that petitioner was not prejudiced by the
notice she received with respect to her removal from her
elected position (see Costanzo v Long Is. Bd. of
Realtors, 143 A.D.2d 625, 626 [2d Dept 1988]). She was
provided with the requisite notice of the charges and an
opportunity to be heard, and she fully participated in the
hearing, at which she was represented by counsel and at which
the charges were clarified. Petitioner failed to identify
anything in SSSA's constitution that supports her
contention that she is entitled to the same due process
protections with respect to her appointed position.
libel claim against SSSA was correctly dismissed since
absolute immunity from liability for libel attaches to the
trial committee's charges initiating the quasi-judicial
proceedings against petitioner (Wiener v Weintraub,
22 N.Y.2d 330');">22 N.Y.2d 330 ; Sullivan v Board of Educ. of
Eastchester Union Free School Dist., 131 A.D.2d 836, 839
[2d Dept 1987]) and to the hearing officer's decision
(Harms v Riordan-Bellizi, 223 A.D.2d 624, 625 [2d
libel claim against Carrube was correctly dismissed, since
the alleged libelous statement, that petitioner violated the
chain of command, is at least substantially true (see
Franklin v Daily Holdings, Inc., 135 A.D.3d 87, 94 [1st
Dept 2015]). Carrube's use of the words
"unethical" and "detrimental to the
members" to describe petitioner's behavior is an
expression of pure opinion and is supported by a factual
predicate (see Steinhilber v Alphonse, 68 N.Y.2d
283, 289 ; Silsdorf v Levine, 59 N.Y.2d 8,
13-14 , cert denied 464 U.S. 831');">464 U.S. 831 ).
libel claim against respondent NYCTA Senior Vice President of
Labor Relations Christopher Johnson arises from statements
that Johnson made in an email to Carrube about the nature of
the relationship between NYCTA's Office of Labor
Relations and SSSA and the need for "mutual
cooperation" and "respect" between them.
Johnson's use of words such as "inappropriate,
" "disrespect, " and "intimidation"
to characterize petitioner's conduct is an expression of
his opinion of her performance and its effect on SSSA's
relationship with NYCTA, and, considered in the context of
the entire email, including its tone and purpose, is not
actionable (see Rinaldi v Holt, Rinehart &
Winston, 42 N.Y.2d 369, 380 , cert denied434 U.S. 969');">434 U.S. 969 ; Frechtman v Gutterman, 115
A.D.3d 102, 105 [1st Dept 2014]). The only factual statement
in Johnson's email that petitioner challenges was made to
someone with a common interest in the subject matter and is
therefore protected by a qualified privilege (see Foster
v Churchill, 87 N.Y.2d 744, 751 ...