Cusimano v. United Health Serv. Hospitals, Inc.

• Decision Date: 19 January 2012
• Parties: Jungsil CUSIMANO, Appellant, v. UNITED HEALTH SERVICES HOSPITALS, INC., et al., Respondents, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00271
33 IER Cases 897
91 A.D.3d 1149
937 N.Y.S.2d 413

Jungsil CUSIMANO, Appellant,
v.
UNITED HEALTH SERVICES HOSPITALS, INC., et al., Respondents, et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 19, 2012.

[937 N.Y.S.2d 415]

Law Office of Alfred Paniccia Jr., Binghamton (Alfred Paniccia Jr. of counsel), for appellant.

Aswad & Ingraham, Binghamton (Charles O. Ingraham of counsel), for United Health Services Hospitals, Inc. and another, respondents.

Sugarman Law Firm, Syracuse (Timothy J. Perry of counsel), for Robert Hayford and another, respondents.

Before: PETERS, J.P., ROSE, McCARTHY, GARRY and EGAN JR., JJ.

PETERS, J.P.

[91 A.D.3d 1149] Appeal from an order of the Supreme Court (Lebous, J.), entered February 15, 2011 in Broome County, which granted certain defendants' motions for summary judgment dismissing the complaint.

Plaintiff was the medical director and sole physician at the Clinton Street Family Care Center (hereinafter CSFCC), a medical facility owned and operated by defendant United Health Services Hospitals, Inc. (hereinafter UHSH). In November 2006, defendant Kelly Marshall, a medical office assistant employed by UHSH, informed defendant Robert Hayford, the manager of ambulatory services for UHSH, and defendant Linda Sebesta, UHSH's clinical coordinator, that plaintiff was storing pharmaceutical drug samples in her CSFCC office in violation of UHSH policy. In response to this information, Hayford, Sebesta and Marshall entered and searched plaintiff's unlocked office, during the course of which they found 114 sample packets, totaling 798 tablets, of the drug Provigil in an unlocked filing cabinet. Provigil is a controlled substance, but not a narcotic. UHSH policy prohibits physicians from storing samples of certain controlled substances, including Provigil, in their offices.

When the search was completed, Hayford, Sebesta and Marshall confiscated the Provigil and allegedly reported to April Fredenburg and Shari Paulhamus, two other medical office assistants working at CSFCC, that they had found narcotics in plaintiff's office, that plaintiff would likely be arrested and dismissed from her position and that the locks to CSFCC would be changed. Plaintiff commenced this action in June 2007 against, among others,¹

[937 N.Y.S.2d 416]

Sebesta, Hayford, Marshall and UHSH, alleging causes of action for slander per se, intentional infliction of emotional distress, prima facie tort and trespass. Following the completion of discovery, Supreme Court granted motions by [91 A.D.3d 1150] Sebesta and UHSH and Hayford and Marshall for summary judgment and dismissed the complaint, prompting this appeal.

Supreme Court properly determined that the statements made to Fredenburg and Paulhamus are protected by a qualified privilege.² “ ‘A qualified privilege arises when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest’ ” ( Lerwick v. Krna, 29 A.D.3d 1206, 1208, 815 N.Y.S.2d 767 [2006], lv. denied 7 N.Y.3d 712, 824 N.Y.S.2d 603, 857 N.E.2d 1134 [2006], quoting Grier v. Johnson, 232 A.D.2d 846, 847, 648 N.Y.S.2d 764 [1996]; see Liberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344 [1992] ). Such common interest may include statements to fellow employees on a subject concerning the employer ( see Liberman v. Gelstein, 80 N.Y.2d at 437, 590 N.Y.S.2d 857, 605 N.E.2d 344; Curren v. Carbonic Sys., Inc., 58 A.D.3d 1104, 1106, 872 N.Y.S.2d 240 [2009]; Sanderson v. Bellevue Maternity Hosp., 259 A.D.2d 888, 889–890, 686 N.Y.S.2d 535 [1999]; Roberts v. Oellrich & Behling, 223 A.D.2d 860, 860, 636 N.Y.S.2d 205 [1996] ). Here, the statements by Hayford, Sebesta and Marshall—employees of UHSH—were made solely to their coemployees, all of whom were collectively responsible for the functioning and proper operation of CSFCC. Inasmuch as all had a common interest in knowing whether pharmaceuticals were stored in violation of UHSH policy and the implications to plaintiff—the only physician on staff at CSFCC—defendants demonstrated that the statements were protected by a qualified privilege ( see Curren v. Carbonic Sys., Inc., 58 A.D.3d at 1106, 872 N.Y.S.2d 240; Sanderson v. Bellevue Maternity Hosp., 259 A.D.2d at 889–890, 686 N.Y.S.2d 535; Roberts v. Oellrich & Behling, 223 A.D.2d at 860, 636 N.Y.S.2d 205), thereby shifting the burden to plaintiff to prove that they “acted out of personal spite or ill will, with reckless disregard for the statements' truth or falsity, or with a high degree of belief that their statements were probably false” ( Foster v. Churchill, 87 N.Y.2d 744, 752, 642 N.Y.S.2d 583, 665 N.E.2d 153 [1996]; see Liberman v. Gelstein, 80 N.Y.2d at 438–439, 590 N.Y.S.2d 857, 605 N.E.2d 344).

While plaintiff asserts that Hayford, Sebesta and Marshall harbored ill will towards her as a result of certain events that transpired in the days prior to the search, “spite or ill will refers not to [a] defendant's general feelings about [a] plaintiff, but to the speaker's motivation for making the defamatory statements[, and] a triable issue is raised only if a jury could reasonably conclude that malice was the one and only cause for the publication” ( Liberman v. Gelstein, 80 N.Y.2d at 439, 590 N.Y.S.2d 857, 605 N.E.2d 344[91 A.D.3d 1151] [internal quotation marks and citations omitted]; see Clark v. Schuylerville Cent. School Dist., 74 A.D.3d 1528, 1529, 902 N.Y.S.2d 707 [2010];

[937 N.Y.S.2d 417]

Curren v. Carbonic Sys., Inc., 58 A.D.3d at 1106, 872 N.Y.S.2d 240). Here, Hayford, Sebesta and Marshall conducted the search based upon first-hand information from Marshall that she observed pharmaceutical samples being delivered to plaintiff's office, and their statements to Fredenburg and Paulhamus following the discovery of the samples were made in furtherance of the common...