Dillon v. City of NY

• Decision Date: 14 December 1999
• Citation: 261 A.D.2d 34,704 N.Y.S.2d 1
• Parties: JOHN T. DILLON, JR., et al., Respondents,<BR>v.<BR>CITY OF NEW YORK et al., Appellants.
• Court: New York Supreme Court — Appellate Division

261 A.D.2d 34

704 N.Y.S.2d 1

JOHN T. DILLON, JR., et al., Respondents,

v.CITY OF NEW YORK et al., Appellants.

TOM, J.

December 14, 1999.

Gary T. Certain of counsel, New York City (Certain & Monopoli, L. L. P., attorneys), for respondents.

Helen P. Brown of counsel, New York City (Kristin M. Helmers and Michele Lerner on the brief; Michael D. Hess, Corporation Counsel of New York City, attorney), for appellants.

ROSENBERGER, J. P., MAZZARELLI, LERNER and FRIEDMAN, JJ., concur.

OPINION OF THE COURT

TOM, J.

Defendants appeal from an order of the Supreme Court denying their motion to dismiss the complaint of two former Assistant District Attorneys (ADA) of Bronx County for defamation and related claims.

Plaintiffs were appointed to the position of Assistant District Attorney in Bronx County in August 1993. Prior to being hired, they signed a document, as a condition of employment, indicating their acknowledgment that "Assistant District Attorneys are required to abide by a commitment to give four years of initial service to the Office of the District Attorney. Failure to honor that commitment may result in a loss of benefits and an unfavorable termination from the Office." The District Attorney's (DA) office policy manual included the same statement of policy. In July 1995, the DA's office reduced the employment commitment period to three years, which was communicated to plaintiffs on or about August 24, 1995.

Both plaintiffs putatively ended their tenure with the Bronx District Attorney's office by the submissions of letters of resignation prior to the three-year commitment period.

Plaintiff Michael Newman submitted his resignation to the Administrative ADA, defendant Eileen Koretz, on Monday, August 28, 1995. Later that day, Newman's Bureau Chief, defendant Joseph Ferdenzi, asked Newman why he had handed in a resignation letter without first discussing the matter with him. Newman responded by noting that the DA's office had a policy of terminating ADA's who failed to complete their commitment period, and he wanted to make sure that it was clear that he was resigning to avoid termination. Subsequently, Newman met with the Executive Assistant District Attorney, defendant Richard Mangum, who rejected the resignation and terminated Newman for having violated the office's commitment period policy. Mangum indicated that the termination would be noted in Newman's personnel file and would be communicated to any prospective employer making inquiries. A memorandum in Newman's personnel file, apparently written by Koretz, is said to contain only a handwritten notation: "Terminated—Did Not Fulfill Commitment." This memorandum, though, is not included in the record. Newman alleges that other memoranda—also not included in the record— contained similar language.

Later that day, Ferdenzi called a meeting of Bureau personnel at which, it is alleged, Ferdenzi told the assembled ADA's that he had "fired" Newman. Newman alleges that Ferdenzi also intimated that the discharge was for cause, and that the general tenor of Ferdenzi's presentation emphasized the importance of trust and the fault of being underhanded, implying the absence of that virtue in him. The actual words used are not particularized in the complaint, and no affidavit of anyone attending that meeting is included in the record.

In early December 1995, ADA Michele Monopoli, apparently intending to enter practice with Newman and others, tendered her voluntary resignation to Mangum, who conducted her exit interview. Newman alleges that Mangum tried to discourage her from entering practice with him, stating "one of your partners—Gary—is an upstanding guy as you and I well know; the other"—apparently suggesting Newman—at which point Mangum made deprecating facial expressions and shook his head—"he had some nerve pulling that shit while his brother is still in this office * * * what a fucking asshole." Mangum then asked, rhetorically, why she was not being made a name partner in the firm, then, apparently answering his own inquiry, surmised "it sounds like you don't trust your partner any more than I do." No affidavit by Monopoli appears in the record.

Plaintiff John Dillon was hired at the same time as Newman. Dillon, too, submitted a typewritten resignation, on October 6, 1995, effective that date. Dillon first submitted his resignation to his Bureau Chief, ADA Joseph Giampaolo, but Giampaolo indicated that the resignation should be submitted directly to the District Attorney, defendant Robert Johnson. After the letter was submitted to Johnson, Giampaolo indicated that Dillon should remain in the office until he was contacted by Johnson. Johnson left that day without contacting Dillon, who then submitted it to Senior Executive Assistant District Attorney Eric Warner. Plaintiff Dillon alleges that on or about November 15, 1995, Koretz wrote him a letter, subsequently placed in his personnel file and allegedly shown to other employees, stating that Dillon had acted unprofessionally. However, this letter is not included in the record. Dillon also asserts that Koretz issued a memorandum dated October 11, 1995, stating that Dillon had been terminated and had not fulfilled his commitment. Dillon further states that during the winter of 1996, members of the District Attorney's office communicated to the District of Columbia's Board of Bar Examiners that Dillon had been terminated.

Plaintiffs' complaint sets forth, inter alia, causes of action for defamation and for negligent and intentional infliction of emotional distress on behalf of both plaintiffs. Defendants moved to dismiss the complaint or, in the alternative, for summary judgment.

The IAS Court, apparently treating the motion as one for summary judgment, denied the motion in its entirety. The court found triable factual issues concerning Newman's last effective date of employment, the truthfulness of statements that both plaintiffs were terminated, and whether the defendants' conduct was so extreme as to support the emotional distress claims. We reverse.

Defamation has long been recognized to arise from "the making of a false statement which tends to `"expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society"'" (Foster v Churchill, 87 NY2d 744, 751, quoting Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 379, cert denied 434 US 969, quoting Sydney v MacFadden Newspaper Publ. Corp., 242 NY 208, 211-212). The elements are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se (Restatement [Second] of Torts § 558). CPLR 3016 (a) requires that in a defamation action, "the particular words complained of * * * be set forth in the complaint." The complaint also must allege the time, place and manner of the false statement and specify to whom it was made (Arsenault v Forquer, 197 AD2d 554; Vardi v Mutual Life Ins. Co., 136 AD2d 453).

In evaluating whether a cause of action for defamation is successfully pleaded, the words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction (Silsdorf v Levine, 59 NY2d 8, cert denied 464 US 831). "[C]ourts `"will not strain"'" to find defamation "where none exists" (Cohn v National Broadcasting Co., 50 NY2d 885, 887, cert denied 449 US 1022). Loose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not actionable (Gross v New York Times Co., 82 NY2d 146, 152-153; Immuno AG. v Moor-Jankowski, 77 NY2d 235, 244, cert denied 500 US 954). Internal employment reviews also may be protected speech, either as an expression of opinion, or in recognition of the principle that "[a]n employer has the right to assess an employee's performance on the job without judicial interference" (Ott v Automatic Connector, 193 AD2d 657, 658), often allowing for dismissal on the pleadings (supra; see also, Williams v Varig Brazilian Airlines, 169 AD2d 434, lv denied 78 NY2d 854 [internal memorandum stated that plaintiff had a bad attitude and was difficult to work with]; Goldberg v Coldwell Banker, 159 AD2d 684 [plaintiff said to be uncooperative, abrasive and dilatory]; Hollander v Cayton, 145 AD2d 605 [hospital employee said at professional staff meeting that physician plaintiff was immoral, unethical and had mismanaged cases]).

Truth provides a complete defense to defamation claims (Rinaldi v Holt, Rinehart & Winston, supra; Fairley v Peekskill Star Corp., 83 AD2d 294, 297). Allegations of defamation present, in the first instance, an issue of law for judicial determination (Silsdorf v Levine, 59 NY2d 8, 12-13, cert denied 464 US 831, supra; James v Gannett Co., 40 NY2d 415, 419-420).

Plaintiffs complain that communicating to third parties that they had been "terminated" defamed them and harmed their professional reputation. A salient fact upon which this analysis turns is that, under the terms of their employment, plaintiffs did not have the right to resign at will during the contractual commitment period. While plaintiffs were obligated to remain for the commitment period, the policy manual did not create any obligation on the employer to retain plaintiffs' services for a term certain absent an expressed agreement (Sabetay v Sterling Drug, 69 NY2d 329, 336; cf., Murphy v American Home Prods. Corp., 58 NY2d 293, 305). There being no express limitation on the employer's right to terminate plaintiffs (Sabetay v Sterling Drug, supra; Civiletti v Independence Sav. Bank, 236 AD2d 436), they could be fired for cause as a consequence of their breach of...