Diorio v. Ossining Union Free Sch. Dist.

• Decision Date: 06 June 2012
• Citation: 96 A.D.3d 710,946 N.Y.S.2d 195,2012 N.Y. Slip Op. 04314
• Parties: Alfred Peter DIORIO, respondent, v. OSSINING UNION FREE SCHOOL DISTRICT, et al., defendants, Baumann & Sons Buses, Inc., et al., appellants.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 710
946 N.Y.S.2d 195
2012 N.Y. Slip Op. 04314

Alfred Peter DIORIO, respondent,
v.
OSSINING UNION FREE SCHOOL DISTRICT, et al., defendants,
Baumann & Sons Buses, Inc., et al., appellants.

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

June 6, 2012.

[946 N.Y.S.2d 197]

Alan B. Pearl & Associates, P.C., Syosset, N.Y. (Gina Grath of counsel), for appellants.

Clifford L. Davis, White Plains, N.Y., for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.

[96 A.D.3d 710]In an action to recover damages for libel, libel per se, and prima facie tort, the defendants Baumann & Sons Buses, Inc., and William Heitmann appeal from so much of an order of the Supreme Court, Westchester County (Adler, J.), entered July 11, 2011, as denied their motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff, a bus driver employed by the defendant Baumann & Sons Buses, Inc. (hereinafter Baumann), and the defendant Carlos Sanchez, a fellow Baumann employee, were involved in a verbal altercation. Following that incident, Sanchez wrote a memorandum to Baumann's Terminal Supervisor, William Heitmann, alleging that the plaintiff had threatened to kill Sanchez and asking Heitmann to take action against the plaintiff. Heitmann then contacted the plaintiff's union and, at some point, met with the plaintiff, the union representative, and others. During the meeting, the plaintiff allegedly became [96 A.D.3d 711]very upset and accused Baumann of a conspiracy to terminate his employment.

Thereafter, Heitmann spoke with Mary E. Fountain, an employee of the defendant Ossining Union Free School District (hereinafter the School District), and, upon her request, sent her an e-mail in which he reviewed Sanchez's allegations and the meeting with the plaintiff. Referring to the plaintiff's “tantrum” and “eruption” during the meeting, Heitmann stated that he believed that the plaintiff was a threat to the safety of school children. Heitmann also noted that Baumann could not remove the plaintiff because it was “bound” by the plaintiff's union and impliedly urged Fountain to disqualify the plaintiff, warning that the failure to remove the plaintiff from driving school buses could result in a dangerous situation. Heitmann's e-mail alluded to the violent incident at Columbine High School in Colorado and characterized the plaintiff as a “loose nut.”

Shortly after receiving Heitmann's e-mail, Fountain, on behalf of the School District, disqualified the plaintiff from driving a school bus. Baumann then terminated the plaintiff's employment because no other suitable work was available after the plaintiff was disqualified. The...