Hanzimanolis v. City of New York

• Decision Date: 12 October 1976
• Citation: Hanzimanolis v. City of New York, 388 N.Y.S.2d 826, 88 Misc.2d 681 (N.Y. Sup. Ct. 1976)
• Parties: George HANZIMANOLIS, Plaintiff, v. The CITY OF NEW YORK and Louis I. Stutman, Defendants.
• Court: New York Supreme Court

Page 826

388 N.Y.S.2d 826

88 Misc.2d 681

George HANZIMANOLIS, Plaintiff, v.The CITY OF NEW YORK and Louis I. Stutman, Defendants.

Supreme Court, Special Term, New York County, Part I.

Oct. 12, 1976.

Samuel Lorenzo, New York City, for plaintiff.

W. Bernard Richland, Corp.Counsel, New York City, for defendants.

ARNOLD L. FEIN, Justice:

This is a motion by defendants for an order pursuant to CPLR 3211(a)(7) dismissing the complaint in this action to recover for alleged libelous statements made by defendantLouis I. Stutman, Deputy Police Commissioner, in a Memorandum to the Police Commissioner issued following a departmental hearing in which Stutman recommended that plaintiff be dismissed from his position with the New York City Police Department.

On August 9, 1971, plaintiff was charged with five specifications of violations of the Rules & Procedures of the Police Department, charging that he did 'knowingly and wrongfully': (1) engage in outside employment during the time he was not on duty without written authorization of the Police Commissioner; (2) register a vehicle in New Jersey from an address at which he did not reside; (3) make false statements during an official homicide investigation being conducted by the New York State Police; (4)'cohabit with one, Nina Shapiro, a married female, not his wife' at a designated motel in Elmsford, New York on September 21, 1970, while lawfully married to another woman; and (5) give evasive answers during an official department interview as to whether plaintiff had registered on September 21, 1970, at the specified motel in Elmsford, New York, under the name of Mr. and Mrs. L. Lewis, and at that motel and other motels using the name L. Lewis, on other occasions.

Following a departmental hearing before defendant Stutman on June 21 and July 11, 1972, Stutman issued a Memorandum on November 8,1972, containing his findings and recommendations to the Police Commissioner.Stutman found plaintiff guilty of all specifications except the third, which had charged plaintiff with making false statements during an official homicide investigation.The investigation was in connection with the death of Dr. Sidney Shapiro, the husband of Nina Shapiro, the female with whom plaintiff was cohabiting.On September 21, 1970, Dr. Shapiro was found in his automobile in Westchester County, the victim of a homicide by gunshot.In the course of the Memorandum, Stutman stated:

'There is an obvious suspicion that the respondent was involved in the homicide of Dr. Shapiro but apparently there is no proof that he was responsible for his death.'

It is this statement on which plaintiff largely relies in this action.

On November 9, 1972, the Police Commissioner of the City of New York issued an order dismissing plaintiff from his employment as a patrolman, adopting and adhering to the recommendations of the Deputy Police Commissioner.Thereupon, plaintiff instituted an Article 78 proceeding in this court, which resulted in an order sustaining the findings and determination of the Commissioner.The decision was affirmed by the Appellate Division.(Matter of Hanzimanolis v. Murphy, 42 A.D.2d 1050.)An appeal to the Court of Appeals was thereafter dismissed.(33 N.Y.2d 940, 353 N.Y.S.2d 1028, 309 N.E.2d 144.)Leave to appeal to the Court of Appeals was denied by both the Appellate Division and the Court of Appeals.(34 N.Y.2d 516, 358 N.Y.S.2d 1025, 315 N.E.2d 817.)A petition for certiorari to the Supreme Court of the United States was denied on November 11, 1974.(Hanzimanolis v. Murphy, 419 U.S. 994, 95 S.Ct. 311, 42 L.Ed.2d 270.)

Subsequent thereto, plaintiff commenced an action against the Police Commissioner in the U.S. District Court for the Southern District of New York seeking a judgment directing his reinstatement.He claimed that although he was charged with five minor infractions of the Rules, he was actually discharged because the Department suspected that he had committed or been involved in the homicide of Dr. Shapiro.He asserted that his dismissal deprived him of his constitutional rights under the Civil Rights Act. (42 U.S.C. Sections 1983and1985) and of his rights, privileges and immunities secured by the Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States.The motion of the Police Commissioner to dismiss the complaint on the ground that the action was barred by res judicata and collateral estoppel was granted by United States District Judge Weinfeld, holding that the issues raised in the federal action had been previously determined in the Article 78 proceeding.(Hanzimanolis v. Codd, D.C., 404 F.Supp. 719).On April 21, 1976, the U.S. Court of Appeals, 2nd Circuit affirmed.(538 F.2d 309.)

In this defamation action, plaintiff seeks to recover damages for alleged libelous statements published by the defendants.He contends that the tenor of the Memorandum and, in particular, that portion setting forth the 'obvious suspicion that * * * (he) was involved in the homicide of Dr. Shapiro', constitutes libel per se, resulting in damage to his reputation and to his professional standing and character.Defendants move to dismiss on the grounds of (1) res judicata, in that the issues were paised in and determined by the prior proceedings between the parties; (2) absolute privilege, in that the statements were privileged, having been made in an official memorandum following an official departmental hearing.Plaintiff denies the privileged nature of the statements, alleging that they were not pertinent to and went beyond the scope of the charges and specifications raised at the hearing.

The law in this state is well settled that statements made in judicial and quasijudicial proceedings are absolutely privileged.The privilege extends to any matter that might be pertinent to the issues.(Martirano v. Frost, 25 N.Y.2d 505, 307 N.Y.S.2d 425, 255 N.E.2d 693;Andrews...