Kasachkoff v. City of New York

• Decision Date: 28 February 1985
• Citation: 107 A.D.2d 130,485 N.Y.S.2d 992
• Parties: Alisa KASACHKOFF, Plaintiff-Respondent, v. The CITY OF NEW YORK, Health and Hospitals Corporation, Bellevue Hospital, Angelo Canedo and Bruce Grynbaum, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 992

485 N.Y.S.2d 992

107 A.D.2d 130

Alisa KASACHKOFF, Plaintiff-Respondent, v. The CITY OF NEW YORK, Health and Hospitals Corporation Bellevue Hospital, Angelo Canedo and Bruce Grynbaum, Defendants-Appellants.

Supreme Court, Appellate Division First Department.

Feb. 28, 1985.

Barry P. Schwartz, New York City, of counsel (Ronald E. Sternberg, New York City, with him on the brief; Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City, attorney), for defendants-appellants.

John G. Lipsett, New York City, of counsel (Forsythe, Holbrook, Seward & Bovone, New York City, attorneys), for plaintiff-respondent.

Before KUPFERMAN, J.P., and SANDLER, ASCH and BLOOM, JJ.

SANDLER, Justice.

Plaintiff was employed by defendant Bellevue Hospital as a Senior Psychologist in its Rehabilitation Medicine Service ("RMS") from on or about May 19, 1980 until on or about November 30, 1981, when she was transferred to Lincoln Medical and Mental Health Center. During this period, defendant Bruce Grynbaum was the director of RMS, and defendant Angelo Canedo was a Senior Rehabilitation Psychologist of the Service.

On October 23, 1980, just prior to the expiration of plaintiff's probationary period, Grynbaum recommended her termination in a report evaluating her work as unsatisfactory. Following a grievance hearing initiated by plaintiff, the Office of Labor Relations determined that there had been a failure by management to follow Health and Hospitals Corporation ("HHC") Operating Procedure 20-40, Section 4(H), which requires an employee's supervisor, prior to such termination, to meet with the employee to review the evaluation and discuss at that time plans for improving the employee's performance. As a result, plaintiff's probation was deemed satisfactory and she was certified as a Senior Psychologist.

On January 26, 1981, a counselling session was held pursuant to Operating Procedure 20-10. At this meeting were plaintiff, her union representative, the RMS Associate Director of Administrative Affairs, the Chief of Bellevue's Psychology Department and the defendant Canedo, who appeared in place of the absent Acting Chief Psychologist. Pursuant to request, Canedo had prepared a written summary of the various events that had given rise to dissatisfaction with plaintiff's performance. At this meeting, clearly confidential in character, plaintiff was informed in detail of these matters. In the first cause of action of the complaint, alleging defamation, it is claimed that Canedo said: "During the first two months of plaintiff's employment, plaintiff was observed on several occasions to be intoxicated and unable to perform her professional duties, and that on one such occasion her speech was practically unintelligible and she had vomitus on her face and clothing some of which had dried." "That plaintiff profusely dribbled on her dress which she had worn for three consecutive days", "that her appearance was generally disheveled and there was a distinctly noxious odor when standing in her presence", and further "that plaintiff stumbled as she walked and ran into the wall several times, clearly unable to maintain her balance".

On March 16, 1981, pursuant to plaintiff's request in accordance with her rights under her Collective Bargaining Contract, a labor/management meeting was held in the office of Bellevue's Deputy Executive Director, to discuss the difficulties which had arisen with regard to plaintiff's employment with RMS. Present were plaintiff, her attorney, her union representative, Bellevue's Deputy Executive Director, Bellevue's Director of Labor Relations, and Grynbaum. At this meeting the defendant Grynbaum allegedly said, as set forth in the second cause of action in the complaint, also alleging defamation, that plaintiff "wore dirty, filthy, torn and tattered clothes", and that she was a "racist". Grynbaum acknowledges having made the comment with regard to her clothing, disclaims any recollection of having called her a racist, but agrees that he set forth his concerns over what seemed to him plaintiff's difficulties in relating appropriately to black patients.

In April 1981 plaintiff, seeking damages for defamation of character, intentional infliction of emotional distress, wrongful discharge from her position, and prima facie tort, filed a notice of claim with the City's Comptroller and HHC's General Counsel, which, as here pertinent, stated: "On January 26, 1981, the claimant was defamed by employees of the Health and Hospitals Corporation, Bellevue Hospital and the City of New York at Bellevue Hospital by accusing claimant of alcoholism and being drunk."

In January of 1982 the plaintiff commenced this action, asserting five causes of action. The first and second, alleging defamation, were based upon the above-quoted statements. In the third and fourth causes of action, plaintiff alleged intentional infliction of emotional distress and prima facie tort. The fifth cause of action alleged wrongful discharge of plaintiff from her employment at Bellevue.

In the order appealed from, Special Term dismissed the fourth and fifth causes of action, dismissed the complaint against Bellevue, and struck plaintiff's demand for punitive damages. Defendants appeal from that order to the extent to which it denied their motion to dismiss the remaining causes of action pursuant to § 50-e of the General Municipal Law, CPLR § 3211(a)(7) and CPLR § 3212, the latter part of the motion asserting that the defendants were either immune from liability due to an absolute privilege or due to a qualified one as to which there was no issue of fact.

Preliminarily it is clear that New York City is not a proper party to this action. The events giving rise to plaintiff's claims arose out of her employment at Bellevue, a Health and Hospitals Corporation hospital, which is an entity wholly separate from the City. See Brennan v. City of New York, 59 N.Y.2d 791, 792, 464 N.Y.S.2d 731, 451 N.E.2d 478, affg. 88 A.D.2d 871, 452 N.Y.S.2d 36; Bender v. NYC Health and Hospitals Corp., 38 N.Y.2d 662, 665, 382 N.Y.S.2d 18, 345 N.E.2d 561; Williams v. City of New York, 97 A.D.2d 372, 373, 468 N.Y.S.2d 1.

We think it equally clear that the remaining three causes of action must be dismissed as to HHC because of a failure to comply with §§ 50-e, subd. 1(a) and 50-i, subd. 1 of the General Municipal Law, and § 7401(2) of the McKinney's Unconsolidated Laws (New York City Health and Hospitals Corporation Act § 20which require as a condition precedent to the commencement of a tort action against the City and HHC, respectively, that a notice of claim be served within 90 days after the claim arises.

As to the second cause of action alleging defamation in the course of the labor/management meeting on March 16, 1981, no notice of claim whatever was filed, an omission clearly mandating, in the absence of any corrective timely motion, dismissal of that cause of action.

As to the first cause of action, the notice of claim filed was insufficient to comply with the requirement of General Municipal Law § 50-e, subd. 2(3) that it set forth "the time when, the place where and the manner in which the claim arose." A notice of claim which asserts that on a particular date, the time or approximate time not being specified, somewhere in the complex of buildings that constitute Bellevue Hospital, unnamed employees of the hospital made defamatory statements, was not sufficient to give HHC that notice clearly contemplated by the statutory section. Cf. Faubert v. City of New York, 90 A.D.2d 509, 455 N.Y.S.2d 24; Campbell v. City of New York, 78 A.D.2d 631, 432 N.Y.S.2d 107.

An important defect in the notice of claim is the failure to identify the person who made the defamatory remarks, although that person was clearly known to the plaintiff. This situation is not to be confused with the more commonly encountered one in which a person is injured in an accident, is immediately removed for medical treatment from that location, and to some extent is required, in formulating the notice of claim, to depend upon an imprecise memory as to the exact point of the events. Minor errors in describing the precise location may properly be excused in such circumstances, assuming these errors did not in any realistic way prejudice the governmental entity. The plaintiff's failure here to provide necessary information of the kind contemplated by § 50-e, subd. 2(3), which was in her possession, is not so readily excusable.

Although the defendants inadvertently failed to include in their notice of appeal the third cause of action alleging intentional infliction of emotional distress, it is obvious that the third cause of action as well must be dismissed because of a failure to file a timely, appropriate notice of claim.

As to the further contention of defendants that plaintiff's noncompliance with the notice of claim statutes mandates dismissal of the claims against the individual defendants pursuant to General Municipal Law §§ 50-e, subd. 1(b) and 50-k, subd. 3 and Unconsolidated Laws § 7401, subd. 6, we deem it unnecessary to determine that issue in light of the view we take of the substantive issues presented.

Turning then to the issues presented by the motion of the individual defendants for summary judgment dismissing the two defamation causes of action, it is clear that the...