Kilcoin v. Wolansky

• Decision Date: 27 May 1980
• Citation: 75 A.D.2d 1,428 N.Y.S.2d 272
• Parties: Justina KILCOIN, Plaintiff-Respondent, v. Oleh M. WOLANSKY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 272

428 N.Y.S.2d 272

75 A.D.2d 1

Justina KILCOIN, Plaintiff-Respondent, v. Oleh M. WOLANSKY, Defendant-Appellant.

Supreme Court, Appellate Division, Second Department.

May 27, 1980.

Robert Abrams, Atty. Gen., New York City (William J. Caplow and Robert S. Hammer, Asst. Attys. Gen., of counsel; Douglas Lasdon, on the brief), for appellant.

Bernard Kessler, Hyde Park (Davison F. Moore, Poughkeepsie, on the brief), for respondent.

Before MOLLEN, P. J., and LAZER, GIBBONS and COHALAN, JJ.

MOLLEN, Presiding Justice.

The primary issue raised on this appeal is whether the defendant's position and job responsibilities afford him an absolute privilege against plaintiff's libel action. Special Term, holding that the defendant enjoyed only a qualified privilege, denied his motion for summary judgment dismissing the complaint.

In January, 1975 plaintiff, Justina Kilcoin, was hired as Chief of Services of the Middletown Retardation Unit of Letchworth Village Developmental Center. Defendant, Oleh M. Wolansky, was the Director of that Center. Sometime in 1976, reports began to surface concerning incidents of alleged mishandling and abuse of patients at the facility, and an investigation was initiated. One apparent outgrowth of the inquiry was the filing of a Notice and Statement of Charges against Ms. Kilcoin. The notice, dated October 12, 1977, contained 5 separate charges and 10 specifications of misconduct. Essentially, it was alleged that Ms. Kilcoin submitted six incident reports which were either incomplete or untimely, failed to respond appropriately to inquiries of the Center's Special Review Committee regarding one of the incidents, failed to supervise employees properly, failed to report a serious incident of patient abuse allegedly committed by an employee who was under her supervision, and failed to suspend an employee suspected in another instance of patient abuse. Based upon these charges, Ms. Kilcoin subsequently received an official reprimand which stated:

"You are cautioned that your duties as Chief of Services of the Letchworth Village Unit at Middletown Psychiatric Center require that you conform to the policies set forth by Letchworth Village Developmental Center and the Special Review Committee in reporting and investigating all incidents that occur in your Unit. You are advised to become familiar with the resident abuse procedure and the procedures established by the Special Review Committee and conform to those procedures in the most stringent manner.

"Your lack of initiative and follow through in the completion of incident reports will not be tolerated. Any further incidents in which you are found to be negligent in completing your reports on time or submitting reports that are not fully investigated will be cause for additional penalties.

"You are further advised that you are to place greater emphasis on supervision of your subordinate staff especially your Social Workers who have not been required to complete resident progress notes on a timely basis."

The reprimand, dated November 1, 1977, was signed by Dr. Wolansky.

Thereafter, in December, 1977, two local newspapers published articles concerning continuing difficulties at Letchworth Village. On December 1, the Times Herald Record, a Middletown paper, reported that Ms. Kilcoin had been removed temporarily from her position as Chief of Services "during an investigation concerning employee behavior." The article quoted Ms. Kilcoin's reaction to the charges as well as comments by Letchworth's Deputy Director of Administration and other "sources at the facility." Dr. Wolansky was not mentioned either as a source of information or as a principal in the controversy.

On December 6, 1977, Rockland County's Journal-News reported that "(c)harges of possible patient abuse will be brought against top administrators of the Middletown unit of Letchworth Village." Attributing its information to an official of the Civil Service Employees Association, the paper identified Ms. Kilcoin "as being under investigation." The article further identified Dr. Wolansky as the official who had "launched" the investigation and had ordered the questioning of more than 200 workers at the facility concerning patient conditions there. Dr. Wolansky reportedly confirmed to the paper that an investigation was underway affecting "top echelon" positions at Letchworth, but he would make no further comment with respect to the individuals involved.

On December 20, 1977 the Journal-News reported that two Letchworth employees had been charged "with abusing patients at the facility." Dr. Wolansky was quoted as saying that those charged faced disciplinary hearings for what he described as "some failure to implement regulations by the Department of Mental Hygiene." According to the article, after stating that both employees had denied the charges, Dr. Wolansky spoke of the "few patients" involved and explained: "There are several incidents where we feel they were abused * * * Abuse is a very broad aspect. The lack of performing duties could be considered abuse. The question of abuse could not only be a case of serious injury to the body, but could also be verbal abuse, depriving a person of certain essential services." Dr. Wolansky declined to name the employees involved but promised to release complete details of the charges after decisions were reached by the hearing officers. He did disclose that one of the employees was a "team leader" at the facility and the other was its Chief of Services. The newspaper, revealing that it had learned the identities of the charged employees, published their names. One so named was Justina Kilcoin. Evidently the article was accurate for it appears that additional charges were filed against Ms. Kilcoin in December, 1977. Those charges, however, are not directly involved in this appeal.

On March 16, 1978 Ms. Kilcoin instituted a libel action against Dr. Wolansky. Her complaint alleged that she had been maliciously defamed by false accusations published in the October 12 Notice and Statement of Charges, in the subsequent reprimand, and in the newspaper articles. In addition, her complaint asserted that she had been defamed by a notice, appearing on the facility's bulletin board, advertising the availability of her position of Chief of Services. This advertisement, she claimed, had left fellow employees with a "libelous impression."

In an attempt to demonstrate malice, the complaint alleged that Dr. Wolansky had acted beyond the scope of his employment by unlawfully issuing the reprimand without having first afforded Ms. Kilcoin the hearing required by section 75 of the Civil Service Law. The complaint noted that on February 17, 1978, both the reprimand and the advertisement for a Chief of Services had been rescinded.

In his answer, Dr. Wolansky admitted that no disciplinary hearing had been held on the original charges, but he averred that Ms. Kilcoin had affirmatively waived her right to a hearing, agreeing instead to improve her performance and to accept the sanction of an official reprimand. Dr. Wolansky acknowledged that the reprimand had subsequently been withdrawn, but he asserted that the underlying charges had merely been deferred and were scheduled to be considered later together with the additional charges filed against Ms. Kilcoin in December. In fact, a letter to that effect had been sent to Ms. Kilcoin's attorneys. Dr. Wolansky's answer also asserted several affirmative defenses including qualified and absolute privilege.

Subsequently, Dr. Wolansky moved for summary judgment dismissing the complaint, inter alia, on the ground that he was immune from suit and was protected by an absolute privilege. Ms. Kilcoin's responding papers asserted that Dr. Wolansky did not have immunity because he had acted unlawfully and outside the scope of his responsibilities. Once again, as evidence of malice, she pointed to his failure to afford her a statutory hearing on the charges. She did not address the allegation that she had waived that hearing.

Special Term denied the motion for summary judgment, finding that Dr. Wolansky enjoyed a qualified but not an absolute privilege. It is from this denial that Dr. Wolansky now appeals.

There exists, of course, a marked and well settled distinction between absolute and qualified privilege in actions for defamation. A qualified privilege arises whenever a person makes a bona fide communication upon a subject in which he has an interest or in connection with which he has a legal, moral or social duty to speak and the communication is made to a person having a corresponding interest or duty. (See Shapiro v. Health Ins. Plan of Greater N. Y., 7 N.Y.2d 56, 60, 194 N.Y.S.2d 509, 163 N.E.2d 333; Byam v. Collins, 111 N.Y. 143, 150, 19 N.E. 75.) The policy of the law is to encourage such communications, and therefore the speaker is afforded protection against actions in defamation unless it can be established that he spoke out of express malice or actual ill-will. A qualified privilege, then, may be destroyed by proof of malice. (Andrews v. Gardiner, 224 N.Y. 440, 446, 121 N.E. 341.)

In contrast, as the name suggests, an absolute privilege affords complete immunity from defamation suits regardless of any malice which may have actuated the speaker. (See Stukuls v. State of New York, 42 N.Y.2d 272, 275, 397 N.Y.S.2d 740, 366 N.E.2d 829.) This substantially greater protection has been applied sparingly since it is rarely in the public interest to leave without remedy those who have been maliciously defamed. (See Schermerhorn v. Rosenberg, App.Div., 426 N.Y.S.2d 274 (2d Dept., 1980).) Hence, at least with respect to the executive branch, New York has been reluctant to extend the applicability of absolute privilege beyond that necessary "to protect those who bear the greatest burdens of government or those to whose official functioning it is essential that they be insulated from the harassment and...