McAulay v. Maloff

• Decision Date: 27 May 1975
• Parties: Mary McAULAY, Plaintiff, v. Rubin MALOFF, Defendant.
• Court: New York City Court

Page 946

369 N.Y.S.2d 946

82 Misc.2d 447

Mary McAULAY, Plaintiff, v. Rubin MALOFF, Defendant.

Civil Court of the City of New York, New York, County Pecial Term, Part I.

May 27, 1975.

Boyd & Holbrook, New York City, for plaintiff.

Stroock & Stroock & Lavan, New York City, for defendant.

HOWARD E. BELL, Judge.

Plaintiff, a former teacher at Seward Park High School, commenced this action for defamation against her former principal at the school. Defendant moves for summary judgment dismissing the complaint on the ground that the alleged libelous material was contained in an official report made to the superintendent of schools and that he, as principal, must be accorded the protection of absolute privilege.

At the close of each school year the principal was required to submit a report to the superintendent of schools evaluating the work of each teacher as 'satisfactory' or 'unsatisfactory'. If the work was evaluated as 'unsatisfactory', appropriate supporting data must accompany the report. The principal was required to serve a copy of this report on the assistant superintendent of schools (Art. X, Sec. 89(7) of the By-Laws of the Board of Education of The City of New York). On June 19, 1973, defendant rated plaintiff's work for the school year 1972--1973 'unsatisfactory'. The supporting data for the rating was contained in a letter, dated June 20, 1973, from defendant to the plaintiff. These documents were duly submitted to the superintendent and assistant superintendent of schools by the defendant, as required by the By-Laws of the Board of Education.

The letter contained, inter alia, the following statement, 'Insubordination in that she refused . . . to accept an assignment, resulting in the fact that she did not cover classes for about two months'. Plaintiff claims this statement to be false and defamatory and that defendant knew it to be false and defamatory when it was written and that it was published willfully 'with actual malice'.

The issue presented by this motion is whether the defendan under the circumstances here, is to be accorded absolute privilege. The protection of absolute immunity has been extended to certain executive officers of the government in the discharge of their duties. This has been certainly true with respect to heads of state and the major officers of executive departments of the federal and state governments (Cheatum v. Wehle, 5 N.Y.2d 585, 186 N.Y.S.2d 606, 159 N.E.2d 166). However, there is some uncertainty as to just how far down the line the privilege extends. It has been held that the granting of such privilege to acts performed in the course of official duties should turn 'on the nature and extent of the duties which are performed' (Smith v. Helbraun, 21 A.D.2d 830, 251 N.Y.S.2d 533; Sheridan v. Crisona, 14 N.Y.2d 108, 249 N.Y.S.2d 161, 198 N.E.2d 359).

In recent years New York courts have cautiously extended the doctrine of absolute privilege. It was extended to executives of municipal governments in Sheridan v. Crisona (supra) wherein the court stated that 'a Borough President acting within the scope of his official powers must be accorded the protection of absolute privilege'. Using Crisona as its authority, the Court of Appeals extended the doctrine, to members of the Board of Higher Education in Lombardo v. Stoke (18 N.Y.2d 394, 276 N.Y.S.2d 97, 222 N.E.2d 721). There the court said 'we have previously recognized that making the official statements of some government executives absolutely privileged is 'essential in the conduct of official business ". . . . In our view, the members of the defendant Board of Higher Education are such executives and they should be free to report to the public on appropriate occasions 'without fear of reprisals by civil suit for damages' (see page 400, 276 N.Y.S.2d page 101, 222...