O'Neil v. Peekskill Faculty Ass'n
| Decision Date | 14 October 1986 |
| Citation | 507 N.Y.S.2d 173,120 A.D.2d 36 |
| Parties | , 35 Ed. Law Rep. 492 Terence M. O'NEIL, Respondent, v. PEEKSKILL FACULTY ASSOCIATION, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Marshal S. Endick and Ricki E. Roer, of counsel), for appellants.
Botein Hays & Sklar, New York City (Richard Cashman, Daniel A. Ross and Judy H. Chin, of counsel), for respondent.
Before NIEHOFF, J.P., and RUBIN, KUNZEMAN and SPATT, JJ.
This appeal concerns the legal sufficiency of a libel action based on the allegation that the plaintiff made a "racial slur" during the heat of labor negotiations.
On the evening of March 16, 1983, after some 11 months of contract negotiations between the Peekskill School District (hereinafter the school district) and the defendant Peekskill Faculty Association (hereinafter the association) an impasse was reached. Representing the school district were the plaintiff Terence O'Neil, a labor lawyer and its chief negotiator, and Marguerite Kronheim, the school district's Coordinator of Special Services. Present on behalf of the association were the individual defendants, Donald Pierce, a field representative for New York State United Teachers, the association's parent union; Stuart Friedman, a teacher employed by the school district and chief negotiator for the association; Steven Rose, a teacher employed by the school district, president of the association and the only black person among the defendants; and Andrew Gauzza and Paul Hewel, a school district teacher and retired teacher, respectively, who are both members of the association's negotiating team.
After heated discussions over the issue of unused sick leave for retiring teachers, Friedman announced that the association had made its final offer and that the school district could "take it or leave it", whereupon he and the entire association negotiating team left the room. The plaintiff and Kronheim remained in the room alone. After a few minutes, Steven Rose returned by himself. After a lengthy silence, the plaintiff said, "Is this it?" or, "Is this all?", and then, gesturing toward the door, said either, "Are you the token?" or, "What are you, the token?" The plaintiff and Rose then began discussing the sick leave issue again, to no avail. No harsh words were exchanged between the two men.
Rose then left the room, and Friedman and Gauzza returned for further negotiations, which proved unsuccessful. At this time, Rose mentioned the plaintiff's "token" remark to the other defendants. After Friedman and Gauzza left, Pierce entered the room and handed the plaintiff a note advising him to call Rose in the morning regarding the association's final offer.
That evening, Pierce spoke to two board of education members and told them that the plaintiff had made a racial slur during that evening's negotiations. Pierce also stated to one member that the association would not negotiate further with the plaintiff. Thereafter, Pierce called at least two school board members and requested a meeting regarding the "racial slur" incident but was turned down. It is noted that Rose himself talked to at least two of the same school board members on various occasions over the next few days and indicated that he was not convinced that the "token" comment by the plaintiff had been racially motivated.
The next day, following a meeting of the association's executive committee, it issued the following press release:
A story on this incident appeared in the Peekskill Evening Star on March 18, 1983. The opening paragraph stated, "Peekskill Faculty Association negotiators walked out of contract talks Wednesday night when, they say, a 'racial slur' was made by school district attorney Terence O'Neil to PFA president Steve Rose, a black Peekskill Middle School teacher". The article went on to report that the association's executive committee had called for O'Neil's ouster as chief district negotiator, and quoted Pierce as saying that he would not negotiate with O'Neil until the matter was straightened out. The story also quoted Rose as stating that it was "conceivable" that the remark was not racially motivated, and that he did not think O'Neil realized the impact of his words. Reports of the "incident" were also broadcast on local radio stations.
Two further association press releases, dated March 20 and 21, respectively, were subsequently issued to the public, both of which discussed the racial "incident" and the "crisis" it had precipitated. On March 31, 1983, a group of some 40 to 50 persons organized by the association picketed the plaintiff's Long Island offices, carrying signs demanding his ouster as chief negotiator for the school district.
Meanwhile, on March 25, 1983, the school district had filed an improper practice charge with the Public Employment Relations Board (hereinafter PERB), alleging, in effect, that the association had used the "racial slur" incident as an excuse to (1) pressure the school district to drop the plaintiff as its negotiator, (2) obtain bargaining concessions, (3) refuse to negotiate with the plaintiff, and (4) negotiate directly with board of education members. After hearings held in July and October, 1983, the Administrative Law Judge in February 1984 issued a decision substantially in favor of the school district (17 PERB par 4523 [1984] ). Excerpts from the PERB hearing testimony are included in the record on appeal.
On or about March 6, 1984, the plaintiff commenced the instant libel action seeking damages of $1,500,000. The complaint alleged that the plaintiff was defamed by reason of the defendants (1) ascribing to him a statement ("I have heard of tokenism before but this is the first time I have seen it in negotiations") that he never made, (2) falsely stating that he had made a "racial slur", (3) falsely asserting that such statement caused the defendants to immediately walk out of negotiations, even though agreement was near, (4) fabricating and publishing supposed statements of "outrage" at the plaintiff's remarks, and (5) falsely depicting the statement as causing a breakdown in negotiations that were purportedly on the verge of successful completion. The defendants' answer consisted of general denials and pleaded truth as an affirmative defense.
By notice of motion dated January 21, 1985, the defendants moved for summary judgment dismissing the complaint. The accompanying papers consisted of an attorney's affirmation in which it was argued, essentially, that the defendants' statements were substantially true and/or constitutionally protected opinions, and that the publications were protected by a qualified privilege. Also attached were excerpts from the plaintiff's response to interrogatories and a portion of Kronheim's PERB testimony. No affidavits by anyone with personal knowledge of the facts were submitted in support of the motion.
By notice of cross motion dated April 23, 1985, the plaintiff moved for an order pursuant to CPLR 3212(g) limiting the issues for trial by deeming certain facts established. Special Term denied the defendants' motion for summary judgment and granted the plaintiff's cross motion to the extent that it deemed the following facts to be established since the defendants "failed to submit contrary affidavits or specifically deny these facts":
(1) The plaintiff never made the statement which defendants attributed to him in the first press release ("I have heard of tokenism before but this is the first time I have seen it in negotiations");
(2) The first press release falsely reported that the school district and the faculty association were close to an agreement on the issue of sick pay then being negotiated between them when the defendant Steven Rose approached the plaintiff. In fact, both parties were deadlocked;
(3) The first press release falsely stated that Rose returned to the union caucus room and advised the other members of "this reprehensible racial slur" which caused the "entire team" to leave in "anger"; and
(4) The "quo...
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