Posner v. Lewis

• Decision Date: 21 February 2012
• Citation: 18 N.Y.3d 566,965 N.E.2d 949,2012 N.Y. Slip Op. 01323,942 N.Y.S.2d 447
• Parties: Ronald Bruce POSNER, Respondent, v. Russell T. LEWIS, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

18 N.Y.3d 566

2012 N.Y. Slip Op. 01323

942 N.Y.S.2d 447

965 N.E.2d 949

Ronald Bruce POSNER, Respondent,

v.Russell T. LEWIS, et al., Appellants.

Court of Appeals of New York.

Feb. 21, 2012.

Cahill Gordon & Reindel LLP, New York City (Thomas J. Kavaler and M. Justin Lubeley of counsel), for appellants.

Krauss PLLC, White Plains (Geri S. Krauss of counsel), and Jonathan P. Arfa, P.C. (Jonathan P. Arfa of counsel), for respondent.

OPINION OF THE COURT

GRAFFEO, J.

In this tort action, we must decide whether defendants' course of conduct in instigating complaints to school authorities against plaintiff, a nontenured teacher, is entitled to an absolute privilege under Brandt v. Winchell, 3 N.Y.2d 628, 170 N.Y.S.2d 828, 148 N.E.2d 160 (1958) that would warrant dismissal of plaintiff's causes of action for prima facie tort and tortious interference with prospective contractual rights. Assuming the truth of the allegations in the complaint, as we must at this early stage of the litigation, we conclude that defendants' conduct is not immunized by Brandt.

On a CPLR 3211 motion to dismiss, we are obligated to give the complaint a liberal construction and accept the allegations as true. Providing plaintiff Ronald Posner with every favorable inference, the facts gleaned from the complaint are as follows. Beginning in 2005, Posner was employed by the Pelham Union Free School District in Westchester County as a nontenured elementary school teacher. In March 2008, after Posner's wife accused him of having an extramarital affair, his father-in-law, defendant Russell Lewis (the former CEO of the New York Times Company), instructed Posner to leave the marital residence, which Russell owned. When Posner returned to retrieve personal items, Russell warned that if he “did not go quietly,” Russell would “make trouble” for him. Three days later, Posner's wife commenced a divorce proceeding.

In early April 2008, Russell informed Posner that he wanted him to make a “clean break” from his wife. It later became evident that Russell wanted his son-in-law to relinquish all parental rights to his newborn daughter. To entice the acceptance of his proposal, Russell offered Posner a sum of money and “threatened to go to the Pelham Board of Education and impact his tenure.” When Posner refused, Russell and Posner's brother-in-law, defendant David Lewis (an attorney), engaged in conduct designed to effectuate the denial of Posner's tenure and the revocation of his teaching license.

In April 2008, the principal at the school where Posner taught informed him that the board of education was favorably inclined to approve him for tenure status but that the decision would not be made formally until a June board meeting. Meanwhile, the Lewis's retained a company specializing in forensic computer investigations to search for Posner's e-mails on his home computer. David then sent a letter dated April 14, 2008 to the State Department of Education accusing Posner of having an affair with the parent of one of his students, who was also recommended by Posner to be a substitute teacher in his class. David demanded disciplinary action, including revocation of Posner's teaching license. The letter referenced segments of the e-mails between Posner and his alleged paramour. After the Department of Education informed the school district about the complaint, David telephoned the school district superintendent “demanding to know what was going on in the investigation and what disciplinary actions were being taken.”

Toward the end of April, the principal notified Posner that the school district was required to investigate the complaint but assured him that his private life should not affect his application for tenure. Shortly thereafter, David sent a second letter to the superintendent and each member of the board of education with a copy of a report prepared by the computer firm and Posner's e-mails. The letter urged school officials to “take the strongest measure of disciplinary action” against Posner. After a May 2008 board meeting, Posner was advised that he no longer had sufficient votes for tenure, causing him to tender his resignation before the final June vote.

Posner commenced this action against defendants asserting causes of action for prima facie tort and tortious interference with prospective contractual relations. The complaint alleges that Posner was not granted tenure because of the continuous pressure and influence exerted upon school officials by defendants and that, as a result of their “wrongful and malicious actions, Plaintiff Posner was and continues to be unable to secure another tenure track teaching position in a public school district in Westchester County.”

Defendants moved to dismiss the complaint pursuant to CPLR 3211, arguing that their disclosure of Posner's affair to school officials was a matter of public interest and that they were immune from liability similar to the defendants in Brandt. Supreme Court denied the motion (2009 N.Y. Slip Op. 33245[U], 2009 WL 7269269 [2009] ) and a divided Appellate Division affirmed (80 A.D.3d 308, 912 N.Y.S.2d 53 [1st Dept.2010] ). The Appellate Division granted defendants leave to appeal on a certified question, and we now affirm.

Defendants contend that Posner's claims for prima facie tort and tortious interference with prospective contract rights should be dismissed because their exposure of his misconduct to school authorities was in the public interest and hence absolutely privileged. They assert that under Brandt they are immune from civil liability for instigating official action against Posner, regardless of whether they possessed a malicious intent. Posner responds that defendants are not entitled to an absolute privilege because their communications to school officials, even if related to matters of public concern, were made in connection with a coercive scheme to deprive Posner of his parental rights.

To begin, defendants do not dispute for purposes of this appeal that, absent the application of immunity recognized in Brandt, the complaint would adequately plead causes of action for prima facie tort ¹ AND TORTIOUS INTERFerence with prospective contractual relations.² The outcome of this case therefore turns on whether Brandt mandates dismissal of the action.

In Brandt, the plaintiff brought a prima facie tort claim against columnist Walter Winchell and philanthropist Elmer Bobst for maliciously provoking an official investigation against a cancer fund organized by plaintiff in order to stifle competition with defendants' cancer research fund. Following an investigation by the Attorney General, plaintiff agreed to dissolve the fund and refrain from any future solicitation of charitable contributions. We affirmed the dismissal of the complaint, applying a balancing test for claims alleging that a lawful act (the making of a complaint) became unlawful as a result of the complaining party's malicious motives—we “analyze[d] and weigh [ed] the conflicting interests of the parties and of the public in order to determine which shall prevail” (3 N.Y.2d at 634–635, 170 N.Y.S.2d 828, 148 N.E.2d 160).

We concluded in Brandt that defendants' lawful act of initiating charges related to plaintiff's mishandling of the charitable fund did not become actionable because it was motivated by personal malevolence, reasoning that “[t]he best interests of the public are advanced by the exposure of those guilty of offenses against the public and by the unfettered dissemination of the truth about such wrongdoers” ( id. at 635, 170 N.Y.S.2d 828, 148 N.E.2d 160). Under these circumstances, the Brandt defendants were “entitled to immunity from civil suit at the hands of the one exposed, for the truth is not to be shackled by fear of a civil action for damages” ( id.; see also ATI, Inc. v. Ruder & Finn, 42 N.Y.2d 454, 460, 398 N.Y.S.2d 864, 368 N.E.2d 1230 [1977] [“(S)ince use of plaintiffs product may be injurious, that perhaps some defendants were motivated to harm plaintiff by alerting the public as to the potential hazard does not require a conclusion that these defendants' conduct is without justification”] ).

There are some similarities between Brandt and this case. As in Brandt, defendants reported misconduct to the relevant authorities and prompted an official investigation regarding a matter of public interest. And like Brandt, defendants were allegedly motivated not by a desire to benefit the public but to harm the target of their animosity for personal reasons. But, as the Appellate Division majority noted, there is a critical distinction between the two cases. Accepting the allegations of the complaint to be true, defendants in this case did more than instigate an inquiry or investigation. According to Posner, Russell attempted to coerce him into relinquishing his parental rights by offering him money and threatening to reveal certain information to school authorities to ensure that he was denied tenure. And when Posner refused to accede to this demand, defendants made good on the threat. Posner's complaint therefore does not merely allege a malicious motive; rather, it asserts what is in essence a blackmail scheme. Contrary to defendants' position, their complaints to school officials cannot be isolated from this coercive scheme, which “constituted a single and integrated course of conduct” ( Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 93 L.Ed. 834 [1949] [“(T)he record here does not permit this publicizing to be treated in isolation”] ). In light of the intimidation and threatening conduct allegedly directed at Posner, we conclude that the absolute privilege articulated in Brandt should not be extended to protect the course of conduct alleged in this case.

Although the concurrence claims that our focus is on defendants' motives, in fact, the dispositive allegation that places this case outside of the realm of Brandt and the other cases cited by the...