Drakes v Rulon

[*1] Drakes v Rulon 2005 NY Slip Op 50172(U) Decided on January 20, 2005 Supreme Court, Kings County Schmidt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 20, 2005
Supreme Court, Kings County

Randolph Drakes, Plaintiff,

against

Diana Rulon, et ano, Defendants.



22343/03

David Schmidt, J.

Upon the foregoing papers, defendants Diana Rulon and Linda Wilson move for an order granting them summary judgment.

Facts and Procedural Background

On June 18, 2003, plaintiff Randolph Drakes commenced this action seeking to recover damages premised upon causes of action sounding in defamation/libel and the infliction of emotional distress.

The instant dispute arose in the context of plaintiff's employment as a senior bank examiner with the New York State Banking Department. Defendant Diana Rulon is the Chief Administrative Officer of the Department and defendant Linda Wilson is the Director of Human Resource Management.

By letter dated January 17, 2002, Rulon wrote to plaintiff and advised him that: "Your travel vouchers (TV) and attendance records (AR) for the period July 17 through September 20, 2001 have been reviewed. There are inconsistencies between the times noted on the travel [*2]and attendance documents and they, in some cases, indicate that you were traveling during the work day and that you were working when you were actually at home. You have been asked several times for information needed to thoroughly audit your travel vouchers, and to date you have not provided it. This is a very serious matter that requires your immediate attention." "It is a felony to knowingly make false statements on a travel voucher."

Thereafter, by Notice of Discipline given to plaintiff on July 21, 2002, Wilson advised plaintiff that: "Following a review of your time sheets, travel vouchers, you were advised in a letter dated January 17, 2002, from Diana Rulon, Chief Administrative Officer, that the documents you submitted represented false statements and constituted a felony. Despite this notification you failed to make any corrections or offer any clarification." Further that "On or about August 3, 2001 you submitted a travel voucher which contained 9 receipts which appeared to be altered."

The Parties' Contentions

In support of their motion for summary judgment, defendants argue that

in May 2001, plaintiff was assigned to conduct an examination of Chase Bank at 2 Rector Street in New York City. As the result of complaints received concerning plaintiff and his supervisor, plaintiff was informed on June 25, 2001 that he was to report to the Orange County Trust Company in Middletown, New York by July 5, 2001 to begin another examination. Plaintiff delayed reporting to that bank for two weeks and refused to meet with the deputy superintendent to discuss the matter. As a result, formal disciplinary charges for insubordination were brought against him in a Notice of Discipline. Plaintiff grieved the Notice and the matter was referred to arbitration. After a hearing, the arbitrator found plaintiff guilty of all charges of insubordination and awarded a penalty of a formal letter of reprimand and a one week suspension without pay.[FN1]

Plaintiff reported for work at the Orange County Trust Company on July 17, 2001. Throughout the period of time that plaintiff worked there, he arrived in Middletown in the afternoon and left on Friday morning; he charged his travel time to "general expense," i.e. an expense that is not billable to a specific banking institution. Defendants assert that the [*3]Banking Department travel policy did not permit employees to travel during work hours and charge the time to either general expense or to the institution being examined.

Accordingly, on November 26, 2001, plaintiff was informed by the Director of Financial Administration that there were discrepancies in his travel and attendance records which were, in part, due to his work in Middletown. A detailed accounting of plaintiff's travel and expenses was requested; a follow-up request was sent on December 3, 2001. When questions remained concerning plaintiff's records, Rulon sent plaintiff the January 17, 2002 letter at issue herein, which outlined the discrepancies. When plaintiff failed to provide sufficient information to clarify the discrepancies, Wilson prepared the subject Notice of Discipline, which charged plaintiff with violating Banking Department policy by traveling during work hours, submitting false attendance records and submitting altered receipts. Plaintiff grieved the matter, which went to arbitration. A hearing was held on April 22, 2003, May 20, 2003 and February 13, 2004. While the decision was pending, plaintiff filed the instant action on June 18, 2003. By Opinion and Award dated September 24, 2004, two of the three charges against plaintiff were upheld and he was suspended for four weeks.

Defendants now seek dismissal of the plaintiff's complaint on the grounds of qualified privilege, truth and the expiration of the applicable Statute of Limitations.

Statute of Limitations

Defamation

In support of their demand to dismiss plaintiff's defamation claim as time barred, defendants assert that since plaintiff did not commence this action until June 18, 2003, or more than one year after the letter dated January 17, 2002 was sent, the action is time barred.[FN2] In opposition, plaintiff argues that since the July 21, 2002 Notice of Discipline cites extensively to the earlier letter, it republishes it, so that the action as premised upon both is timely.

Pursuant to CPLR 215 (3), an action for libel or slander must be commenced within one year. The one-year Statute of Limitation begins to run on the date of the first publication (Hochberg v Nissen, 180 AD2d 435, 436 [1992], appeal denied 80 NY2d 755 [1992], citing Gregoire v Putnam's Sons, 298 NY 119 [1948], rehearing denied 298 NY 753 [1948]; accord Berger v Gilbert, 65 AD2d 882, 884 [1978], appeal denied 47 NY2d 709 [1979]). Further, "under the 'single publication rule', a reading of libelous material by additional individuals after the original publication date does not change the accrual date for a defamation cause of action but, rather, the accrual date remains the time of the original publication" (Gelbard v Bodary, 270 AD2d 866-867 [2000]). Every distinct publication of libelous matter gives rise to a separate cause of action (Rand v New York Times Co., 75 [*4]AD2d 417, 424 [1980]; citing Woodhouse v New York Evening Post, 201 App Div 9, 11 [1924]).

Inasmuch as plaintiff does not allege otherwise, it is assumed that the statements at issue herein were published on or about the day that they were dated (see generally Arsenault v Forquer, 197 AD2d 554, 556 [1993]). Accordingly, the cause of action as premised upon the January 17, 2002 letter is dismissed as time barred. The July 21, 2002 Notice of Discipline, however, was published within the one year Statute of Limitations.

In so holding, the court rejects plaintiff's contention that the July 21, 2002 Notice of Discipline republished the earlier letter. In discussing republication, the court has explained that: "Republication, retriggering the period of limitations, occurs upon a separate aggregate publication from the original, on a different occasion, which is not merely 'a delayed circulation of the original edition' (Rinaldi v Viking Penguin, Inc., 52 NY2d 422, 435; Restatement [Second] of Torts § 577A, Comment d, at 210, supra). The justification for this exception to the single publication rule is that the subsequent publication is intended to and actually reaches a new audience (see Rinaldi, 52 NY2d at 433 [citing Cook v Conners, 215 NY 175 (1915)]; Restatement, Comment d). Thus, for example, repetition of a defamatory statement in a later edition of a book, magazine or newspaper may give rise to a new cause of action (see Rinaldi, 52 NY2d at 433-435 [hard-cover and paperback editions of the same book]; see also Cook v Conners, 215 NY at 179 [morning and afternoon editions of newspapers owned and published by the same individual])."

(Firth v State, 98 NY2d 365, 371 [2002]).

Applying these general principles, the Notice of Discipline will not be characterized as a republication of the January 17, 2002 letter. In this regard, it is noted that although the second statement refers to the earlier correspondence, the first letter is not quoted at length or incorporated therein (see generally Klein v Biben, 296 NY 638 [1946] [where an allegedly libelous article that was published in The American Hebrew on June 23, 1944 referred to another allegedly libelous article published earlier, stating "for more details about [plaintiff], see the Washington News Letter in The American Hebrew, May 12, 1944," the latter article did not republish the earlier one]; Clark v New York Tel. Co., 52 AD2d 1030 [1976], affd 41 NY2d 1069 [1977] [the republication of a statement by another within the one-year period did not save the cause of action in defamation against defendant on the original publication]). Further, the two statements were sent to different people and served different purposes. Moreover, it is significant to note that it has been held that under the single publication rule, [*5]a reading of libelous material after the original publication date by additional individuals, a hospital's ad hoc review committee during peer review activities that resulted in the hospital's professional review action, after the original publication date did not change the accrual date for a defamation cause of action but, rather, the accrual date remained the time of the original publication, because if the court were to hold otherwise, a "defamation claim could accrue when a letter is provided to other individuals involved in a professional review process months or even years later" (Gelbard, 270 AD2d at 867).

Infliction of Mental Distress

A cause of action seeking to recover damages for intentional infliction of emotional distress is subject to a one-year Statute of Limitations (see CPLR 215; Kwarren v American Airlines, 303 AD2d 722 [2003]; Gkanios v D'Ambrosio, 271 AD2d 488 [2000]); Kourkoumelis v Arnel, 238 AD2d 313 [1997]; Peters v Citibank, 253 AD2d 803, 804 [1998]).

Herein, since plaintiff's cause of action of action for the infliction of emotional distress is predicated upon the allegations set forth in support of his defamation claim, it must be presumed that the causes of action for both claims arise out of the subject statements. Accordingly, as discussed above, the cause of action as premised upon the January 17, 2002 letter is time barred, while the cause of action as premised upon the July 21, 2002 Notice of Discipline is not.

In the alternative, even if plaintiff's causes of action as predicated upon the earlier of the two statements were not dismissed as time barred, the two statements have essentially the same content. Thus, for the reasons more fully discussed hereinafter, the claims would also be dismissed on the merits.[FN3]

Defamation

In summary, succinctly stated: "Defamation has long been recognized to arise from 'the making of a false statement which tends to "expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society"' (Foster v Churchill, 87 NY2d 744, 751, quoting Rinaldi v Holt, Rinehart, & Winston, 42 NY2d 369, 379, cert denied 434 US [*6]969, quoting Sydney v MacFadden Newspaper Publishing Corp., 242 NY 208). The elements are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and, it must either cause special harm or constitute defamation per se (Restatement of Torts, Second § 558)."

(Dillon v City of New York, 261 AD2d 34, 37-38 [1999]).

Truth of the Statements

In support of their motion to dismiss, defendants rely upon plaintiff's testimony during the arbitration of his grievances to establish that plaintiff was at home or traveling when his attendance reports indicated that he was working. Thus, since truth is an absolute defense to a claim of defamation, defendants conclude that the statements are not actionable.

In opposition, plaintiff argues that the subject statements are not substantially true, since it cannot be said that they "produced no worse an effect on the mind of the reader than the pleaded truth." More specifically, plaintiff contends that the statements compared his action to a felony and accused him of fraudulently altering expense reports, a charge that was not proven. Further, the statements indicate that plaintiff did not go to work, while in fact he went to work every day; if the time that he spent traveling was improperly noted on his time sheet, the inconsistencies were minor discrepancies that were easily explainable.

The Law

It is well established that truth is a complete defense to an action to recover damages for libel or slander (see e.g. Diaz v Espada, 8 AD3d 49 [2004]; Kehm v Murtha, 286 AD2d 421, 421 [2001]; Carter v Visconti, 233 AD2d 473 [1996], lv denied 89 NY2d 811 [1997]; Dillon, 261 AD2d at 39). "Moreover, truth need not be established to an extreme literal degree. Provided that the defamatory material on which the action is based is substantially true, with only minor inaccuracies, the claim to recover damages for libel must fail" (see Love v William Morrow & Co., 193 AD2d 586, 587 [1993] [citations omitted]).

Discussion

As argued by defendants, the transcript of plaintiff's testimony at his arbitration hearing proves that he indicated on his time sheets that he was working when, in fact, he was traveling and that he was working while he was actually at home. Moreover, in her Opinion and Award, the arbitrator stated that "[t]he grievant does not dispute that in both directions he attributed to the 'general expense' category hours that were spent in travel status," concluding that "[t]he evidence supports a finding that the greivant committed the misconduct described in Specification 1 and Specification 2," i.e. plaintiff traveled to an assignment during the workday and that he submitted attendance records indicating that he was in attendance when he was not. Accordingly, plaintiff is bound by the arbitrator's findings, since he is precluded from relitigating herein any matter previously litigated in the prior arbitration proceeding by the doctrine of collateral estoppel (see e.g. Cooks v New York City Tr. Auth., 289 AD2d 278, 279 [2001] [plaintiff was precluded from relitigating any [*7]matter litigated in the prior arbitration proceeding, including whether the misconduct actually occurred where a prior arbitration award determined that plaintiff was guilty of misconduct, justifying his discharge from employment]; Azevedo & Boyle Contr. v Greaney Constr., 285 AD2d 571, 572 [2001] [it is well settled that the doctrine of collateral estoppel is applicable to issues resolved in an earlier arbitration proceeding]).

Further, pursuant to the Travel Manual promulgated by the Office of The State Comptroller, it is a Class E felony to offer a false statement for filing (Manual, p 2).[FN4] Thus, inasmuch as plaintiff admitted that he offered false statements on his time and attendance sheets, which was corroborated by the arbitrator's findings, the statement that his conduct constitutes a felony is also true. Although the charge relating to the alleged alteration of travel receipts was not admitted by plaintiff or upheld by the arbitrator, since it is only one of many allegations made against plaintiff in the Notice of Discipline, the court finds that defendants failure to sustain its burden of establishing this charge does not compel a finding that the statements in the Notice were not substantially true.[FN5]

Accordingly, the statements made by defendants, being substantially true, are not actionable.

Privilege

In support of their demand for dismissal on the ground that the statements are privileged, Rulon and Wilson argue that as senior staff members of the Banking Department, they are charged with the duty and responsibility of overseeing the time, attendance and travel activities of the employees. The letter of January 17, 2002 was published in the course of their investigation into what appeared to be improper practices with regard to attendance records; it was published only to plaintiff and Wilson. That investigation resulted in the imposition of disciplinary charges as set forth in the Notice of Discipline of July 21, 2002, which was distributed only to plaintiff, two union officials and two Banking Department supervisors. Defendants accordingly conclude that the statements are qualifiedly privileged, since Rulon and Wilson shared a bona fide interest in the subject matter and publication was appropriately limited.

In opposition, plaintiff argues that since the statements are false, they were made with malice, so that privilege does not apply. In so arguing, plaintiff asserts that his transfer to Middletown, the investigation into his attendance reports and the disciplinary charges that followed were made in retaliation for his refusal to discuss his supervisor with Rulon and Wilson, so that their actions were not taken in good faith and were motivated by ill will.

The Law [*8]

It is well established that many statements that may otherwise be defamatory are protected by a qualified privilege. "A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable" (Park Knoll Assocs. v Schmidt, 59 NY2d 205, 208 [1983], citing Cheatum v Wehle, 5 NY2d 585 [1959]; Andrews v Gardiner, 224 NY 440 [1918]). Under New York law, "good faith communications by a party having an interest in a subject, or a moral or societal duty to speak, are protected by a qualified privilege if made to a party having a corresponding interest" (Herlihy v Metropolitan Museum of Art, 214 AD2d 250, 258 [1995] [citations omitted]). "Some examples of such a common interest warranting a qualified privilege have been found to exist between the employees of an organization or business entity (Loughry v Lincoln First Bank, N.A., 67 NY2d 369), members of a faculty tenure committee (Stukuls v State of New York, supra), the constituent physicians in a health care plan (Shapiro v Health Ins. Plan of Greater NY, 7 NY2d 56), tenant association members of an apartment complex (Liberman v Gelstein, supra, 80 NY2d 429) the head of New York State school for deaf mutes (Hemmens v Nelson, 138 NY 517), and to employees, as distinguished from board members, of a board of education (Green v Kinsella, 36 AD2d 677)."

(id. at 259). As is particularly relevant herein, "[t]he applicability of the privilege to statements made by an employer/supervisor reviewing or evaluating the performance of an employee is well established" (Kasachkoff v New York, 107 AD2d 130, 134 [1985], appeal dismissed 65 NY2d 722 [1985], appeal dismissed 67 NY2d 645 [1986], affd 68 NY2d 654 [1986], citing Bozicevich v American Airlines, 54 AD2d 542 [1976]; De Sapio v Kohlmeyer, 52 AD2d 780 [1976]; Gordon v Allstate Ins. Co., 71 AD2d 850 [1979]).

Where the relevant facts are not in dispute, it is for the court, not the jury, to decide whether a qualified privilege exists (see e.g. Harris v Hirsh, 228 AD2d 206, 207 [1996], appeal denied 89 NY2d 805 [1996]; Bardey v Brooke-Hitching, 191 AD2d 243 [1993]; O'Neil v Peekskill Faculty Assoc., 120 AD2d 36 [1986], appeal dismissed 69 NY2d 984 [1987]). Once the subject statements are found to be qualifiedly privileged, "the burden [devolves] upon the plaintiff in opposing the motion for summary judgment, to demonstrate a triable issue of fact by proffering evidentiary proof that defendants were motivated by actual malice, ill-will, personal spite, culpable recklessness or negligence, which burden cannot be met by mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Kasachkoff, 107 AD2d at 135 [citations omitted]).

Moreover, this qualified privilege has been applied in many cases concerning employee disciplinary actions. For example, in the similar case of Murganti v Weber (248 AD2d 208 [1998]), the court applied the privilege where plaintiff claimed that the various [*9]individual defendants, who included management employees of defendant, allegedly fabricated adverse comments about his use of sick leave, which led to him being summoned to a grievance hearing at which the adverse comments were repeated in his presence. In so holding, the court stated that: "[T]o the extent that the remarks were made in the context of an employer's evaluation of an employee at the grievance hearing (Kasachkoff v City of New York, 107 AD2d 130, affd 68 NY2d 654), or were by management employees having responsibility to report on the matter in dispute (supra; Harris v Hirsh, 228 AD2d 206, lv denied 89 NY2d 805; Gordon v Allstate Ins. Co., 71 AD2d 850), or by persons who had a mutual interest in employment-related abuses (Gordon v Allstate Ins. Co., supra), the statements were protected as a matter of law by a qualified privilege. The circumstances under which candid comments are made in a grievance hearing or in the context of supervisory responsibilities are 'compelling ones for application of the privilege' (Kasachkoff v City of New York, supra, 107 AD2d, at 135), imposing the burden on plaintiff to demonstrate malice to defeat the privilege (supra)."

(id. at 209; see also Misir v New York City Hous. Auth., 245 AD2d 88, 88-89 [1997], appeal dismissed 92 NY2d 915 [1998] [defendant's motion for summary judgment was properly granted in an action in which a provisional employee was terminated for failing to report to work and thereafter failing to return, request leave or provide sufficient explanation for his absence, because the alleged offending statement was qualifiedly privileged since it was made in the context of a review or evaluation of plaintiff's performance by a superior and no proof was submitted to raise any factual issue regarding defendants' actual malice, personal spite, or culpable recklessness or negligence]; McNaughton v City of New York, 234 AD2d 83, 84 [1996], appeal denied 90 NY2d 806 [1997] [statements made by defendants in disciplinary memoranda evaluating plaintiff's performance were protected by a qualified privilege, were not so intemperate or vituperative in character as to justify an inference of malice overcoming the privilege, and, absent allegations showing excessive publication or otherwise inviting an inference of malice, were not actionable, even if false]). As is also relevant here, in addressing the question of whether a government administrator can be held liable for libel or slander where the complained of statements concerned the performance of an employee under his charge, the court stated: "The reluctance of administrators to act vigorously in promoting efficiency and improved worker performance has long been the bane of government institutions. The constant threat of baseless lawsuits instituted or threatened in order to cow the [*10]administrator into foregoing appropriate disciplinary action is contrary to the best operation of government agencies and ultimately does a disservice to the public at large."

(Kilcoin v Wolansky, 75 AD2d 1, 11 [1980], affd 52 NY2d 995 [1981]).

Inasmuch as the statements at issue herein were made during the course of an investigation into plaintiff's alleged improper reporting of travel time in his attendance records and the ensuing disciplinary proceedings, the above case law compels the finding that defendants statements were qualifiedly privileged.

Malice

As is also relevant here, a qualified privilege is "'conditioned on its proper exercise, and cannot shelter statements published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity '" (Herligy, 214 AD2d at 259, quoting Loughry, 67 NY2d at 376; O'Rorke v Carpenter, 55 NY2d 798, 799 [1981]; Stillman v Ford, 22 NY2d 48, 53 [1968]; Prosser and Keeton, Torts § 115, at 833-835 [5th ed]). Hence, the defense of qualified privilege will be defeated by demonstrating that a defendant spoke with malice (see e.g. Foster, 87 NY2d at 752-753; Liberman, 80 NY2d at 437). More specifically, "the conditional or qualified privilege is inapplicable where the motivation for making such statements was spite or ill will (common-law malice) or where the 'statements [were] made with [a] high degree of awareness of their probable falsity (constitutional malice)'" (Foster, id., 87 NY2d at 752, quoting Liberman, id. at 438). Hence, "[m]alice has now assumed a dual meaning, and we have recognized that the constitutional as well as the common-law standard will suffice to defeat a conditional privilege" (Liberman, id. at 438).

In the context of common law malice: "spite or ill will refers not to defendant's general feelings about plaintiff, but to the speaker's motivation for making the defamatory statements (see, Restatement § 603, and comment a; Stukuls v State of New York, 42 NY2d, at 281-282, supra; Stillman v Ford, 22 NY2d, at 53, supra). If the defendant's statements were made to further the interest protected by the privilege, it matters not that defendant also despised plaintiff. Thus, a triable issue is raised only if a jury could reasonably conclude that 'malice was the one and only cause for the publication' (Stukuls v State of New York, 42 NY2d, at 282, supra)."

(id. at 439 [emphasis added]; accord Thanasoulis v National Assoc. for the Specialty Foods Trade, 226 AD2d 227, 229 [1996]).

Finally, with regard to malice, it has been held that: "When faced with a motion for summary judgment, plaintiff must produce evidentiary facts indicating that the defendant was [*11]motivated by malice, and conclusory allegations based upon suspicion, conjecture or surmise will not suffice (see, Gold v East Ramapo Cent. School Dist., 115 AD2d 636; Shapiro v Health Ins. Plan, supra, at p 63; Handlin v Burkhart, 101 AD2d 850, 851-852, affd 66 NY2d 678). Falsity alone is an insufficient basis upon which to infer malice; a showing consistent with an intent to injure the plaintiff is generally required (see, Kilcoin v Wolansky, supra, at p 11; Friedman v Ergin, 110 AD2d 620, affd 66 NY2d 645)."

(Kaplan v MacNamara, 116 AD2d 626, 627 [1986], appeal denied 68 NY2d 607 [1986]).

In applying the above general principles of law, the court finds that plaintiff fails to sustain his burden of proving that defendants made the complained of statements with constitutional malice, i.e. with a high degree of awareness that the statements were false or that defendants entertained serious doubts as to the truth of the statements. In this regard, the fact that the arbitrator found plaintiff committed the misconduct with which he was charged with regard to improperly reporting his travel time in his attendance reports is conclusive. Even were this not the case, it has been held that "'the failure to investigate [a statement's] truth, standing alone, is not enough to prove actual malice even if a prudent person would have investigated before publishing the statement', unless it evinces a deliberate intent to avoid the truth" (Sanderson v Bellevue Maternity Hosp., 259 AD2d 888, 890 [1999] [citations omitted]). Plaintiff has failed to make such a showing here.

Similarly, plaintiff fails to establish that defendants acted with common law malice based upon his claim that the charges were motivated by ill will against him because defendants made the statements and brought charges against him because he refused to discuss his supervisor with them (see generally Friedman, 110 AD2d at 621 [the existence of earlier disputes between the parties is not evidence of malice]). In this regard, plaintiff can succeed only if he can establish that ill will was the sole motivating factor. Herein, defendants have adequately demonstrated that their statements and actions, even if motivated in part by their dislike of plaintiff, were also motivated by their desire to enforce the rules of the Banking Department and to maintain the integrity of their employee's reporting of their time.

The court further declines to find that plaintiff established malice with regard to the charge relating to his alleged alteration of travel receipts based upon his assertion that the charge was not proven during the arbitration and his conclusory assertion that the charge was lacking in merit, since his proof falls far short of demonstrating that defendants entertained serious doubts with regard to the charge or that they were motivated by a desire to injure plaintiff. Moreover, it has long been established that evidence of the mere falsity of defamatory statements is not sufficient to give rise to a factual issue as to actual malice or ill will (see e.g. Ashcroft v Hammond, 197 NY 488, 496 [1910]; Gelmin v Quicke, 224 AD2d 481, 484 [1996]). Similarly, the court declines to find that the statements complained of are [*12]"so extravagant in [their] denunciations or so vituperative in [their] character as to justify an inference of malice" (see Kasachkoff, 107 AD2d at 136, citing Ashcroft, id. at 496).

Accordingly, plaintiff's conclusory allegations that defendants acted with actual malice are insufficient to raise a question of fact.

Emotional Distress

In support of their demand for dismissal of this claim, defendants argue that the conduct complained of fails to rise to the level necessary to support such a cause of action. Defendants further argue that a cause of action for the intentional infliction of emotional distress cannot be sustained, since the conduct complained of falls within the ambit of another traditional tort, i.e. defamation.

The Law

"'One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress'" (Fischer v Maloney, 43 NY2d 553, 557 [1978], quoting Restatement, Torts 2d, § 42 [1]). The conduct complained of must be "'"so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community"'" (Seltzer v Bayer, 272 AD2d 263, 264 [2000], quoting Fischer, id. at 553, quoting Restatement of Torts § 46, comment d [2nd ed]). As is also relevant here, a claim for the intentional infliction of emotional distress may not be maintained to the extent that the damages sought are duplicative of those sought in the defamation claim (see generally Brancaleone v Mesagna, 290 AD2d 467 [2002]; Ghaly v Mardiros, 204 AD2d 272 [1994]; Sweeney v Prisoners' Legal Servs., 146 AD2d 1, 7 [1989]).

Discussion

Herein, plaintiff's claim of emotional distress must also be dismissed, since it falls "'within the ambit of other traditional tort liability which, in this case, is reflected in plaintiff's causes of action sounding in defamation'" (Hirschfeld v Daily News, 269 AD2d 248, 249 [2000]; accord Herlihy, 214 AD2d at 263). Moreover, the court finds that defendant's alleged conduct does not rise to such an extreme or outrageous level as to meet the threshold required to sustain the tort of intentional infliction of emotional distress (see generally Priore v New York Yankees, 307 AD2d 67 [2003], lv denied 1 NY3d 504 [2003], motion granted, motion denied 1 NY3d 559 [2003] [a professional baseball team which dismissed an at-will employee on the basis of allegations of petty larceny was not liable for defamation and emotional distress under circumstances where the dismissed employee was found to have three dozen new baseballs and damaged bats in his personal work area without permission and he admitted that he gave team T-shirts to employees at a fast-food restaurant]; Abeles v Mellon Bank, 298 AD2d 106 [2002] [the court correctly held that defendants' conduct, which included conducting an investigation into the forged signatures of plaintiff's supervisor on plaintiff's expense reports, questioning plaintiff about the forgeries, and thereafter terminating her employment and escorting her from the premises, was not so [*13]

extreme and outrageous as to support a claim for intentional infliction of emotional distress]).

Conclusion

Defendants' for motion for summary judgment is granted and the complaint is dismissed.

The foregoing constitutes the order, decision and judgment of this court.

E N T E R,

J. S. C.

Footnotes

Footnote 1: Defendants fail to annex copies of the Notice of Discipline or the findings of the arbitrator. Plaintiff, however, does not deny the statements made with regard to this disciplinary proceeding.

Footnote 2: In so arguing, the court notes that defendants fail to address the fact that the complaint is premised upon two statements made on different dates.

Footnote 3: The court also notes that plaintiff's reliance upon Esposito-Hilder v SFX Broad. (236 AD2d 186, 187-188 [1997]) to argue that in disposing of this motion, the court must accord the complaint a liberal construction, assume its factual allegations to be true, draw every possible favorable inference therefrom and determine only whether any cognizable cause of action has been alleged is misplaced, since the motion in that case was a motion to dismiss, made pursuant to CPLR 3211 (a) (7), while the motion at issue herein is made after defendants submitted their answer and is accordingly one seeking summary judgment pursuant to CPLR 3212.

Footnote 4: The court notes that plaintiff does not challenge the propriety of the Manual characterizing the prohibited conduct as a felony.

Footnote 5: It is also noted that the January 17, 2002 letter makes no reference to altered travel receipts.