Mahoney v George

[*1] Mahoney v George 2005 NY Slip Op 52337(U) [18 Misc 3d 1125(A)] Decided on July 27, 2005 Supreme Court, Erie County NeMoyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2005
Supreme Court, Erie County

Charles F. Mahoney, Plaintiff, .

against

Daniel George, CHERYL HAAKE, HAMBURG CENTRAL SCHOOL DISTRICT, Defendants.



2004/1678



GERALD JAY, ESQ., Attorney for Plaintiff

MICHAEL McCLAREN, ESQ., Attorney for Defendants

Patrick H. NeMoyer, J.

This action, setting forth eight causes of action, is one for slander. The plaintiff maintains that the defendants, Daniel George (George), and Cheryl Haake (Haake), made false and defamatory comments to third parties, relating to the reasons the plaintiff resigned from his two previous teaching positions. At the time these alleged incidents arose the plaintiff was an elementary school physical education teacher, employed by the defendant, Hamburg Central School District (Hamburg). George was the Assistant Superintendent for Hamburg, and Haake was the principal of Union-Pleasant Elementary School in Hamburg, where the plaintiff taught. The defendants have moved for summary judgment dismissing the plaintiff's complaint.

The first cause of action alleges that George told Matthew Bermingham (Bermingham) on June 11, 2003 that the plaintiff was forced to resign from two previous teaching positions "for inappropriate interaction with students, including the touching of female students." At the time, Bermingham was a fifth grade teacher in Hamburg and the vice-president of the teachers' union. At his deposition in this action Bermingham acknowledged having a telephone conversation with George about the plaintiff on June 11, 2003. He stated that George told him that the plaintiff was being investigated for an "inappropriate fixation" with a young student, and a "possible relationship" with a female teacher in the school. Bermingham had no recall of George ever stating to him the specific words attributed to him by the plaintiff. [*2]

Three causes of action related to words allegedly spoken about the plaintiff by George and Haake to Dawn and Keith Thurnherr. The Thurnherrs were parents of a young female child, who was a student in the plaintiff's school. According to the plaintiff's second cause of action, on July 22, 2003 George orally advised the Thurnherrs that the plaintiff was forced to resign from two prior teaching positions because of "child molestation involving high school girls." The third cause of action also relates to an incident on July 22, 2003. The plaintiff maintains that George specifically told Keith Thurnherr that the plaintiff had to resign from two former teaching positions "because he had engaged in statutory rape." The eighth cause of action is alleged to have occurred on August 18, 2003. The plaintiff asserts that both George and Haake separately told Keith Thurnherr that the plaintiff was forced to resign his teaching positions at Lewiston-Porter and Falk schools "because he had inappropriate interaction with an older girl."

In support of the defendants' summary judgment motion, Keith and Dawn Thurnherr have each submitted an affidavit. They both state that the plaintiff's allegations are false, and that George and Haake never spoke those words to them about the plaintiff.

The fourth cause of action involves an alleged occurrence on July 28, 2003 with Catherine Schrauth (Schrauth). Schrauth is the parent of children who are students in Hamburg. According to the plaintiff, Haake told Schrauth that she has verified, through sources at the plaintiff's prior employment places, that the plaintiff was "forced to resign from two prior teaching positions because he engaged in child molestation." However, Schrauth testified in her sworn deposition that Haake never mentioned anything to her about the plaintiff being involved in child molestation.

In the fifth cause of action the plaintiff alleges that George made slanderous statements about him to Don Rappold (Rappold) on July 29, 2003. Rappold was the Assistant Superintendent of Lewiston-Porter Central School, where the plaintiff was formerly employed. It is alleged that George told Rappold that the plaintiff had "inappropriately and sexually touched a kindergarten student" while employed by Hamburg. Contrary to this allegation, Rappold testified at his deposition that George did not make any such statement to him, nor did George imply or allude to improper sexual conduct with any student by the plaintiff.

The plaintiff's sixth cause of action involves an alleged statement made by George and Haake to Gary Vara (Vara) and Mark Hoeber (Hoeber) on August 4, 2003. When this supposedly occurred, Hoeber was the President of the Hamburg Board of Education and Vara was a member of that Board. The plaintiff maintains that George and Haake told Vara and Hoeber that they were recommending that the plaintiff's tenure be revoked, because he had to resign two prior teaching positions due to "child molestation." In his deposition Vara has testified that George and Haake never made such a statement to him. Hoeber has submitted an affidavit in which he states that the plaintiff's allegation is false, and the statement attributed to George and Haake was not made to him.

Both George and Haake have submitted affidavits on this motion, wherein they categorically deny ever making the statements to any of the individuals, claimed by the plaintiff to have been made by them. George also stated that prior to the commencement of this action he had a "strictly professional" relationship with the plaintiff and did not dislike or harbor any ill-will toward the plaintiff. George avers that the plaintiff had never done anything toward him, which would cause him to dislike or harm the plaintiff. [*3]

"A cause of action for slander requires publication of the defamatory matter, which occurs when it is heard by some third party. By submission of affidavits from the only three persons present during the conversation, in which each unequivocally denies that the slanderous statement was made, defendants made a prima facie showing of no publication" (Snyder v. Sony Music, 252 AD2d 294, 298). Once this has occurred, the plaintiff is required to present proof in admissible form to show that a genuine triable issue of fact exists "as to whether the slanderous statement was actually made and published" (id.). Here George and Haake have come forward with affidavits and sworn testimony from the recipients of the alleged slanderous statements, claiming the specific statements, as alleged by plaintiff, were not made to them by George and Haake. They have also submitted their affidavits disavowing making any of the alleged slanderous statements about the plaintiff. All of this admissible proof makes a prima facie showing that George and Haake did not make the specific statements attributed to them, and there was no publication. The plaintiff has not come forth with proof in admissible form to contradict George's and Haake's proof. Anything relied upon by the plaintiff to substantiate the alleged slanderous allegations is hearsay, which is not proof in admissible form. Based upon the foregoing the plaintiff's first, second, third, fourth, fifth, sixth, and eighth causes of action must be dismissed (Parker v. Cox, 306 AD2d 55; Arnheim v. Prozeralik, 266 AD2d 855; Scaccia v. Dolch, 231 AD2d 885).

Cause of action seven relates to an incident on August 15, 2003. It is alleged that George told Terri Vogler (Vogler) that she should stay away from the plaintiff because he had been "forced to resign from two previous teaching positions for touching female students." At the time this allegedly occurred Vogler was a kindergarten teacher at Union Pleasant Elementary School. In opposition to the defendants' motion, the plaintiff has presented the affidavit of Vogler, wherein she confirms that George made the particular statement to her in August, 2003. Notwithstanding this proof, the defendant maintains that the statement is subject to a qualified privileged, thereby absolving George from any liability.

In determining the privilege issue it is important to note that George was the Assistant Superintendent for Hamburg and Vogler was a teacher in Hamburg. A statement is protected as privileged when it is made by a person having an interest in the subject to others with a similar interest, and in furtherance of a common interest of an employer (Anas v. Brown, 269 AD2d 761; Bisso v. DeFreest, 251 AD2d 953). Under the circumstances here, both George and Vogler, as an Assistant Superintendent for Hamburg and a teacher, have a common interest in the subject discussed, which would certainly be in furtherance of the interest of Hamburg. As such, George's alleged statement to Vogler is subject to a qualified privilege, even if considered slanderous (Vecino v. Martinez, 24 AD2d 429; Rabideau v. Albany Medical Center Hospital, 195 AD2d 923; Schwartz v. Society of NY Hosp., 232 AD2d 212). An exception to the qualified privilege is made where there is an "affirmative showing that the statements were made with malice or ill will, knowledge of their falsity or reckless disregard for their accuracy" (Teixeira v. Korth, 267 AD2d 958, 959). Once the qualified privilege has been established, as it had been here, "the burden shifts to the plaintiff to demonstrate with 'convincing clarity' that the statements were made with malice" (id.; see also Kondo-Dresser v. Buffalo Public School; 17 AD3d 1114, Vecino v. Martinez, 24 AD2d 429). George has submitted his affidavit describing his professional relationship with the plaintiff, and the absence of any ill-will toward the plaintiff for [*4]any reason. The plaintiff has alleged in his complaint that the statements made by George were "false and made with actual malice and ill-will towards the plaintiff for the express purpose of injuring his good name, reputation and feelings." This is merely a general allegation without any factual support. Since the Court has determined that a qualified privilege has been established as to the seventh cause of action, the burden was on the plaintiff on this motion to factually demonstrate actual malice, i.e. spite or ill will, or that the statements were made with a "high degree of awareness of their probable falsity" (Kondo-Dresser, 17 AD3d at 1115, internal quotations omitted). The general

allegations of the plaintiff's complaint fail to accomplish this burden. This he has failed to do. Therefore, the plaintiff's seventh cause of action must also be dismissed on the ground of qualified privilege.

For all of the foregoing reasons the defendants' motion for summary judgment must be granted in its entirety, and the complaint dismissed.

SO ORDERED

HON. Patrick H. NeMoyer, J.S.C.