Constantine v Teachers Coll.

[*1] Constantine v Teachers Coll. 2010 NY Slip Op 51826(U) [29 Misc 3d 1214(A)] Decided on October 13, 2010 Supreme Court, New York County Wooten, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2010
Supreme Court, New York County

Madonna Constantine, Plaintiff,

against

Teachers College and TRUSTEES OF TEACHERS COLLEGE OF COLUMBIA UNIVERSITY, CHRISTINE YEH, KAREN CORT, TRACY JULIAO, GEORGE DAVIDSON, and HUGHES HUBBARD and REED, LLP, Defendants.



116528/08



Attorney for the Plaintiff:

Paul Giacomo, Esq.

405 Lexington Avenue, 37th Fl

New York, New York 10174

Attorney for the Defendants Christine Yeh, Karen Cort, Tracy Juliao, George Davidson:

Forchelli, Curto, Deegan,

333 Earle Ovington Boulevard

Uniondale, New York 11553

Attorney for the Defendant Hughes Hubbard & Reed LLP :

Hughes Hubbard & Reed LLP

One Battery Park Plaza

New York, New York 10004

Attorney for the Defendants Teachers College & the Trustees of Teachers College of Columbia University:

Nixon Peabody LLP.

50 Jericho Quadrangle, Ste.300

Jericho, New York 11753

Paul Wooten, J.

This is an action for defamation and related torts by a university professor who was terminated for allegedly plagiarizing the works of two students and a colleague, and then fabricating evidence supporting her claim for original authorship. Two related actions by the same plaintiff - - a state court Article 78 proceeding for reinstatement and a federal discrimination law suit - - have been dismissed. Plaintiff nevertheless continues to litigate her termination in this action, asserting that the evidence before the other courts was incomplete, overlooked, or fabricated.

Under motion sequence 006, defendants George Davidson (Davidson) and Hughes Hubbard & Reed LLP (HHR) (together, HHR/Davidson) move, pursuant to CPLR 3211 (a) (1) and (7), for an order dismissing the four claims contained in the second verified amended complaint against them. Under motion sequence 007, [*2]defendants Teachers College, Trustees of Teachers College of Columbia University (Trustees), Christine Yeh (Yeh), Karen Cort (Cort) and Tracy Juliao (Juliao) (collectively, College Defendants) move, pursuant to CPLR 3014, 3016, and 3211 (a) (1), (5) and (7), for an order dismissing the claims contained in the second verified amended complaint as against them [FN1]. For the following reasons, the complaint is dismissed.

Plaintiff's initial complaint, dated April 20, 2009, and sounding in defamation and intentional infliction of emotional distress, contained 19 causes of action over some 91 pages. That complaint, together with defendants' initial motion to dismiss, were, by stipulation, withdrawn without prejudice and a schedule was agreed upon for service of plaintiff's amended complaint and defendants' answer or responsive motion. On or about August 14, 2009, plaintiff timely served her verified amended complaint, which was later withdrawn. Currently before the court is plaintiff's second verified amended complaint, dated March 1, 2010, which, much like her verified amended complaint, contains approximately 188 pages and 45 causes of action which sound in defamation, defamation per se, and intentional infliction of emotional distress. Defendants' pre-answer motions to dismiss, under motion sequence numbers 006 and 007, are consolidated for disposition. The following facts are taken from the second verified amended complaint, the parties' affidavits, the record, and various documents submitted in connection with the motions.

Plaintiff Madonna Constantine (Constantine) was, prior to her termination, a full, tenured professor in the Department of Counseling and Clinical Psychology at Teachers College, a graduate institution affiliated with Columbia University in New York City. Constantine joined the faculty of Teachers College in 1998 as an associate professor. She was granted tenure in 2001, and became a full professor in 2003. According to Constantine, the controversy began when similarities were noticed between an article she had written, which was published in January 2004 in Counseling and Values, Vol. 48, and an article Yeh had written, which was published in the fall of 2004 in Journal of Counseling and Development, Vol. 82. Yeh, who at that time was on the faculty of Teachers College, approached nonparty professor Soniya Luthar (Luthar), a colleague of Constantine's and chair of their department, complaining that Constantine had copied from her work. She made this complaint despite the fact that Constantine's work containing the purportedly "copied" words had been published first.

In or about August 2006, Luthar reported to Teachers College President, nonparty Susan H. Fuhrman (Fuhrman), that she had been approached by several different individuals who each made plagiarism-related complaints about Constantine. Fuhrman responded by retaining outside counsel (HHR/Davidson) to look into the matter. Specifically, HHR/Davidson was asked to investigate complaints against [*3]Constantine concerning possible plagiarism, student harassment, and misuse of departmental funds.

Among the potential witnesses contacted by HHR/Davidson were Juliao, who received her Ph.D from Teachers College in 2005; Cort, a doctoral student at Teachers College, and Yeh, each of whom, apparently, expressed concerns that Constantine might retaliate if they openly pressed their claims that Constantine had plagiarized specific works of theirs. It is undisputed that, during their enrollment at Teachers College, Constantine had been Juliao's academic advisor and Cort's faculty advisor/mentor and a project supervisor.

HHR/Davison examined and compared Constantine's works with that of her accusers, looking specifically at issues pertaining to similarity of language, priority of creation, and access to prior work. In August 2007, HHR/Davison met with Constantine and her attorney and presented them with a binder containing 36 side-by-side language comparisons as instances of possible plagiarism between her articles and those of Yeh, Juliao and Cort. HHR/Davison gave plaintiff and her counsel time (four weeks) to respond. In early September 2007, Constantine submitted her proof of priority consisting of a multi-page response purporting to demonstrate that each of the suspected passages existed in several of her earlier unpublished works, including three research proposals submitted by Constantine in 1997 and 1998 for approval by Temple University's institutional review board (IRB), and a 1996 slide presentation.

Upon review of her submissions, HHR/Davidson determined that her documents had been fabricated and/or altered in her effort to defend against the charges of plagiarism, and on December 11, 2007, HHR/Davidson submitted a report to Fuhrman which was unfavorable to Constantine. The report lists the evidence reviewed and explains how HHR/Davidson reached its conclusions. It stated, among other things, that the circumstances surrounding the Temple University/IRB documents rendered it both improbable and implausible that Yeh, Juliao or Cort could each have located and chosen to copy from these difficult to access materials. The report concluded that the evidence supported most, but not all, of the plagiarism charges against Constantine, and that "the number of instances of the unattributed use of the work of others and the number of articles involved are sufficiently large as to make the practice of unattributed use seem almost habitual" (December 11, 2007 Report, at 25). The charges of student harassment and misuse of departmental funds, however, were not sustained. In or about mid-January 2008, Fuhrman shared the report with Constantine.

Constantine, through her attorney, responded to the report in late January 2008, challenging HHR/Davidson's findings and submitting eight additional exhibits. HHR/Davidson acceded to Constantine's request to review these additional documents and to re-evaluate its findings.

On February 5, 2008, HHR/Davidson issued a supplemental report to Fuhrman which concluded that the additional submissions did not give cause to change the conclusions of the original report. The supplemental report emphasized that priority of composition, not priority of submission (for publication or otherwise) is the determinative issue in a plagiarism investigation. By letter, dated February 18, 2008, Furhman [*4]notified plaintiff of her decision to impose sanctions [FN2] based upon the findings contained in both the report and the supplemental report. Specifically, that in a number of instances you used the work of [Yeh, Juliao and Cort] without attribution and that you sought to obstruct the investigation by writing threatening letters to the persons whose work had been used without attribution and by submitting to the investigation documents which had been altered so as to make it appear that you had priority of composition.

Fuhrman's letter also states that she was providing Constantine with a copy of the Report and the exhibits, and that the only other copy was being held in a confidential file in her office at Teachers College. Also on February 18, 2008, Fuhrman and the Teachers College provost sent a one-paragraph notice to the faculty of Teachers College notifying them that, following a year and a half investigation, Constantine has been found to have used the work of Yeh, Juliao and Cort without attribution, that she has been sanctioned for doing so, and that she has the right to appeal to the Teachers College Faculty Advisory Committee (FAC). On February 21, 2008, a similar statement was released by a spokesperson for Teachers College.

By e-mail dated February 27, 2008, and by a formal written grievance dated March 11. 2008, Constantine notified the FAC that she was exercising her right to appeal both the findings and the sanctions. Her grievance centered around complaints of unequal treatment by Fuhrman and complaints of bias in the manner in which HHR/Davidson performed its investigation and prepared its written reports. The FAC began its investigatory process which, between March and May 2008, included document reviews, meetings with Constantine and her attorney, review of additional documents submitted by Constantine, and interviews with the accusing individuals.

The FAC issued its "Findings and Recommendations" in a written document, dated June 4, 2008, addressing the issues raised by each party. With respect to Constantine's assertion that Fuhrman acted outside regular administrative channels and contrary to the Statutes of Teachers College (Statutes) by retaining outside counsel to investigate the plagiarism claims, conferring with past and present Teachers College faculty about this issue, and by granting indemnification to Yeh, Juliao and Cort in exchange for their cooperation, the FAC disagreed. The FAC found that: the Statutes are silent as to what constitutes "regular administrative channels"; outside counsel was more likely to lead to a disinterested inquiry; granting indemnification to the three accusers who, subsequent to the allegations of plagiarism, had each received an "intimidating" letter from Constantine [FN3] wasproper and necessary; plaintiff's explanation for the letters was "unpersuasive"; and Fuhrman's communication to the Trustees and faculty was both appropriate and appropriately circumspect. The FAC found that [*5]Constantine was at all relevant times, represented by counsel, that she was given ample opportunity throughout the process to speak and to submit materials she deemed relevant. Upon their review of her evidence, the FAC found her documents to be either unpersuasive, altered, or not capable of being verified, and they ultimately concluded that Constantine's appeal was not "substantiated," that Fuhrman's actions provided for a fundamentally fair process, and that there was no cause to invalidate the findings or to reverse the sanctions.

By letter, dated June 12, 2008, Fuhrman informed Constantine that, in accordance with Section VI (B) (a) of the Statutes, she was being terminated for cause subject to a hearing, at her option, before a faculty committee. The letter also states, in relevant part:

I accepted the conclusion of the report dated December 11, 2007 that, in a number of instances, you used the work of a former College faculty member and of former College students without attribution, and that you sought to obstruct the investigation into these matters. Given that academic integrity is one of our highest held values, I asked you to resign. In response, you submitted additional evidence challenging the report's conclusion. In fact, one of the documents you submitted constituted an additional example of your own plagiarism of Tracy Juliao's 2005 dissertation. For this, and other reasons, I accepted the conclusion of the February 5, 2008 supplemental report reaffirming the original report and since you had not responded to my request for your resignation, I imposed sanctions.

. . . you appealed . . . [and on] June 4, 2008, the FAC . . . confirmed my decision on the findings of plagiarism and obstruction. It concluded that the sanctions against you were not only justified, but required. The FAC further found no basis for your request to impose sanctions on me.. . .

Rather than showing any remorse for your misconduct, you have continued to make false accusations against others. In an attempt to portray Ms. Juliao as the wrongdoer, you claim in a document that has been provided to at least one member of the media that your January 16, 2002 submission of your manuscript "Multiple Role Balance . . ." evidences your priority with respect to the language at issue from Ms. Juliao's dissertation. In fact, the passages on pages 31, 29, and 15 of Ms. Juliao's dissertation which you claim are anticipated by your January 16, 2002 submission appear in haec verba in Ms. Juliao's July 30, 2001 review of research paper. . . . Combined with all the previous misconduct, this additional instance of your own plagiarism and your evident effort to persuade the press of the truth of your false accusation that Ms. Juliao plagiarized your work warrant termination of your employment.

By letter, dated June 30, 2008, plaintiff's counsel requested that Fuhrman take the necessary steps to preserve relevant documents, including computer generated materials via Teachers College and Columbia University servers. By letter, dated July 14, 2008, Constantine notified Fuhrman that she was requesting the hearing referenced in Fuhrman's June 12, 2008 letter.

According to defendants, the outside forensic expert they sent to Constantine's office on July 2, 2008 to preserve evidence by making forensic images of both [*6]institutional computers assigned to her, found one of the hard drives to be missing (from the "Dell"), and was therefore, only able to make an image of the other hard drive (from the "Mac"). In or about October 2008, the Teachers College Computer Information Services Department (CIS) discovered that the missing "Dell" hard drive had been replaced. CIS then removed the two hard drives in Constantine's office computers in order to conduct forensics on them.

In the fall 2008, Davidson and plaintiff's counsel discussed and disputed the results of the forensic examinations, which included a finding that, based on a difference in the serial numbers, it was evident that someone had switched Constantine's "Mac" hard drive. According to defendants, the examinations revealed that, in January and February 2008, Constantine, in her attempt to establish priority, had actually altered and/or created some of the documents which she was claiming to have authored back in 1997, 1998 and 2001. Plaintiff's counsel disputed the findings, and alleged that defendants' handling of the computer forensics was objectionable and part of a larger scheme to cause harm to Constantine.

The fall of 2008 also brought the commencement of the renewed FAC proceedings requested by plaintiff. Constantine and Teachers College submitted documentary evidence and nine witnesses gave testimony at hearings which were held between April and May 2009. Plaintiff's counsel represented her at each step, and was given an opportunity to cross examine witnesses testifying against her.

On May 27, 2009, the FAC issued its decision which found that there were sufficient bases for: (1) Fuhrman's conclusion that Constantine used the work of others without attribution; (2) Fuhrman's February 2008 conclusion that Constantine committed misconduct during the original investigation, and this included her actions with regards to intimidating witnesses; (3) Fuhrman's December 2008 conclusion that Constantin fabricated documents and that this finding "undermines all claims Professor Constantine had to priority, as well as to her credibility in general"; and (4) Fuhrman's decision to terminate Constantine. By letter, dated June 1, 2009, Fuhrman notified Constantine of the FAC findings and of her termination from her tenured position at Teachers College.

Constantine then commenced an Article 78 proceeding,[FN4] under NY County index No. 113663/09, challenging the final determination of Teachers College and Trustees as set forth in Fuhrman's letter of June 1, 2009, and the determination set forth in the letter of February 18, 2008, imposing sanctions, on the grounds that the determinations were arbitrary and capricious, and against the weight of the evidence. The requested relief included a reversal of her termination from, and reinstatement to, her full tenured faculty position at Teacher College; an award of back pay in the form of salary and research funds; and legal fees. By decision and judgment, dated March 10, 2010 (the Judgment), the Hon. Jane Solomon denied the petition and dismissed the proceeding stating, in relevant part: [*7]

After thoroughly reviewing the record, hearing from witnesses and assessing their credibility, the FAC concluded that [Constantine] had committed plagiarism, and also that she had fabricated documents that she presented in her defense. The report fully supports Fuhrman's decisions in respect of [Constantine's] status at Teachers College. Notably, the FAC commented that "Professor Constantine's theory of the case would require a complex conspiracy among many persons including the highest levels of the College's administration, its outside counsel, and several former students and a former faculty member."

In her petition, Constantine exhaustively recounts many alleged injustices to which she claims she was subjected in the course of the proceedings before the FAC, but she has failed to demonstrate that the FAC, or Fuhrman, acted in an arbitrary or capricious manner at any stage of the events leading up to the June 1, 2009 letter.

Defendants now include the findings contained in the Judgment as an additional basis for a dismissal of the complaint. Also referenced is the discrimination action Constantine commenced in 2009, against Teachers College and Trustees in the United States District Court for the Southern District of New York, which was based upon the circumstances of her termination. By Memorandum and Final Judgment, dated September 13, 2010, the court (Jed S. Rakoff, J.) noted that "all of plaintiff's instant claims arise out of what she alleges was the discriminatory and/or retaliatory termination of her employment by Teachers College on June 1, 2009," and ultimately held that her claims "are barred by principles of collateral estoppel" (Constantine v Teachers College and the Trustees of Teachers College of Columbia University, 2010 WL 3835174 [SD NY 2010]).

Central to the instant plenary action is Constantine's contention that she is innocent and that she has been defamed and caused to suffer emotional distress by the various defendants' accusations, communications, investigations, reports, hearings, testimony and findings of plagiarism, as well as by the sanctions imposed. Defendants contend that each of the 42 defamation/defamation per se causes of action must be dismissed because the alleged defamatory communications are true, and that the three emotional distress causes of action must also be dismissed because they arise from the same conducts as the defamation claims, and are, therefore, meritless (Dillon v City of New York, 261 AD2d 34, 39 - 41 [1st Dept 1999]). Additionally, they assert that the communications are protected by either an absolute or qualified privilege, are inadequately pled, and/or are barred by the statute of limitations.

Although the relief sought in the Article 78 petition is different from that demanded in the instant plenary action, the underlying contentions contained in the second verified amended complaint, dated March 1, 2010, are strikingly similar to those contained in the 133-page verified petition, dated September 25, 2009. Each advance, in great detail, Constantine's theories as to who plagiarized from whom, why she was falsely accused of plagiarism, and why and how the various defendants targeted her for unfair treatment from the beginning of the plagiarism controversy through to the present time. In each proceeding, Constantine complains of the investigative committee's and outside counsel's decision to ignore her overwhelming evidence or not to investigate anyone or anything which could potentially exculpate her, she complains that [*8]defendants/respondents permitted the spoliation of certain computer-based evidence while crediting other electronic records which she insists were either manufactured or doctored by, or on behalf of, defendants/respondents, and she asserts that these selective actions and inactions were pursued as part of the defendants' larger scheme to cause her harm. Despite her arguments to the contrary, the complaint must be dismissed pursuant to CPLR 3211 (a) (7) because the Judgment precludes further inquiry into the veracity of the plagiarism charges. "The doctrine of collateral estoppel precludes a party from relitigating an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point and [collateral estoppel] is applicable to prior determinations made in an administrative forum" (Johnson v Penn Mut. Life Ins. Co. (184 AD2d 230, 230 - 231 [1st Dept], lv denied 80 NY2d 757 [1992] [internal quotation marks and citations omitted]). Moreover, "[w]here, as here, the merits of the underlying grievance have been fully litigated resulting in a determination unfavorable to plaintiff, plaintiff is (also) barred by the doctrine of res judicata from bringing an action against [defendants]" (Matter of Botkin v United Fedn. of Teachers, 167 AD2d 232, 233 [1st Dept 1990] [internal citation omitted]; Matter of Botkin v Board of Educ. of City School Dist. of City of NY, 122 AD2d 136 [2nd Dept 1986], lv denied 70 NY2d 609 [1987]). As noted above, the doctrine of collateral estoppel has barred Constantine from maintaining her federal court discrimination lawsuit, which, like her state court actions, stems from, essentially, the same underlying allegations of fact. In his Memorandum and Final Judgment, cited above, Judge Rakoff stated, in relevant part, that:

[w]hile the holding of the state court was that plaintiff had failed to demonstrate that Teachers College "acted in an arbitrary or capricious manner at any state of the events leading to the June 1, 2009 [termination] letter," this necessarily meant that the state court found that plaintiff had failed to prove any of [the] essential allegations that she made in her petition and that underlie her claims here, since any termination of plaintiff for discriminatory or retaliatory reasons would have been inherently arbitrary and capricious. See Rameau v New York State Dep't of Health, 741 F. Supp. 68 (SDNY).

The fact that Constantine vehemently disagrees with the underlying final determination that she had, in fact, copied works of others without attribution, and that she disagrees with the Judgment, does not entitle her to relitigate the issues of plagiarism.

As stated above, the complaint is also subject to dismissal upon the independent grounds of absolute or qualified privilege, inadequate pleading, and applicable statutes of limitations.

With respect to privilege, it is well established that certain communications, even if otherwise defamatory, "cannot serve as the basis for the imposition of liability in a defamation action. When compelling public policy requires that the speaker be immune from suit, the law affords an absolute privilege, while statements fostering a lesser public interest are only qualifiedly privileged" (Rosenberg v MetLife, Inc., 8 NY3d 359, 365 [2007] [internal quotation marks and citations omitted]). New York provides absolute immunity to communications made before administrative bodies which: (1) provide for active participation by both parties; (2) are empowered to take remedial [*9]action based upon its findings; and (3) make determinations that are ultimately reviewable by a court (Toker v Pollak, 44 NY2d 211, 222 [1978]). During the FAC proceedings, documents were submitted and reviewed, witnesses offered testimony and were subject to cross examination, and the ultimate findings and determinations, as well as the decision to impose sanctions, were reviewed by the court via Constantine's Article 78 petition. Over her objections, the FAC proceedings, which were requested by plaintiff, who was at all times represented by counsel, are properly classified as quasi-judicial. All materially relevant communications made in the course of the proceedings were absolutely privileged and the causes of action (numbered 5 - 10, 20 - 25, 31 - 34) based upon these communications do not state a cause of action (Park Knoll Assoc. v Schmidt, 59 NY2d 205, 209 [1983]; Sullivan v Board of Educ. of Eastchester Union Free School Dist., 131 AD2d 836 [2nd Dept 1987]; Roth v United Fedn. of Teachers, 5 Misc 3d 888, 900 [Sup Ct, Kings County 2004]).

Constantine does not, however, meaningfully dispute that the communications made during the course of the FAC proceedings are protected by a qualified, or common-interest privilege against claims sounding in defamation. Nor does she meaningfully dispute that the balance of her defamation allegations (except those referenced in her 3rd, 4th, 14th - 19th, 27th, 28th, 44th and 45th causes of action) are also protected by a qualified privilege. Under New York law, a qualified privilege is extended to communications:

made by one person to another upon a subject in which both have an interest. This "common interest" privilege has been applied, for example, to employees of an organization, members of a faculty tenure committee and constituent physicians of a health insurance plan. The rationale for applying the privilege in these circumstances it that so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded.

(Liberman v Gelstein, 80 NY2d 429, 437 [1992][internal citations and quotation marks omitted]). New York also recognizes that the qualified privilege may be waived when the offending statements are made, or published, with malice, which is defined as spite or ill will. The qualified privilege will also be defeated by statements which are "made with a high degree of awareness of their probable falsity" (Liberman v Gelstein, 80 NY2d at 438, quoting Garrison v Louisiana, 379 US 64, 74 [1964]). It is to this end that Constantine contends that the qualified protection shield was waived by the manner in which defendants shared and/or published the defamatory statements, and she lists, in substantial detail, each action taken, or not taken, by each defendant which evidences the necessary malice. In response, defendants not only press their qualified privilege theory, butinsist that by requesting the FAC hearing and rehearing/appeal, Constantine consented to the publication of the plagiarism accusations within that setting and context (Hirschfeld v Institutional Inv., 260 AD2d 171, 172 [1st Dept], lv denied 93 NY2d 814 [1999]).

Teachers College and Trustees were compelled by the information received from Luthar, in August 2006 to investigate the plagiarism-related complaints about Constantine. In furtherance of their duty, Trustees and Teachers College were not only [*10]permitted to communicate about the plagiarism accusations, but were required to communicate about these issues within the context of the investigation (see Williams v Varig Brazilian Airlines, 169 AD2d 434 [1st Dept], lv denied 78 NY2d 854 [1991]; Herlihy v Metropolitan Museum of Art, 214 AD2d 250, 259 [1st Dept 1995]; Dillon v City of New York, 261 AD2d at 40). Upon review of the record, it is clear that the communications which were made by and between Trustees and Teachers College, including its president, provost and faculty, and by and between Teachers College, Trustees, HHR/Davidson and the accusers Yeh, Juliao and Cort, are protected by the common-interest privilege doctrine. This is so even where the statements at issue can be classified as defamatory as a matter of law, because they concerned a subject in which Trustees, Teachers College and its faculty shared a common interest, namely, the academic integrity of the school (see Liberman v Gelstein, 80 NY2d at 437; Stukuls v State of New York, 42 NY2d 272, 279 [1977]; Sborgi v Green, 281 AD2d 230 [1st Dept 2001]; and Roth v United Fedn. of Teachers, 5 Misc 3d at 900). Merely alleging that the College Defendants harbored malicious intent, personal spite, and ill will toward plaintiff, or that they acted with culpable recklessness by the manner or breadth of their communications, is inadequate to evade the qualified privilege shield. Allegations such as plaintiff's, which are based on mere conjecture and surmise, cannot withstand a CPLR 3211 (a) (7) motion, especially in light of the multiple opportunities given to plaintiff by HHR/Davidson, Teachers College and Trustees to submit verifiable evidence of priority of creation/composition.

With respect to the HHR and Davidson, Constantine contends that malice is shown by the type of cases and/or type of clients HHR and Davidson have represented in the past, by their willingness to handle the plagiarism investigation against her, and by the particular questions Davidson asked her regarding a noose which was found hanging on her office door in October 2007.[FN5] She argues that a question of fact exists as to whether HHR and Davidson maliciously and intentionally tailored their investigation to a foregone conclusion, marshaling the research, documents and evidence in such a manner as to avoid seeking out or acknowledging facts which would support Constantine, and/or whether they published reports which they knew contained false findings and conclusions, precluding a dismissal of her complaint.

Notwithstanding these accusations and assertions, HHR and/or Davidson's representation of persons, institutions or causes which are disagreeable or distasteful to Constantine and which do not involve Constantine, does not suffice for malice. HHR/Davidson was hired to investigate whether it was plaintiff who plagiarized from Yeh, Juliao and/or Cort, or Yeh, Juliao and/or Cort who plagiarized from plaintiff. In so doing, they had a qualified common-interest privilege to handle the investigation and to provide a report containing their findings and conclusions. HHR/Davidson gave Constantine multiple opportunities to demonstrate priority of composition, and she succeeded only in demonstrating instances of priority of publication. Her dissatisfaction with the outcome does not turn surmise and conjecture as to HHR/Davidson's [*11]motivation into an inference of malice, nor do her ad hominem attacks against Davidson. Accordingly, the defamation claims against outside counsel do not state a cause of action (Sborgi v Green, 281 AD2d 230, supra ; CPLR 3211 [a] [7]).

Turning to the College Defendants' allegations of inadequate pleading, it is well settled that claims sounding in libel or slander must set forth the particular words complained of in the complaint (CPLR 3016 [a]). Also required are allegations as to "the time, manner, and the persons to whom the publication was made" (Seltzer v Fields, 20 AD2d 60, 64 [1st Dept 1963], affd 14 NY2d 624 [1964]).

An examination of the pleadings reveals that 18causes of action are inadequately pled. Plaintiff's 1st and 2nd causes of action against Yeh, and her 12th and 13th causes of action against Juliao allege that "from approximately fall of 2005 to February 5, 2008, these individuals made public statements to HHR/Davidson and others, accusing her of plagiarizing works of Yeh, Juliao and Cort." Each of these causes of action lacks the requisite allegations as to words, time and manner. Plaintiff's 40th and 41st causes of action, which charge Teachers College with publishing the December 11, 2007 HHR report to an ad hoc committee and to Trustees between the dates of December 11, 2007 and January 17, 2008, does not adequately allege time, nor do her 3rd, 4th, 14th - 19th, and 27th causes of action, which involve statements made to journalists. Articles appearing in the Columbia Spectator on February 21 and February 26, 2008, and in the New York Post on July 2, 2008, attribute certain statement to Yeh, Juliao and Cort. Plaintiff's allegations with respect to these statements sufficiently articulate the particular words complained of and the person or persons to whom the words were spoken. However, her allegations as to the time or dates on which Yeh, Juliao and Cort spoke the offending words are insufficient, as they include words of ambiguity, "on or about," and appear to be derived from the dates these articles appeared in the two newspapers. Accordingly, these causes of action do not satisfy New York's strict pleading requirements (see Dobies v Brefka, 273 AD2d 776, 777 [3rd Dept], lv dismissed 95 NY2d 931 [2000]).

With respect to plaintiff's 11th, 26th and 35th causes of action charging Yeh, Juliao and Cort, respectively, with intentional infliction of emotional distress, these allegations do not satisfy CPLR 3016 (a). "The tort of intentional infliction of emotional distress predicates liability on the basis of extreme and outrageous conduct, which so transcends the bounds of decency as to the regarded as atrocious and intolerable in a civilized society" (Freihofer v Hearst Corp., 65 NY2d 135, 143 [1985]). Constantine's response to the controversy does not elevate accusations of plagiarism to the level of egregious conduct necessary to make out this claim (see Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983]).

The one-year statute of limitations set forth in CPLR 215 is also a bar to those aspects of plaintiff's 1st, 2nd 12th, 13th and 28th causes of action for defamation, defamation per se and intentional infliction of emotional distress which are premised on defamatory communications made prior to December 10, 2007. And finally, there is no basis for plaintiff's claims for punitive damages. Even if her 45 causes of action were not otherwise dismissed, her allegations pertain to a private wrong rather than a wrong directed at the public generally (New York Univ. v Continental Ins. Co., 87 NY2d 308, [*12]316 [1995]).

This court considered converting these motions into a summary judgment and allowed each party to submit, in letter form, additional documents along with a statement of its position on the possible CPLR 3211 (c) conversion. However, upon examination of these submissions and a review of the parties' prior submissions, it is this court's determination that the need for conversion has been rendered moot, and that for the reasons set forth above, the motions to dismiss the complaint are granted (see Lawrence v Graubard Miller, 11 NY2d 588, 595 [2008]). The lack of a favorable outcome does not entitle Constantine to litigate, once again, the same issues previously decided.

Accordingly, it is

ORDERED that the consolidated motions of defendants Teachers College, Trustees of Teachers College of Columbia University, Christine Yeh, Karen Cort, Tracy Juliao, George Davidson, and Hughes Hubbard and Reed, LLP, submitted under motion sequence numbers 006 and 007, are granted and the complaint is dismissed in its entirety as against said defendants, with costs and disbursements to said defendants as taxed by the Clerk of the Court, and it is further

ORDERED Clerk is directed to enter judgment accordingly in favor of said defendants.

This constitutes the Decision and Order of the Court.

Dated: October 13, 2010

Paul WootenJ.S.C.

Footnotes

Footnote 1:After this motion was submitted, there was mailed to the Court an anonymous letter expressing a view of this case and enclosing a $5 bill as a symbolic token of later campaign contributions to this Justice. The Court immediately informed the parties of this correspondence and turned over the letter, and the $5 bill, to the appropriate Court and State authorities, to conduct a criminal investigation; and nothing in this event warrants recusal or any further comment from the Court.

Footnote 2:The sanctions consisted of a 15% salary reduction, a freeze on plaintiff's research funds, and a determination that plaintiff would not be eligible to serve in an administrative capacity at Teachers College for a period of three years.

Footnote 3:Plaintiff sent letters, dated April 30 and May 1, 2007, to Yeh, Juliao and Cort which, according to the FAC report, "appeared to have the purpose of intimidating them in their roles as witnesses in the inquiry. In light of Ms. Cort's student status, this is especially disturbing."

Footnote 4:Constantine's earlier Article 78 proceeding, under NY Court Index No. 113708/08, was dismissed by the Hon. Jane Solomon on the ground that it "challenged an act which was not a final determination" (Order, dated April 7, 2009).

Footnote 5:Plaintiff contends that the placement of the noose on her office door was part of a larger scheme to remove her from her position at Teachers College.