Melious v Besignano

[*1] Melious v Besignano 2012 NY Slip Op 51871(U) Decided on September 27, 2012 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2012
Supreme Court, Richmond County

Daniel J. Melious and DENISE E. MELIOUS, Plaintiffs,

against

Robert Besignano, MONSIGNOR JOHN PADDACK, MONSIGNOR FARRELL HIGH SCHOOL, THE ARCHDIOCESE OF NEW YORK, LAWRENCE MUSANTI and ROBERT MINALL, Defendants.



100676/2009

Philip G. Minardo, J.

Upon the foregoing papers, defendants' motion (Seq. No. 002) for summary [*2]judgment dismissing the complaints in this consolidated action is granted. [FN1]

On or about July 25, 2007, plaintiff Daniel J. Melious (hereinafter, "plaintiff"), a religion teacher at defendant Monsignor Farrell High School on Staten Island (hereinafter "MFHS"), commenced an action against his then-employer in which he set forth causes of action for defamation, prima facie tort and tortious interference with employment, each arising out of his termination as junior varsity basketball coach at MFHS. [FN2] To the extent relevant, plaintiff maintained in his amended complaint that defendants had made public certain false and derogatory statements regarding his purported participation in "inappropriate relationships [or]...inappropriate contact with the boys" on the junior varsity team. Plaintiff also claimed to have been falsely and publicly accused of steroid use and/or distribution.

Thereafter, on March 16, 2009, plaintiff and his wife commenced a second action asserting, in addition to the underlying defamation and prima facie tort claims, causes of action for retaliatory termination, interference with prospective advantage and loss of services predicated, in part, on the termination of plaintiff's teaching position at MFHS on or about June12, 2008, based on disputed allegations of racial bias against a Latino student in his class. These actions were later consolidated pursuant to a Stipulation/Order dated February 19, 2010.[FN3]

In support of their motion for summary judgment dismissing the remaining causes of action (i.e., for defamation, prima facie tort and loss of services), defendants maintain that to the extent said causes of action are based on any allegedly defamatory statements made by defendant Besignano concerning plaintiff's purported steroid use and/or distribution and the exhibition of "steroid rage", they are not only time-barred, but lacking in the requisite proof of publication. More specifically, defendants point out that the incidents alleged occurred in 2005 and in February or March of 2006, while the instant lawsuit was not commenced until July 25, 2007, well after the expiration of the applicable one-year Statute of Limitations. Additionally, defendants argue that the remaining claims of defamation set forth in the amended complaint, wherein defendants are accused of making false statements against plaintiff concerning his alleged (1) inappropriate relationship with a junior varsity player, (2) use and/or distribution of steroids and (3) racial bias towards a Latino student were qualifiedly privileged, having taken place in the offices of defendants Besignano (Dean of MFHS and the varsity basketball coach) and/or defendant Monsignor Paddock (Principal of MFHS), in the exclusive presence of other coaching staff members and administrators, e.g., the [*3]Athletic Director, Assistant Dean (defendant Minall) and Assistant Principal (defendant Musanti). According to defendants, these statements, if any, were made at meetings where the matters discussed qualified as privileged. In further support, they note that in his deposition testimony, plaintiff conceded that defendants Besignano and Minall were the only individuals who "defamed" him and that "the other people [i.e., the remaining defendants,] didn't defend [him]." Additionally, defendants point out that the only evidence of "publication" was that by plaintiff himself, who, in June of 2007, issued a press release and held a press conference at his attorney's office at which information regarding the accusations against him for steroid use and inappropriate fraternizing with students was provided to The Staten Island Advance.

Finally, defendants maintain that the loss of services action brought by plaintiff's wife is merely derivative of the allegations of defamation and tortious conduct, and therefore, cannot withstand the dismissal of plaintiff's substantive causes of action.

It is well recognized that a claim of defamation "arise[s] 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. 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 [Second] of Torts §558)" (Dillon v City of New York, 261 AD2d 34, 37-38 [internal quotation marks and citations omitted]). Nevertheless, "a [claimed defamatory] statement is subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned" (Thomas H. v Paul B., 18 NY3d 580, 586, quoting Rosenberg v Metlife, Inc., 8 NY3d 359, 365). "A communication protected by such a privilege is not actionable unless the plaintiff proves that it was uttered with malice - i.e., spite or a knowing or reckless disregard of a statement's falsity" (id. [internal quotation marks omitted]).

Consonant with the foregoing, it is the opinion of this Court that defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that a qualified privilege applied to the challenged statements (see e.g. Denaro v Rosalia, 59 AD3d 584, 587; Serratore v American Port Servs., Inc. 293 AD2d 464, 465; Jung Hee Lee Han v State of New York, 186 AD2d 536). More particularly, the persons alleged to have made the statements did so in the course of their employment and in the discharge of their duty to MFHS, where they shared a common interest in safeguarding the integrity of the institution. In addition, the statements were made to persons with a corresponding duty to protect the school and, more importantly, the well-being of its students (see Sassaman v Brant, 70 AD3d 1026, 1027, lv denied 15 NY3d 703; Berger v Temple Beth-El of Great Neck, 41 AD3d 626, 627; Jung Hee Lee Han v State of New York, 186 AD2d at 537).

In opposition, plaintiffs have failed to raise a triable issue of fact as to whether defendants exceeded the scope of the foregoing privilege, or whether the statements [*4]regarding plaintiff's alleged inappropriate relationships with student-athletes, steroid use and/or distribution, and racial bias were made with malice, ill-will, or in reckless disregard of the truth, i.e., with a high degree of awareness of their probable falsity (see Foster v Churchhill, 87 NY2d 744, 752; Liberman v Gelstein, 80 NY2d 429, 437-438; Liere, Doing Business as Liere Farms v Scully, 79 AD3d at 822; Denaro v Rosalia, 59 AD3d at 587-588). In addition, there is no evidence before this Court sufficient to raise a triable issue as to whether the alleged defamatory statements were excessively published, inasmuch as the recipients each shared an uncontroverted common interest in the allegations of teacher misconduct, which were made by and to persons legally and morally bound to prevent it (see Stukuls v State of New York, 42 NY2d 272, 281; Garcia v Puccio, 62 AD3d 598, 599 [high school principal's alleged statement to student's parent regarding his teacher's purported prior use of corporal punishment held pertinent to a matter of common interest and, thus, qualifiedly privileged]). Neither "were [they] so extravagant and vituperative that an influence of malice may be made" (Berger v Temple Beth-El of Great Neck, 41 AD3d at 627).

It is also worthy to note that the defamatory statements attributed to defendant Besignano regarding plaintiff's purported use of steroids and the "giving [of same] to Justin G. and Michael P. ... in [the] Dolphin Gym" were made, if at all, in 2005 and in February or March of 2006. Accordingly, defendants are correct in arguing that any cause of action based thereon is barred by the applicable one-year Statute of Limitations (CPLR 215 [3]; see Hoesten v Best, 34 AD3d 143, 150). So too, are the statements alleged for the first time in plaintiff's amended verified complaint dated August 18, 2008, concerning an incident that purportedly took place on February 23, 2007 at a CYO post-season tournament at MFHS. There defendant Besignano is alleged to have stated "loudly and snidely" in the presence of "scores of people" (among them students, parents and teachers at MFHS), e.g., that "the juice will make you alert" and "don't you have enough juice in your right arm", the apparent reference in each case being to steroid use. Here, too, the allegations were interposed more than one year after their purported publication (CPLR 215 [3]).

In view of the foregoing, defendants are entitled to the entry of summary judgment dismissing plaintiff's cause of action for defamation.

Turning to that branch of defendants' motion which is for summary judgment dismissing plaintiff's cause of action to recover damages for prima facie tort, it is the opinion of this Court that defendants have satisfactorily established that the defamatory acts alleged by plaintiff were committed, if at all, in the furtherance of legitimate pedological motives (see (Denaro v Rosalia, 59 AD3d at 588). "In order to sustain a cause of action [for] prima facie tort, the plaintiff must submit evidence that, inter alia, disinterested malevolence to injure plaintiff constitutes the sole motivation for [an] otherwise lawful act (id. [internal quotation marks omitted; emphasis added]). Stated otherwise, the alleged wrongful act "must be a malicious one unmixed with any other and exclusively directed to injure[] and damage ...another (id.).

Here, defendants' evidence is sufficient to demonstrate prima facie that certain of the accusations lodged against plaintiff had their genesis in a statement made to Tim [*5]Cummings, an Assistant Dean of MFHS, in March 2007, by John Blohm, the father of a MFHS student, who reported that he has seen plaintiff at the movies with a student named Michael P. [anonymous], and that Cummings subsequently relayed this information to Dean Besignano (Affidavit of Tim Cummings dated May 2, 2011). Regarding another, defendants have submitted an affidavit from an MFHS parent indicating that he had complained to Dean Besignano that "it was inappropriate for [plaintiff] to prioritize driving Justin G. [anonymous] to and from games" in view of the difficulty experienced by other team members "in finding transportation to games in distant locations" (Affidavit of Dr. Gerard Villa dated April 18, 2011). Finally, it should be noted that the source of the accusation of racial bias against plaintiff has been shown to arise from a certain letter dated May 26, 2008 to Assistant Dean Minall from the mother of that student, who complained of repeated incidents in which her son was the object of racial harassment and bullying by his fellow students as well as plaintiff in his religion class. Hence, it cannot be said that the alleged defamatory acts attributed to defendants lacked a legitimate intent (id. at 588).

In response to this prima facie showing, plaintiffs have failed to raise a triable issue of fact as to whether the proscribed actions allegedly undertaken by defendants were motivated solely by "disinterested malevolence" (Denaro v Rosalia, 59 AD3d at 588). In the absence of any evidence of, e.g., disinterested malevolence on the part of any defendant, their motion for summary judgment dismissing plaintiff's cause of action for prima facie tort must be granted.

Under these circumstances, the derivative cause of action brought by plaintiff's wife for the purported loss of her husband's services must also be dismissed.

Accordingly, it is

ORDERED, that defendants' motion for summary judgment is granted, and the complaint is hereby dismissed; it is further

ORDERED, that the Clerk enter judgment accordingly.

E N T E R,

/s/ Philip G. Minardo________

Hon. Philip G. Minardo

Dated: September 27, 2012 Footnotes

Footnote 1: Plaintiffs' motion (Seq. No. 003), inter alia, to vacate the default judgment entered against them on defendants' unopposed motion for summary judgment was previously granted in an Order dated August 8, 2011,

Footnote 2: Plaintiff subsequently withdrew his cause of action for tortious interference.

Footnote 3: In a Decision and Order dated August 12, 2010, this Court dismissed plaintiffs' causes of action for retaliatory discharge and interference with prospective advantage.