D'Angelo v Town of Jay

[*1] D'Angelo v Town of Jay 2012 NY Slip Op 52371(U) Decided on December 12, 2012 Supreme Court, Essex County Muller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2012
Supreme Court, Essex County

Yvonne D'Angelo, Plaintiff,

against

The Town of Jay; RANDALL DOUGLAS, Individually as in his Official Capacity as Town Supervisor, Defendants.



000073-07



Law Office of James Edward Gross, Albany (James Edward Gross of counsel), for plaintiff.

Towne, Ryan & Partners, P.C., Albany (James T. Towne, Jr. of counsel), for defendants.

Robert J. Muller, J.

Plaintiff Yvonne D'Angelo was hired by defendant Town of Jay (hereinafter the Town) as an Account Clerk on June 5, 2000.[FN1] In this position, plaintiff was responsible for overseeing the payroll, including the calculation of vacation and sick leave accruals for all Town employees. After becoming Town Supervisor on January 1, 2004, defendant Randall Douglas became concerned "about accountability for the time and attendance of [Town] employees" [Stern Memorandum of Law, at p. 1]. He thus ordered the Assistant Town Supervisor to conduct an internal investigation. This investigation was completed in March 2005 and revealed that plaintiff had credited herself and others with leave that had not been earned. In view of this result, the State Comptroller's office then commenced an audit of the Town's internal procedures in April 2005.

Meanwhile, the Town filed certain charges against plaintiff in accordance with Civil Service Law § 75 on April 11, 2005.[FN2] While plaintiff retained an attorney to represent her relative to these charges, she ultimately chose to resign from her position. According to plaintiff, "[a]lthough [she] had a strong defense for each charge against [her], it became apparent . . . that [*2][she] would not be able to afford the attorney's fees to continue [her] defense[and, r]ather than continue without legal counsel, [she] felt that the best course of action . . was to resign . . . " [Plaintiff's Affidavit, at ¶ 4]. To that end, on May 25, 2005, the parties entered into a "Resignation/Release" (hereinafter Release) which provided, in pertinent part: "The Town . . . agrees to maintain a positive and constructive public posture toward [plaintiff] and to refrain from making, encouraging or supporting any written or oral statements of a derogatory, negative or critical nature concerning [plaintiff] and her employment with the Town . . . " [Release, attached as Exhibit "A" to Stern Affirmation, at p. 2]. While the terms of the Release and any of the discussions pertaining thereto were to remain "strictly confidential" [Release, at p. 4], certain exceptions were enumerated. Specifically, the Release did not "discharge [plaintiff] from any claims, actions or causes of action relative to any crime or criminal matters" [Release, at p. 2]. Further, with respect to the Comptroller's pending investigation, the Release stated as follows: "Notwithstanding anything . . . to the contrary contained in this Release, it is recognized that the annual Comptroller's report may contain certain information relative to [plaintiff] and the present proceedings which may be part of the report and will be a public record. As the Town . . . has no control over the contents of the Comptroller's report, this Release and any confidentiality agreements which relate thereto shall not apply to any and all of the information contained in the annual . . . report or any other reports by the . . . Comptroller" [Release, at p. 4].

The Comptroller subsequently completed its report on March 15, 2006 finding, inter alia, that plaintiff had credited herself and others with leave that had not been earned, had purchased a cell phone plan for her own personal use in the Town's name without authorization and had failed to keep personnel files complete and up-to-date. The Comptroller further found that plaintiff's conduct went undetected due to a lack of supervision by the Town Supervisor, as well as the Town Board. This report included the response provided by Douglas on behalf of the Town, which enumerated the corrective actions taken, including the charges filed against plaintiff and her subsequent resignation (see General Municipal Law § 35 [4] [b] [1]). Specifically, Douglas stated as follows: "Please be advised that all of the duties to be performed by the Account Clerk were put in place well before I became Supervisor on 01/01/04. Unfortunately some employees need very little supervision and others need much more" [Report, attached as Exhibit "L" to Stern Affirmation, at p. 18]. Douglas further stated: "This Supervisor did not hire [the Account Clerk], but was forced to continue to employ this person. If I was able to hire a Confidential Secretary to the Supervisor, I certainly would have" [Report, at p. 20]. Finally, Douglas stated as follows: "Please note that the Town['s] policy of 31 years, that was in place when I took office . . . , gave the Account Clerk responsibility for maintaining computerized payroll records, performing payroll processing and personnel duties, including maintaining leave time records. No previous Supervisor before me played a roll in this process. The standards probably stayed in place for so long because the previous Confidential Secretary to the Supervisor, who worked from 04/01/74 to 07/01/00, doing these duties did so with integrity and honesty. Problems only arose from 06/05/00 to 04/11/05 when the Account Clerk in question was [*3]employed by the Town . . . " [Report, at 20].

The Comptroller's report was released to the public, as required by General Municipal Law § 35 (1), and the foregoing statements were published in two separate newspaper articles, one in The Press Republican and the other in The Lake Placid News. One of the articles also contained a separate statement made by Douglas — apparently at a Town Board meeting — that he had consulted with the District Attorney about possible criminal charges against plaintiff.

Plaintiff subsequently filed a notice of claim in May 2006 and ultimately commenced this action in January 2007, seeking damages for lost job opportunities and emotional distress. Plaintiff asserts two causes of action, one for defamation and another for breach of contract. Issue has since been joined and discovery completed. Presently before the Court is defendants' motion for summary judgment dismissing the complaint which has included extensive oral argument on December 6, 2012.

On a motion for summary judgment, the movant must establish, by admissible proof, its entitlement to judgment as a matter of law (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has met this initial burden, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).

Initially, since the filing of the motion, plaintiff has agreed to discontinue her defamation cause of action.[FN3] Therefore, only the breach of contract cause of action remains for consideration. With that said, " [t]he elements of a cause of action for breach of contract are (1) formation of a contract between plaintiff and defendant; (2) performance by plaintiff; (3) defendant's failure to perform; and (4) resulting damage'" (Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1055 [2009], quoting Hecht v Components Intl., Inc., 22 Misc 3d 360, 364 [Sup Ct, Nassau County 2008] [citations omitted]; accord McCormick v Favreau, 82 AD3d 1537, 1541 [2011], lv denied 17 NY3d 712 [2011]).

Here, defendants do not dispute that plaintiff has satisfied the first two elements of her breach of contract cause of action, as the parties signed the Release and, further, plaintiff performed in accordance with the terms thereof. Defendants contend, however, that plaintiff cannot — as a matter of law — satisfy the latter two elements. Specifically, defendants contend that plaintiff cannot satisfy the third element because, although the statements made by Douglas in the Comptroller's report could be viewed as disparaging, the Release specifically excludes any information contained in the report and, consequently, their alleged failure to perform under the terms of the Release cannot be based on these statements. Defendants further contend that their alleged failure to perform cannot be based on Douglas' statement regarding consultation with the District Attorney, as the Release did not discharge the possibility of criminal charges against plaintiff.

With respect to the fourth element, defendants most germanely contend that — even if the [*4]statements made by Douglas did in fact constitute a failure to perform under the terms of the Release — plaintiff has failed to demonstrate she has suffered any damage as a result thereof. "In order to recover, damages must be proximate in effect, neither speculative nor uncertain, and reasonably foreseen as a result of the wrong" (Haven Assoc. v Donro Realty Corp., 121 AD2d 504, 507-508 [1986], appeal denied 69 NY2d 602 [1986]; see CFJ Assoc. of NY v Hanson Indus., 294 AD2d 772, 775 [2002]; State of New York v General Elec. Co., 199 AD2d 595, 596 [1993]).

According to defendants, plaintiff cannot prove that Douglas' statements were the proximate cause of her inability to find a job, as her reputation was damaged notwithstanding these comments. In this regard, defendants emphasize the fact that plaintiff provided The Lake Placid News with a copy of the charges filed against her by the Town. Defendants further point out that the Comptroller's findings themselves — even without Douglas' response thereto — were damaging to plaintiff's reputation (see Rather v CBS Corp., 68 AD3d 49, 55 [2009], lv denied 13 NY3d 715 [2010]).[FN4]

Defendants next contend that plaintiff's alleged lost job opportunities are too speculative. In March 2006, plaintiff began working as a bookkeeper at Tropical Valley Foods in the City of Plattsburgh, New York, which employment she continued until May 2006 when the plant closed. Douglas' statements therefore had no impact upon this employment opportunity. Plaintiff then searched for another job until the end of 2006, when she decided to cease her job search and work as an independent real estate agent. Defendants contend that, under these circumstances, plaintiff has failed to submit any proof that she lost job opportunities as the result of Douglas' disparaging comments.

Insofar as plaintiff contends that she suffered emotional distress, defendants counter that "there is no right to recover damages for emotional distress in a breach of contract action" (Hess v Nationwide Mut. Ins. Co., 273 AD2d 689, 690 [2000]; see Wehringer v Standard Sec. Life Ins. Co. of NY, 57 NY2d 757, 759 [1982]).

Finally, defendants contend that, insofar as there has been no showing that Douglas acted in bad faith, he cannot be held personally liable for acts committed in his professional capacity (see Board of Educ. of Commack Union Free School Dist. v Vecchio, 181 AD2d 650, 651 [1992], appeal dismissed 80 NY2d 824 [1992]). Therefore, even if the complaint is not dismissed as against the Town, it would have still have to be dismissed as against Douglas.

Based upon the foregoing analysis the Court finds defendants have met their initial burden of demonstrating their entitlement to summary judgment as a matter of law, thus shifting the burden to plaintiff to raise a triable issue of fact.

To that end plaintiff has, however, succeeded in raising a triable issue of fact relative to the third element of her breach of contract cause of action. "The fundamental objective when interpreting a contract is to determine the intent of the parties as derived from the language [*5]employed, and where the parties have agreed to conduct themselves in accordance with the rights and duties expressed [therein], a court should strive to give a fair and reasonable meaning to the language used'" (Grandy v McKay, 82 AD3d 1470, 1471 [2011], appeal dismissed 17 NY2d 782 [2011], quoting Abiele Contr. v New York City School Constr. Auth., 91 NY2d 1, 9-10 [1997] [citations omitted]). According to plaintiff, the Release was intended to exclude those statements made by the Comptroller's office in its report, as the Town had no control over such statements. It was not, however, intended to exclude those statements actually made by the Town in response to the Comptroller's report, notwithstanding that such response was ultimately published with the report. Plaintiff further contends that the objectionable statements made by Douglas in the Town's response amounted to mere commentary, as they did not pertain to corrective actions taken. Indeed, General Municipal Law § 35 (4) (b) (2) provides that, "[a] written response [to the Comptroller's report] shall include, with respect to each finding or recommendation, a statement of the corrective actions taken or proposed to be taken . . . ." By this logic, giving fair and reasonable meaning to the terms used, this Court finds the confidentiality aspect of the release was not so far reaching so as to includeall statements made by the Town in its response to the Comptroller's report. Therefore, these statements do form the basis for defendants' failure to perform under the confidentiality terms of the Release.

Similarly, insofar as Douglas' statement at a Town Board meeting relative to his consultation with the District Attorney is concerned, this statement also provides a basis for finding a failure to perform under these confidentiality terms. Plaintiff persuasively argues that while the Release did not discharge the possibility of criminal charges, defendants were nonetheless precluded from disparaging her by discussing publicly the possibility of criminal charges, especially criminal charges that were never filed.

The above notwithstanding, plaintiff fails to raise a triable issue of fact with respect to the fourth element of her breach of contract cause of action, namely damages. Plaintiff has submitted correspondence from several prospective employers to whom she applied. Specifically, she submitted an e-mail she received from Lisa English, a Human Resources Assistant for the Champlain Valley Physicians Hospital Medical Center, on August 11, 2006. English stated as follows: "We want to thank you for your interest in the [position of Office Coordinator. You have] a lot of talent and skills to offer an employer. Although we [were] impressed with your qualifications, another candidate was [selected to] fill the position" [August 6, 2006 E-mail, attached as Exhibit "P-1" to Plaintiff's Affidavit]. Plaintiff further submitted September 22, 2006 correspondence from Ivel Kelly, a Human Resources Assistant with the Advocacy and Resource Center. Kelly stated as follows: "Thank you for expressing your interest in the Office Support Assistant position . . . . We regret to inform you that you were not selected as a final candidate" [September 22, 2006 Correspondence, attached as Exhibit "P-1" to Plaintiff's Affidavit]. Finally, plaintiff submitted an e-mail she received from Kate Chilton on September 26, 2006 following an interview with College Auxiliary Services for the position of Event Coordinator/Bookkeeper. Chilton stated as follows: "We appreciate your interest in working for [us]. Your qualifications are exceptional and your energy is infectious. The search committee had the hard choice of choosing just one candidate and unfortunately, we chose someone else for the position" [September 26, 2006 E-mail, attached as Exhibit "P-1" to Plaintiff's Affidavit]. In addition to the foregoing, plaintiff submitted copies of six cover letters [*6]she sent out to other potential employers. Finally, plaintiff has submitted her own affidavit stating as follows: "[E]ven in [the real estate] field the disparaging remarks have followed me. Although I now live in Plattsburgh, shortly after I began in the real estate field, a co-worker revealed that she was aware of my past history and the fact that my employment with the Town had ended with the Town disparaging my work" [Plaintiff's Affidavit, at ¶¶ 9-10].

Initially, two of the cover letters submitted are dated January 2006, prior to publication of the Comptroller's report. Further, the remainder of plaintiff's submissions provide no proof whatsoever that the reason she was not hired between May 2006 and January 2007 was because of Douglas' disparaging comments. Indeed, plaintiff has not submitted an affidavit from anyone to indicate they declined to hire or do business with her solely because of Douglas' comments regarding her employment with the Town. It appears that plaintiff wants the Court to simply assume that — given her education and background — the only reason she failed to obtain employment was because of Douglas' comments.[FN5] Awarding damages based solely upon this assumption requires the Court to give concrete form to an abstract and speculative concept - a shapeless theory bereft of any ancestors in New York jurisprudence.[FN6]

With respect to damages for emotional distress, plaintiff contends she is entitled to such damages because defendants acted in bad faith. This contention is without merit, however, as this allegation of bad faith does not constitute an exception to the general rule that there is no right to recover damages for emotional distress in a breach of contract action (Johnson v Jamaica Hosp., 62 NY2d 523, 528 [1994]).

Based upon the foregoing analysis defendants' motion for summary judgment shall be granted and the complaint dismissed. It is therefore

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

ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.

The above constitutes the Decision and Order of the Court.

The original of this Decision and Order is returned to counsel for defendants for filing and service with notice of entry. The Notice of Motion dated June 13, 2012, has been filed by the Court together with the referenced submissions.

Dated: December 12, 2012

Lake George, New York [*7]

ENTER:

____________________________________

Robert J. Muller, J.S.C.

Papers Considered:

1.Notice of Motion dated June 13, 2012;

2.Affirmation in Support of Motion for Summary Judgment of Amanda R. Stern, Esq. dated June 13, 2012 with Exhibits A - N attached thereto;

3.Memorandum of Law in Support of Defendants' Motion for Summary Judgment of Amanda R. Stern, Esq. dated June 13, 2012;

4.Affirmation in Response to Motion for Summary Judgment of James Edward Gross, Esq. dated July 20, 2012 with Exhibits "A1" - "A8" attached thereto;

5.Plaintiff's Affidavit in Defense of Motion for Summary Judgment of Yvonne D'Angelo sworn to July 20, 2012 with Exhibits "P1" & "P2" attached thereto;

6.Memorandum of Law in Response to Defendants' Motion for Summary Judgment of James Edward Gross, Esq. dated July 20, 2012;

7.Reply Affirmation in Support of Motion for Summary Judgment of Amanda R. Stern, Esq. dated August 15, 2012 with Exhibit I attached thereto;

8.Reply Memorandum of Law in Support of Defendants' Motion for Summary Judgment of Amanda R. Stern, Esq. dated August 15, 2012 and

Oral argument was held before the Court on December 6, 2012, with James T. Towne, Jr., Esq. appearing in support of the motion and James Edward Gross, Esq. and Margaret C. Doody, Esq. appearing in opposition to the motion. Footnotes

Footnote 1:During the course of her employment with the Town, plaintiff was known as Yvonne Zaumetzer. She has since divorced and resumed the use of her maiden name, Yvonne D'Angelo.

Footnote 2:These charges were subsequently amended and the amended charges served on plaintiff on April 14, 2005.

Footnote 3:A stipulation for voluntary discontinuance of this cause of action was filed with the Essex County Clerk on August 2, 2012.

Footnote 4:In Rather v CBS Corp. (68 AD3d 49, 55 [2009], lv denied 13 NY3d 715 [2010], supra), the Court held as follows: "Since, according to Rather's own allegations, an immediate result of the September 8, 2004 broadcast was criticism that he was biased against Bush, it would be speculative to conclude that any action taken by CBS would have alone substantially affected his market value at that time."

Footnote 5:Plaintiff holds a Bachelors degree in Mass Media and a Masters degree in Education Administration and Supervision from the State University of New York at Plattsburgh. Prior to her employment with the Town, plaintiff worked as an Office Manager (1999-2000), Legal Secretary (1998-1999), Substitute Teacher (1991-1997) and Account Clerk (1988-1990).

Footnote 6:The decision relied upon by plaintiff in support of her request for damages for lost job opportunities — Redgrave v Boston Symphony Orchestra, Inc., 855 F2d 888 [1st Cir 1988] — applied Massachusetts law and, consequently, is inapposite to the instant case.