JIMENEZ v. UNITED FEDERATION OF TEACHERS (1997)

Order, Supreme Court, New York County (Charles Ramos, J.), entered March 29, 1996, which, in an action by plaintiff acting public school principal against defendant teachers' union and, its agents for defamation and breach of the duty of fair representation, granted defendants' motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs.

 We agree with the motion court that plaintiff, having subjected herself to the appointment process for public school principal, and in fact having temporarily acted as such during that process, was a public figure for the purpose of that process (accord, Johnson v. Robbinsdale Ind. School Dist., No. 281, 827 F.Supp. 1439, 1443 [D.Minn.] ), and, as such, was required but failed to allege facts sufficient to show actual malice with convincing clarity (see, Freeman v. Johnston, 84 N.Y.2d 52, 56, 614 N.Y.S.2d 377, 637 N.E.2d 268, cert. denied, 513 U.S. 1016, 115 S.Ct. 576, 130 L.Ed.2d 492).   In any event, the offending statements that were published in defendant's newspaper either are not susceptible to a defamatory meaning (see, Aronson v. Wiersma, 65 N.Y.2d 592, 594, 493 N.Y.S.2d 1006, 483 N.E.2d 1138), or constitute nonactionable opinions (see, 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 589 N.Y.S.2d 825, 603 N.E.2d 930, cert. denied 508 U.S. 910, 113 S.Ct. 2341, 124 L.Ed.2d 252), or enjoy an absolute privilege under Civil Rights Law § 74 as a substantially true report of an official proceeding (see, Holy Spirit Assn. for Unification of World Christianity v. New York Times Co., 49 N.Y.2d 63, 67-68, 424 N.Y.S.2d 165, 399 N.E.2d 1185).   The cause of action for breach of the duty of fair representation is barred by the Statute of Limitations (CPLR 217[2][a] ) as well as by the merits dismissal of that very charge by the Public Employment Relations Board.   In any event, plaintiff, as an acting principal, was owed no duty of fair representation by defendant.

MEMORANDUM DECISION.