GARCIA v. GILMORE (2003)

Order, Supreme Court, New York County (Faviola Soto, J.), entered November 8, 2002, which, inter alia, granted the motion of defendants Vincent Corazon, Peter McFarlane and New York City Board of Education for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

 The motion court properly granted summary judgment dismissing plaintiff's claim for damages based upon a violation of his liberty interest without due process of law since there is no evidence that the allegedly defamatory statements were publicly disseminated (see Matter of Swinton v. Safir, 93 N.Y.2d 758, 764-767, 697 N.Y.S.2d 869, 720 N.E.2d 89).   Defendant McFarlane's discussion of the allegations against plaintiff in the presence of plaintiff's union representative and with agency officials during the ensuing investigation did not constitute public dissemination (see Matter of Lentlie v. Egan, 61 N.Y.2d 874, 876, 474 N.Y.S.2d 467, 462 N.E.2d 1185;  Harrison v. Goldstein, 204 A.D.2d 451, 611 N.Y.S.2d 623, lv. denied 85 N.Y.2d 802, 624 N.Y.S.2d 372, 648 N.E.2d 792).   In any event, the statements were protected by the “common interest” privilege since there is no evidence of malice (see Foster v. Churchill, 87 N.Y.2d 744, 751-752, 642 N.Y.S.2d 583, 665 N.E.2d 153;  Liberman v. Gelstein, 80 N.Y.2d 429, 437-439, 590 N.Y.S.2d 857, 605 N.E.2d 344).   Moreover, even if plaintiff's liberty interest had been affected, his claim would fail since he was given ample opportunity to clear his name and thereby afforded due process (see Codd v. Velger, 429 U.S. 624, 627-628, 97 S.Ct. 882, 51 L.Ed.2d 92).   Contrary to plaintiff's claim, the post-deprivation opportunity to clear his name comported with due process (see Donato v. Plainview-Old Bethpage Cent. School Dist., 96 F.3d 623, 633, cert. denied 519 U.S. 1150, 117 S.Ct. 1083, 137 L.Ed.2d 218;  Rivera v. Community School Dist. Nine, 145 F.Supp.2d 302).