MELINA CRVELIN PLAINTIFF APPELLANT v. BOARD OF EDUCATION OF CITY SCHOOL DISTRICT OF CITY OF NIAGARA FALLS RUSSELL PETROZZI CARMELETTE ROTELLA ARTHUR JOCOY JR CHRISTOPHER BROWN JAMES CANCEMI KEVIN DOBBS ROBERT KAZAENGIN JR DON KING NICHOLAS VILARDO CYNTHIA BIANCO ANGELO MASSARO AND PHILIP MOHR DEFENDANTS RESPONDENTS

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Supreme Court, Appellate Division, Fourth Department.

MELINA CRVELIN, PLAINTIFF–APPELLANT, v. BOARD OF EDUCATION OF CITY SCHOOL DISTRICT OF CITY OF NIAGARA FALLS, RUSSELL PETROZZI, CARMELETTE ROTELLA, ARTHUR JOCOY, JR., CHRISTOPHER H. BROWN, JAMES CANCEMI, KEVIN DOBBS, ROBERT KAZAENGIN, JR., DON J. KING, NICHOLAS VILARDO, CYNTHIA A. BIANCO, ANGELO MASSARO AND PHILIP MOHR, DEFENDANTS–RESPONDENTS.

CA 16–00464

Decided: November 18, 2016

PRESENT:  SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ. LAW OFFICES OF JOHN P. BARTOLOMEI & ASSOCIATES, NIAGARA FALLS (MATTHEW J. BIRD OF COUNSEL), FOR PLAINTIFF–APPELLANT. HURWITZ & FINE, P.C., BUFFALO (MICHAEL F. PERLEY OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this action seeking damages for, inter alia, defamation and intentional infliction of emotional distress.  According to plaintiff, defendants engaged in a process to wrongfully terminate her employment as a teacher in the City of Niagara Falls School District (District) based upon her alleged violation of the District's residency policy.  During that process, defendant Board of Education of City School District of City of Niagara Falls (Board of Education) undertook an investigation and ultimately passed a resolution concluding that plaintiff had violated the residency policy and directed that the process to terminate plaintiff's employment be commenced.  Plaintiff commenced a CPLR article 78 proceeding to challenge that process, but retired before the District terminated her employment.  During the litigation of the proceeding, defendant Angelo Massaro, legal counsel for the District, made written statements in a memorandum of law submitted to the court that, according to plaintiff, were defamatory.  Defendants, asserting various absolute privileges and immunities, moved for summary judgment seeking dismissal of the complaint in its entirety, and Supreme Court granted the motion.  We affirm.

Initially, we reject plaintiff's contention that defendants' conduct and potential liability in this civil action is subject to review under the arbitrary and capricious standard applicable to article 78 proceedings.  We conclude that the immunities asserted by defendants in support of their motion are applicable to this civil action regardless of whether defendants pursued an erroneous course of action in enforcing the residency policy that resulted, or may have resulted, in a judgment favorable to plaintiff as petitioner in the article 78 proceeding (see Lloyd v. Town of Wheatfield, 109 A.D.2d 1084, 1084, affd 67 N.Y.2d 809).

Turning to the merits, we note that it is well settled that government officials are absolutely immune for discretionary acts carried out in the course of official duties and that immunity attaches “however erroneous or wrong [such conduct] may be, or however malicious even the motive which produced it” (East Riv. Gas–Light Co. v. Donnelly, 93 N.Y. 557, 559;  see Rottkamp v. Young, 21 A.D.2d 373, 375, affd 15 N.Y.2d 831;  Santangelo v. State of New York, 101 A.D.2d 20, 21;  see also Della Villa v. Constantino, 246 A.D.2d 867, 868–869).  Moreover, statements made by government officials in the context of a quasi-judicial proceeding such as that at issue here are absolutely privileged and immunize the communicants from liability in a defamation action (see Rosenberg v. MetLife, Inc., 8 NY3d 359, 365–366).  In addition, it is well settled that public policy bars claims sounding in intentional infliction of emotional distress against a governmental entity (see Lauer v. City of New York, 240 A.D.2d 543, 544, lv denied 91 N.Y.2d 807;  Wheeler v. State of New York, 104 A.D.2d 496, 498;  La Belle v. County of St. Lawrence, 85 A.D.2d 759, 761).  Thus, we conclude that the court properly granted the motion.

Lastly, inasmuch as the alleged defamatory statements made by Massaro were contained in a writing submitted to a court on behalf of respondents in the context of plaintiff's article 78 proceeding, we conclude that they are absolutely privileged (see Park Knoll Assoc. v. Schmidt, 59 N.Y.2d 205, 209;  Mosesson v Jacob D. Fuchsberg Law Firm, 257 A.D.2d 381, 382, lv denied 93 N.Y.2d 808).

Frances E. Cafarell

Clerk of the Court