Stukuls v. State , 53 A.D.2d 368 ( 1976 )

Greenblott, J. P.

In December, 1974, an ad hoc committee of the State University College at Cortland, composed of five faculty members, met for the purpose of making a recommendation concerning tenure for claimant, a member of the college faculty. During the course of this meeting, Dr. Whitney T. Corey, Acting President of the University, read parts of a previously undisclosed allegedly libelous letter concerning claimant written by an unidentified student. Thereafter claimant instituted an action against the State for libel and slander and moved for pretrial discovery, whereupon the State cross-moved to dismiss the claim on the ground of absolute privilege. The State’s motion was granted.

We are confronted with a question of law which is one of first impression in this State. Is an Acting President of the State University College entitled to the defense of absolute privilege in an action for defamation relating to statements made within the scope of his official duties? Claimant contends that Dr. Corey enjoys only a qualified as opposed to an absolute privilege, the difference being that with a qualified privilege one is liable if there was actual malice, while with absolute privilege, one is immune irrespective of malice (Sheridan v Crisona, 14 NY2d 108). In Sheridan v Crisona (supra), the Court of Appeals granted absolute privilege to the President of the Borough of Queens, finding that the "considerations of public policy, which demand absolute privilege for what is said or written by * * * executives in the discharge of official duty, must certainly apply to a municipal executive such as a Borough President who is charged with substantial responsibilities” (id., p 112). Relying on the holding in Sheridan v Crisona (supra), the Court of Appeals held in Lombardo v Stoke (18 NY2d 394) that the members of the defendant Board of Higher Education are such executives. We note that in extending the privilege to the board, the court refused to decide the question of whether the president of a municipal college has an absolute or qualified privilege.

On the theory that entitlement to an absolute privilege should turn on the nature and extent of the duties which are performed (Duffy v Kipers, 26 AD2d 127), New York appellate courts have extended the absolute privilege to the office of the Commissioner of Education (Laurence Univ. v State of New York, 41 AD2d 463); to a Town Supervisor, the principal town official (Duffy v Kipers, supra); and to the members of a board of education, who "have wide executive and administrative powers in the management and control of the educational affairs and interest within its charge * * * including the power to prescribe regulations and by-laws * * * [and who] perform a State function of high importance” (Smith v Helbraun, 21 AD2d 830). Similarly, absolute privilege has been extended to the County of Nassau and its Commissioner of Accounts, who is expressly empowered to perform governmental functions (Kurat v County of Nassau, 47 Misc 2d 783), and to a school district (Thompson v Union Free School Dist. No. 1 of Huntington, 45 Misc 2d 916), on the basis of Smith v Helbraun (supra).

In each of these cases, the recipient of the absolute privilege was empowered by law with substantial responsibilities for the performance of governmental functions of high importance. Presidents of State or county universities were accorded an absolute privilege in Hughes v Bizzel (189 Okla 472), Roberts v Lenfestey (264 So 2d 449 [Fla]), and Sanford v Howard (185 Okla 660). In the Hughes case (supra, pp 474-475), the court stated: "It is to the interest of the public that the best qualified persons serve the University. The board [Regents] must largely depend upon the president * * * for correct information as to the fitness and qualifications of those on the payroll and those seeking employment. If, in giving such information to the board, such officers were not under the rule of absolute privilege, every disgruntled person, refused employment or discharged, could file suit for damages for defamation or conspiracy against such officers and state a cause of action requiring them to stand trial before a jury as to their motives or the truthfulness of their statements, regardless of the correctness of the allegations of the petition or the merits of the cause. Such a rule would tend to deprive the board of the benefit of candor and full disclosure as to the qualifications of the employee or applicant. The rule of absolute privilege in such a case is for the protection of the public and not for the protection of the officers” (emphasis supplied).

We feel that the same policy considerations present in the cited cases warrant granting absolute privilege to the respondent herein.

The order should be affirmed, without costs.