Wilcox v. Newark Valley Central School District , 11 N.Y.S.3d 703 ( 2015 )


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  •                            State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered:    June 11, 2015                   518491
    519666
    ________________________________
    LYNDSEY WILCOX,
    Respondent,
    v                                       MEMORANDUM AND ORDER
    NEWARK VALLEY CENTRAL SCHOOL
    DISTRICT et al.,
    Appellants,
    et al.,
    Defendants.
    ________________________________
    Calendar Date:    May 1, 2015
    Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.
    __________
    Law Firm of Frank Miller, East Syracuse (Alan J. Pierce of
    Hancock Estabrook, LLP, Syracuse, of counsel), for appellants.
    Law Office of Ronald R. Benjamin, Binghamton (Ronald R.
    Benjamin of counsel), for respondent.
    __________
    McCarthy, J.P.
    Appeals (1) from an order of the Supreme Court (Tait, J.),
    entered December 6, 2013 in Tioga County, which, among other
    things, modified the proposed judgment, (2) from a judgment of
    said court, entered December 19, 2013 in Tioga County, upon a
    verdict rendered in favor of plaintiff, (3) from an order of said
    court, entered August 6, 2014 in Tioga County, which partially
    granted a motion by defendants Newark Valley Central School
    District, Mary Ellen Grant and Diane Arbes to set aside the
    verdict, and (4) from the amended judgment entered thereon.
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    Plaintiff was employed by defendant Newark Valley Central
    School District (hereinafter NVCSD) as a probationary physical
    education teacher and as the coach of the girls' varsity field
    hockey team. At that time, plaintiff lived with her boyfriend,
    Todd Broxmeyer – a locally known field hockey authority who,
    among other things, served as a volunteer coach to the NVCSD
    field hockey teams. In February 2008, approximately two months
    after Broxmeyer was arrested and charged with raping a female
    field hockey player from a different school district, plaintiff's
    employment was terminated.
    Plaintiff then commenced an action against NVCSD, Diane
    Arbes – NVCSD's high school principal – and Mary Ellen Grant –
    NVCSD's superintendent, as well as the members of the Board of
    Education of NVCSD, alleging that defendants maliciously
    published defamatory statements about her and that her due
    process rights were violated by defendants' failure to provide
    her with a name-clearing hearing. Thereafter, certain of
    plaintiff's causes of action were dismissed upon defendants'
    motion to dismiss (74 AD3d 1558 [2010]), defendants were granted
    partial summary judgment dismissing additional causes of action
    and this Court converted the federal due process cause of action
    into a CPLR article 78 proceeding (107 AD3d 1127 [2013]).
    Plaintiff sought the annulment of the Board's determination
    denying her a name-clearing hearing – and an order granting her
    such a hearing – and proceeded to trial on causes of action
    premised on two alleged defamatory statements: (1) that Arbes had
    stated, during a meeting attended by female varsity and junior
    varsity field hockey players, the junior varsity coach and school
    counselors, that plaintiff was no longer employed by NVCSD and
    had acquiesced in or did not protest or challenge her termination
    and (2) that Grant had stated to one of the parents of a field
    hockey player that plaintiff had acquiesced in or did not protest
    or challenge her termination.
    Supreme Court granted plaintiff's application to annul the
    Board's determination denying her a name-clearing hearing and
    ordered such hearing to be provided. After a first trial ended
    in a mistrial, a second trial concluded with the jury rendering a
    verdict in favor of plaintiff, awarding her $351,990 in lost
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    wages from the date of her termination to the date of the
    verdict, $2.1 million in future lost wages and $1 million in
    damages for past mental anguish, emotional distress, personal
    humiliation and/or damage to her reputation. NVCSD, Arbes and
    Grant (hereinafter collectively referred to as defendants) appeal
    from Supreme Court's order modifying the proposed judgment and
    the judgment entered upon the verdict.
    Thereafter, defendants moved, pursuant to CPLR 4404 (a), to
    set aside the verdict. Supreme Court granted the motion to the
    extent of ordering a new trial on the issue of lost wages unless
    plaintiff stipulated to a reduction of the verdict to $294,971
    for past lost wages and $1,560,000 for future lost wages and
    otherwise denied the motion. Plaintiff stipulated to the reduced
    award, and an amended judgment was entered accordingly.
    Defendants appeal from the order resolving their posttrial motion
    and the amended judgment.1
    First addressing the due process claim (the converted CPLR
    article 78 proceeding), Supreme Court erred in annulling the
    Board's determination and granting plaintiff a name-clearing
    hearing. Where "a government employee is dismissed for
    stigmatizing reasons that seriously imperil the opportunity to
    acquire future employment, the employee is entitled to an
    opportunity to refute the charge [or charges]" at a name-clearing
    hearing if the employer publicly disclosed the stigmatizing
    reasons or if there is a likelihood of future dissemination of
    such reasons (Matter of VanDine v Greece Cent. School Dist., 75
    1
    We dismiss defendants' appeals from both Supreme Court's
    order modifying the proposed judgment and its order partially
    granting defendants' motion to set aside the verdict because the
    right to appeal from those interlocutory orders terminated upon
    entry of the final judgments (see Doherty v Schuyler Hills, Inc.,
    55 AD3d 1174, 1175 [2008]; Dubray v Pratt, 283 AD2d 869, 869
    [2001]). Nonetheless, defendants' appeals from the final
    judgments bring the substance of those orders up for our review
    (see CPLR 5501 [a] [1]).
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    AD3d 1166, 1167 [2010] [internal quotation marks and citations
    omitted]; see 107 AD3d at 1131). Judicial review of an
    administrative determination such as this one is limited to
    whether the determination lacks a rational basis, "was made in
    violation of lawful procedure, was affected by an error of law or
    was arbitrary and capricious or an abuse of discretion" (CPLR
    7803 [3]; see Matter of Barkan v Roslyn Union Free School Dist.,
    67 AD3d 61, 65 [2009]; Matter of Weill v New York City Dept. of
    Educ., 61 AD3d 407, 408 [2009]).
    Here, plaintiff requested a name-clearing hearing by
    February 2008 letter. In that letter, plaintiff requested a
    name-clearing hearing to specifically defend against and address
    the assertions made by Grant in the statement of reasons for
    recommending termination letter (see generally Education Law
    § 3031) and those made by Arbes in a January 2008 letter
    directing her to "refrain from any one-on-one conversations with
    students."2 Notably, plaintiff's allegations as to the
    stigmatizing content of such letters do not include any further
    allegations that defendants and the Board had publicly disclosed
    those letters or their contents. Nonetheless, plaintiff's
    assertion that she was seeking relief in the form of removal of
    the statement of reasons letter from her personnel file was
    sufficient to apprise the Board of an allegation that there was a
    likelihood that such letter or its content would be disseminated.
    As to that allegation, multiple Board members averred that,
    before deciding to deny plaintiff's request for a name-clearing
    hearing, the Board determined that the statement of reasons
    letter had been and would remain confidential. Therefore, given
    that plaintiff did not allege that defendants and the Board had
    publicly disseminated any stigmatizing materials and considering
    the evidence supporting the conclusion that plaintiff's
    allegation that the statement of reasons letter was in
    plaintiff's personnel file was factually incorrect, there is no
    basis to disturb the Board's denial of a name-clearing hearing.
    2
    This Court previously held that the statements contained
    in these letters were not actionable libel (107 AD3d at 1131; 74
    AD3d at 1561).
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    Turning to plaintiff's action, Supreme Court did not abuse
    its discretion in permitting her to amend her bill of
    particulars. A trial court's determination regarding a motion to
    amend will not be disturbed on appeal absent an abuse of
    discretion (see CPLR 3043 [c]; Harris v Jim's Proclean Serv.,
    Inc., 34 AD3d 1009, 1010 [2006]). Generally, leave to amend a
    bill of particulars should be freely given, but denial of such a
    motion is justified when the motion is late and there is both a
    lack of a satisfactory excuse and prejudice to the opposing party
    (see Harris v Jim's Proclean Serv., Inc., 34 AD3d at 1010; Sadler
    v Town of Hurley, 304 AD2d 930, 931 [2003]). In her original
    bill of particulars, plaintiff alleged that she suffered special
    damages in the nature of lost wages. Plaintiff sought to amend
    that bill of particular to increase the amount of alleged past
    lost wages and to allege future lost wages. Although plaintiff
    did not move to amend her bill of particulars until after a
    mistrial was declared in the first trial, she did so with enough
    time before the second trial so that defendants were able to
    conduct further discovery and an additional deposition of her.
    Further, given that"[t]his [wa]s not an instance where an
    entirely new theory of recovery [wa]s sought to be incorporated
    in the bill of particulars," defendants' exposure to greater
    liability, on its own, did not show prejudice (Jones v Public
    Taxi of Schenectady, 34 AD2d 876, 876 [1970]; see Muff v Lallave
    Transp., 3 AD3d 693, 695 [2004]). Accordingly, Supreme Court did
    not abuse its discretion in granting plaintiff leave to amend her
    bill of particulars (see Muff v Lallave Transp., 3 AD3d at 695;
    Jones v Public Taxi of Schenectady, 34 AD2d at 876). In
    addition, because defendants did not move before Supreme Court to
    preclude plaintiff's expert witness from testifying at the second
    trial, defendants' argument that it was error to allow such
    testimony due to plaintiff's belated disclosure is not preserved
    for our review (see Doviak v Lowe's Home Ctrs., Inc., 63 AD3d
    1348, 1352 [2009]; Alaimo v General Motors Corp., 32 AD3d 627,
    629 [2006]).
    Supreme Court committed reversible error in permitting
    testimony regarding rumors circulating in the community and
    plaintiff being snubbed. In its motion in limine, defendants
    sought to preclude plaintiff from introducing evidence of the
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    republication of the alleged slanderous statements and evidence
    of "snubs" experienced by plaintiff at the hands of third parties
    to whom defendants were not alleged to have made the slanderous
    statements. Supreme Court reserved ruling on the issues and then
    overruled defendants' objections made on the aforementioned
    grounds that were made during the trial.
    Proof of "ostracism and rejection" to establish damages for
    defamation is only admissible if the proof is "'the direct and
    well-connected result'" of a defamatory statement at issue (Macy
    v New York World-Tel. Corp., 2 NY2d 416, 422 [1957], quoting
    Bishop v New York Times Co., 233 NY 446, 454 [1922]). Further,
    even when a defendant's slanderous statement is connected by
    proof to that statement's republication, "'one who utters a
    slander . . . is not responsible for its voluntary and
    unjustifiable repetition, without his [or her] authority or
    request, by others over whom he [or she] has no control and who
    thereby make themselves liable to the person injured'" (Geraci v
    Probst, 15 NY3d 336, 342 [2010], quoting Schoepflin v Coffey, 162
    NY 12, 17 [1900]). This is because "each person who repeats the
    defamatory statement is responsible for the resulting damages"
    (Geraci v Probst, 15 NY3d at 342).
    Plaintiff's proof regarding rumors and ostracism fail these
    tests. Plaintiff and her witnesses offered no proof that
    directly connected Grant's or Arbes' slanderous statements to the
    ostracism that plaintiff allegedly suffered (see Macy v New York
    World-Tel. Corp., 2 NY2d at 422-423).3 Further, even assuming
    that the content of the rumors allegedly spread by community
    members allowed for a reasonable inference that said community
    members were aware of Grant's or Arbes' slanderous statements,
    3
    Neither law nor logic supports plaintiff's apparent
    contention that the slanderous statements were the only possible
    cause of the ostracization. For example, plaintiff's proof
    failed to exclude the reasonable possibility that persons who
    ostracized plaintiff had done so based on their own independent
    conclusions – not affected by the slanderous statements – that
    she was blameworthy in relationship to Broxmeyer's conduct.
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    proof of republication was nonetheless improper given the absence
    of evidence that defendants had any knowledge of or played any
    role in such republication (see Geraci v Probst, 15 NY3d at 344;
    Rinaldi v Viking Penguin, 52 NY2d 422, 435 [1981]). Compounding
    the effect of the error, Supreme Court did not instruct the jury
    that plaintiff had the burden of proving that the ostracism harms
    that plaintiff allegedly suffered were actually connected to
    Grant's and/or Arbes' statements, despite defendants' request
    that it do so. Accordingly, because Supreme Court's error
    permitted the jury to award damages for alleged harms to
    plaintiff for which defendants were not legally responsible (see
    Geraci v Probst, 15 NY3d at 342), the error was not harmless.
    Given that defendants do not challenge the jury's
    determinations that Grant and Arbes made the respective
    statements and that they were defamatory, we remit for a new
    trial for the determination of damages based upon proof of harms
    limited to those that can be linked by proximate cause to the two
    slanderous statements. These determinations render defendants'
    remaining contentions academic.
    Egan Jr., Lynch and Clark, JJ., concur.
    ORDERED that the appeals from the orders entered December
    6, 2013 order and August 6, 2014 are dismissed, without costs.
    ORDERED that the judgment and amended judgment are
    reversed, on the law, without costs, the determination of the
    Board of Education of Newark Valley Central School District
    denying plaintiff a name-clearing hearing is affirmed, and matter
    remitted to the Supreme Court for a new trial as to the action on
    damages only.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 518491-519666

Citation Numbers: 129 A.D.3d 1230, 11 N.Y.S.3d 703

Filed Date: 6/11/2015

Precedential Status: Precedential

Modified Date: 1/12/2023