Posner v. Lewis , 18 N.Y.3d 566 ( 2012 )

OPINION OF THE COURT

Graffeo, J.

In this tort action, we must decide whether defendants’ course of conduct in instigating complaints to school authorities against plaintiff, a nontenured teacher, is entitled to an absolute privilege under Brandt v Winchell (3 NY2d 628 [1958]) that would warrant dismissal of plaintiffs causes of action for prima facie tort and tortious interference with prospective contractual rights. Assuming the truth of the allegations in the complaint, as we must at this early stage of the litigation, we conclude that defendants’ conduct is not immunized by Brandt.

On a CPLR 3211 motion to dismiss, we are obligated to give the complaint a liberal construction and accept the allegations as true. Providing plaintiff Ronald Posner with every favorable inference, the facts gleaned from the complaint are as follows. Beginning in 2005, Posner was employed by the Pelham Union Free School District in Westchester County as a nontenured elementary school teacher. In March 2008, after Posner’s wife accused him of having an extramarital affair, his father-in-law, defendant Russell Lewis (the former CEO of the New York Times Company), instructed Posner to leave the marital residence, which Russell owned. When Posner returned to retrieve personal items, Russell warned that if he “did not go quietly,” Russell would “make trouble” for him. Three days later, Posner’s wife commenced a divorce proceeding.

In early April 2008, Russell informed Posner that he wanted him to make a “clean break” from his wife. It later became evident that Russell wanted his son-in-law to relinquish all parental rights to his newborn daughter. To entice the acceptance of his proposal, Russell offered Posner a sum of money and “threatened to go to the Pelham Board of Education and impact his tenure.” When Posner refused, Russell and Posner’s brother-in-law, defendant David Lewis (an attorney), engaged in conduct designed to effectuate the denial of Posner’s tenure and the revocation of his teaching license.

In April 2008, the principal at the school where Posner taught informed him that the board of education was favorably inclined to approve him for tenure status but that the decision would not be made formally until a June board meeting. Meanwhile, the Lewises retained a company specializing in forensic computer investigations to search for Posner’s e-mails on his home computer. David then sent a letter dated April 14, 2008 to the State Department of Education accusing Posner of having an affair with the parent of one of his students, who was also recommended by Posner to be a substitute teacher in his class. David demanded disciplinary action, including revocation of Posner’s teaching license. The letter referenced segments of the e-mails between Posner and his alleged paramour. After the Department of Education informed the school district about the complaint, David telephoned the school district superintendent “demanding to know what was going on in the investigation and what disciplinary actions were being taken.”

Toward the end of April, the principal notified Posner that the school district was required to investigate the complaint but assured him that his private life should not affect his application for tenure. Shortly thereafter, David sent a second letter to the superintendent and each member of the board of education with a copy of a report prepared by the computer firm and Posner’s e-mails. The letter urged school officials to “take the strongest measure of disciplinary action” against Posner. After a May 2008 board meeting, Posner was advised that he no longer had sufficient votes for tenure, causing him to tender his resignation before the final June vote.

Posner commenced this action against defendants asserting causes of action for prima facie tort and tortious interference with prospective contractual relations. The complaint alleges that Posner was not granted tenure because of the continuous pressure and influence exerted upon school officials by defendants and that, as a result of their “wrongful and malicious actions, Plaintiff Posner was and continues to be unable to secure another tenure track teaching position in a public school district in Westchester County.”

Defendants moved to dismiss the complaint pursuant to CPLR 3211, arguing that their disclosure of Posner’s affair to school officials was a matter of public interest and that they were immune from liability similar to the defendants in Brandt. Supreme Court denied the motion (2009 NY Slip Op 33245[U] [2009]) and a divided Appellate Division affirmed (80 AD3d 308 [1st Dept 2010]). The Appellate Division granted defendants leave to appeal on a certified question, and we now affirm.

Defendants contend that Posner’s claims for prima facie tort and tortious interference with prospective contract rights should be dismissed because their exposure of his misconduct to school authorities was in the public interest and hence absolutely privileged. They assert that under Brandt they are immune from civil liability for instigating official action against Posner, regardless of whether they possessed a malicious intent. Posner responds that defendants are not entitled to an absolute privilege because their communications to school officials, even if related to matters of public concern, were made in connection with a coercive scheme to deprive Posner of his parental rights.

To begin, defendants do not dispute for purposes of this appeal that, absent the application of immunity recognized in Brandt, the complaint would adequately plead causes of action for prima facie tort¹ and tortious interference with prospective contractual relations.² The outcome of this case therefore turns on whether Brandt mandates dismissal of the action.

In Brandt, the plaintiff brought a prima facie tort claim against columnist Walter Winchell and philanthropist Elmer Bobst for maliciously provoking an official investigation against a cancer fund organized by plaintiff in order to stifle competition with defendants’ cancer research fund. Following an investigation by the Attorney General, plaintiff agreed to dissolve the fund and refrain from any future solicitation of charitable contributions. We affirmed the dismissal of the complaint, applying a balancing test for claims alleging that a lawful act (the making of a complaint) became unlawful as a result of the complaining party’s malicious motives—we “analyze[d] and weighted] the conflicting interests of the parties and of the pub-lie in order to determine which shall prevail” (3 NY2d at 634-635).

We concluded in Brandt that defendants’ lawful act of initiating charges related to plaintiffs mishandling of the charitable fund did not become actionable because it was motivated by personal malevolence, reasoning that “[t]he best interests of the public are advanced by the exposure of those guilty of offenses against the public and by the unfettered dissemination of the truth about such wrongdoers” (id. at 635). Under these circumstances, the Brandt defendants were “entitled to immunity from civil suit at the hands of the one exposed, for the truth is not to be shackled by fear of a civil action for damages” (id.; see also ATI, Inc. v Ruder & Finn, 42 NY2d 454, 460 [1977] [“(S)ince use of plaintiff’s product may be injurious, that perhaps some defendants were motivated to harm plaintiff by alerting the public as to the potential hazard does not require a conclusion that these defendants’ conduct is without justification”]).

There are some similarities between Brandt and this case. As in Brandt, defendants reported misconduct to the relevant authorities and prompted an official investigation regarding a matter of public interest. And like Brandt, defendants were allegedly motivated not by a desire to benefit the public but to harm the target of their animosity for personal reasons. But, as the Appellate Division majority noted, there is a critical distinction between the two cases. Accepting the allegations of the complaint to be true, defendants in this case did more than instigate an inquiry or investigation. According to Posner, Russell attempted to coerce him into relinquishing his parental rights by offering him money and threatening to reveal certain information to school authorities to ensure that he was denied tenure. And when Posner refused to accede to this demand, defendants made good on the threat. Posner’s complaint therefore does not merely allege a malicious motive; rather, it asserts what is in essence a blackmail scheme. Contrary to defendants’ position, their complaints to school officials cannot be isolated from this coercive scheme, which “constituted a single and integrated course of conduct” (Giboney v Empire Storage & Ice Co., 336 US 490, 498 [1949] [“(T)he record here does not permit this publicizing to be treated in isolation”]). In light of the intimidation and threatening conduct allegedly directed at Posner, we conclude that the absolute privilege articulated in Brandt should not be extended to protect the course of conduct alleged in this case.

Although the concurrence claims that our focus is on defendants’ motives, in fact, the dispositive allegation that places this case outside of the realm of Brandt and the other cases cited by the concurring opinion is an affirmative act—defendants’ conduct in attempting to blackmail Posner.³ As we have explained, the publicizing that occurred in this case cannot be neatly separated from this coercive scheme. To the extent defendants claim that the conduct alleged here is entitled to immunity under the First Amendment, we note that it has been consistently held that blackmail and extortion are not protected speech (see R.A.V. v St. Paul, 505 US 377, 420 [1992, Stevens, J., concurring] [“Although the First Amendment broadly protects ‘speech,’ it does not protect the right to . . . extort” (internal quotation marks and citation omitted)]; Planned Parenthood of Columbia/Willamette, Inc. v American Coalition of Life Activists, 244 F3d 1007, 1015 n 8 [9th Cir 2001] [“Blackmail and extortion—the threat that the speaker will say or do something unpleasant unless you take, or refrain from taking, certain actions—are not constitutionally protected”], rehearing era banc 290 F3d 1058 [9th Cir 2002]). ⁴

Accordingly, the order of the Appellate Division should be affirmed, with costs. The certified question should be answered in the affirmative.

1 . To state a legally cognizable claim for prima facie tort, a plaintiff must allege “(1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful” (Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985]). In addition, there can be no recovery under this theory “unless malevolence is the sole motive for defendant’s otherwise lawful act or, in [other words], unless defendant acts from disinterested malevolence” (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333 [1983] [internal quotation marks and citations omitted]).

2 . To state a cause of action for tortious interference with prospective contractual relations, a plaintiff must plead that the defendant directly interfered with a third party and that the defendant either employed wrongful means or acted “for the sole purpose of inflicting intentional harm on plaintiff! ]” (Carvel Corp. v Noonan, 3 NY3d 182, 190 [2004] [internal quotation marks and citation omitted]).

3 . Defendants and the concurrence rely on ATI, Inc. v Ruder & Finn (42 NY2d 454 [1977]) in asserting that Brandt protects blackmailers. But ATI does not sweep so broadly. The public relations firm in ATI suggested that plaintiff would be adversely affected by federal and public entities if it did not retain its services to tell plaintiffs side of the story in the public debate about the environmental dangers of plaintiff’s aerosol products. Although the plaintiff in ATI characterized defendant’s actions as intimidation tactics, this is a far cry from the blackmail scheme alleged in the complaint here.

4 . There is authority for the proposition that although blackmail is not constitutionally protected, a plaintiff seeking to recover reputational damages (as opposed to economic damages) flowing from the subsequent publication must satisfy the applicable defamation standard—notably, falsity—even where the plaintiff relies on non-defamation tort theories (see Smithfield Foods, Inc. v United Food & Commercial Workers Inti. Union, 585 F Supp 2d 815, 822 [ED Va 2008]). The parties here have not addressed the Smithfield analysis nor have they litigated the issue of whether the complaint in this case seeks reputational or economic damages. We therefore have no occasion to address these issues.