Sindoni v. Bd. of Educ.

2023 NY Slip Op 03102

JOSEPH SINDONI, PLAINTIFF-RESPONDENT, v. BOARD OF EDUCATION OF SKANEATELES CENTRAL SCHOOL DISTRICT AND SKANEATELES CENTRAL SCHOOL DISTRICT, DEFENDANTS-APPELLANTS.

No. 163 CA 22-01439

Supreme Court of New York, Fourth Department

June 9, 2023

BOND SCHOENECK & KING, PLLC, SYRACUSE (KATE I. REID OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

CHERUNDOLO LAW FIRM PLLC, SYRACUSE (JOHN C. CHERUNDOLO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, BANNISTER, AND OGDEN, JJ.

Appeal from an order of the Supreme Court, Onondaga County (Gerard J. Neri, J.), entered July 5, 2022. The order, inter alia denied the motion of defendants seeking summary judgment dismissing the second cause of action, and seeking to dismiss the third cause of action pursuant to CPLR 3211 (a) (7).

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting defendants' motion dismissing the second and third causes of action, and granting judgment to defendants on the first cause of action as follows:

ws: It is ADJUDGED and DECLARED that the executive session conducted by defendant Board of Education of Skaneateles Central School District prior to its public meeting on January 5, 2021 was not in violation of Public Officers Law § 100, and as modified the order is affirmed without costs.

Memorandum: Plaintiff brought this action against defendants, Board of Education of Skaneateles Central School District (Board) and Skaneateles Central School District (District), asserting causes of action in the second amended complaint (complaint) for violations of the Open Meetings Law (Public Officers Law art 7) (first cause of action), violations of plaintiff's civil rights pursuant to 42 USC § 1983 (second cause of action), and defamation (third cause of action). Plaintiff, who had previously been appointed by the Board as the District's varsity high school football coach, was notified shortly after a closed session meeting of the Board on January 5, 2021 that his appointment to that position would not be renewed. Plaintiff moved, in effect, for summary judgment seeking a declaration in his favor on the first cause of action and for, among other things, a preliminary injunction (underlying motion). Supreme Court granted that motion in part by, inter alia, granting partial summary judgment declaring that the executive session violated the Public Officers Law and that the action taken during that session was void, and by granting a preliminary injunction enjoining the District from terminating plaintiff's employment as the District's varsity football coach until a constitutionally sufficient notice of charges was provided along with an opportunity to be heard. On a prior appeal, defendants appealed from the ensuing judgment and, while the appeal was pending, plaintiff voluntarily resigned and moved in this Court to dismiss defendants' appeal as moot in light of his resignation. We granted plaintiff's motion to dismiss the appeal insofar as it sought to dismiss the portion of the appeal relating to the preliminary injunction, and modified the judgment by denying that part of the underlying motion seeking a declaration with respect to the first cause of action and vacating the declaration because plaintiff failed to establish that he was entitled to relief under Public Officers Law § 107 (Sindoni v Board of Educ. of Skaneateles Cent. Sch. Dist., 202 A.D.3d 1457, 1458-1459 [4th Dept 2022]).

Defendants thereafter moved for summary judgment seeking dismissal of the second cause of action pursuant to CPLR 3212 and dismissal of the third cause of action for failure to state a cause of action pursuant to CPLR 3211 (a) (7). Plaintiff cross-moved for summary judgment on the first cause of action. The court denied the motion and cross-motion, and defendants now appeal.

Initially, we agree with defendants that the court erred in denying that part of their motion seeking summary judgment with respect to the second cause of action, i.e., the "stigma-plus" cause of action pursuant to 42 USC § 1983. We therefore modify the order accordingly. Plaintiff alleged that the District's decision to not renew plaintiff's appointment as varsity football coach for the spring of 2021 occurred contemporaneously with the circulation of a letter to the community that, according to the complaint, implicitly accused plaintiff of "disregard[ing] COVID-19 precautions and recklessly expos[ing] students to the virus." Plaintiff further alleged that those actions deprived him of a protected liberty interest without due process of law as guaranteed by the NY and U.S. Constitutions. A stigma-plus cause of action requires a plaintiff to establish "(1) the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiff's status or rights" (Sadallah v City of Utica, 383 F.3d 34, 38 [2d Cir 2004] [internal quotation marks omitted]; see Segal v City of New York, 459 F.3d 207, 212 [2d Cir 2006]; Velez v Levy, 401 F.3d 75, 87 [2d Cir 2005]). Because a defamatory statement, standing alone, does not amount to a constitutional deprivation, "the 'plus' imposed by the defendant[s] must be a specific and adverse action clearly restricting the plaintiff's liberty-for example, the loss of employment" (Velez, 401 F.3d at 87-88; see Patterson v City of Utica, 370 F.3d 322, 330 [2d Cir 2004]; Donato v Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 630 [2d Cir 1996], cert denied 519 U.S. 1150 [1997]).

Here, defendants met their initial burden on that part of the motion with respect to the stigma-plus cause of action by submitting evidence demonstrating that plaintiff did not suffer a material state-imposed burden or state-imposed alteration of his status or rights (see generally Patterson, 370 F.3d at 332). The unrefuted evidence established that the court granted plaintiff a preliminary injunction, resulting in the renewal of his appointment, and that plaintiff remained in his position as varsity football coach until he voluntarily resigned in November 2021. Although there was a period during which defendants told plaintiff that his appointment would not be renewed, we conclude that "[i]t cannot, as a matter of law, be viewed as a significant alteration of plaintiff's employment status when, in fact, he was quickly hired back in the same position from which he was supposedly fired" (id.). Indeed," '[b]rief interruption[s]' of work do not give rise to a Due Process claim" (Hu v City of New York, 927 F.3d 81, 102 [2d Cir 2019], quoting Conn v Gabbert, 526 U.S. 286, 292 [1999]; see Barzilay v City of New York, 610 F.Supp.3d 544, 614-615 [SD NY 2022]). Plaintiff failed to raise an issue of fact in opposition (see generally Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]).

We further agree with defendants that the court erred in denying their motion insofar as it sought to dismiss the third cause of action because the allegedly defamatory statements were absolutely privileged. We therefore further modify the order accordingly. The absolute privilege defense affords complete immunity from liability for defamation to "an official [who] is a principal executive of State or local government... with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties" (Clark v McGee, 49 N.Y.2d 613, 617 [1980] [internal quotation marks omitted]). "The first prong of that test ... [requires an examination of] the personal position or status of the speaker," and "the second prong... requires an examination of the subject matter of the statement and the forum in which it is made in the light of the speaker's public duties" (Doran v Cohalan, 125 A.D.2d 289, 291 [2d Dept 1986], lv dismissed 69 N.Y.2d 984 [1987]).

Here the complaint alleges that the District superintendent, whose role included termination of employees like plaintiff, circulated the allegedly defamatory letter. A school superintendent is a principal executive whose statements may be protected by absolute privilege (see Santavicca v City of Yonkers, 132 A.D.2d 656, 656-657 [2d Dept 1987]). Further, based on the allegations in the complaint, we conclude that "the [superintendent] was acting wholly within the scope of his duties" when making the relevant statements (Monroe v Schenectady County, 266 A.D.2d 792, 795 [3d Dept...