Opinion
# 2014-032-122 Claim No. 104333 Motion No. M-83774
07-28-2014
MARIO DIBLASIO, M.D. and MARIO DIBLASIO, M.D., P.C. v. THE STATE OF NEW YORK
Harrington, Ocko & Monk, LLP By: John T.A. Rosenthal, Esq. & Kevin J. Harrington, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Thomas R. Monjeau, Assistant Attorney General, Of Counsel
Synopsis
The Court grants defendant's motion for summary judgment in this defamation action on the basis that the statements made by the Commissioner of the Department of Health were protected by either an absolute or qualified privilege.
Case information
| UID: | 2014-032-122 |
| Claimant(s): | MARIO DIBLASIO, M.D. and MARIO DIBLASIO, M.D., P.C. |
| Claimant short name: | DIBLASIO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 104333 |
| Motion number(s): | M-83774 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Harrington, Ocko & Monk, LLP By: John T.A. Rosenthal, Esq. & Kevin J. Harrington, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Thomas R. Monjeau, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | July 28, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
FACTS
The facts underlying this claim for defamation, filed on May 25, 2001, are not in dispute and have been set forth in decisions arising out of parallel actions in Federal and Supreme Courts, as set forth below.
In 1998, claimant, Mario DiBlasio, M.D., a licensed radiologist, was hired by radiologist Steven Bier, M.D., P.C. (Bier P.C.). Bier P.C. contracted with the Bronx Healthy Women Partnership to provide breast cancer screening services for its patients and received State funding through the Department of Health (DOH) to provide these services to uninsured and low income women. Claimant worked as a reader of mammography films, providing clinical readings of mammograms. He had little or no direct contact with patients.
In March 2000, the DOH began an investigation of Bier P.C.'s billing practices believing that Bier P.C. may have billed the State for screenings it had not actually performed. In connection with that investigation, the DOH reviewed Bier P.C.'s breast cancer detection rate and concluded, based on a five-year statistical study, that its detection rate was sufficiently lower than average so as to warrant further scrutiny. The State Board for Professional Medical Conduct turned its attention to radiologists employed by Bier P.C., including claimant, and on March 23, 2000, the Board assigned an investigator, who was also the Director of the Medical Fraud Unit of the Office of Professional Medical Conduct, to investigate claimant's rate of error in detecting cancer. Following the investigation, it was recommended that the DOH temporarily suspend claimant's physician's license pursuant to the summary suspension procedures in Public Health Law § 230.
On May 25, 2000, the Commissioner of the DOH, Antonia C. Novello (Novello), summarily suspended claimant's medical license pursuant to Public Health Law § 230 (12) (a) and formal professional misconduct charges were simultaneously commenced against claimant. On May 31, 2000, Novello held a press conference and posted a statement on the DOH website, announcing claimant's suspension and issued statements regarding claimant's incompetence as a radiologist, as well as statements regarding his and Bier P.C.'s involvement in fraudulent billing for tests that were never taken. On June 30, 2000, the DOH issued a second press release and a report claiming that claimant's incompetence may have risen to the level of criminality and may have resulted in patient deaths. Both releases were reported in newspapers such as the New York Times and the New York Post.
From July to December 2000, a panel of the DOH's Board of Professional Medical Conduct held a disciplinary hearing as to whether the summary suspension should be continued and at the hearing's conclusion the panel recommended modifying claimant's suspension so as to allow him to practice radiology with supervision, except for mammography. Pursuant to her authority under Public Health Law § 230 (12) (a), Novello rejected the committee's recommendation and ordered the continuation of the complete suspension of claimant's license pending the final determination of the panel.
Claimant commenced a proceeding pursuant to Article 78 of the CPLR seeking to enjoin the Commissioner from enforcing the complete summary suspension of his physician's license. Supreme Court rejected claimant's request for an injunction, but on the following day, January 26, 2001, the hearing committee determined that the misconduct charges against claimant were unsubstantiated and reinstated claimant's license to practice medicine.
Thereafter, in March 2001, claimant commenced an action in Federal Court for, among other things, defamation, libel and slander against Novello in her individual and official capacity. He also filed a similar action against the State in this Court. The Court of Claims action lay dormant by way of a stipulation of conditional dismissal from October 2001 until the completion of the Federal action when it was restored to the Court of Claims trial calendar in June 2011. Claimant also commenced an action in Westchester County Supreme Court in March 2011 against Novello in her individual capacity. This latter action was dismissed by way of a pre-answer motion to dismiss in September 2012.
Defendant now moves this Court for an order dismissing the claim pursuant to CPLR 3211 for failure to state a cause of action and based upon the immunity provided to the Commissioner of the Department of Health when performing her duties, and for an order of summary judgment pursuant to CPLR 3212.
LAW AND ANALYSIS
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court's function in a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (Barr v County of Albany, 50 NY2d 247, 254 [1980]).
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once a moving party has demonstrated that there are no such material issues of fact, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez, 68 NY2d 320; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence must be viewed in the light most favorable to the opponent of the motion, and that party should be given every favorable inference (McKinnon v Bell Sec., 268 AD2d 220 [1st Dept 2000]).
Defamation "is defined as the making of a false statement which tends to ' "expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society" ' " (Foster v Churchill, 87 NY2d 744, 751 [1996], quoting Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 379 [1977], citing Sydney v MacFadden Newspaper Publ. Corp., 242 NY 208, 211-212 [1926]). It "is the injury to one's reputation, either by written expression (libel) or oral expression (slander)" (Penn Warranty Corp. v DiGiovanni, 10 Misc 3d 998, 1002 [Sup Ct, NY County 2005], citing Morrison v National Broadcasting Co., 19 NY2d 453 [1967]). The elements of defamation are: (1) a false statement; (2) the publication of said statement without privilege or authorization to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) the statement causes special harm or constitutes defamation per se (Dillon v City of New York, 261 AD2d 34, 38 [1st Dept 1999]; Restatement [Second] of Torts § 558).
Defendant moves for summary judgment dismissing the claim arguing that Novello's statements, and the subsequent press releases related thereto, were protected by an absolute privilege. To the extent that absolute privilege may not apply, defendant argues, the lesser protection of a qualified privilege still results in claimant being unable to state a cause of action for defamation against the State.
Defendant moved under both CPLR 3211 and 3212 for dismissal of this action. It is noted, however, that consideration of defendant's secondary argument, whether a qualified privilege shields defendant, is only appropriate under CPLR 3212 (see Tattoos by Design v State of New York, UID No. 2008-015-097 [Ct Cl, Collins, J., Dec. 4, 2008]).
Claimant opposes the motion essentially arguing that the State is not entitled to either type of privilege because Novello breached the confidentiality provisions of Public Health Law § 230 when she released information during her press conferences and when said statements were subsequently reiterated in press releases on the DOH's website. Claimant also argues that Novello did not differentiate Dr. Bier from claimant, instead grouping them as one practice and went beyond the purview of her office, vitiating any absolute or qualified privilege defense for defendant.
Preliminarily, this Court is constrained by the doctrine of collateral estoppel as to certain matters from court findings in the parallel litigation against Novello in her individual capacity which took place in both Federal and State Courts. Collateral estoppel bars relitigation of issues of ultimate fact between the same parties when those issues have been determined by a prior, valid, final judgment (Matter of McGrath v Gold, 36 NY2d 406 [1975]). As long as the issues that have been decided are identical and salient to the issues raised in both Courts, the fact that a Federal Court has declined to exercise supplemental jurisdiction over the State law claim before that forum does not preclude application of the doctrine in this court (Pinnacle Consultants v Leucadia Natl. Corp., 94 NY2d 426, 432-433 [2000]; Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18 [1st Dept 2014]; 2014 NY Slip Op 03961).
Both parties recognize, and argue, that collateral estoppel is applicable in this action. The Court declines, however, to give such effect to prior arguments made by defendant in the Federal action or to the Federal District Court's findings that were subsequently vacated in latter appellate decisions (Affirmation in Opposition of Kevin J. Harrington, at ¶¶ 101-113). Instead, such effect must be given to the findings of the Federal Appellate Court (DiBlasio v Novello 344 F3d 292 [2nd Cir 2003], cert denied 541 US 988 [2004]); DiBlasio v Novello, 413 Fed Appx 352 [2nd Cir 2011]), as well as the findings of Supreme Court that dismissed the individual action against Novello for defamation (DiBlasio v Novello, Sup Ct, Westchester Co, September 25, 2012, Walker, J. index No. 58964/2011 [Defendant's Exhibit B]).
Claimant's relevant cause of action in federal court was a "stigma plus" due process claim which required a showing that claimant was defamed and that the resulting injury to reputation resulted in deprivation in a property right such as employment (see DiBlasio v Novello, 413 Fed Appx 352 [2nd Cir 2011]). The Federal District Court had initially found that Novello's statements were "random and unauthorized" because Public Health Law § 230 did not provide for the release of any information beyond the summary suspension order. This finding was later vacated on appeal by the Federal Appellate Court (DiBlasio v Novello, 2002 WL 311901 [US Dist Ct, SD NY, Sept. 30, 2002, Pauley, J.], judgment vacated 344 F3d 292 [2nd Cir 2003], cert denied 541 US 988 [2004]).
Application of the doctrine requires the Court to ascertain what was determined in the earlier judgments and how that determination affects the case before it (see People v Goodman, 69 NY2d 32, 40 [1986]). In the instant case, both the Federal Appeals Court and the Supreme Court clearly determined that Novello was acting in her official capacity when she allegedly made the defamatory statement at a press conference and when these statements were reiterated as press releases on the DOH's website. Her statements were made as part of her official duties and in her official capacity as Commissioner of the DOH. This determination bears upon the instant claim because it requires the Court to next entertain whether the alleged defamatory statements and press releases were protected by either an absolute or qualified privilege.
In Supreme Court, claimant, citing Morell v Balasubramanian (70 NY2d 297 [1987]), had argued that the action for defamation was an intentional tort against Novello in her individual capacity since she had violated a duty owed individually to claimant pursuant to the confidentiality provisions of Public Health Law § 230. As such, Supreme Court had jurisdiction over the action. The Supreme Court rejected this argument.
"A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable (see Cheatum v Wehle, 5 NY2d 585 [1959]; Andrews v Gardiner, 224 NY 440 [1918]). Because the perceived social benefit in encouraging free speech or the discharge of governmental responsibility sometimes outweighs the individual's underlying right to a good reputation, the individual's right may have to yield to a privilege granted the speaker barring recovery of damages for the defamatory statements. The privilege may be either absolute or [qualified] depending on the occasion and the position or status of the speaker" (Park Knoll Assoc. v Schmidt, 59 NY2d 205, 208-209 [1983]).
"An absolute privilege to publish defamatory matter concerning another in communications made in the performance of his [or her] official duties exists for . . . a governor or other superior executive officer of a state" (Restatement [Second] of Torts: Defamation § 591). "The privilege exists to protect those who bear the greatest burdens of government or those to whose official functioning it is essential that they be insulated from the harassment and financial hazards that may accompany suits for damages by the victims of even malicious libels or slanders" (Stukuls v State of New York, 42 NY2d 272, 278 [1977]) and to "ensure that public officials will be free to speak their minds openly and bluntly as is required for the proper performance of their duties, without subjecting themselves to the possibility of vexatious and burdensome lawsuits" (Clark v McGee, 49 NY2d 613, 618 [1980]; see Park Knoll Assoc. v Schmidt, 59 NY2d at 209).
To strike a balance between the needs expressed above and an individual's right to protect his or her character (see Clark v McGee, 49 NY2d at 618), absolute privilege will only apply when the official is a "principal executive of State or local government or is entrusted by law with administrative or executive policy-making responsibilities of considerable dimension" (Stukuls v State of New York, 42 NY2d at 278; Firth v State of New York, 12 AD3d 907, 907 [3d Dept 2004], lv denied 4 NY3d 709 [2005]) and the alleged defamatory statements must have been made during, and be sufficiently connected to, the performance of the official's public duties (see Clark v McGee, 49 NY2d at 620; Schell v Dowling, 240 AD2d 721, 722 [2d Dept 1997]; Tattoos by Design v State of New York, UID # 2008-015-097 [Ct Cl, Collins , J., Dec. 4, 2008]).
There can be little doubt that the Commissioner of the Department of Health is a "principal executive of State . . . government . . . entrusted by law with administrative [and] executive . . . responsibilities of considerable dimension" (Stukuls v State of New York, 42 NY2d at 278).
As noted in Tattoos By Design v State of New York, when considering the privilege on a pre-answer motion to dismiss:
The DOH is a branch of the State government headed by the Commissioner who is appointed by the Governor (Public Health Law §§ 200, 204). The powers and duties statutorily vested in the Commissioner are extensive. Among them are the duty to "take cognizance of the interests of health and life of the people of the state, and of all matters pertaining thereto. . ." (Public Health Law § 206 [1] [a]); exercise general supervision over local boards of health and health officers (Public Health Law § 206 [1] [b]); exercise general supervision and control of the medical treatment of patients in state institutions, public health centers and clinics (Public Health Law § 206 [1] [c]); investigate the causes of disease, epidemics and other conditions upon the public health (Public Health Law § 206 [1] [d]); obtain and collect various statistical data (Public Health Law § 206 [1] [e]); enforce the public health law, the sanitory code and the provisions of the medical assistance program (Public Health Law § 206 [1] [f]); cause to be made scientific studies and research to reduce morbidity and improve the quality of medical care (Public Health Law § 206 [1] [j]); and establish and operate adult and child immunization programs (Public Health Law § 206 [1] [l]). The Commissioner also has the power to issue subpoenas to compel the attendance of witnesses to testify in any matter before him (Public Health Law § 206 [4] [a]), modify an order, regulation, by-law or ordinance of a local board of health (Public Health Law § 206 [4] [b]), and assess penalties (Public Health Law § 206 [4] [c] [d]). He is also authorized to deputize others to perform an act in his stead (Public Health Law § 206 [8]).
In that case, the Court found that both the Commissioner and the DOH were "entrusted by law with administrative and policy-making responsibilities of considerable dimension and import" and that absolute privilege, therefore, protected the Commissioner and the DOH from an alleged defamatory press release (id.).
The next inquiry is whether the alleged defamatory statements were sufficiently connected to the performance of the official's public duties so as to warrant application of absolute privilege (Schell v Dowling, 240 AD2d 721 [2d Dept 1997]). "The State Constitution (art XVII, § 3) provides that '[t]he protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefor shall be made by the state" (State of New York v Local 1115 Joint Bd., Nursing Home & Hosp. Empls. Div., 56 AD2d 310, 317 [2d Dept 1977]). Among the extensive powers and duties instilled in the Commissioner by the Legislature in fulfilling this edict is the broad duty of "tak[ing] cognizance of the interests of health and life of the people of the state, and of all matters pertaining thereto and exercise the functions, powers and duties of the department" (Public Health Law § 206 [1] [a]). The Commissioner also has the power to take summary action upon the recommendation of the State Board for Professional Medical Conduct based upon its determination that a physician is "engaging in or maintaining a condition or activity which in the commissioner's opinion constitutes an imminent danger to the health of the people" such that delay caused by the normal procedures would be prejudicial to the public (Public Health Law § 230 [12]). The "commissioner may order the [physician], by written notice, to discontinue such dangerous condition or activity or take certain action immediately and for a period of ninety days from the date of service of the order" (id.; see also Public Health Law § 16).
In this Court's view, the Commissioner's public comments and subsequent press releases regarding the flawed breast cancer screenings taken at Bier P.C. by claimant and the resulting need for patients to be rescreened were connected to the performance of her official duties so as to warrant application of absolute privilege. In the parallel action against Novello individually, the Supreme Court found that the Commissioner "felt that there could be imminent danger in failing to warn [claimant's] patients to obtain new mammograms. In doing so, [the Commissioner] discussed the individuals that were believed to be involved in Bier P.C.'s allegedly fraudulent practices. As such, [the commissioner] discussed [claimant's] suspension, in her official capacity, as part of her responsibility to inform patients of alleged misconduct by certain physicians, and to inform those patients they may need to seek second opinions" (DiBlasio v Novello, Sup Ct, Westchester Co, September 25, 2012, Walker, J. S.C. index No. 58964/2011 [Defendant's Exhibit B, at 7]).
The question raised by claimant's argument in opposition is whether the fact that these statements were made, despite the confidentiality provisions in Public Health Law § 230, which otherwise prohibited disclosure of files of the Office of Professional Medical Conduct "relating to the investigation of possible instances of professional misconduct" (Public Health Law § 230 [10] [a] [v]), vitiates the absolute privilege. Claimant offers no case law in support of this proposition.
The Court notes that Public Health Law § 230 (10) (a) (v) was amended in 2008 to include a sentence providing that "the commissioner may disclose the information when, in his or her professional judgment, disclosure of such information would avert or minimize a public health threat" (2008 McKinney's Sessions Laws of NY, L 2008 Ch 477 § 3, at 1257). The legislative memorandum of support stated that in Office of Professional Medical Conduct "cases and investigations pertaining to a public health threat, the Commissioner of Health is authorized to disclose information to the public as needed, notwithstanding otherwise applicable confidentiality provisions" (Senate Memorandum, 2008 McKinney's Sessions Laws of New York at 2145-2146).
By way of analogy, however, in a case involving the alleged defamation of an attorney, based upon allegations a former client made in complaints before the New York Grievance Committee, it was held that a breach of the confidentiality requirement of Judiciary Law § 90 (10) did not impair defendant's absolute privilege defense at least as it applied to the statements made within the quasi-judicial forum (see Sinrod v Stone, 33 Misc 3d 1230 (A), 2004 NY Slip Op 51963 [U] [Sup Ct, Nassau County 2004]; affd 20 AD3d 560 ). The Court noted that it was doubtful, given the strong public policy considerations, that a violation of the confidentiality provision would result in a waiver of absolute privilege when weighing the public interest with the interest of an individual attorney's reputation (id.).
In the instant case, it would seem incongruent to recognize that the Commissioner of Health is essentially charged with the health and welfare of the people of the State of New York, but that the Commissioner's absolute immunity evaporated when she, in her discretion and based on information provided to her by the Board of Professional Medical Conduct, determined that there was an imminent danger to the health of an unknown number of Bier P.C.'s patients, and that waiting for the normal disciplinary process to run its course before notifying those potentially affected would put a large number of women who needed to be rescreened at risk. Novello noted in her deposition that the average notification period was about nine months (Defendant's Exhibit F, at 142-143).
The Second Circuit Court of Appeals, when finding that Novello was entitled to Federal qualified immunity for claimant's "stigma-plus" claim, stated:
In light of the OPMC investigation report that was before Novello at the time of DiBlasio's suspension, the contents of which are undisputed, Novello had sufficient competent evidence allowing her to reasonably believe that an emergency did in fact exist, or that affording predeprivation process would have been otherwise impractical. The investigation report concluded that Doctor DiBlasio and his supervisor, Dr. Steven Bier, had engaged in flawed breast cancer screening practices, which had resulted in an abnormally low rate of breast cancer detection. In response, a committee of the State Board for Professional Medical Conduct unanimously recommended bringing charges against both radiologists, while a majority specifically found that their conduct had created an urgent threat to the public health, necessitating an immediate, state-sponsored rescreening of the affected patients. The investigation report and BPMC committee's recommendation provided Novello with sufficient competent evidence to support the belief that affording additional predeprivation process would be impractical in the face of the health emergency at hand, and that any further delay could result in the advancement of as-yet undiagnosed and untreated breast cancer in patients who required rescreening (DiBlasio v Novello, 413 Fed Appx 352, 355-356 [citations and internal quotes omitted]).
While the confidentiality provision undoubtedly exists to protect the reputations and the privacy of physicians (Matter of Newsday, Inc. v State Dept. of Transp., 5 NY3d 84, 89 [2005]), such is not its sole purpose. It also exists to promote the effectiveness of the investigations by guaranteeing the confidentiality of complainants and to protect patient privacy (see Matter of Eisenberg v Daines, 99 AD3d 1117, 1118-1119 [3d Dept 2012]; Doe v Riback, 14 Misc 3d 385, 388 [Sup Ct, Albany County 2006]; see also Atkins v Guest, 201 AD2d 411 [1st Dept 1994]). As in Sinrod, it is this Court's view that the individual interests of a physician in his or her reputation must yield to the public interest, when a potential imminent public health threat is presented that requires rapid action. Finding otherwise would present illogical scenarios where the Commissioner would be required to remain silent, not warning the public for eight or nine months until the disciplinary process was completed, when quick action was required for the public's safety. Accordingly, the Court holds that the Commissioner's absolute privilege survived the supposed breach of confidentiality provision, as that statute read in May and June of 2000, rendering the alleged defamatory statements unactionable.
To the extent that Novello's statements, which did not differentiate between Bier P.C. and claimant when discussing Bier P.C.'s allegedly fraudulent and criminal billing practices, could be argued to not qualify for the absolute privilege because they were not necessary in reacting to the perceived imminent health threat, a qualified privilege would still apply absent evidence of malice (see Clark v McGee, 49 NY2d 613, 620-621 [1980]; Stukuls v State of New York, 42 NY2d at 278-279; Schell v Dowling, 240 AD2d 721, 722 [1997]; Mink Hollow Dev. Corp. v State of New York, 87 Misc 2d 61 [Ct Cl 1976]). Once it is found that a qualified privilege applies to the alleged defamatory statements, the burden shifts to claimant to show that defendant, in making the communication, was motivated by malice, spite or ill will (Park Knoll Assoc. v Schmidt, 59 NY2d 205 [1983]; Feldschuh v State of New York, 240 AD2d 914 [3d Dept 1997]). "This requires a showing that the statements were made with a high degree of awareness of their probable falsity (the constitutional standard of malice) or that malice was the one and only cause for the publication (the common-law standard)" (id. at 916).
These alleged comments appear to have been spoken during a press conference; as per the written release dated May 31, 2000 annexed to the claim it is clear that only Dr. Bier was involved with the billing portion of the investigation. The written release dated June 30, 2000 merely recounts both physicians deficient mammograms and goes on to state "[d]espite these deficiencies, the physicians interpreted the mammograms, reported their results to patients and billed the State".
In her deposition testimony, the Commissioner stated that at the time of the press conference she did not know whether claimant was involved in billing the State for tests and that she essentially looked upon the practice as one entity with two physicians. Her primary concern, she stated, had been with her perception of imminent danger for the patients who had received defective breast cancer screenings and with getting the word out to those patients that they needed rescreening (Defendant's Exhibit F, at 139-140, 163-164, 172-176, 223-224). It is evident that when the Commissioner made the alleged defamatory statements regarding claimant being involved in Bier P.C.'s improper billing practices, she did so without any knowledge of the actual business arrangement between claimant and Bier P.C.
This lack of knowledge and/or failure to verify the information before making the statements, standing alone, does not equate to a high degree of awareness of the probable falsity of her statements however (see Sweeney v Prisoners' Legal Servs. of N.Y., 84 NY2d 786, 793 [1995]; Grier v Johnson, 232 AD2d 846 [3d Dept 1996]). Inaccuracy in the facts conveyed cannot serve as evidence of malice where it appears that defendant was not aware of the inaccuracy (Cusimano v United Health Servs. Hosps., Inc., 91 AD3d 1149 [3d Dept 2012]). " '[T]here is a critical difference between not knowing whether something is true and being highly aware that it is probably false' " Foster v Churchill, 87 NY2d 744, 752 [1996] quoting Liberman v Gelstein, 80 NY2d 429, 438 [1992]). The former, as is the case here, does not establish constitutional malice defeating an otherwise available qualified privilege. The inclusion of these remarks as part of the communication regarding the need for patients to be rescreened, could arguably be seen as hasty or lacking in judgment in retrospect, more than that is required for the Court to make a finding of the degree of recklessness required to overcome the qualified privilege (see Pecue v West, 233 NY 316, 322 [1922]; see also New York Times Co. v Sullivan, 376 US 254, 288 [1964]).
"[S]pite or ill will refers not to [a] defendant's general feelings about [a claimant], but to the speaker's motivation for making the defamatory statements[, and] a triable issue is raised [as to common-law malice] only if a [fact-finder] could reasonably conclude [it] was the one and only cause for the publication" (Liberman v Gelstein, 80 NY2d at 439). Here, there is no evidence in any of the moving papers even remotely suggesting that the Commissioner's motive in making the alleged defamatory statements stemmed from anything other than reacting to what she perceived as an imminent threat to former patients who had been screened at Bier P.C., let alone that malice was the "one and only" motive for the statements.
While claimant avers that malice can be inferred from an alleged incident where Novello swung a baseball bat when speaking to a reporter from the New York Times about claimant (Affirmation in Opposition of Kevin J. Harrington, at ¶ 158), there is no competent evidence that this actually happened other than the statements of claimant's attorney (Claimant's Exhibit 43). In any event, neither this allegation, even if true, or the e-mail between two Department of Health personnel stating "what part of 'summary suspension, you can't practice anymore' doesn't he understand," when claimant had evidently called the Department after his suspension (Claimant's Exhibit 28), suggests that malice toward claimant was the Commissioner's sole reason for the alleged defamatory statements.
Consequently, the Court concludes that claimant has failed to provide evidentiary support to raise any issue of fact as to whether the statements were protected either by an absolute privilege or qualified privilege. Accordingly, the causes of action stated in the claim sounding in defamation are dismissed (see Cosme v Town of Islip, 63 NY2d 908 [1984]; Garson v Hendlin, 141 AD2d 55 [2d Dept 1988], lv denied 74 NY2d 603 [1989]).
To the extent claimant's remaining causes of action are based upon violations of Public Health Law § 230, the administrative actions of the DOH pertaining to claimant's suspension or are premised on 42 USC 1983, they are improperly before this Court and also dismissed (see Fine v State of New York, 10 Misc 3d 1075 [A], 2005 NY Slip Op 52240 [U] [holding that the Public Health Law provides for no private right of action]; Monreal v State of New York, UID No. 2008-038-583, [Ct Cl, DeBow J., 2008] [Court of Claims does not have jurisdiction to entertain actions premised on the administrative actions of DOH disciplinary proceedings]; Brown v State of New York, 89 NY2d 172, 184-185 [1996] [State is not a "person" amenable to suit under 42 USC 1983 in the Court of Claims]).
For the reasons stated herein, defendant's motion for summary judgment is granted, and the claim is hereby dismissed in its entirety.
July 28, 2014
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion filed July 30 2013; Affirmation in Support of Thomas R. Monjeau, AAG affirmed on July 30, 2013, with Exhibits A-H.
2. Affirmation in Opposition of Kevin J. Harrington, Esq., affirmed on September 10, 2013, with Exhibits 1-44.
3. Affirmation in Support of Thomas R. Monjeau, AAG affirmed on September 18, 2013, with Exhibits A-C
4. Letter response of John T.A. Rosenthal., Esq., dated September 26, 2013, with Exhibits A-D.