Opinion
1055–16
05-31-2018
Vincent P. IGOE, Jr., Plaintiff, v. Craig D. APPLE, Sr., individually and in his official capacity as Sheriff of Albany County, NY and Thomas Marcelle, individually and in his official capacity as County Attorney for the County of Albany, NY, Defendants.
The DeNigris Law Firm PLLC, Attorneys for Plaintiff, (Stephen G. DeNigris, of counsel), P.O. Box 14643, Albany, New York 12212–4643 Goldberg Segalla LLP, Attorneys for Defendants, (Jonathan M. Bernstein and James F. Faucher II, of counsel), 8 Southwoods Blvd., Suite 300, Albany, New York 12211
The DeNigris Law Firm PLLC, Attorneys for Plaintiff, (Stephen G. DeNigris, of counsel), P.O. Box 14643, Albany, New York 12212–4643
Goldberg Segalla LLP, Attorneys for Defendants, (Jonathan M. Bernstein and James F. Faucher II, of counsel), 8 Southwoods Blvd., Suite 300, Albany, New York 12211
Richard M. Platkin, J.
Plaintiff Vincent P. Igoe, Jr., a former deputy with the Albany County Sheriff's Department ("Sheriff's Department"), brings this action to recover monetary damages arising from defendants' alleged failure to comply with the confidentiality provisions of a settlement agreement pursuant to which Igoe resigned from his position with the Sheriff's Department. The first cause of action, for breach of contract, alleges that defendants breached the settlement agreement by (1) disclosing to an Albany Times Union reporter certain information pertaining to Igoe's resignation and disciplinary history, and (2) interfering with Igoe's relations with a subsequent employer and other prospective employers. For his second cause of action, Igoe alleges that he was fraudulently induced to enter into the settlement agreement.
Defendants Craig D. Apple, Sr., individually and in his official capacity as the Sheriff of Albany County ("Sheriff"), and Thomas Marcelle, individually and in his official capacity as the former County Attorney for the County of Albany ("County Attorney"), move to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7), CPLR 3013 and 3016, General Municipal Law § 50–h, and CPLR 3212. Igoe opposes the motion.
Thomas Marcelle currently is a Judge of the Cohoes City Court.
BACKGROUND
Igoe was employed as a deputy with the Sheriff's Department, holding the rank of a sergeant (see Bernstein Aff., Ex. A ["Complaint"], ¶¶ 8–9). On August 16, 2014, while engaged in the performance of his duties, Igoe deployed his taser gun against a suspect following a high-speed chase (see id. , ¶¶ 10–11). As a result of this highly publicized incident, the Sheriff suspended Igoe from his position pending disciplinary action, as stated in a Notice of Intent to Discipline and Notice of Charges ("Disciplinary Notice") (see Id. , ¶ 12).
Igoe filed a grievance on August 22, 2014 through his union, challenging the Disciplinary Notice (see Id. , ¶ 22). The Sheriff denied the grievance on August 26, 2014 (see Id. , ¶ 23). In response, the union invoked Igoe's right to arbitrate, a request that was held in abeyance for two months pending the completion of a federal investigation into the taser incident (see id. , ¶¶ 24–33). The federal investigation did not result in any charges against Igoe (see Id. , ¶¶ 31–33).
Between late June 2015 and mid-July 2015, Igoe was implicated in new allegations of misconduct concerning his alleged involvement in a series of threatening and racist voice and text messages left for the current boyfriend of a former paramour (see id. , ¶ 34). The boyfriend turned the communications over to the Colonie Police Department, which provided them to the Sheriff's Department (see id. , ¶¶ 35–38). After reviewing the messages, the Sheriff demanded Igoe's resignation, which ultimately precipitated settlement negotiations between the parties (see id. , ¶¶ 39–41).
According to the Complaint, the boyfriend declined to press formal charges (see id. , ¶ 36).
On July 15, 2015, the parties entered into a settlement agreement in "a full and final settlement of the [Disciplinary Notice] and potential disciplinary charges which may have been brought against [Igoe]" (Bernstein Aff., Ex. C ["Agreement"], ¶ 10; Complaint, ¶¶ 42–45). The Agreement provides, in relevant part:
1. The Employee agrees to resign from the Albany County Sheriff's Office effective immediately.
2. The Employer agrees to defend, indemnify and hold harmless the Employee in any suit, litigation or proceeding that arises out of the conduct involving the use of a taser gun ... on or about August 16, 2014.
3. The Employer, to the extent permissible under law, shall not ... disclose any confidential records, materials, audio or video recording or other documents
relating to the disciplinary charges or potential disciplinary charges against the Employee that the Employer currently has in its possession or comes into possession to any person, corporation or any other entity.
4. The Employer agrees not to retain copies of any audio or video recordings relating to the disciplinary charges or potential disciplinary charges against the Employee.
5. Both parties, to the extent permissible under law, shall not release the contents of this agreement to any person, corporation or any other entity.
6. [The] Employer agrees that should an inquiry be made by another perspective employer, the Employer shall provide only the period of employment and positions held by the Employee during his tenure with the Employer.
7. The Employee further agrees to waive any rights to appeal his grievance relating to his disciplinary matter ....
Igoe and his union counsel executed the Agreement on July 15, 2015 at approximately 12:15 p.m., and the Sheriff and County Attorney executed the document at or about 2:00 p.m. on the same day (see Complaint, ¶¶ 44–45). Igoe claims that, "within an hour" of the Agreement's execution, "Apple and/or others at his direction, contacted Brendan Lyons, a reporter with the Albany Times Union, and released details of the ... [A]greement" (Id. , ¶ 46). By 3:00 p.m. or so, "Lyons contacted [Igoe's] counsel seeking to confirm [Igoe's] resignation" (Id. , ¶ 47). Five minutes later, Igoe's union counsel emailed the County Attorney asking about Lyons's inquiry (see id. , ¶ 48). The County Attorney responded via email at 4:03 p.m.: "Don't know" (Id. , ¶ 49).
On the following day, July 16, 2015, the Albany Times Union published a front-page article entitled "Albany County Sheriff's Department Cop Under Investigation Resigns" (Complaint, Ex. B ["Article"]; see also Bernstein Aff., Ex. D [copy of electronic version of the article, updated 7:53 a.m. on July 16, 2015] ). The Article stated: "Apple on Wednesday [July 15, 2015] confirmed that Igoe resigned but declined further comment. He referred questions to the county attorney, ... Marcelle, who said the Sheriff's Office was negotiating a settlement with Igoe in the Taser disciplinary case when [Igoe] resigned" (Id. ). Quoting the County Attorney, the Article continued: "I don't know if there was any one factor that attributed to the reaching of the [A]greement,' Marcelle said, declining to elaborate. ‘He's not on the payroll’ " (Id. ). The Article also reported on the threatening and racist communications allegedly sent by Igoe (id. ).
"During the same time frame," someone from the Sheriff's Department allegedly contacted Igoe's new employer to "inquir[e] as to why that employer would have [Igoe] as an employee" (Id. , ¶¶ 54–55). As a result of that call, Igoe's employer allegedly initiated an investigation "for the purpose of reviewing and/or terminating" Igoe's employment (Id. , ¶ 56).
On September 16, 2015, Igoe filed a notice of claim pursuant to General Municipal Law ("GML") § 50–e (see Complaint, Ex. A). On February 4, 2016, Igoe appeared for an examination pursuant to GML § 50–h (see Bernstein Aff., Ex. G). Igoe then commenced this action on September 9, 2016.
As stated above, the Complaint alleges two causes of action. The claim for breach of contract is founded upon allegations that defendants breached the confidentiality provisions of the Agreement by: (1) disclosing Igoe's resignation from the Sheriff's Department; (2) disclosing the threatening and racist messages allegedly sent by Igoe; (3) contacting Igoe's new employer in an attempt to have him terminated; and (4) providing adverse recommendations to Igoe's prospective employers (see Complaint, ¶¶ 59–66). The fraudulent inducement claim alleges that defendants made material misrepresentations of fact with respect to their intent to perform under the confidentiality provisions of the Agreement, and those misrepresentations induced him to enter into the Agreement (see id. , ¶¶ 67–76). Igoe seeks $20 million for compensatory damages, consequential damages, pain and suffering, loss of enjoyment of life and loss of consortium (see Complaint, Wherefore clause).
In his bill of particulars, Igoe also alleges that the County Attorney breached the Agreement's confidentiality provisions by speaking with the Times Union in relation to a January 24, 2016 article (see Bernstein Aff., Ex. H, p. 7). This allegation, however, was not pleaded in the Complaint and, in any event, plaintiff already had made the contents of the Agreement public through the filing of his notice of claim. In addition, Igoe's bill of particulars alleges, for the first time, that defendants' alleged conduct violated Civil Rights Law § 50 (a) (see Linker v. County of Westchester , 214 A.D.2d 652, 652, 625 N.Y.S.2d 289 [2d Dept. 1995] ). Even if this new theory had been properly raised, an alleged violation of Civil Rights Law § 50 (a) is not actionable (see Matter of Doe v. City of Schenectady , 84 A.D.3d 1455, 1457, 923 N.Y.S.2d 241 [3d Dept. 2011] ).
Igoe also demanded punitive damages, but now "acknowledges that punitive damages are not available in this breach of contract matter and withdraws that requested relief" (Plaintiff's MOL, Point I).
Following joinder of issue and the completion of paper discovery, defendants filed the instant motion to dismiss the Complaint. Igoe opposes the motion on the merits.
Plaintiff does not oppose defendants' motion as premature (see CPLR 3212 [f] ).
COMPLIANCE WITH GML § 50–h
As an initial matter, defendants contend that the Complaint must be dismissed due to Igoe's failure to comply with GML § 50–h. Defendants argue that Igoe repeatedly invoked "his Fifth Amendment right against self-incrimination during the properly noticed [GML] § 50–h examination to avoid answering questions about his claim," and he "further fail[ed] to reschedule the examination after the conclusion of the criminal matter" (Defendants' MOL, p. 3). Igoe responds that he had no obligation to reschedule his 50–h deposition, defendants never secured his further examination, the content of the examination is not material to his claims in this action, and, in any event, GML § 50–h does not apply to claims for breach of contract (see DeNigris Aff., ¶¶ 55, 59, 77–79).
"The purpose of [GML] § 50–h is to enable a municipality to make a prompt investigation of the circumstances of a claim by examining the claimant about the facts of the claim" ( Nasca v. Town of Brookhaven , 10 A.D.3d 415, 416, 781 N.Y.S.2d 137 [2d Dept. 2004] ). Therefore, "[a] party who has failed to comply with a demand for examination pursuant to [GML] § 50–h is precluded from commencing an action against a municipality" ( Bernoudy v. County of Westchester , 40 A.D.3d 896, 897, 837 N.Y.S.2d 187 [2d Dept. 2007] ; see Cook v. Village of Greene , 95 A.D.3d 1639, 1639–1640, 945 N.Y.S.2d 483 [3d Dept. 2012] ).
" ‘The privilege against self incrimination was intended to be used solely as a shield, and thus a plaintiff cannot use it as a sword ... to effectively thwart any attempt by defendant at a pretrial discovery proceeding to obtain information relevant to the cause of action alleged and possible defenses thereto’ " ( Nasca , 10 A.D.3d at 416, 781 N.Y.S.2d 137, quoting Laverne v. Incorporated Vil. of Laurel Hollow , 18 N.Y.2d 635, 638, 272 N.Y.S.2d 780, 219 N.E.2d 294 [1966] ). Thus, "where the plaintiff invoke[s] his [or her] Fifth Amendment privilege against self-incrimination at the hearing pursuant to [GML] § 50–h, ... the plaintiff , not ... defendants, [is] obligated to reschedule a continuation of [such] hearing after the criminal proceeding [has been] terminated" ( Kemp v. County of Suffolk , 61 A.D.3d 937, 938, 878 N.Y.S.2d 135 [2d Dept. 2009] [emphasis added], lv denied 14 N.Y.3d 703, 2010 WL 547622 [2010] ; see Przybyla v. County of Suffolk , 2017 WL 1274051, *2–3, 2017 US Dist LEXIS 30842, *6–7 [E.D.N.Y., Mar. 3, 2017, No. 09–CV–5129 (AYS) ] ).
At the GML § 50–h hearing, Igoe invoked "a blanket Fifth Amendment claim to all of the questions" that defense counsel intended to ask "with respect to the audio recordings" of the alleged threatening telephone messages (Bernstein Aff., Ex. G, pp. 134, 216, 219–235). Defendants twice objected to Igoe's assertion of the Fifth Amendment as a failure to comply with GML § 50–h (see Id. , pp. 216–217, 235). The criminal investigation into the alleged threats was resolved in April 2017 (see Bernstein Aff., Ex. J), and Igoe concedes that he made no affirmative efforts to reschedule a continuation of the 50–h examination (see Kemp , 61 A.D.3d at 938, 878 N.Y.S.2d 135 ).
Although Igoe argues that the content of the audio recordings is immaterial to the issues involved in this litigation, his notice of claim expressly cites defendants' alleged "releas[e] to the press that [Igoe] had made ‘racists [sic] messages on the voicemail of a Colonie man’ " (Bernstein Aff., Ex. E, p. 2). Similarly, the Complaint in this action not only cites the audio recordings and their release (see Complaint, ¶¶ 34–35, 63 [b] ), but emphasizes the "nervous shock and strain, great mental anguish, mortification, humiliation and shame" resulting from defendants' alleged disclosures of such communications (Id. , ¶ 76). Thus, Igoe's argument that the audio recordings are wholly irrelevant to this action is unpersuasive.
Igoe is, however, correct that the notice of claim requirements "apply only to actions sounding in tort, not to those premised upon breach of contract" ( Strauss v. City of Glens Falls , 140 A.D.3d 1411, 1412, 34 N.Y.S.3d 677 [3d Dept. 2016] ; see Buffalo Retired Teachers 91–94 Alliance v. Board of Educ. for City School Dist. of City of Buffalo , 261 A.D.2d 824, 826, 689 N.Y.S.2d 562 [4th Dept. 1999] ; Serkil L.L.C. v. City of Troy , 259 A.D.2d 920, 921 n 1, 686 N.Y.S.2d 892 [3d Dept. 1999], lv denied 93 N.Y.2d 811, 694 N.Y.S.2d 633, 716 N.E.2d 698 [1999] ). As such, Igoe's noncompliance with GML § 50–h by failing to reschedule a continuation of his examination following the conclusion of the criminal investigation constitutes a bar only to Igoe's cause of action for fraudulent inducement, a claim sounding in tort (see Priolo Communications v. MCI Telecom. Corp. , 248 A.D.2d 453, 454, 669 N.Y.S.2d 376 [2d Dept. 1998] ). OFFICIAL CAPACITY CLAIMS
In any event, Igoe's fraudulent inducement claim is subject to dismissal as redundant of the contractual claim. To establish a claim of fraud arising in connection with a contractual relationship, "the plaintiff must allege a breach of duty which is collateral or extraneous to the contract between the parties" (Krantz v. Chateau Stores of Canada , 256 A.D.2d 186, 187, 683 N.Y.S.2d 24 [1st Dept. 1998] [internal quotation marks and citations omitted]; see Cole, Schotz, Meisel, Forman & Leonard, P.A. v. Brown , 109 A.D.3d 764, 765, 972 N.Y.S.2d 21 [1st Dept. 2013] ). In other words, where the alleged misrepresentation concerns a promise of future contractual performance, the representation must concern a matter "sufficiently discrete from that underlying the breach of contract claim" (Kosowsky v. Willard Mtn., Inc. , 90 A.D.3d 1127, 1129, 934 N.Y.S.2d 545 [3d Dept. 2011] ). Here, the acts of fraud alleged by Igoe pertain directly to the confidentiality terms of the Agreement and defendants' alleged intention not to perform thereunder (see Northeast United Corp. v. Lewis , 137 A.D.3d 1387, 1387, 26 N.Y.S.3d 810 [3d Dept. 2016] ; Sargoy v. Wamboldt , 183 A.D.2d 763, 766, 583 N.Y.S.2d 488 [2d Dept. 1992] ; cf. Shugrue v. Stahl , 117 A.D.3d 527, 528, 985 N.Y.S.2d 547 [1st Dept. 2014] ; Kosowsky , 90 A.D.3d at 1129, 934 N.Y.S.2d 545 ). Having concluded that the fraudulent inducement claim is barred by Igoe's failure to comply with GML § 50–h and is, in any event, duplicative of the contractual claim, the Court need not reach defendants' contention that the fraudulent inducement claim also should be dismissed for plaintiff's failure to plead the claim with the particularity required by CPLR 3016 (b).
Defendants next seek the dismissal of the claims brought against them in their official capacities, contending that their offices are merely administrative arms of the County of Albany ("County"), and the breach of contract claim against the Sheriff in his official capacity is time-barred.
Beginning first with the statute of limitations, defendants argue that Igoe's claim is untimely because it was interposed in September 2016, more than one year after the Sheriff's alleged breaches of the Agreement commencing on or about July 15, 2015. Under CPLR 215 (1), any action against a Sheriff based "upon a liability incurred by him [or her] by doing an act in his [or her] official capacity or by omission of an official duty" must be commenced within one year.
However, it is well settled that CPLR 215 (1)"refers to a liability incurred by official malfeasance or misfeasance, but not to a liability arising out of a mutual contract voluntarily entered into by a sheriff" ( Rice v. Penfield , 2 N.Y.S. 641, 641 [Sup. Ct., Gen. Term, 4th Dept. 1888] ; see generally Jemison v. Crichlow , 139 A.D.2d 332, 337–342, 531 N.Y.S.2d 919 [2d Dept. 1988], affd 74 N.Y.2d 726, 544 N.Y.S.2d 813, 543 N.E.2d 78 [1989] ; cf. Adams v. Rensselaer County , 66 N.Y.2d 725, 727, 496 N.Y.S.2d 996, 487 N.E.2d 906 [1985] [duty to safely keep inmates]; Snyder v. Plank , 77 A.D.3d 1332, 1332–1333, 909 N.Y.S.2d 246 [4th Dept. 2010] [duty to safely maintain jail]; Carpenter v. Apple , 2017 WL 3887908, *13–14, 2017 US Dist LEXIS 143296, *42–45 [N.D.N.Y., Sept. 5, 2017, No. 9:15–CV–1269 (GTS/CFH) [duty to ensure proper medical care for prisoners] ). "The reason for the short statute governing actions against sheriffs ... is to protect their sureties" ( Regan v. Sullivan , 557 F.2d 300, 307 [2d Cir. 1977] ; see Taylor v. Mayone , 626 F.2d 247, 252–253 [2d Cir. 1980] ). This rationale is not implicated by a suit on a contract voluntarily entered into by a sheriff (see generally Jemison , 139 A.D.2d at 338–342, 531 N.Y.S.2d 919 ).
Inasmuch as the contractual claim is timely under the six-year limitations period generally applicable to breach of contract actions (see CPLR 213 [2 ] ), defendants have failed to demonstrate that the contractual claim against the Sheriff in his official capacity is time-barred (see generally Krog Corp. v. Vanner Group, Inc. , 158 A.D.3d 914, 915–916, 72 N.Y.S.3d 178 [3d Dept. 2018] ).
Defendants further contend that this action cannot be maintained against them in their official capacities because their offices are merely administrative arms of the County (see Allyn v. Rockland County , 2013 WL 4038602, *2, 2013 US Dist LEXIS 114947, *6–7 [S.D. N.Y., July 30, 2013, No. 12 CV 5022(VB) ], affd 646 Fed. Appx. 60 [2d Cir. 2016] ; Hall v. City of White Plains , 185 F.Supp.2d 293, 303 [S.D. N.Y. 2002] ; Steed v. Delohery , 1998 WL 440861, *1, 1998 US Dist LEXIS 2754, *3–4 [S.D. N.Y., Aug. 4, 1998, No. 96 CIV 2449 (RPP) ] ). As Igoe properly observes, however, "claims ... asserted against individual municipal employees in their official capacities ... are tantamount to claims against the municipality itself" ( Vargas v. City of New York , 105 A.D.3d 834, 837, 963 N.Y.S.2d 278 [2d Dept. 2013], lv granted 22 N.Y.3d 858, 2013 WL 6598721 [2013] ; see Hafer v. Melo , 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 [1991] ).
Based on the foregoing, the branch of the motion seeking the dismissal of the breach of contract claim alleged against defendants in their official capacities is denied.
Nonetheless, for the reasons that follow, the Court concludes that the breach of contract claim must be dismissed against defendants in all respects.
SUMMARY JUDGMENT
Summary judgment is a drastic remedy and should only be granted if there are no material issues of disputed fact (see Sillman v. Twentieth Century–Fox Film Corp. , 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ). In evaluating a motion for summary judgment, a court should determine whether, viewing the evidence in the light most favorable to the nonmoving party, material issues of disputed fact preclude the grant of judgment as a matter of law (see Branham v. Loews Orpheum Cinemas, Inc. , 8 N.Y.3d 931, 932, 834 N.Y.S.2d 503, 866 N.E.2d 448 [2007] ; S.J. Capelin Assoc. v. Globe Mfg. Corp. , 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776 [1974] ).
The movant has the initial burden of coming forward with admissible evidence to demonstrate the absence of any material issues of fact, and the "[f]ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" ( Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). If a prima facie showing has been made, the burden then shifts to the party opposing the motion to demonstrate, by admissible proof, the existence of any factual issue requiring a trial of the action (see Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). "[M]ere conclusions, expressions of hope or unsubstantiated allegations are insufficient" to defeat a summary judgment motion ( Id. ).
The parties' settlement agreement is a contract. The Court therefore must be "guided by basic principles of contract interpretation which instruct that a contract should be construed to give effect to the parties' intent as gleaned from the four corners of the document itself, provided that its terms are clear and unambiguous" ( Elmira Teachers' Assn. v. Elmira City School Dist. , 53 A.D.3d 757, 759, 861 N.Y.S.2d 195 [3d Dept. 2008], lvs denied 11 N.Y.3d 709, 868 N.Y.S.2d 601, 897 N.E.2d 1085 [2008]; see Rainbow v. Swisher , 72 N.Y.2d 106, 109, 531 N.Y.S.2d 775, 527 N.E.2d 258 [1988] ). Contract language must be construed in accordance with the plain and ordinary meaning of the words used (see South Rd. Assocs., LLC v. International Bus. Machs. Corp. , 4 N.Y.3d 272, 277, 793 N.Y.S.2d 835, 826 N.E.2d 806 [2005] ; Elmira Teachers' Assn. , 53 A.D.3d at 759, 861 N.Y.S.2d 195 ).
Under the Agreement, Igoe agreed to withdraw his grievance and resign from the Sheriff's Department in exchange for the following commitments from defendants: (1) to "indemnify and hold [Igoe] harmless" in any lawsuit concerning the taser incident; (2) to keep "confidential" any records or materials "relating to [Igoe's] disciplinary charges"; (3) to "not release the contents of the Agreement to any person, corporation or any other entity"; and (4) to "provide only the period of employment and positions held by [Igoe] during his tenure with [the Sheriff's Department]" to any prospective employer (Agreement, ¶¶ 1–7). The Complaint alleges that defendants breached the latter three obligations.
A. Alleged Breaches Preceding Publication of the Article
Igoe first contends that defendants breached the Agreement, "within hours of [its] execution," by disclosing "that [Igoe] resigned [from] his position with the ... Sheriff's Department" and "that [Igoe] made allegedly threatening and racist[ ] comments in telephone messages to the ‘boyfriend’ of his ex-girlfriend" (Complaint, ¶ 63 [a], [b] ). These disclosures are said to have resulted in the Time Union's publication of the Article on July 16, 2015.
Each of the defendants has submitted an affidavit denying Igoe's allegations. In his sworn statement, the Sheriff attests that: he "did not have any communications with the Times Union newspaper regarding the details of th[e] ... [A]greement at anytime before or after the[ ] [A]rticle published on July 16, 2015"; he "did not have anyone contact the Times Union about the settlement"; he "did not contact nor direct anyone to contact anyone at the Times Union including Brendan Lyons to inform him about the settlement"; and he "ha[s] no knowledge about how Lyons initially learned of the settlement" (Apple Aff., ¶ 9). The Sheriff further avers that he "did not comment on or discuss with any member of the press the specific content of the text messages and voicemails that [Igoe] complains about," which were provided to the Sheriff's Department "by complaining victims who also provided said content to the Colonie Police," and that he did not direct any of his subordinates to release these materials "to any member of the press or anyone else at any time" (Id. , ¶ 10).
The County Attorney similarly denies having released any information about the Agreement to the Times Union, other than disclosing "that Mr. Igoe was no longer employed by [the] County," which information "is a matter of public record for all County employees" (Marcelle Aff., ¶ 7). The County Attorney further avers that he did not release (or direct anyone to release) the threatening and racist communications (see Id. , ¶ 8).
The foregoing proof suffices to demonstrate defendants' prima facie entitlement to dismissal of the allegations that they breached the Agreement by disclosing Igoe's resignation and/or the threatening and racist communications allegedly made by Igoe. Both defendants flatly deny releasing any information about Igoe or the Agreement, other than the fact that Igoe resigned after reaching a settlement with the Sheriff's Department. Pursuant to the clear and unambiguous language of the Agreement, defendants were obliged to maintain the confidentiality of the "contents" of the Agreement (¶ 5), but they were under no duty to refrain from disclosing that the Sheriff's Department had reached a resolution of its issues with Igoe (see Kash v. Jewish Health Care Sys. of Rochester, Inc. , 98 A.D.3d 1275, 1276, 951 N.Y.S.2d 614 [4th Dept. 2012] [where settlement agreement "did not prohibit plaintiff from stating that the action had been settled," trial court erred in declaring "that plaintiff breached the agreement and release by revealing that a resolution was reached"] ). Nor does the Agreement purport to make confidential Igoe's status a public employee, and, in any event, such information plainly "is a matter of public record" (Marcelle Aff., ¶ 7; see Bernstein Aff., Ex. N; see also Public Officers Law § 87 [3 ] [b] ).
Under the Agreement, the parties' confidentiality obligations are limited "to the extent permissible under law" (¶ 5).
The burden therefore shifts to Igoe to raise a triable issue of fact as to the alleged breaches of the Agreement preceding publication of the Article. In seeking to discharge this burden, Igoe submits his own affidavit and the affirmation of his counsel.
The affirmation of Igoe's counsel, to the extent that it is not based on personal knowledge or relies on hearsay, is legally insufficient to raise a triable issue of fact (see Zuckerman , 49 N.Y.2d at 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Glover v. Sunnyside Referral Servs. , 210 A.D.2d 377, 377, 620 N.Y.S.2d 111 [2d Dept. 1994] ).
Absent, however, from Igoe's opposition is any proof in admissible form demonstrating that defendants initiated contact with the Times Union or breached the Agreement by making any prohibited disclosures. In fact, Igoe conceded at the GML § 50–h examination that he had no witnesses or documentation to support his belief that defendants had provided the recordings of the alleged threatening and racist communications to the Times Union (see Bernstein Aff., Ex. G, p. 128).
Also absent from Igoe's opposition is any legal basis to conclude that defendants breached the confidentiality terms of the Agreement by disclosing the existence of the Agreement and the termination of Igoe's public employment.
Instead, Igoe's opposition attempts to support his allegations through a "time line" of events (see Igoe Aff., ¶¶ 31–62; DeNigris Aff., ¶¶ 34–50). Igoe speculates that the source of the Article must have been one of the five individuals "who were aware that [he] had resigned ... and the specific terms reflected in the ... [A]greement" (Igoe Aff., ¶ 43). Igoe further conjectures that, due to the Sheriff's "long-term association" with the Times Union journalist who authored the Article (Id. , ¶ 42), Igoe has "no doubt[ ]" that the Sheriff was the source of the Article (id. , ¶ 44).
According to Igoe, his two attorneys and defendants were the only other individuals with the requisite knowledge (see Id. ).
The Court does not find this line of argument availing. Igoe surmises that the source of the information published in the Article, including the Times Union's disclosures regarding the threatening and racist communications, must have been one of the five individuals who was aware of the execution of the Agreement and its contents. But it does not follow that the source(s) of the information concerning the threatening and racist communications was the same source(s) who disclosed the resolution of the parties' dispute and the termination of Igoe's public employment.
In fact, the Article itself confirms the limited and permissible nature of defendants' disclosures: "Apple on Wednesday [July 15, 2015] confirmed that Igoe resigned but declined further comment . He referred questions to ... Marcelle, who said the Sheriff's Office was negotiating a settlement with Igoe in the Taser disciplinary case when [Igoe] resigned. ‘I don't know if there was any one factor that attributed to the reaching of the [A]greement,’ Marcelle said, declining to elaborate , ‘He's not on the payroll’ " (Bernstein Aff., Ex. D [emphasis added] ). Moreover, the Article's coverage of the alleged threatening and racist communications refers primarily to the comments of a spokesperson for the Colonie Police Department, to whom Igoe's alleged victim complained (see Id. ), thereby refuting Igoe's contention that the source of this information must have been one of the five persons with knowledge of the execution of the Agreement and its contents.
The Court therefore concludes that Igoe's "time line" argument must be rejected, inasmuch as it is predicated on the incorrect assumptions that (1) the Agreement prohibited defendants from disclosing the existence of the settlement agreement and the termination of Igoe's public employment, and (2) the source of the disclosures concerning the alleged threatening and racist communications was one of the five individuals who knew of the execution of the Agreement and its contents.
Based on the foregoing, the Court concludes that Igoe has failed to raise a triable issue of fact to substantiate his contention that defendants breached the confidentiality provisions of the Agreement prior to the Time Union's publication of the Article on July 16, 2015.
B. Subsequent Alleged Breaches
Igoe further alleges that defendants breached the Agreement by "[c]ontacting [his] new employer in an attempt to have [him] terminated from his new job" and by "[p]roviding adverse job recommendations to prospective employer inquiries" (Complaint, ¶ 63 [c], [d] ).
In this regard, the Sheriff avers that he "did not direct or order any employee" of his office "to contact current or potential employers of [Igoe] regarding the ... [A]greement" (Apple Aff., ¶ 11). The Sheriff maintains that the only instance in which the Sheriff's Department disclosed Igoe's file was in response to a request from the New York State Department of Corrections and Community Supervision ("DOCCS"), which "was accompanied by a signed waiver by [Igoe]" directing the release of the records, notwithstanding the confidentiality provisions of the Agreement (Id. , ¶ 12; see Montellone Aff., ¶¶ 2–10 & Exhibits A–D). The County Attorney similarly attests that he did not contact any current or prospective employers of Igoe or direct anyone else to do so (see Marcelle Aff., ¶ 9).
Defendants also rely upon Igoe's 50–h examination, wherein he testified that someone from the Sheriff's Department contacted his then-current employer "a couple of weeks after [he had] resigned" (Bernstein Aff., Ex. G, p. 105). According to Igoe, the basis for this assertion is a statement allegedly made by someone in the employer's human resources office, located in Virginia, who informed Igoe that an individual linked to the Sheriff's Department had called the employer's "corporate" offices to bring the Article to the employer's attention (Id. , p. 106). Thus, defendants' proof shows that Igoe's only support for this allegation of breach is inadmissible hearsay.
Finally, defendants' proof shows that Igoe possesses no factual basis for concluding that the Sheriff's Department provided adverse information to Igoe's prospective employers, with the exception of DOCCS, for which Igoe supplied the Sheriff's Department with a written authorization. In fact, Igoe testified at his 50–h examination that it was his opinion that law enforcement agencies declined to hire him on the basis of the Article, rather than information obtained directly from the Sheriff's Department (see Id. , pp. 143–144).
Igoe did not attempt to follow-up with prospective employers to inquire about the reasons for his lack of success in finding another position in law enforcement (see Id. ).
The foregoing proof demonstrates, prima facie, that defendants did not contact Igoe's then-current employer or prospective employers, and Igoe has failed to raise a triable issue of fact in opposition to this branch of the motion. Igoe's allegation that someone from the Sheriff's Department contacted his subsequent employer within weeks of the Article is unsupported by an affidavit from an individual with personal knowledge, and, instead, rests solely on inadmissible double hearsay (see Igoe Aff., ¶¶ 60–62 & Ex. C), which is insufficient to defeat a motion for summary judgment in the absence of other competent proof (see Tibbits v. Verizon N.Y., Inc. , 40 A.D.3d 1300, 1302, 836 N.Y.S.2d 727 [3d Dept. 2007] ; Poluliah v. Fidelity High Income Fund , 102 A.D.2d 720, 722–723, 476 N.Y.S.2d 859 [1st Dept. 1984] ). And Igoe offers nothing to rebut defendants' evidence showing that the only disclosure of his employment records was made pursuant to his written authorization and direction (see Monteleone Aff. & Exhibits [including copy of Igoe's written release] ).
Accordingly, even viewing the evidence in the light most favorable to Igoe and giving him the benefit of all reasonable inferences, Igoe has failed to meet his burden of producing legally sufficient proof in admissible form "to establish the existence of material issues of fact which require a trial of the action" ( Alvarez , 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; cf. Kash , 98 A.D.3d at 1275–1276, 951 N.Y.S.2d 614 ; Gosden v. Elmira City School Dist. , 90 A.D.3d 1202, 1203, 934 N.Y.S.2d 256 [3d Dept. 2011] ). For this reason, his claim for breach of contract must be dismissed.
CONCLUSION
The Court has considered the parties' remaining arguments and contentions, including defendants' assertion that the confidentiality provisions of the Agreement are void as against public policy, but finds them unnecessary to reach in view of the disposition ordered herein or lacking in merit.
ORDERED that defendants' motion for summary judgment is granted; and it is further
ORDERED that the complaint is dismissed, with prejudice.
This constitutes the Decision & Order of the Court, the original of which is being transmitted to defendants' counsel for filing and service. The motion papers subject to the protective order are being returned to counsel, and all other papers are being transmitted to the Albany County Clerk. The signing of this Decision & Order shall not constitute entry or filing under CPLR 2220, and counsel is not relieved from the applicable provisions of that section respecting filing, entry and Notice of Entry.
Papers Considered:
1. Notice of Motion to Dismiss, dated January 16, 2018; Affirmation in Support of Jonathan M. Bernstein, Esq., dated January 16, 2018, with annexed exhibits; Affidavit in Support of Thomas Marcelle, sworn to January 11, 2018; Affidavit in Support of Michael S. Monteleone, sworn to January 11, 2018, with annexed exhibits; Affidavit in Support of Craig D. Apple, sworn to January 10, 2018; Memorandum of Law, dated January 16, 2018;
2. Attorney's Affirmation of Stephen G. DeNigris, Esq. and Memorandum of Law, dated March 19, 2018; Plaintiff's Affidavit in Opposition to Defendants' Motion to Dismiss and/or Motion for Summary Judgment, sworn to March 17, 2018, with annexed exhibits; and
3. Reply Affirmation in Support of Jonathan M. Bernstein, Esq., dated March 27, 2018, with annexed exhibits.