Opinion
530462
09-24-2020
Lynn MACUMBER, Appellant, v. SOUTH NEW BERLIN LIBRARY et al., Respondents.
Law Office of Ronald R. Benjamin, Binghamton (Ronald R. Benjamin of counsel), for appellant. Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Christopher F. DeFrancesco of counsel), for respondents.
Law Office of Ronald R. Benjamin, Binghamton (Ronald R. Benjamin of counsel), for appellant.
Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Christopher F. DeFrancesco of counsel), for respondents.
Before: Egan Jr., J.P., Clark, Mulvey, Devine and Pritzker, JJ.
MEMORANDUM AND ORDER
Devine, J. Appeal from an order of the Supreme Court (Burns, J.), entered September 18, 2019 in Chenango County, which granted defendants' motion for summary judgment dismissing the complaint.
Plaintiff was the president of the Board of Trustees (hereinafter the Board) of defendant South New Berlin Library (hereinafter the library). Defendant Marcia Hoag was also a Board member and, in July 2017, sent an email to employees of the State Education Department in which she claimed to have "proof from [the library's] bank statements that [plaintiff] has misappropriated over $20,000 of taxpayer money" and advocated for plaintiff's removal from the Board. Plaintiff eventually resigned from the Board and, viewing Hoag's accusation to be defamatory, commenced this action in 2018. Following joinder of issue, defendants moved for summary judgment dismissing the complaint. Supreme Court held the motion in abeyance pending additional discovery (see CPLR 3212[f] ), then granted the motion upon the ground that Hoag's statement was protected by a qualified privilege. Plaintiff appeals, and we affirm.
"Courts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether" ( Liberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344 [1992] [citation omitted]; see Rosenberg v. MetLife, Inc., 8 N.Y.3d 359, 365, 834 N.Y.S.2d 494, 866 N.E.2d 439 [2007] ). Those communications include ones protected by the qualified privilege that attaches to a person's good faith communication "upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and ... made to a person with a corresponding interest" ( Cusimano v. United Health Servs. Hosps., Inc., 91 A.D.3d 1149, 1150, 937 N.Y.S.2d 413 [2012] [internal quotation marks and citations omitted], lv denied 19 N.Y.3d 801, 2012 WL 1500604 [2012] ; accord Mughetti v. Makowski, 162 A.D.3d 1444, 1446, 79 N.Y.S.3d 749 [2018] ; see Stega v. New York Downtown Hosp., 31 N.Y.3d 661, 669–670, 82 N.Y.S.3d 323, 107 N.E.3d 543 [2018] ). As a member of the Board tasked with approving and overseeing the expenditure of library funds, Hoag had an interest in addressing any misappropriation of those funds by plaintiff, and she raised that issue in an email to state officials with a corresponding oversight role and the authority to take corrective action (see Education Law §§ 226[4] ; 260; 8 NYCRR 3.31, 90.1 ). Defendants further came forward with proof that Hoag made the communication in good faith, with Hoag and other Board members averring that their review of financial records, as well as plaintiff's refusal to provide requested documentation, caused them to believe that plaintiff had made numerous questionable, unauthorized and/or undocumented expenditures of library funds. This proof made out a prima facie case that Hoag's communication was conditionally privileged and, as a result, the burden shifted to plaintiff to show that the privilege did not apply because Hoag was "motivated by malice alone when she made" that statement ( Mughetti v. Makowski, 162 A.D.3d at 1446, 79 N.Y.S.3d 749 ; see Hull v. Town of Prattsville, 145 A.D.3d 1385, 1390, 44 N.Y.S.3d 253 [2016] ; Wilcox v. Newark Val. Cent. School Dist., 74 A.D.3d 1558, 1562, 904 N.Y.S.2d 523 [2010] ).
Contrary to plaintiff's contention, although the word misappropriation often implies illegal or fraudulent conduct (see Harker v. Guyther, 121 A.D.3d 1468, 1470, 995 N.Y.S.2d 637 [2014] ), Hoag did not accuse plaintiff of theft or fraud in her email and instead cited specific expenditures that were wrongful because plaintiff had not obtained Board approval as required.
Malice, in this context, means that Hoag accused plaintiff of misappropriating library funds "out of personal spite or ill will, with reckless disregard for the statement['s] truth or falsity, or with a high degree of belief that [the statement was] probably false" ( Foster v. Churchill, 87 N.Y.2d 744, 752, 642 N.Y.S.2d 583, 665 N.E.2d 153 [1996] ; see Scott v. Thayer, 160 A.D.3d 1175, 1177, 75 N.Y.S.3d 603 [2018] ; Hull v. Town of Prattsville, 145 A.D.3d at 1390, 44 N.Y.S.3d 253 ). Plaintiff documented how a later criminal investigation uncovered no wrongdoing on her part, but provided nothing to show that Hoag knew, or recklessly disregarded the risk, that her claim of financial misappropriation was false when it was made. Further, although Hoag had reasons to dislike plaintiff, spite or ill will in the defamation context "refers not to [a] defendant's general feelings about [the] plaintiff, but to the speaker's motivation for making the defamatory statements" ( Liberman v. Gelstein, 80 N.Y.2d at 439, 590 N.Y.S.2d 857, 605 N.E.2d 344 ; accord Clark v. Schuylerville Cent. School Dist., 74 A.D.3d 1528, 1529, 902 N.Y.S.2d 707 [2010] ). Inasmuch as the proof reflects that the inquiry into library spending by Hoag and other Board members was at least part of what led Hoag to accuse plaintiff of misappropriating funds, "even if [Hoag] disliked plaintiff or possessed some ill will towards her, plaintiff has failed to make an evidentiary showing that [Hoag was] motivated by malice alone in making the statement[ ]" ( Cusimano v. United Health Servs. Hosps., Inc., 91 A.D.3d at 1151, 937 N.Y.S.2d 413 ; see Foster v. Churchill, 87 N.Y.2d at 752, 642 N.Y.S.2d 583, 665 N.E.2d 153 ; Clark v. Schuylerville Cent. School Dist., 74 A.D.3d at 1529, 902 N.Y.S.2d 707 ). Thus, plaintiff failed to raise a material question of fact, and Supreme Court properly granted summary judgment dismissing the complaint.
To the extent that plaintiff's remaining arguments are not rendered academic by the foregoing, they have been examined and are unavailing.
Egan Jr., J.P., Clark, Mulvey and Pritzker, JJ., concur.
ORDERED that the order is affirmed, without costs.