| Cusimano v United Health Servs. Hosps., Inc. |
| 2012 NY Slip Op 00271 [91 AD3d 1149] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| Jungsil Cusimano, Appellant, v United Health Services Hospitals,Inc., et al., Respondents, et al., Respondents. |
—[*1] Aswad & Ingraham, Binghamton (Charles O. Ingraham of counsel), for United HealthServices Hospitals, Inc. and another, respondents. Sugarman Law Firm, Syracuse (Timothy J. Perry of counsel), for Robert Hayford andanother, respondents.
Peters, J.P. Appeal from an order of the Supreme Court (Lebous, J.), entered February 15,2011 in Broome County, which granted certain defendants' motions for summary judgmentdismissing the complaint.
Plaintiff was the medical director and sole physician at the Clinton Street Family Care Center(hereinafter CSFCC), a medical facility owned and operated by defendant United Health ServicesHospitals, Inc. (hereinafter UHSH). In November 2006, defendant Kelly Marshall, a medicaloffice assistant employed by UHSH, informed defendant Robert Hayford, the manager ofambulatory services for UHSH, and defendant Linda Sebesta, UHSH's clinical coordinator, thatplaintiff was storing pharmaceutical drug samples in her CSFCC office in violation of UHSHpolicy. In response to this information, Hayford, Sebesta and Marshall entered and searchedplaintiff's unlocked office, during the course of which they found 114 sample packets, totaling798 tablets, of the drug Provigil in an unlocked filing cabinet. Provigil is a controlled substance,but not a narcotic. UHSH policy prohibits physicians from storing samples of certain [*2]controlled substances, including Provigil, in their offices.
When the search was completed, Hayford, Sebesta and Marshall confiscated the Provigil andallegedly reported to April Fredenburg and Shari Paulhamus, two other medical office assistantsworking at CSFCC, that they had found narcotics in plaintiff's office, that plaintiff would likelybe arrested and dismissed from her position and that the locks to CSFCC would be changed.Plaintiff commenced this action in June 2007 against, among others,[FN1]Sebesta, Hayford, Marshall and UHSH, alleging causes of action for slander per se, intentionalinfliction of emotional distress, prima facie tort and trespass. Following the completion ofdiscovery, Supreme Court granted motions by Sebesta and UHSH and Hayford and Marshall forsummary judgment and dismissed the complaint, prompting this appeal.
Supreme Court properly determined that the statements made to Fredenburg and Paulhamusare protected by a qualified privilege.[FN2]" 'A qualified privilege arises when a person makes a good-faith, bona fide communication upona subject in which he or she has an interest, or a legal, moral or societal interest to speak, and thecommunication is made to a person with a corresponding interest' " (Lerwick v Krna, 29 AD3d 1206,1208 [2006], lv denied 7 NY3d 712 [2006], quoting Grier v Johnson, 232 AD2d846, 847 [1996]; see Liberman v Gelstein, 80 NY2d 429, 437 [1992]). Such commoninterest may include statements to fellow employees on a subject concerning the employer(see Liberman v Gelstein, 80 NY2d at 437; Curren v Carbonic Sys., Inc., 58AD3d 1104, 1106 [2009]; Sanderson v Bellevue Maternity Hosp., 259 AD2d 888,889-890 [1999]; Roberts v Oellrich & Behling, 223 AD2d 860, 860 [1996]). Here, thestatements by Hayford, Sebesta and Marshall—employees of UHSH—were madesolely to their coemployees, all of whom were collectively responsible for the functioning andproper operation of CSFCC. Inasmuch as all had a common interest in knowing whetherpharmaceuticals were stored in violation of UHSH policy and the implications toplaintiff—the only physician on staff at CSFCC—defendants demonstrated that thestatements were protected by a qualified privilege (see Curren v Carbonic Sys., Inc., 58AD3d at 1106; Sanderson v Bellevue Maternity Hosp., 259 AD2d at 889-890;Roberts v Oellrich & Behling, 223 AD2d at 860), thereby shifting the burden to plaintiffto prove that they "acted out of personal spite or ill will, with reckless disregard for thestatements' truth or falsity, or with a high degree of belief that their statements were probablyfalse" (Foster v Churchill, 87 NY2d 744, 752 [1996]; see Liberman v Gelstein,80 NY2d at 438-439).
While plaintiff asserts that Hayford, Sebesta and Marshall harbored ill will towards her as aresult of certain events that transpired in the days prior to the search, "spite or ill will refers not to[a] defendant's general feelings about [a] plaintiff, but to the speaker's motivation for making thedefamatory statements[,] . . . [and] a triable issue is raised only if a jury couldreasonably [*3]conclude that malice was the one and only causefor the publication" (Liberman v Gelstein, 80 NY2d at 439 [internal quotation marks andcitations omitted]; see Clark vSchuylerville Cent. School Dist., 74 AD3d 1528, 1529 [2010]; Curren v CarbonicSys., Inc., 58 AD3d at 1106). Here, Hayford, Sebesta and Marshall conducted the searchbased upon first-hand information from Marshall that she observed pharmaceutical samplesbeing delivered to plaintiff's office, and their statements to Fredenburg and Paulhamus followingthe discovery of the samples were made in furtherance of the common interest protected by theprivilege. Thus, even if they disliked plaintiff or possessed some ill will towards her, plaintiff hasfailed to make an evidentiary showing that they were motivated by malice alone inmaking the statements (see Foster v Churchill, 87 NY2d at 752; Liberman vGelstein, 80 NY2d at 439; Grier v Johnson, 232 AD2d at 848-849). Nor has plaintiffproffered competent evidence demonstrating that either Hayford, Sebesta or Marshall knew thattheir statements describing Provigil as a narcotic were false or that they acted with recklessdisregard as to whether they were false (see Foster v Churchill, 87 NY2d at 752;Liberman v Gelstein, 80 NY2d at 438-439). Rather, the proof established that the terms"narcotic" and "controlled substance" are often used interchangeably throughout the medicalcommunity, and that Hayford, Sebesta and Marshall neither knew nor understood the difference.As such, plaintiff failed to demonstrate a triable issue regarding the existence of constitutional orcommon-law malice sufficient to defeat the qualified privilege. The privileged nature of thesestatements likewise precludes liability against UHSH under the theory of respondeat superior(see Curren v Carbonic Sys., Inc., 58 AD3d at 1107; Sanderson v Bellevue MaternityHosp., 259 AD2d at 892).
Moreover, we agree with Supreme Court's additional finding that the statements at issue,with the exception of the statement that narcotics were found in plaintiff's office, constitutednonactional opinion (see Mann vAbel, 10 NY3d 271, 276 [2008], cert denied 555 US 1170 [2009]; Weiner vDoubleday & Co., 74 NY2d 586, 593 [1989], cert denied 495 US 930 [1990]). As forthe statement regarding the discovery of "narcotics," it is well settled that truth is an absolutedefense to a claim of defamation and substantial truth is all that is required (see Proskin v Hearst Corp., 14 AD3d782, 783 [2005]; Ingber v Lagarenne, 299 AD2d 608, 609 [2002], lv denied99 NY2d 507 [2003]; Love v Morrow & Co., 193 AD2d 586, 587 [1993]). AlthoughProvigil is technically not a narcotic but, instead, a controlled substance,[FN3]as previously noted, the terms are used interchangeably and often confused even within themedical community. More importantly, the deposition testimony and affidavits of Fredenburgand Paulhamus, as well their handwritten notes made contemporaneous with the incident, revealthat at the time this statement was made, they were also specifically informed that what wasfound in plaintiff's office was Provigil. Thus, while use of the term "narcotic" may have beentechnically incorrect, the essence of the statement was that unsecured medications were found inplaintiff's office. Under these circumstances, we find that the statement constituted a "basicallyaccurate account" and, therefore, is not actionable (Nekos v Kraus, 62 AD3d 1144, 1145 [2009] [internal quotationmarks and citation omitted]; see Miller v Journal-News, 211 AD2d 626, 627 [1995];see also Rosen v Capital City Press, 314 So 2d 511 [La 1975] [newspaper article thatreported that doctor was indicted for crimes involving distribution of "narcotics," and whichlisted the specific drugs he was charged with illegally distributing, was substantially truenotwithstanding a technical difference between "narcotics" and the nerve stimulant drugs that thedoctor illegally [*4]distributed]).
We are similarly unpersuaded that Supreme Court erred in dismissing plaintiff's claim forintentional infliction of emotional distress. Such a cause of action required plaintiff to plead andprove extreme and outrageous conduct, the intentional or reckless nature of such conduct, acausal relationship between the conduct and the resulting injury, and severe emotional distress(see Howell v New York Post Co., 81 NY2d 115, 121 [1993]; Christenson vGutman, 249 AD2d 805, 808 [1998]). Here, the complained of conduct—i.e., theactions of Hayford, Sebesta and Marshall in performing a search of plaintiff's office based onMarshall's assertion that she observed pharmaceutical samples being delivered there in violationof UHSH policy, their confiscation of the controlled substance samples found and subsequentstatements to CSFCC personnel relating their concerns—was not "so outrageous incharacter, and so extreme in degree, as to go beyond all possible bounds of decency, and to beregarded as atrocious, and utterly intolerable in a civilized community" (Murphy v AmericanHome Prods. Corp., 58 NY2d 293, 303 [1983] [internal quotation]; accord Howell v NewYork Post Co., 81 NY2d at 122). Furthermore, plaintiff presented no medical evidence tosubstantiate her general claims that she suffered severe emotional distress (see Roche v Claverack Coop. Ins. Co.,59 AD3d 914, 918 [2009]; Walentas v Johnes, 257 AD2d 352, 353 [1999], lvdismissed 93 NY2d 958 [1999]). As such, summary dismissal of this claim was warranted.
We reach a similar conclusion with respect to plaintiff's claim for prima facie tort. To prevailon such a claim, plaintiff must demonstrate "(1) the intentional infliction of harm, (2) whichresults in special damages, (3) without any excuse or justification, (4) by an act or series of actswhich would otherwise be lawful" (Freihofer v Hearst Corp., 65 NY2d 135, 142-143[1985]; see Roche v Claverack Coop. Ins. Co., 59 AD3d at 917). Furthermore, "there isno recovery in prima facie tort unless malevolence is the sole motive for [the] defendant'sotherwise lawful act or, in [other words], unless [the] defendant acts from 'disinterestedmalevolence' " (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333[1983], quoting American Bank & Trust Co. v Federal Reserve Bank of Atlanta, 256 US350, 358 [1921]; accord Morrison vWoolley, 45 AD3d 953, 954 [2007]; see Lerwick v Kelsey, 24 AD3d 931, 931-932 [2005], lvdenied 6 NY3d 711 [2006]). While conceding that Hayford, Sebesta and Marshall had a rightto investigate a report that plaintiff was improperly storing pharmaceutical drugs, plaintiffnevertheless claims that their search of her office was without justification. The evidence,however, establishes that Hayford's job responsibilities included ensuring that CSFCC was incompliance with UHSH policy, and he had the authority to enter all parts of the facility to ensurecompliance. And, as previously noted, Hayford, Sebesta and Marshall conducted the search ofplaintiff's office based upon firsthand information that pharmaceutical samples were stored inplaintiff's office in violation of UHSH policy. As malevolence was not the sole motive, plaintiff'sprima facie tort claim was properly dismissed (see White v Ivy, 63 AD3d 1236, 1239 [2009]).
Finally, dismissal of plaintiff's claim for trespass was also warranted inasmuch as plaintiffdid not own, or have exclusive possessory rights to, her office space (see Wild v Hayes, 68 AD3d 1412,1414 [2009]; Cornick v Forever Wild Dev. Corp., 240 AD2d 980, 981 [1997]).
Rose, McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, with onebill of costs. [Prior Case History: 30 Misc 3d 1229(A), 2011 NY Slip Op 50268(U).]
Footnote 1: Plaintiff's complaint alsoincludes defendants John Doe and Jane Doe, who plaintiff describes as employees of UHSH withsupervisory authority over Sebesta, Hayford and Marshall.
Footnote 2: To the extent that anystatements were made to the medical community or the general public, plaintiff has offered noproof as to who made these statements. As such, our analysis is limited to the alleged defamatorystatements made to Fredenburg and Paulhamus in November 2006.
Footnote 3: The parties do not dispute that,while all narcotics are controlled substances, not all controlled substances are narcotics.