| Bayer v City of New York |
| 2009 NY Slip Op 01762 [60 AD3d 713] |
| March 10, 2009 |
| Appellate Division, Second Department |
| Hank Bayer, Appellant, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart, MarioFrangiose, Andrea O'Connor, and Jane L. Gordon of counsel), for respondents.
In an action to recover damages for intentional infliction of emotional distress anddefamation, the plaintiff appeals from an order of the Supreme Court, Kings County (Kurtz, J.),dated February 21, 2008, which granted the defendants' motion for summary judgmentdismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff, who was employed as a plumber by the New York City Department ofEducation, commenced this action against the City of New York, the New York City Departmentof Education, and his supervisor, Nunzio Piro, alleging, inter alia, that Piro defamed him andrepeatedly accused him of misconduct and insubordination. The Supreme Court granted thedefendants' motion for summary judgment dismissing the complaint. We affirm.
The defendants established their prima facie entitlement to judgment as a matter of law. Inopposition, the plaintiff failed to raise a triable issue of fact (see Friends of Animals vAssociated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). The defendants demonstrated that thenotice of claim was untimely since it was solely limited to an alleged defamatory comment madeby Piro on September 26, 2003, but was not served and filed until February 17, 2004 (seeEducation Law § 3813 [1], [2]; Gondal v New York City Dept. of Educ., 19 AD3d 141, 141-142[2005]). In any event, the [*2]alleged defamatory statement wasprotected by a qualified privilege since Piro made it to other persons who had an interest in hisassessment of the plaintiff's work behavior, and the plaintiff failed to show that the statementwas solely motivated by malice (seePhelan v Huntington Tri-Vil. Little League, Inc., 57 AD3d 503 [2008]; Burns v Palazola, 22 AD3d 779,780 [2005]).
Regarding the cause of action alleging intentional infliction of emotional distress, since theplaintiff failed to make such allegation in the notice of claim, he may not now maintain thatcause of action in his complaint (seeBoakye-Yiadom v Roosevelt Union Free School Dist., 57 AD3d 929 [2008];Zwecker v Clinch, 279 AD2d 572, 573 [2001]). In any event, the plaintiff failed to raisea triable issue of fact as to whether Piro's conduct was so extreme, outrageous, and beyond thebounds of human decency as to constitute the tort of intentional infliction of emotional distress(see Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983]; Schell vNassau County Dept. of Health, 237 AD2d 423, 424 [1997]).
The plaintiff's remaining contentions are without merit or have been rendered academic inlight of our determination. Rivera, J.P., Dillon, Leventhal and Chambers, JJ., concur.