| Colantonio v Mercy Med. Ctr. |
| 2010 NY Slip Op 04330 [73 AD3d 966] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Anthony Colantonio, Respondent, v Mercy MedicalCenter et al., Appellants. |
—[*1] Agoglia, Holland & Agoglia, P.C., Jericho, N.Y. (E. Kevin Agoglia of counsel), forrespondent.
In an action to recover damages for defamation, the defendants appeal from an order of theSupreme Court, Nassau County (Galasso, J.), entered December 8, 2008, which denied theirmotion for summary judgment dismissing the amended complaint and for an award of costs,sanctions, and an attorney's fee, and granted the plaintiff's application to seal the record.
Ordered that on the Court's own motion, the notice of appeal from so much of the order asgranted the plaintiff's application to seal the record is deemed an application for leave to appealfrom that portion of the order, and leave to appeal is granted (see CPLR 5701 [c]); and itis further,
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthose branches of the defendants' motion which were for summary judgment dismissing the first,sixth, seventh, ninth, tenth, and seventeenth causes of action, and so much of the second andthird causes of action as alleged that the defendant Gregory Zito made statements that theplaintiff "has poor judgment," so much of the fifth cause of action as alleged that the defendantXenophon Xenophontos made statements that the plaintiff "is belligerent and veryunreasonable," cannot be interacted with, is "not stable," is "inappropriate," and "attacks doctorsin the charts," so much of the eighth cause of action as alleged that the defendant Joel Yohaimade statements that the plaintiff "has poor clinical judgment" and "a behavioral problem,""creates havoc in the ICU," and "uses the charts to attack doctors," so much of the eleventh causeof action as alleged that the defendant Roy Rubenstein made statements that the plaintiff "haspoor judgment," is "bizarre," is "inappropriate" and "doesn't listen," and that "[the defendants]can't work with him," so much of the twelfth cause of action as alleged that the defendant JosephSharkey made statements that the plaintiff created an "uncomfortable environment," and so muchof the fourteenth cause of action as alleged that the defendant Susan Christoffers madestatements that the plaintiff has "been unreasonable," "can be crazy," that "a lot of nurses don'tlike him," and that the plaintiff "shouldn't be working here," and substituting therefor a provisiongranting those branches of the motion; and (2) by deleting the provision thereof granting theplaintiff's application to seal the record and [*2]substitutingtherefor a provision denying the plaintiff's application; as so modified, the order is affirmed,without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County,for reconsideration of whether good cause exists to seal the record, in whole or in part, and a newdetermination in accordance herewith.
On February 6, 2008, the plaintiff, a physician, commenced this action asserting 18 differentcauses of action to recover damages for defamation, which were based on allegations of falsecomplaints and statements made by certain personnel at Mercy Medical Center (hereinafterMercy). These complaints led Mercy's administrators to call a meeting of its CredentialsCommittee (hereinafter the Committee) so that action could be taken to correct the plaintiff'sallegedly disruptive behavior, which was affecting the quality of patient care. At the meeting,medical personnel allegedly provided false information about the plaintiff. The false complaintsand false information allegedly were made in retaliation for complaints the plaintiff has lodgedagainst certain personnel. At the conclusion of the meeting, the Committee unanimouslyrecommended to Mercy's Executive Committee (hereinafter MEC) suspension of the plaintiff'sprivileges. Thereafter, MEC, by a vote of 18 to 3, recommended termination of the plaintiff'sprivileges. Following the filing of the plaintiff's complaint, Mercy and various staff membersheld a press conference, disseminated a memorandum, and published a newspaperadvertisement, which the plaintiff alleged defamed him, leading him to file an amendedcomplaint adding five defendants and four causes of action. Before any discovery occurred, thedefendants moved for summary judgment dismissing the amended complaint and for an award ofcosts, sanctions, and an attorney's fee.
In determining whether a statement is pure opinion, a question of law for the court (Mann v Abel, 10 NY3d 271, 276[2008], cert denied 555 US —, 129 S Ct 1315 [2009]), the "factors to beconsidered are: (1) whether the specific language in issue has a precise meaning which is readilyunderstood; (2) whether the statements are capable of being proven true or false; and (3) whethereither the full context of the communication in which the statement appears or the broader socialcontext and surrounding circumstances are such as to signal . . . readers or listenersthat what is being read or heard is likely to be opinion, not fact" (Brian v Richardson, 87NY2d 46, 51 [internal quotation marks omitted]). Here, the first, sixth, seventh, ninth, tenth, andseventeenth causes of action, which include allegations of statements that the plaintiff was animminent danger to patients and created havoc in the ICU, that there was something wrong withthe plaintiff, and that a doctor could not work with the plaintiff, all constituted nonactionableexpressions of opinion (see Farrow vO'Connor, Redd, Gollihue & Sklarin, LLP, 51 AD3d 626, 627 [2008]; Leone vRosenwach, 245 AD2d 343 [1997]; Ott v Automatic Connector, 193 AD2d 657[1993]; Miller v Richman, 184 AD2d 191, 193 [1992]; Williams v Varig BrazilianAirlines, 169 AD2d 434 [1991]; Hollander v Cayton, 145 AD2d 605 [1988]).Additionally, the following constituted nonactionable expressions of opinion: so much of thesecond and third causes of action as alleged that the defendant Gregory Zito made statementsthat the plaintiff "has poor judgment," so much of the fifth cause of action as alleged that thedefendant Xenophon Xenophontos made statements that the plaintiff "is belligerent and veryunreasonable," cannot be interacted with, is "not stable," is "inappropriate," and "attacks doctorsin the charts," so much of the eighth cause of action as alleged that the defendant Joel Yohaimade statements that the plaintiff "has poor clinical judgment" and "a behavioral problem,""creates havoc in the ICU," and "uses the charts to attack doctors," so much of the eleventh causeof action as alleged that the defendant Roy Rubenstein made statements that the plaintiff "haspoor judgment," is "bizarre," is "inappropriate" and "doesn't listen," and that "[the defendants]can't work with him," so much of the twelfth cause of action as alleged that the defendant JosephSharkey made statements that the plaintiff created an "uncomfortable environment," and so muchof the fourteenth cause of action as alleged that the defendant Susan Christoffers madestatements that the plaintiff has "been unreasonable," "can be crazy," that "a lot of nurses don'tlike him," and that the plaintiff "shouldn't be working here."
Insofar as the defendants contend they were entitled to summary judgment dismissing theremaining portions of the first 18 causes of action on the grounds that they were subject to thequalified privileges of common interest (see Liberman v Gelstein, 80 NY2d 429, 437[1992]; Hollander v Cayton, 145 AD2d at 606), state statutory law (see PublicHealth Law § 2805-j [2]; § 2805-m [3]; Education Law § 6527 [3], [5]), andMercy's bylaws, the defendants satisfied their prima facie burden establishing their entitlement tojudgment as a matter of law. However, in opposition, the plaintiff [*3]raised a triable issue of fact as to whether the statements were madewith malice (see Kehm v Murtha, 286 AD2d 421, 422 [2001]; Putko v Michell,215 AD2d 638, 638-639 [1995]; O'Neil v Peekskill Faculty Assn., 120 AD2d 36, 43[1986]).
The plaintiff also raised a triable issue of fact as to whether, at the meeting of theCommittee, some defendants knowingly provided false information (see 42 USC §11111 [a] [2]). Consequently, at this juncture, the defendants were not entitled to immunity froman action to recover damages under the Health Care Quality Improvement Act (see 42USC § 11111 [a] [1]; Jenkins v Methodist Hosps. of Dallas, Inc., 2004 WL3393380, *15-16, 2004 US Dist LEXIS 28094, *47 [ND Tex 2004], affd 478 F3d 255[2007], cert denied 552 US 825 [2007]; Manion v Evans, 1991 WL575715,*18-19, 1991 US Dist LEXIS 14986, *51 [ND Ohio 1991], cert denied sub nom.Lima Memorial Hosp. v Manion, 510 US 818 [1993]).
The defendants' contention regarding waiver is without merit (see Gelbard v GeneseeHosp., 87 NY2d 691, 695 [1996]).
With respect to the 19th through 22nd causes of action, the defendants satisfied their primafacie burden of establishing their entitlement to judgment as a matter of law by demonstratingthat the plaintiff is a limited-purpose public figure (see Gertz v Robert Welch, Inc., 418US 323, 351 [1974]; Samuels v Berger, 191 AD2d 627 [1993]). However, in opposition,the plaintiff raised a triable issue of fact as to whether the statements were made with actualmalice (cf. Samuels v Berger, 191 AD2d at 627).
The defendants failed to satisfy their prima facie burden on the qualified privilege of reply(see Shenkman v O'Malley, 2 AD2d 567, 574-577 [1956]; Collier v Postum CerealCo., Ltd., 150 App Div 169, 178 [1912]).
The Supreme Court properly declined to award costs, sanctions, and an attorney's fee to thedefendants under 42 USC § 11113, 22 NYCRR 130-1.1, or CPLR 8303-a. The defendantswere not entitled to immunity under 42 USC § 11112 (a), nor were they substantiallyprevailing parties. Moreover, the defendants did not demonstrate that the plaintiff's action wasfrivolous or was filed in bad faith.
Since the Supreme Court did not make a written finding of good cause as to why the record,in whole or in part, should be sealed, the matter must be remitted for that purpose (see 22NYCRR 216.1 [a]). Mastro, J.P., Balkin, Belen and Chambers, JJ., concur.