Opinion
2013-02-20
Lynette PHILLIP, appellant, v. STERLING HOME CARE, INC., et al., respondents.
Bosworth, Gray & Fuller, Bronxville, N.Y. (David Otis Fuller, Jr., and Paul A. Clewell of counsel), for appellant. Kaufman Borgeest & Ryan LLP, New York, N.Y. (Joan M. Gilbride and Brian M. Sher of counsel), for respondents.
Bosworth, Gray & Fuller, Bronxville, N.Y. (David Otis Fuller, Jr., and Paul A. Clewell of counsel), for appellant. Kaufman Borgeest & Ryan LLP, New York, N.Y. (Joan M. Gilbride and Brian M. Sher of counsel), for respondents.
WILLIAM F. MASTRO, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and JEFFREY A. COHEN, JJ.
In an action, inter alia, to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered July 2, 2012, which granted the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff, a home health aide/certified nurse assistant, was terminated from her employment with Sterling Home Care, Inc., and Osborn Home Care (hereinafter together the Sterling defendants), on the ground that she had stolen property belonging to the Sterling defendants' clients. Thereafter, the plaintiff commenced this action alleging, in the first cause of action, that the defendants defamed her when, in response to an inquiry from the New York State Department of Labor (hereinafter the DOL) on the plaintiff's application for unemployment benefits, they indicated that she had been discharged for theft. In the second and third causes of action, the plaintiff alleged that she was also defamed, via “compelled self-publication,” when she disclosed on applications with potential employers that she had been accused, albeit falsely, of theft. Based on the same conduct, the plaintiff claimed in the fourth cause of action that the defendants had intentionally inflicted emotional distress. The defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, and the Supreme Court granted the motion.
The statements the defendants made to the DOL in connection with the plaintiff's application for unemployment benefits were absolutely privileged ( see Rosenberg v. MetLife, Inc., 8 N.Y.3d 359, 365–368, 834 N.Y.S.2d 494, 866 N.E.2d 439;Ashe v. Mohawk Val. Nursing Home, 262 A.D.2d 960, 961, 701 N.Y.S.2d 536;Noble v. Creative Tech. Servs., 126 A.D.2d 611, 613, 511 N.Y.S.2d 51). Therefore, the first cause of action was subject to dismissal for failure to state a cause of action.
The Supreme Court also properly directed the dismissal of the second and third causes of action for failure to state a cause of action, since New York does not recognize defamation via compelled self-publication ( see Wieder v. Chemical Bank, 202 A.D.2d 168, 169–170, 608 N.Y.S.2d 195;see also Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217–229, 837 A.2d 759, 764–770;Gonsalves v. Nissan Motor Corp., 100 Hawai'i 149, 171–173, 58 P.3d 1196, 1218–1220).
Finally, the fourth cause of action fails to allege sufficient facts to constitute extreme and outrageous conduct and, thus, the Supreme Court properly determined that it was subject to dismissal ( see Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699; Clark v. Schuylerville Cent. School Dist., 24 A.D.3d 1162, 1164, 807 N.Y.S.2d 175;LaDuke v. Lyons, 250 A.D.2d 969, 972–973, 673 N.Y.S.2d 240;Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 263, 633 N.Y.S.2d 106;Vardi v. Mutual Life Ins. Co. of N.Y., 136 A.D.2d 453, 456, 523 N.Y.S.2d 95).
Accordingly, the Supreme Court properly granted the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.