[*1]
Hamrick v Perdue
2008 NY Slip Op 52673(U) [23 Misc 3d 1103(A)]
Decided on May 22, 2008
Supreme Court, New York County
Tolub, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 22, 2008
Supreme Court, New York County


Kenneth Hamrick, Plaintiff,

against

Roland P. Perdue, III, INTERIM SENIOR PASTOR, FIFTH AVENUE PRESBYTERIAN CHURCH and THE PRESBYTERY OF NEW YORK CITY, Defendants.




602235/07

Walter B. Tolub, J.



This action for libel arises in connection with an employee's misrepresentation of academic credentials to an employer and the subsequent termination from employment resulting from the discovery of the apparent misrepresentation. By this motion, plaintiff Kenneth Hamrick moves for summary judgment and an inquest on damages. Defendants Roland P. Perdue, III, Interim Senior Pastor ("Purdue"), and Fifth Avenue Presbyterian Church ("FAPC") cross-move for summary judgment dismissing the action. Defendant The Presbytery of New York City ("the Presbytery") advances a similar cross-motion.

Background

Plaintiff is an extensively trained and indisputably talented musician. In 2006, defendant FAPC began a search for an Interim Director of Music. Plaintiff applied for the open position, indicating to FAPC in both his cover e-letter and curriculum vitae that he had earned a doctorate degree from the Eastman School of Music in 1992 and had completed "Post-Doctoral" studies at several prestigious institutions (see, Motion for Summary Judgment, Exhibit A; Notice of Cross-Motion advanced by defendants FAPC and Roland P. Purdue, III, Exhibit C). After multiple communications with FAPC, plaintiff was hired as an at-will employee on November 20, 2006 as FAPC's Interim Director of Music. In March of 2007, plaintiff's duties were expanded to include those of Church organist.

On March 7, 2007, FAPC began inquiry into plaintiff's academic credentials after FAPC's Personnel Committee Chair, Reginald McQuay (McQuay) became aware that Plaintiff had not been awarded a doctorate degree in Musical Arts in Performance and [*2]Literature and was using the title of "Doctor" inappropriately. Further investigation, culminating with verification from the Eastman School of Music,[FN1] confirmed that plaintiff, who apparently had satisfied many of the performance requirements leading to the doctorate degree, was never actually awarded the degree because he had not yet passed the oral portion of his doctoral qualifying examinations (see, Notice of Cross-Motion advanced by defendants FAPC and Roland P. Purdue, III, Exhibits G, I, J).[FN2]

After affording plaintiff an opportunity to explain the apparent academic misrepresentation both by letter, and in at least one meeting with defendant Roland Perdue, III (Perdue), Mr. McQuay, and the Music Search Committee Chair, Jillian Abbott, a decision was made to terminate plaintiff's employment with FAPC. Plaintiff's termination from FAPC was made effective on March 18, 2007. Shortly thereafter, defendant Purdue, in his capacity as Reverend of FAPC, generated two e-mails [FN3] about the change in staff which he then sent to the FAPC staff and FAPC Music Staff/Choir. The text of the e-mails, reads as follows:

Following our second service of worship yesterday, it became my [*3]responsibility to dismiss Mr. Kenneth Hamrick as Interim Choir Director and Organist. The action was the result of a failure to reach satisfaction between the Personnel Committee and Mr. Hamrick with regard to his academic qualifications and the apparent accuracy of the degree listed in his resume.

The Personnel Chair, the Chair of the Committee which recommended Kenneth, and I, as Interim Pastor, met with Kenneth Hamrick earlier this month. The Personnel Committee itself has held two meetings, the last one yesterday after worship, to discuss this matter. The resulting lack of credibility and trust toward Mr. Hamrick caused by this matter has rippled through the Program Staff, the Sanctuary Choir and beyond.

I trust you will hold the music ministry of Fifth Avenue Presbyterian Church, and all of us, in your thoughts and prayers. I am especially grateful to Richard Byrne, member and soloist with the Sanctuary Choir for his assistance at this trying time in securing the service of an organist and director for our immediate and emergency needs. Thus far, Richard has us covered for Tuesday, Wednesday and Thursday of this week.

Sincerely Yours,

Roland P. Perdue, III

Interim Senior Pastor and Head of Staff

(Notice of Cross-Motion advanced by defendants FAPC and Roland P. Purdue, III, Exhibit K).

The following week, FAPC issued the following statement about plaintiff to the Church congregation at large in its weekly newsletter:

Changes in the Music Department

This past Sunday, Mr. Kenneth Hamrick was dismissed as interim choir director and organist. This action was taken with the concurrence of the Personnel Committee after it learned that the representation on his resume that Mr. Hamrick had completed his Doctor of Musical Arts in Performance and Literature was inaccurate. We appreciate Mr. Hamrick's energy and contributions to our music ministry since last December. In the coming weeks, guest choir directors and organists will assist our choir in our upcoming services. Your prayers are sincerely requested for our music ministry, choir members, and our church's staff at this challenging time. We will do everything within our ability to insure that this transition is as seamless as possible during our worship services.

(see, Notice of Motion, Exhibit 1).

The instant action for defamation, sounding exclusively in libel, commenced on July 6, 2007, followed.

Discussion

Motions for summary judgment limit this Court's role to [*4]finding issues, and not resolving them. To succeed, it is therefore incumbent upon the movant to provide the court with admissible evidence sufficient to demonstrate an absence of any triable issues of fact, thereby demonstrating entitlement to judgment as a matter of law (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]. See generally, Barr, Altman, Lipshie, and Gerstman; New York Civil Practice Before Trial, [James Publishing 2007] §37:91-92). The opposing party bears the burden of producing evidentiary proof in admissible form that is sufficient to establish the existence of material issues of fact requiring trial. Mere conclusions, expressions of hope, or unsubstantiated allegations are insufficient for this purpose (Zuckerman v. City of New York, 49 NY2d 557 [1980]), and, if there is any doubt that triable issues of fact exist, summary judgment will not be granted.

Plaintiff's entire claim in this action focuses on two sets of statements which were made by defendants: (1) those which pertain to the accuracy of the representation of plaintiff's educational degree; and (2)and those which bring into question plaintiff's credibility and trust.[FN4] As such, a prima facie cause of action for defamation requires plaintiff to establish that defendants (1) made a false statement in writing; (2) published that statement to a third party without privilege or authorization; and, (3) that the published statement caused damages (see, Salvatore v. Kumar, 45 AD3d 560 [2nd Dept 2007]; Dillon v. City of New York, 261 AD2d 34 [1st Dept 1999]).

Plaintiff however, faces several insurmountable obstacles which ultimately prevent this court from awarding summary judgment in his favor. The largest obstacle by far, is that the statements made by defendants with respect to plaintiff's apparent misrepresentation of his academic credentials are true. The papers submitted by defendant confirm that plaintiff was never actually awarded a Doctor of Musical Arts in Performance and Literature by the Eastman School of Music and as such, did not hold that degree when he applied to FAPC for the position of Interim Director of Music. This simple truth acts as an absolute defense to plaintiff's claims of defamation with respect to the statements made by defendants about plaintiff's misrepresented education credentials (see, Silverman v. Clark, 35 AD3d 1 [*5][2006]).[FN5] It also supports the granting of defendants' collective motions for summary judgment on this issue.

Plaintiff's claim of defamation predicated upon the statement made by defendant Purdue with respect to "the resulting lack of credibility and trust" towards him also fail.[FN6]

In defamation actions, the issue of whether a statement is an actionable fact or a protected opinion is a question of law (Golub v. Enquirer/Star Group, Inc., 89 NY2d 1074 [1997]). "Expressions of opinion, as opposed to assertions of fact, are deemed privileged, and, no matter how offensive, cannot be the subject of an action for defamation" (Mann v. Abel, 10 NY3d 271 [2008]).

The Court of Appeals has noted that distinguishing between opinion and fact often requires examination of multiple factors, including "(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are to such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact" (Mann, 10 NY3d 271, 276 [internal citations omitted]). The content of the communication must be considered as a whole, and evaluated by determining whether a reasonable reader would have believed that the challenged statements were factual, as opposed to mere opinion (Immuno AG v. Moor-Jankowski, 77 NY2d 235 [*6][1991]).

In the instant case, both e-mails created and circulated by defendant Purdue were sent to discuss the circumstances leading up to FAPC's decision to release plaintiff from employment. While isolation of the challenged statement could influence a reasonable reader to believe that the statement was factual, a contextual reading of the entire e-mail supports defendant Purdue's claims that the challenged statement is the opinion of the writer and as such, is not actionable. Under these circumstances, and in the absence of evidentiary proof sufficient to establish material issues of fact requiring trial, summary judgment in favor of the defendants is warranted.

Accordingly, it is

ORDERED that plaintiff's motion for summary judgment and an inquest on damages is denied; and it is further

ORDERED that the motions respectively advanced by defendants Roland Perdue, III, Interim Senior Pastor, Fifth Avenue Presbyterian Church and the Presbytery of New York City are granted and; it is further

ORDERED that the within action is dismissed.

This memorandum opinion constitutes the decision and order of the Court.

Dated:

___________________________

Hon. Walter B. Tolub, J.S.C

Footnotes


Footnote 1: On March 6, 2007, the Eastman School of Music prepared a "Eastman School of Music Enrollment Verification" detailing plaintiff's educational status at the school. The comments section, in entirety, reads as follows: "Kenneth J. Hamrick was enrolled at the Eastman School of Music, University of Rochester between the fall of 1985 and the Spring of 1991 in the Doctor of Musical Arts degree program in Performance and Literature (Organ). No degree was awarded" (Defendant's Cross-Notice of Motion for Summary Judgment, Exhibit G, emphasis added).

Footnote 2: The court notes that plaintiff had been previously cautioned by the Eastman School against using the title "Doctor" prior to conferral of the actual degree. The cautionary postscript, appearing in a 1993 letter from the Eastman School concerning plaintiff's outstanding doctoral requirements, reads in pertinent part as follows:

P.S. I note in the materials you sent concerning "The Glorious Age" that a typographical error has gone undetected. In the paragraph at the bottom of the first page, you are identified as "Dr. Hamrick". It is good to read these things through very carefully."

(Id., Exhibit I).

Footnote 3: The court notes that but for the opening greeting and the recipients, there is no difference between the two letters. For brevity, the court reproduces the text of the e-mails only once.

Footnote 4: The court disregards plaintiff's argument that a third claim for defamation arises out of whether his academic background was a factor in his being hired in the first instance.

Footnote 5: The court further notes that the statements made by defendants concerning plaintiff's academic credentials are also protected by a qualified privilege, which exists because the statement was made to the FAPC Staff, the Music Staff and Choir, and the Congregation. All of these individuals share a common int common interest in that they are entitled to know the about the circumstances surrounding plaintiff's dismissal from FAPC (see, Silverman, 35 AD3d 10, 11 "a qualified privilege exists where the communication is made to persons who share a common interest in the subject matter"; See also Santavicca v. City of Yonkers, 132 AD2d 656, 657 [2nd Dept 1987]) "A qualified privilege arises when a person makes a bona fide communication upon a subject in which he or she has an interest, or a legal, moral or social duty to speak, and the communication is made to a person having a corresponding interest or duty".).

Footnote 6: As noted earlier, the challenged statement, in entirety, is: "The resulting lack of credibility and trust toward Mr. Hamrick caused by this matter has rippled through the Program Staff, the Sanctuary Choir and beyond."