Cusimano v United Health Servs. Hosps., Inc. (2011 NY Slip Op 50268(U))

Cusimano v United Health Servs. Hosps., Inc.

2011 NY Slip Op 50268(U) [30 Misc 3d 1229(A)]

Decided on February 15, 2011

Supreme Court, Broome County

Lebous, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Plaintiff, Jungsil Cusimano, commenced this action seeking damages for slander per se, intentional infliction of emotional distress, prima facie tort and trespass emanating from a workplace dispute.

This Decision & Order addresses two defense motions. Defendants United Health Services Hospitals, Inc. and Linda Sebesta seek summary judgment dismissing the action. By way of separate motion, defendants Robert Hayford and Kelly Marshall also seek summary judgment. Plaintiff opposes both motions in their entireties.

The court heard oral argument of counsel on December 17th, 2010. Counsel was granted permission to submit post-argument submissions the last of which was received by the court on January 11, 2011.

During all times pertinent herein, plaintiff, a physician, was the medical director and sole physician at the Clinton Street Family Care Center located in Binghamton, New York (hereinafter the "Clinton Facility"). Plaintiff was employed by United Medical Associates.

Defendant United Health Services Hospitals, Inc. (hereinafter "UHSH") is a not-for-profit corporation which operates medical facilities in Broome County. UHSH employs a few physicians in administrative positions and is responsible for providing the administration and support staff for UHSH run facilities including a registered nurse, medical office assistants (hereinafter sometimes "MAOs") and an office administrator called a unit coordinator.

Non-party United Medical Associates is a professional corporation of physicians which operates medical facilities in Broome County, some of which are run jointly with UHSH and others independently therefrom. UMA is responsible for physician supervision. [*2]

On January 1, 2006, UMA and UHSH entered into an agreement by which UMA would provide, at UHSH facilities, a variety of clinical medical services which need not be outlined here (hereinafter "the Agreement"). The Clinton Facility is located in a one-story building owned by UHSH and is one of the primary care facilities operated pursuant to said Agreement.

With respect to the individually named defendants, all are employees of UHSH. Defendant Hayford is the UHSH Manager of Ambulatory Services which includes supervision of the non-medical operations of the Clinton Facility. Defendant Sebesta is UHSH's Clinical Coordinator having oversight of the nursing staff at the Clinton Facility, as well as other locations. Defendant Marshall is a registered nurse assigned to the Clinton Facility.

B.THE UNDERLYING EVENTS

This litigation arises from a series of events at the Clinton Facility occurring in November 2006. For purposes of this motion, the court has adopted plaintiff's version of events, a review of which follows.

In early November 2006, non-party Anna Santiago was the unit coordinator at the Clinton Facility. Plaintiff, as medical director at the Clinton Facility, worked with Ms. Santiago and apparently held her in high regard. For reasons not relevant here, defendant Hayford started disciplinary actions against Ms. Santiago. Upon learning of the disciplinary actions against Ms. Santiago, plaintiff wrote to Matthew Salanger, president and CEO of UHSH, on November 10, 2006 in which she strongly objected to the disciplinary actions against Ms. Santiago and in which she described UHSH's disciplinary process against Ms. Santiago as a "so-called investigation by the Keystone Cops" (Plaintiff's Ex 3).

On November 15, 2006, plaintiff sent a separate e-mail to defendant Hayford regarding a separate employee matter. In this correspondence, plaintiff complained about Kelly Marshall who had been recently hired as a registered nurse for the Clinton Facility. Plaintiff complained about Marshall's inability to keep up with the workload and her "negative influence" in the office (Pl Ex 4). Plaintiff suggested in her e-mail that UHSH terminate defendant Marshall upon the end of Marshall's probationary employment period on December 11, 2006.

The next day, November 16, 2006, defendants Hayford and Sebesta arrived at the Clinton Facility. Plaintiff alleges this Hayford and Sebesta visit was in retaliation for her e-mail regarding Ms. Santiago, while Hayford and Sebesta assert their visit was solely to follow-up on plaintiff's complaint against Marshall. In any event, on November 16, 2006, Hayford and Sebesta personally met with Marshall to advise her of plaintiff's complaints. Marshall testified in her deposition that she was upset by the news of plaintiff's dissatisfaction with her job performance.

This meeting on November 16, 2006 between Hayford, Sebesta and Marshall was held in the Clinton Facility conference/break room. During the meeting, Hayford and Sebesta noticed that there were prescription medication samples of Zegerid on the lunch table which they deemed [*3]a violation of UHSH policy. Hayford and Sebesta also claim to have discovered a second violation during this time, namely boxes of patient medical records stored in a utility closet.^[FN1] Both Hayford and Sebesta attributed these violations to Ms. Santiago who was already the subject of disciplinary action as noted above. These violations were reported within UHSH that same afternoon and that evening Ms. Santiago was advised that she was on administrative leave, effective immediately, and should not report to the Clinton Facility the next day.

On November 17, 2006, Hayford and Sebesta returned to the Clinton Facility to inform the support staff about Santiago's administrative leave.^[FN2] Also present in the office that day during this return visit were defendant Marshall and two medical office assistants ("MAOs"), April Fredenburg and Shari Sherman Paulhamus. Plaintiff was not on site that day as she had previously planned a vacation day, although Hayford and Sebesta aver they were unaware of plaintiff's planned day off. In any event, Hayford and Sebesta and Marshall were discussing the unsecured sample medications found the previous day when Marshall advised Sebesta that plaintiff also stored drug samples in her office which she believed included narcotics.^[FN3]

It is undisputed that Hayford, Sebesta, and Marshall entered plaintiff's unlocked office and looked through her desk and unlocked file cabinet.^[FN4] It is further undisputed that Hayford and Sebesta found in plaintiff's office and confiscated 114 packets (containing 798 tablets) of Provigil, a controlled substance. Additionally, Hayford and Sebesta made a list of the non-controlled substances that were found, but did not confiscate those medications. The distinction and confusion between the terms "controlled substance" and "narcotics" will be discussed below.

Also, about this time, one of the MAOs working at the Clinton Facility while this search was being conducted (either Fredenburg or Sherman Paulhamus) called Ms. Santiago at home (the unit coordinator serving administrative leave) to tell her that plaintiff's office was being searched. Ms. Santiago in turned called plaintiff. Plaintiff then called her husband, a local attorney. News of this search fairly quickly reached top UHSH officials who were gathered for a meeting at Wilson Hospital. There is no evidence that any of these officials made any effort to [*4]stop the search - assuming it was still ongoing - but they recall dealing with the aftermath.

In the aftermath of this search, it is undisputed that plaintiff was horrified at the search of her office and expressed her dissatisfaction to UHSH officials. UHSH attempted to appease plaintiff by asking her to return to the Clinton Facility, agreeing that Hayford and Sebesta would be relieved of oversight duties at the Clinton Facility, and agreeing that a new registered nurse would be hired. Plaintiff returned to the Clinton Facility for about a week, but then stopped coming in although still receiving full salary. Thereafter, UHSH tried to relocate plaintiff by refurbishing offices at a different location. Plaintiff worked at the new location from mid-February 2007 until the summer of 2007.

On June 1, 2007, plaintiff commenced this lawsuit upon the filing of a Summons & Complaint. Thereafter, according to plaintiff, she was given an ultimatum to either discontinue this action or be terminated. Plaintiff refused to discontinue this action. On July 27, 2007 UMA terminated her employment without cause.^[FN5]

C.THE ALLEGED DEFAMATORY STATEMENTS

Plaintiff asserts that a variety of alleged defamatory remarks were made by defendants Marshall, Hayford and/or Sebesta to the medical office assistants (MOAs), as well as the medical community at large.

1.Statements to office staff

MAOs Fredenburg and/or Paulhamus gave deposition testimony that on November 17, 2006, while the office search was being conducted, that Marshall said to them:

MAOs Fredenburg and/or Paulhamus also testified that Hayford and Sebesta said to them:

The court notes that these statements are taken from plaintiff's complaint (¶¶ 51 & 52) and counsel's affirmation in opposition (¶¶ 65 & 66). [*5]

According to plaintiff, in the weeks and months that followed, many in the medical community reported hearing allegations connecting plaintiff to narcotics. There are allegations that various medical providers such as pharmaceutical representatives questioned staff about the link, if any, between plaintiff and narcotics. Ms. Fredenburg also reported a phone call inquiring about the link, if any, between plaintiff and narcotics (Fredenburg Affidavit, ¶ 17). Mr. Carrigg, UHSH CEO, also testified that a patient had called the Clinton Facility inquiring whether plaintiff was in drug rehabilitation.

D.THE COMPLAINT

The complaint alleges five causes of action. The first two causes of action are described in terms of slander per se based upon alleged defamatory remarks made by Marshall, Hayford and Sebesta and which were disseminated among the local medical community and among plaintiff's patients. The third cause of action asserts Intentional Infliction of Emotional Distress resulting from the search of plaintiff's office, as well as the alleged defamatory remarks. The fourth cause of action alleges Prima Facie Tort based upon the search of plaintiff's office and the alleged defamatory remarks. The fifth cause of action alleges trespass.

Defamation "[i]s defined as the making of a false statement which tends to 'expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society' [citations omitted]" (Foster v Churchill, 87 NY2d 744, 751 [1996]). Generally, the elements of a defamation claim are "[a] false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se [citation omitted]" (Dillon v City of New York, 261 AD2d 34, 38 [1st Dept 1999]). The term "defamation" includes oral statements (slander) and written statements (libel).

Slander is not actionable unless the plaintiff suffers special damage (Aronson v Wiersma, 65 NY2d 592, 594 [1985]). A slander claim that does not allege special damages, as here, is not sustainable unless it falls within one of "[t]he four established exceptions (collectively 'slander per se')...of statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a women [citations omitted]" (Liberman v Gelstein, 80 NY2d 429, 435 [1992]).

Plaintiff argues the alleged defamatory statements were slanderous per se under the first two exceptions noted above, namely: (i) they charge plaintiff with a serious crime; and (ii) they tend to injure plaintiff in her trade, business or profession. Thus, plaintiff argues that special damages need not be alleged or proven. [*6]

First, the court addresses plaintiff's argument that the alleged defamatory statements charge her with a serious crime. A distinction has been made between serious and minor offenses. Serious crimes that may constitute slander per se include murder, burglary, larceny, arson, rape, kidnaping (Id). Here, the alleged defamatory statements at issue include the statements that "narcotics have been found in Dr. Cusimano' office" and "Dr. Cusimano would likely be arrested and fired for narcotics" (Paniccia Affirmation, ¶ ¶ 65-66). Initially, while the court acknowledges that neither these or any of the other statements made charge plaintiff with a specific crime, said statements clearly imply a felony level crime, namely plaintiff's use or sale of drugs (Tourge v City of Albany, 285 AD2d 785, 786 [3rd Dept 2001]). As such, to the extent that the first two causes of action are premised on the serious crime exception, the court finds that plaintiff did not need to plead special damages.

Plaintiff also asserts the alleged defamatory statements were slanderous per se because they tend to injure plaintiff in her trade, business or profession and thus she does not need to plead special damages. The Court of Appeals has stated that "[t]o be actionable as words that tend to injure another in his or her profession, the challenged statement must be more than a general reflection upon [plaintiff's] character or qualities. Rather, the statement must reflect on her performance or be incompatible with the proper conduct of her business [citations omitted]" (Golub v Enquirer/Star Group, 89 NY2d 1074, 1076 [1997]). Defendants argue that none of the alleged statements, on their face, address plaintiff's ability to practice medicine or her competence as a physician.

The court disagrees. In this court's view the alleged defamatory statements - alleging plaintiff's use or sale of narcotics - directly relate to plaintiff's fitness as a physician. Physicians are duty bound by oath and law to prescribe narcotics and controlled substances only to treat and heal patients. These alleged defamatory statements charge plaintiff with improper, even illegal, use or sale of these substances - conduct that is clearly incompatible with the proper performance of the duties of a physician.

With respect to defendants' attempts to invoke the extrinsic evidence rule, the court finds this line of cases to be inapplicable. Case law states that "[s]tatements cannot be slanderous per se if reference to extrinsic facts is necessary to give them a defamatory import [citation omitted]" (Aronson, 65 NY2d at 594-595). Here, the court finds that the very nature of these alleged defamatory statements is such that the content, standing alone, is sufficient to give them a defamatory import without resort to extrinsic facts.

Defendants' next argue that the single instance rule precludes a finding that these statements are slanderous per se. Again, the court disagrees. The single instance rule is applicable when a publication charges a professional person with a single mistake or error in judgment (Larson v Albany Med. Ctr., 252 AD2d 936, 939 [3rd Dept 1998]; D'Agrosa v Newsday, Inc., 158 AD2d 229 [2nd Dept 1990]; Bowes v Magna Concepts, 166 AD2d 347 [1st Dept 1990]). Here, the court finds that the nature of the alleged defamatory statements implies a course of conduct by plaintiff that prevents application of the single instance rule. [*7]

For the reasons stated above, the court finds that the alleged defamatory statements were slanderous per se because they charge plaintiff with a serious crime and/or tend to injure plaintiff in her trade, business or profession. Consequently, plaintiff did not need to plead special damages and the court may turn to the next issue.

The next inquiry is whether defendants are entitled to invoke the defense of qualified privilege. A qualified privilege arises whenever "[a] person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest [citations omitted]" (Grier v Johnson, 232 AD2d 846 [3rd Dept 1996]; Shapiro v Health Ins. Plan of Greater NY, 7 NY2d 56, 60 [1959]). The theory underlying this privilege is that "[s]o long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded" (Liberman v Gelstein, 80 NY2d 429, 437 [1992]). However, the qualified privilege may be destroyed if it can be established that the statement was made out of express malice or actual ill-will (Id.; Demas v Levitsky, 291 AD2d 653, 661 [3rd Dept 2002], lv dismissed 98 NY2d 728 [2002]).

Initially, it is defendants' burden to submit competent evidence establishing the alleged defamatory communications were made by one person to another upon a subject in which both have an interest (Liberman, 80 NY2d at 437). Defendants have clearly met their burden. To the extent that the alleged statements were made by UHSH employees to other UHSH employees, all had direct or indirect responsibilities within the Clinton Street facility. As such, each of these persons, individually and on behalf of UHSH, had a common interest in knowing information regarding plaintiff as the only physician on staff at that facility, whether drugs were being stored by plaintiff in violation of UHSH, federal and/or state law, whether plaintiff was using or selling narcotics or controlled substances, and/or whether plaintiff would be terminated or arrested.^[FN6]

Thus, the burden shifts to plaintiff to demonstrate that defendants were motivated with malice, either under the constitutional standard (knowledge of falsity or reckless disregard for truth or falsity) or the common-law standard (meaning spite or ill will) (Liberman 80 NY2d at 437-438). Plaintiff simply argues that the statements were "so undeniably false as to require that summary judgment be denied" (Plaintiff's Memorandum of Law, p 2).

The court finds that plaintiff has failed to submit any evidence of malice under the constitutional standard. There is no proof that defendants Hayford, Sebesta and/or Marshall knew any of their statements to be untruthful. As noted above, the court finds that each of these defendants had an interest in the information being exchanged and in expressing their suspicions and/or concerns. Moreover, plaintiff's suspicions that Marshall may have been motivated as a [*8]disgruntled employee (in response to plaintiff's request she be fired) is insufficient to raise a triable issue (Liberman, 80 NY2d at 438-439).

Nor has plaintiff submitted any evidence of malice under the common-law definition. Plaintiff's suspicions that Marshall or others may have harbored ill will toward her are insufficient as a matter of law. "A triable issue is raised only if a jury could reasonably conclude that 'malice was the one and only cause for the publication' [citation omitted]" which is simply not the case here given the common interest discussed above" (Liberman, 80 NY2d at 439 [emphasis added). Consequently, the court finds that plaintiff has failed to raise triable issues of fact on malice and, as such, the statements are protected by qualified privilege.

Additionally, the court also agrees with defense counsel that the allegedly defamatory statements were non-actionable opinion. The factors a court must consider in determining whether a statement constitutes factual assertions or non-actionable opinion include:

(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; (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal...readers or listeners that what is being read or heard is likely to be an opinion, not fact [citations omitted].

(Clark v Schuylerville Cent. School Dist., 24 AD3d 1162, 1163 [3rd Dept 2005]).

The court should examine the content of the statements, together with the context in which the statements were made (Brian v Richardson, 87 NY2d 46, 51 [1995]). As noted above, the court finds that each of these defendants had an interest in the information being exchanged and in expressing their suspicions and/or concerns. In this court's view, in a small office such as here, the staff was engaging in personal surmise in reaction to the unusual activities around them. In such a context, the court finds that the allegedly defamatory statements were, at worse, expressions of opinion.

Finally, the court notes that it is well-settled that it is a complete defense to a defamation action if the statements at issue were "substantially true" (Proskin v Hearst Corp., 14 AD3d 782, 783 [3rd Dept 2005]). Here, the court finds that the essence of the statements at issue was substantially true, namely that unsecured medications were found in plaintiff's office. The court is not impressed by plaintiff's arguments regarding the technical differences between a narcotic and controlled substance. All the deposition and affidavits reveal that even within the medical community the terms are used interchangeably and often confused. Although the use of the term "narcotic" may have been technically incorrect, the essence of the statement may be construed as meaning that medications were not properly secured in plaintiff's office. Thus, because the statements at issue were "substantially true", defendants are entitled to summary judgment on plaintiff's first two causes of action.

Consequently, on separate and distinct grounds, the court finds that defendants are [*9]

entitled to invoke the defense of qualified privilege due to the lack of malice as a matter of law, that the alleged statements were non-actionable opinion, as well as being substantially true. For all these reasons, the court will grant the defense motions for summary judgment on plaintiff's first two causes of action.

II.INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:

The tort of intentional infliction of emotional distress has four elements, namely: "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress" (Howell v New York Post Co., 81 NY2d 115, 121 [1993]). The first element of extreme and outrageous conduct is, in the first instance, an issue of law for the court to determine (Howell, 81 NY2d at 121). To that end, it is well-settled that a showing of extreme and outrageous conduct often contains proof of "[a] longstanding campaign of deliberate, systematic and malicious harassment of the plaintiff [citations omitted]" (Seltzer v Bayer, 272 AD2d 263, 264-265 [1st Dept 2000]). By comparison, "[c]onduct that causes inconvenience and embarrassment or places a person in an uncomfortable situation for a protracted time is not sufficient [citations omitted]" (Associates First Capital v Crabill, 51 AD3d 1186, 1188 [3rd Dept 2008], lv denied 11 NY3d 702 [2008]).

Plaintiff argues that she had a reasonable expectation of privacy in her office so that any violation of that expectation amounts to extreme and outrageous conduct. Quite simply, plaintiff's subjective expectation of privacy in her office space in no way transforms the conduct at issue here into extreme and outrageous conduct or even raises a question of fact in that regard. UHSH had every right, if not obligation, to investigate reports of improperly stored pharmaceuticals. The cases cited by plaintiff involve searches by governmental employers and are inapplicable here. Consequently, defendants' motions to dismiss the cause of action for intentional infliction of emotional distress are granted.

III.PRIMA FACIE TORT:FOURTH CAUSE OF ACTION

To state a claim for prima facie tort, a plaintiff must plead: "(1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful [citations omitted]" (Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985]). Additionally, "[t]here is no recovery in prima facie tort unless malevolence is the sole motive for defendant's otherwise lawful act or, in [other words], unless defendant acts from 'disinterested malevolence' [citations omitted]" (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333 [1983]). Finally, once a traditional tort is established, the cause of action for prima facie tort disappears (Curiano v Suozzi, 63 NY2d 113, 117 [1984]).

The court finds that defendants' conduct did not constitute intentional harm without any excuse or justification since UHSH had the right to investigate reports of improperly stored [*10]pharmaceuticals on premises it owned. Moreover, plaintiff is unable to establish either malevolence and/or plead any special damages as is required to support a prima facie tort cause of action (Freihofer, 65 NY2d at 143). Consequently, defendants are entitled to summary judgment on plaintiff's prima facie tort cause of action.

IV.TRESPASS:FIFTH CAUSE OF ACTION

Trespass is traditionally defined as entering upon the land of another without permission (Golonka v Plaza at Latham, 270 AD2d 667, 669 [3rd Dept 2000]). Here, it is undisputed that UHSH owned the building within which plaintiff's office was located. Plaintiff argues that as a person entitled to possession she may properly assert a trespass claim against the owner of said premises (Steinfeld v Morris, 258 AD 228 [1st Dept 1939]). In the first instance, while the court agrees that trespass may run in favor of a person in possession, the court finds that plaintiff's claim of trespass, be it by possession or otherwise, fails as a matter of law.

The Agreement covering these premises runs between UHSH and UMA. In the first instance, the Agreement is not a lease of the premises between UHSH and UMA, but rather an agreement in which UMA would provide, at UHSH facilities, a variety of clinical medical services. In any event, plaintiff herself is not a party to said Agreement and, as such, individually has no right of possession to the office. Even assuming, arguendo, that plaintiff individually was entitled to possession, no part of said Agreement gives plaintiff any exclusive right to use her office. At most, plaintiff had a revocable license to use the office which did not give her the possessory interest necessary to prevail on a trespass action (Todd v Krolick, 96 AD2d 695 [3rd Dept 1983], affd 62 NY2d 836 [1984]). In view of the foregoing, plaintiff's argument that the Agreement did not contain any reservation in UHSH of the right of possession is without merit. As noted by UHSH counsel in oral argument, no such reservation was warranted because those rights were never contracted away. Finally, with respect to plaintiff's argument that UHSH's right of possession was "non existent" (Plaintiff's Memorandum of Law, p 21), the court finds this assertion is totally without basis in law or fact. In view of the foregoing, the court finds that plaintiff's fifth cause of action fails as a matter of law.

CONCLUSIONIn view of the foregoing, the defense motions are granted in their entireties and plaintiff's complaint is dismissed.