In an action to recover damages for defamation, intentional infliction of emotional distress (IIED), wrongful termination and negligent supervision, plaintiff Richard Fields moves for summary judgment in his favor (motion sequence 013). In motion sequence 014, defendant Faculty Student Association of Westchester Community College, Inc. (hereinafter FSA) moves pursuant to CPLR 3212, for an order granting summary judgment dismissing plaintiff's second amended verified complaint (SAVC). In motion sequence 015, defendants The County of Westchester, Westchester Community College, Patrick Hennessey, and John Flynn (together, the County defendants), move pursuant to CPLR 3212, for an order granting summary judgment dismissing the SVAC. Motion sequence numbers 013, 014 and 015 are hereby consolidated for disposition.

1. Notice of Motion/Affirmation in Support of Richard Fields/Statement of Material Facts/Exhibits A-I/Memorandum of Law

2. FSA's Response to Statement of Material Facts/ Memorandum of Law in Opposition

3. The County Defendants' Response to Statement of Material Facts/ Memorandum of Law in Opposition

1. FSA's Notice of Motion/Affirmation in Support of John M. Flannery, Esq./Exhibits A-L/ Statement of Material Facts/ Memorandum of Law in Support

2. Plaintiff's Response to Statement of Material Facts/Exhibits 1-6

3. Reply Affirmation of John A. Vitagliano, Esq./Exhibit M/Response to Statement of Material Facts/Memorandum of Law in Reply

1. The County Defendants' Notice of Motion/Statement of Material Facts/Memorandum of Law/Affirmation in Support of Joseph Slaughter, Esq./Exhibits A-K

2. Letter to Court

3. Plaintiff's Memorandum of Law in Opposition

4. Reply memorandum of Law

The Court assumes the familiarity with the record. The pertinent background for the instant decision is taken from this Court's recent decisions on the matter and is set forth as follows: This defamation action arises from a transcript scandal among the men's basketball team at Westchester Community College ('WCC') and a series of articles published in The Journal News. Between 2010 and 2014, plaintiff was the assistant men's basketball coach at [*2]WCC in Valhalla, New York. The head basketball coach at the time was defendant Tyrone Mushatt (Mushatt). On October 16, 2014, Mushatt informed plaintiff that they were both suspended from coaching and were prohibited from entering the school's campus due to an investigation into allegations of transcript fraud. Mushatt then informed Larry Massaroni, the WCC Athletic Director, and Dean Donald Weigand, Vice President of WCC, that the plaintiff admitted altering a transcript and sending the fraudulent transcript to another academic institution. Based upon this information provided by Mushatt, plaintiff was terminated from his employment on October 16, 2014. Weigand and John F.M. Flynn, the interim President of WCC, informed Patrick Hennessey, the WCC spokesman, of the information provided by Mushatt, i.e. that plaintiff admitted to altering a transcript. Hennessey reported the admission to the press.

On October 17, 2014, the New York State Inspector General's Office began investigating the transcript scandal and instructed WCC staff to cease any investigation into the matter. The investigation by the Inspector General's office and thereafter, the Westchester County District Attorney's Office, resulted in the suspension of the basketball program at WCC, the termination of the entire coaching staff, and ultimately the arrest of Mushatt. On February 28, 2017, Mushatt plead guilty to criminal possession of a forged instrument in the second degree and conspiracy in the fifth degree before the Westchester County Court (Warhit, J.).

Plaintiff commenced this action seeking damages for defamation and wrongful termination against, inter alia, The County of Westchester, Westchester Community College, and various officers of Westchester Community College in their individual capacity and in their capacity as President (Joseph N. Hankin), Chairman of the Board of Trustees (David Swope), Spokesman and Director of College, Community Relations (Patrick Hennessey), and Interim President (John F. M. Flynn). Plaintiff also commenced this action against Gannett Satellite Information Network, LLC (Gannett) which publishes The Journal News and several of its staff writers and reporters.^[FN1] In an order dated January 23, 2017, in pertinent part, this Court, inter alia, granted the motion of the Journal News and its individual defendants to dismiss the complaint, pursuant to CPLR 3211, insofar as asserted against them. Thereafter, discovery ensued.

By order to show cause, plaintiff moved to amend the complaint to add FSA as a defendant asserting that during the course of discovery, plaintiff learned that he was employed by FSA. In an order dated July 18, 2018, this Court granted the plaintiff's motion for leave to amend the complaint. The Court also held that the proposed second amended complaint was deemed served with the omission of paragraphs 158 and 159 which improperly attempted to raise new allegations of negligence against the County defendants.

A trial readiness order was issued by the Supreme Court, Westchester County (Lefkowitz, J.) on May 1, 2018, and the note of issue was filed on May 3, 2018.

The Court notes that a liability trial in the matter of Keith Thomas v County of Westchester, et al, was previously held before this Court and a jury in 2020. In brief, plaintiff [*3]Keith Thomas attended WCC and played on the men's basketball team under Mushatt. Thomas was offered a scholarship to play NCAA Division I basketball at St. John's University for the 2014-2015 season. In October 2014, it was revealed that Thomas' admission to St. John's and eligibility to play Division I basketball was based upon a fraudulent WCC transcript. After the transcript scandal was exposed, six days before the first game of the season, Thomas' scholarship and admission to St. John's University was revoked. Thomas then commenced an action seeking damages against the County of Westchester and FSA.

The County of Westchester, WCC and the individual defendants moved for summary judgment dismissing the SVAC. As relevant here, the County defendants argued that plaintiff failed to demonstrate a prima facie case for defamation against the individually named defendants in their individual and personal capacity. According to the County defendants, they were entitled to qualified immunity. They alleged that, in reporting the information to the press, they relied on information provided by Mushatt. They argued that although this information was subsequently disproven, it was believed to be true and based on that belief, they decided to terminate plaintiff's employment and remove him from campus. They asserted that such action and the statement to the press were made with the good faith belief that they were provided with credible and truthful information and was not done with malice or ill will toward plaintiff. They argued that there is no evidence that they were personally involved in any aspect of the investigation and determination to terminate plaintiff's employment.

In opposition, plaintiff argued that the defamatory statements were not entitled to qualified immunity as they were made with reckless disregard and malice. Plaintiff also argued that the County defendants had prior knowledge or suspicion of altered transcripts. Plaintiff refers to an email from October 2013 which surfaced setting forth allegations of previous fraudulent transcripts by Mushatt. Plaintiff argued that in response to this information, the County defendants failed to conduct an investigation and merely relied upon Mushatt's denial. Plaintiff claimed that there was no judicial, quasi-judicial, or administrative proceeding which he was entitled to.

By decision and order dated November 8, 2018, this Court held that here, the County defendants established that the alleged defamatory statements were made in an official capacity by and to persons with corresponding interests in the subject matter. However, plaintiff raised issues of fact as to whether the alleged defamatory statements were motivated by ill will or actual malice and therefore not entitled to qualified privilege. The County defendants relied solely on Mushatt's assertion that plaintiff admitted to altering the transcripts even though they had knowledge of previous allegations of fraudulent transcripts against Mushatt. The County defendants then reported this information to the press without speaking to plaintiff or without conducting their own investigation.

For the same reason, the County defendants failed to demonstrate entitlement to summary judgment dismissing the cause of action for IIED as issues of fact exist as to whether any of the individual defendants acted in an extreme and outrageous manner.

The County defendants also argued that they were entitled to summary judgment dismissing plaintiff's claim for wrongful termination as plaintiff was an at-will employee. However, this Court held that the County defendants failed to demonstrate, as a matter of law, that plaintiff was an at-will employee. The Court also held that the County defendants demonstrated entitlement to summary judgment dismissing any request for punitive damages [*4]against the County and Westchester Community College. However, the plaintiff's request for punitive damages could not be precluded as a matter of law against the individual County defendants due to their alleged improper malicious conduct.

Finally, this Court held that the County cannot be liable under a theory of respondeat superior for the actions of Mushatt as he acted outside the scope of his employment and with purely personal motives at the time he informed the defendants that plaintiff admitted to altering the transcript. Nevertheless, the County could be held liable for the actions of the individual County defendants.

In sum, by decision and order dated November 8, 2018, this Court granted the County defendants' motion, solely to the extent that the claim for punitive damages against the County of Westchester and Westchester Community College was dismissed and any liability under the theory of respondeat superior on behalf of the defendant Tyrone Mushatt was dismissed.

The SAVC was filed on July 23, 2018, alleging a negligent supervision claim against FSA. In motion sequence 005, FSA moved to dismiss on the basis that the claims are barred by the three-year statute of limitations applicable to negligence claims. The plaintiff was terminated on October 16, 2014 but did not serve the complaint on FSA, his employer, until September 10, 2018. According to FSA, there was no reason for plaintiff to believe that either he or Mushatt were employed by WCC, or that FSA hid the fact that it was his employer.

In opposition, plaintiff affirmed that he did not know in 2014 that he had been employed by FSA. He did not receive any documents such as the "FSA Code of Conduct and Business Ethics," and, since he never filled out a formal application to be hired as the assistant coach, he never received any documents informing him that FSA was his employer. Although plaintiff did receive checks, the checks said Westchester Community College on them, so he believed that they were issued by WCC. In support, plaintiff submitted his deposition testimony wherein he testified that no one from WCC ever informed him that his employer was FSA. He never had contact with anyone from FSA. He also thought that Mushatt, his immediate supervisor, was employed by WCC. According to plaintiff, FSA and WCC never advised him of the relationship between the parties; no contract, agreement or charter was given to him setting forth the duties and responsibilities towards one another. Plaintiff claimed that FSA has not submitted any documentation showing that plaintiff was aware that FSA was his employer.

Plaintiff also noted that Mushatt was referred to as the head coach of the WCC men's basketball team. Plaintiff was referred to as the assistant coach for the Westchester Community College Men's basketball team. Furthermore, plaintiff's termination letter is not on FSA stationery, nor is FSA mentioned.

Finally, plaintiff alleged that FSA and WCC are united in interest and that the relation back doctrine should apply. By using "FSA of WCC," it appears that the organizations are affiliated with one another. He argued that both claims arose out of the same conduct, transaction and occurrence and the defamation arose when plaintiff was falsely accused of criminal conduct.

By decision and order dated January 18, 2024, this Court denied FSA's motion. This Court held that plaintiff established the elements of the relation back doctrine and that the claims asserted in the SAVC relate back to the date of the original pleading. FSA's alternative requested relief to sever the claims, was also denied.

Plaintiff now moves for summary judgment on his claims for defamation, IIED and wrongful termination. In support of his motion, plaintiff does not cite to any caselaw beyond the boilerplate summary judgment standard. Plaintiff argues that he was a contract employee when he was wrongfully terminated. Plaintiff does not submit any contract in support of his motion. He affirms, in pertinent part, that he signed a "bunch of forms" when he commenced his employment. However, some of the forms, when shown to him during his deposition, allegedly had his forged signature. Plaintiff cites to the testimony of John M. Flynn, interim President, who testified that "[a] person like Mr. Fields, as I understand it, works on a semester by semester contract. So you sign up at the beginning and you are paid for a certain number of hours over a period of time. I believe they terminated his current contract because it was the middle of the school year."

Plaintiff describes the October 2013 email received by the State University of New York, who forwarded it to Weigand and others. The anonymous email was sent from "Ron Mexico," and states the following, in pertinent part:

"It has come to my attention that the basketball Coach at Westchester Community College in Valhalla NY has been committing fraud, cheating NJCAA and ripping of the state of New York in tuition monies for years. He has been changing the grades of some of his star players giving them passing grades, adding credits for classes never taken. Coach Tyrone Mushatt the head basketball Coach has even fixed, or tampered with the schools official transcripts of some of his players in the past. He had done this in an effort to have non qualified players to play in games, to send players off to Div l or Div 2 4yrs schools. All because he wants to put a feather in his cap of sending a player to Div 1."

Weigand testified that he had performed an investigation into the email and that "there was no validity of the allegation at the time."

Plaintiff claims that "there is no doubt" defendants are guilty of defamation. Plaintiff reiterates that no one from FSA or WCC ever questioned him about tampering with transcripts, and just took Mushatt's word that plaintiff was the one who did so. Defendants then reported it to the press and it was aired on television without verification Plaintiff claims that, as a result of defendants' actions, his reputation was tarnished, he developed a heart condition and also needed to receive psychiatric treatment.

FSA spends the majority of its motion papers arguing that the relation back doctrine does not apply and that the statute of limitations has expired. It proffers the same arguments as it did in support of motion sequence five. For example, FSA argues that plaintiff knew or should have known that he was employed by FSA.

FSA also argues that it cannot be held liable for negligent supervision as it did not know, or have any reason to know, that Mushatt would act criminally. It adds that it cannot be held vicariously liable for Mushatt's actions as it had no reason to expect that Mushatt would behave the way that he did and that the actions were committed for personal motives unrelated to the furtherance of FSA's business.

FSA adopts the reasons provided by the County defendants in support of dismissing the defamation claim. It also argues that plaintiff himself testified that FSA did not engage in [*5]defamatory conduct.

FSA argues that without evidence that plaintiff had a contract with FSA that explicitly limited its ability to terminate him, it is presumed that he is an at will employee who can be terminated at any time. As a result, plaintiff cannot maintain a cause of action for wrongful termination. FSA also argues that plaintiff's claim fails as a matter of law, as New York does not recognize a claim for wrongful discharge.

The County defendants proffer the same arguments in support of their summary judgment motion as they did in support of their prior summary judgment motion. They submit over fifteen pages in support of dismissing the defamation claim. For example, they argue that they are entitled to absolute immunity and the defamation claim must be dismissed. The County defendants also seek to dismiss any alternative claims, such as IIED and wrongful termination.

"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-Stephenson v Waisman, 39 AD3d 303, 306 (1st Dept 2007). The movant's burden is "heavy," and "on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party." William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 (2013) (internal quotation marks and citation omitted). Upon proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact." People v Grasso, 50 AD3d 535, 545 (1st Dept 2008) (internal quotation marks and citation omitted). "A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility." Ruiz v Griffin, 71 AD3d 1112, 1115 (2d Dept 2010) (internal quotation marks and citation omitted).

It is well settled that a party seeking summary judgment has the burden of tendering evidentiary proof in admissible form to demonstrate the absence of material issues of fact. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Winegrad v NY Univ. Med. Ctr., 64 NY2d 851, 853 (1986).

Here, plaintiff's motion papers are insufficient for the Court to render a determination on summary judgment in plaintiff's favor. For instance, plaintiff does not provide caselaw in support of the causes of action or apply the law to the facts. The submitted documentation, which is mostly hearsay, is missing pages and is difficult to read.

Accordingly, as plaintiff failed to meet his burden on the motion, it is denied.

FSA argues that the statute of limitations had run before plaintiff joined FSA to this action and, as a result, the complaint must be dismissed. In a prior decision and order, this Court already rejected FSA's argument and held that plaintiff established the elements of the relation back doctrine and that the claims asserted in the SAVC relate back to the date of the original pleading. The Court will not re-examine these issues, which are now the law of the case, as the doctrine of law of the case "forecloses reexamination of an issue previously determined . . . ." [*6]Fishon v Richmond Univ. Med. Ctr., 171 AD3d 873, 874 (2d Dept 2019).

"In instances where an employee cannot be held vicariously liable for its employee's torts, the employer can still be held liable under theories of negligent hiring, negligent retention, and negligent supervision However, a necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury." Sato v Correa, 272 AD2d 389, 389 (2d Dept 2000) (internal quotation marks omitted). This Court already determined that the County defendants cannot be liable under a theory of respondeat superior for the actions of Mushatt and the same is true for FSA.

However, the SAVC also alleges that FSA failed to supervise and/or oversee the actions of the head coach, Mushatt, thereby constituting negligence and wanton, reckless disregard of plaintiff's rights resulting in Mushatt being able to forge various transcripts and allocate the commission of the crimes to plaintiff. The SVAC also alleges that FSA knew or should have known of potential transcript forgeries in or about October 2013 and failed to take the necessary, proper and appropriate steps, or any other steps to prevent the false allegations lodged against plaintiff and the resulting injuries.

In support of the motion, FSA argues that the negligent supervision clam must fail, as it had no reason to ever anticipate Mushatt would act in a criminal manner. Here, however, defendants received the 2013 so called "Ron Mexico" email, specifically advising them that Mushatt was forging transcripts. Under the circumstances, FSA, who employed Mushatt, is unable to meet its burden on the motion for summary judgment dismissing the claim for negligent supervision. Specifically, questions of fact remain as to whether FSA was "aware or should have been aware of the propensity of their employee, [Tyrone Mushatt], for the conduct which allegedly caused the [plaintiffs] injury." Sato v Correa, 272 AD2d at 390.

It is well settled "that absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired." Smalley v Dreyfus Corp., 10 NY3d 55, 58 (2008) (internal quotation marks omitted). Plaintiff has consistently alleged that he was a contract, and not an at-will, employee. This Court already held that the County defendants failed to demonstrate, as a matter of law, that plaintiff was an at-will employee. FSA has not submitted any new evidence in support of its motion to change this determination.

FSA also argues that plaintiff's claim fails as a matter of law, as New York consistently declined to create a common-law tort of wrongful or abusive discharge. However, as set forth below, FSA's arguments are without merit. Courts have held that "New York cases make clear, however, that work place policies - including those that govern a university's relationship with its faculty - can create binding contracts." Joshi v Trustees of Columbia Univ., 2018 US Dist Lexis 89280, * 13 (SD NY 2018); see also Matter of Monaco v New York Univ., 145 AD3d 567, 568 (1st Dept 2016) (The Court held that, for purposes of the motion to dismiss, petitioners "sufficiently alleged that the policies contained in respondent's Handbook, which form part of the essential employment understandings between a member of the Faculty and the University have the force of contract").

The SVAC alleges that FSA's rules, regulations, policies and/or procedures require an adequate, thorough, documented investigation prior to an employee's suspension or other official [*7]act relating to employment. Thus, regardless of whether plaintiff had a formal employment contract with FSA, questions of fact remain as to whether FSA breached its employment contract with plaintiff by failing to provide plaintiff with due process prior to his termination in accordance with faculty handbooks and/or policies.

According to FSA, plaintiff is unable to present evidence of an employment contract, or other evidence. However, it is well settled that, "[o]n a summary judgment motion, a moving defendant does not meet its burden of affirmatively establishing its entitlement to summary judgment by merely pointing to gaps in the plaintiff's case; rather, it must affirmatively demonstrate the merit of its defense." Katz v Beil, 142 AD3d 957, 964 (2d Dept 2016) (internal quotation marks omitted). Here, FSA has not met its burden on summary judgment and the wrongful termination claim is not dismissed.

In support of the motion for summary judgment, FSA argues that the cause of action alleging defamation must be dismissed, as it did not engage in defamatory conduct. In opposition to the motion, plaintiff states that he testified that no one from FSA had made any defamatory comments about him without realizing that Mushatt was an FSA employee.

As set forth below, FSA is granted summary judgment dismissing the defamation claim. It appears that the SVAC only alleges the claim for defamation in the first cause of action against the County defendants. Further, the SVAC specifically alleges that the individual County defendants made defamatory statements to the press. Finally, during the deposition taken in 2024, plaintiff testified that no one from FSA stated that plaintiff forged transcripts.

However, the claim for IIED is not dismissed at this time. As this Court previously determined, questions of fact remain as to whether any of the individual defendants acted in an extreme and outrageous manner. This would also apply to FSA, who terminated plaintiff by relying solely on Mushatt's assertion that plaintiff admitted to altering the transcript even though it knew or should have known of previous allegations of fraudulent transcripts against Mushatt.

"Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause." Hillrich Holding Corp. v BMSL Mgt., LLC, 175 AD3d 474, 475 (2d Dept 2019) (internal quotation marks omitted). The County defendants previously moved for summary judgment dismissing the SVAC. As previously mentioned, this Court already addressed the County defendants' arguments, and granted the motion solely to the extent that the claim for punitive damages was dismissed and any liability under the theory of respondeat superior on behalf of Tyrone Mushatt was also dismissed. This Court detailed, at length, why the County defendants failed to meet their burden on summary judgment dismissing the defamation, IIED and wrongful termination claims.

The County defendants proffer the same arguments in support of the instant summary judgment motion as they did in support of their prior summary judgment motion. They submit over fifteen pages in support of dismissing the defamation claim. For example, they argue that they are entitled to absolute immunity and the defamation claim must be dismissed. The County defendants also seek to dismiss any alternative claims, such as IIED and wrongful termination. The County defendants do not even acknowledge filing a prior motion for summary judgment. They respond, only in opposition to plaintiff's arguments, that the motion is not precluded by res judicata or law of the case, as there has not been a final decision on the merits.

The Court is aware that a prior motion for summary judgment was made in 2018, before [*8]stays were enacted due to deaths of numerous parties and that thereafter another trial readiness order was signed in 2024 requiring any motions for summary judgment to be made within 60 days. Nevertheless, the instant motion sets forth the same arguments and does not set forth a sufficient justification for this Court to consider a successive motion. Moreover, the Court will not re-examine its rulings with respect to defamation, IIED and wrongful termination, which are now the law of the case.

Accordingly, the County defendants' motion for summary judgment is denied.

All other arguments raised on this motion and evidence submitted by the parties in connection thereto have been considered by this court notwithstanding the specific absence of reference thereto.

Accordingly, it is hereby

ORDERED that plaintiff Richard Fields' motion for summary judgment in his favor is denied (motion sequence 013); and it is further

ORDERED that Faculty Student Association of Westchester Community College, Inc.'s motion pursuant to CPLR 3212, for an order granting summary judgment dismissing the SVAC is granted only with respect to dismissing the claim for defamation, and is otherwise denied (motion sequence 014); and it is further

ORDERED that defendants The County of Westchester, Westchester Community College, Patrick Hennessey, and John Flynn's motion pursuant to CPLR 3212, for an order granting summary judgment dismissing the SVAC is denied (motion sequence 015); and it is further

ORDERED that the parties are directed to appear for an in-person settlement conference on May 27, 2025 at 10:30 a.m., in Courtroom 102.