SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1304 

CA 14-00914 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ. 

 

MICHAEL F. FIORE AND SUSAN FIORE, 

PLAINTIFFS-PETITIONERS-APPELLANTS, 

V MEMORANDUM AND ORDER

TOWN OF WHITESTOWN, TOWN OF WHITESTOWN POLICE 

DEPARTMENT, BRIAN BROOKS, IN HIS INDIVIDUAL 

AND OFFICIAL CAPACITY AS A MEMBER OF THE 

WHITESTOWN POLICE COMMISSION, DANIEL SULLIVAN, 

IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A 

MEMBER OF THE WHITESTOWN POLICE COMMISSION, 

NORMAN ULINKSI, DONALD WOLANIN, IN HIS INDIVIDUAL 

AND OFFICIAL CAPACITY AS CHIEF OF POLICE FOR TOWN 

OF WHITESTOWN, DEFENDANTS-RESPONDENTS-RESPONDENTS,

ET AL., DEFENDANTS-RESPONDENTS. 

 

BOSMAN LAW FIRM, LLC, ROME (A.J. BOSMAN OF COUNSEL), FOR

PLAINTIFFS-PETITIONERS-APPELLANTS. 

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN GUYDER FELTER

OF COUNSEL), FOR DEFENDANTS-RESPONDENTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Oneida County (Peter

A. Schwerzmann, A.J.), entered July 22, 2013. The order granted the

motion of defendants-respondents to dismiss the complaint-petition. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff-petitioner Michael F. Fiore (plaintiff)

was formerly employed by defendant-respondent Town of Whitestown

Police Department (Police Department) as a part-time probationary

police officer. Plaintiff was terminated from that position after the

employee of a tanning salon appeared at a meeting of the Whitestown

Police Commission (Police Commission) and told the Commissioners that,

while plaintiff was off duty, he visited the tanning salon and

displayed a handgun. The tanning salon employee also told the

Commissioners that, before plaintiff began working for the Police

Department, the owner of the tanning salon saw plaintiff masturbating

in a tanning booth. After hearing from the tanning salon employee,

the Police Commission terminated plaintiff’s employment. After an

unsuccessful course of litigation in federal court, plaintiffspetitioners (plaintiffs) commenced this hybrid action at law and CPLR

article 78 proceeding in Supreme Court, seeking, inter alia, damages
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for allegedly defamatory statements made by defendants-respondents

Brian Brooks, Daniel Sullivan, and Norman Ulinski, individually and in

their official capacities as members of the Police Commission, and by

defendant-respondent Donald Wolanin, individually and in his official

capacity as Chief of Police for the Town of Whitestown. The court

granted defendants-respondents’ (defendants) motion to dismiss the

complaint-petition (complaint) pursuant to CPLR 3211, and we affirm.

At the outset, we agree with the parties that defendants’ motion

should be considered a motion for summary judgment dismissing the

complaint. Although defendants stated in their moving papers that

they were seeking dismissal of the complaint pursuant to CPLR 3211,

both parties submitted numerous exhibits to the court, including

affidavits and transcripts of deposition testimony from several

witnesses in the federal lawsuit. Thus, “the respective submissions

of both parties demonstrate that they are laying bare their proof and

deliberately charting a summary judgment course” (Hendrickson v

Philbor Motors, Inc., 102 AD3d 251, 258-259; see Nowacki v Becker, 71

AD3d 1496, 1497). 

Contrary to plaintiffs’ contention, the court properly granted

that part of the motion with respect to the first cause of action, for

libel, asserted against Brooks, Sullivan, and Ulinski. That cause of

action was based on allegations that Brooks, Sullivan, and Ulinski

made libelous statements in the letter that terminated plaintiff’s

employment as a probationary police officer. There is complete

immunity from liability for defamation for “ ‘an official [who] is a

principal executive of State or local government who is entrusted by

law with administrative or executive policy-making responsibilities of

considerable dimension’ . . . , with respect to statements made during

the discharge of those responsibilities about matters which come

within the ambit of those duties” (Clark v McGee, 49 NY2d 613, 617,

quoting Stukuls v State of New York, 42 NY2d 272, 278). Here, the

Town Board has the statutory authority to “make, adopt and enforce

rules, orders and regulations for the government, discipline,

administration and disposition of the police department and of the

members thereof” (Town Law § 154) and, as members of the Police

Commission, Brooks, Sullivan, and Ulinski were delegated “all the

powers relative to police matters conferred upon the town board”

(§ 150 [2]). We therefore conclude that Brooks, Sullivan, and Ulinski

were entitled to absolute immunity because “members of the Town Board

enjoy an absolute privilege against a claim of defamation where . . .

the defamatory statements are made in the discharge of their

responsibilities about matters within the ambit of their duties”

(Baumblatt v Battalia, 134 AD2d 226, 228), and “[t]he privilege of

absolute immunity . . . ‘extends to those of subordinate rank who

exercise delegated powers’ ” (Firth v State of New York, 12 AD3d 907,

907-908, lv denied 4 NY3d 709, quoting Ward Telecom. & Computer Servs.

v State of New York, 42 NY2d 289, 292; see Algarin v Town of Wallkill,

313 F Supp 2d 257, 260-261, affd 421 F3d 137). 

Contrary to plaintiffs’ further contention, the court properly

granted that part of defendants’ motion seeking dismissal of the

second and third causes of action, for two separate incidents of
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CA 14-00914 

slander, asserted against Ulinski. “ ‘A qualified privilege arises

when 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’ ” (Matter of Hoge [Select Fabricators,

Inc.], 96 AD3d 1398, 1400; see Kondo-Dresser v Buffalo Pub. Schs., 17

AD3d 1114, 1114-1115). Here, defendants submitted evidence that, at

the time of the alleged slanderous communications, Ulinski was a

member of the Police Commission and, therefore, had an interest in

plaintiff’s performance as a probationary police officer, and that

Ulinski made the communications to persons with a corresponding

interest in plaintiff’s performance, namely to a member of the Town

Board, and to the president of the union that represented plaintiff

(see Hoge, 96 AD3d at 1400; Mancuso v Allergy Assoc. of Rochester, 70

AD3d 1499, 1500). We further conclude that plaintiffs “failed to

raise a triable issue of fact whether the statements were motivated

solely by malice” (Mancuso, 70 AD3d at 1501; see Cooper v Hodge, 28

AD3d 1149, 1150-1151).

Contrary to plaintiffs’ further contention, the court properly

granted that part of defendants’ motion seeking dismissal of the

fourth cause of action, for slander, asserted against Wolanin. 

Wolanin’s statements that plaintiff did something that “wasn’t good”

and that plaintiff “knew what he did” were not actionable because

Wolanin’s words were “ ‘vague, ambiguous, indefinite and incapable of

being objectively characterized as true or false’ ” (Boulos v Newman,

302 AD2d 932, 933).

We conclude that the court also properly granted that part of

defendants’ motion seeking dismissal of plaintiffs’ fifth cause of

action, for tortious interference with prospective advantage, asserted

against Brooks, Sullivan, and Ulinski, based on the allegation that

those defendants interfered with plaintiff’s attempts to find

employment with other police agencies (see North State Autobahn, Inc.

v Progressive Ins. Group Co., 102 AD3d 5, 21; see also Zetes v

Stephens, 108 AD3d 1014, 1020). Here, defendants established as a

matter of law that they did not interfere with plaintiff’s attempts to

find such other employment (see North State Autobahn, Inc., 102 AD3d

at 21), and plaintiffs failed to raise a triable issue of fact (see

generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).

We conclude that the court properly granted that part of

defendants’ motion seeking dismissal of plaintiffs’ eighth cause of

action, for tortious interference with contract, asserted against

Brooks, Sullivan, and Ulinski. Defendants established as a matter of

law that plaintiff did not have a valid contract with a third party,

as is required to make out a prima facie case for tortious

interference with an existing contract (see generally Lama Holding Co.

v Smith Barney, 88 NY2d 413, 424; NBT Bancorp v Fleet/Norstar Fin.

Group, 87 NY2d 614, 620-621). Plaintiff is not a party to the

collective bargaining agreement with the Town of Whitestown (see

generally Matter of Board of Educ., Commack Union Free Sch. Dist. v

Ambach, 70 NY2d 501, 508, cert denied 485 US 1034), and has no

standing to seek relief as a third-party beneficiary to that agreement
-4- 1304 

CA 14-00914 

(see generally Leblanc v Security Servs. Unit Empls. of N.Y. State Law

Enforcement Officers Union, Council 82, AFSCME, AFL-CIO, 278 AD2d 732,

734). 

Contrary to plaintiffs’ contention, the court properly granted

that part of defendants’ motion seeking dismissal of the sixth cause

of action, for prima facie tort, asserted against Brooks, Sullivan,

and Ulinski. Defendants established as a matter of law that the sole

motivation in terminating plaintiff’s employment was not

“ ‘disinterested malevolence,’ ” which is a required element to

recover damages for prima facie tort (Burns Jackson Miller Summit &

Spitzer v Lindner, 59 NY2d 314, 333; see Morrison v Woolley, 45 AD3d

953, 954), and plaintiffs failed to raise a triable issue of fact (see

generally Alvarez, 68 NY2d at 324).

Contrary to plaintiffs’ further contention, the court properly

determined that plaintiff is not entitled to relief pursuant to CPLR

article 78 and, therefore, properly granted that part of defendants’

motion seeking dismissal of the 12th cause of action. As a

probationary police officer, plaintiff could be “ ‘dismissed for

almost any reason, or for no reason at all[,]’ . . . [and he] had no

right to challenge the termination by way of a hearing or otherwise,

absent a showing that he was dismissed in bad faith or for an improper

or impermissible reason” (Matter of Swinton v Safir, 93 NY2d 758, 762-

763, quoting Matter of Venes v Community Sch. Bd. of Dist. 26, 43 NY2d

520, 525). Defendants submitted evidence establishing as a matter of

law that plaintiff was not dismissed in bad faith or for an improper

or impermissible reason, i.e., that he was dismissed from employment

because he displayed a handgun while off duty and because he had

masturbated at the tanning salon, and plaintiffs failed to submit any

evidence raising a triable issue of fact (see generally Matter of

Mathis v New York State Dept. of Corr. Servs. [appeal No. 2], 81 AD3d

1435, 1436-1437; Matter of Carroll v New York State Canal Corp., 51

AD3d 1389, 1390). Finally, in view of our determination with respect

to the foregoing causes of action, we conclude that the court properly

granted that part of defendants’ motion seeking dismissal of the

derivative cause of action, for loss of consortium (see Moore v First

Fed. Sav. & Loan Assn. of Rochester, 237 AD2d 956, 957).

Entered: February 13, 2015 Frances E. Cafarell

Clerk of the Court