SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

971 

CA 16-00464 

PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ. 

 

MELINA CRVELIN, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

BOARD OF EDUCATION OF CITY SCHOOL DISTRICT 

OF CITY OF NIAGARA FALLS, RUSSELL PETROZZI, 

CARMELETTE ROTELLA, ARTHUR JOCOY, JR., 

CHRISTOPHER H. BROWN, JAMES CANCEMI, KEVIN 

DOBBS, ROBERT KAZAENGIN, JR., DON J. KING, 

NICHOLAS VILARDO, CYNTHIA A. BIANCO, ANGELO 

MASSARO AND PHILIP MOHR, DEFENDANTS-RESPONDENTS. 

 

LAW OFFICES OF JOHN P. BARTOLOMEI & ASSOCIATES, NIAGARA FALLS (MATTHEW

J. BIRD OF COUNSEL), FOR PLAINTIFF-APPELLANT. 

HURWITZ & FINE, P.C., BUFFALO (MICHAEL F. PERLEY OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS. 

 

Appeal from an order and judgment (one paper) of the Supreme

Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered January

4, 2016. The order and judgment granted defendants’ motion for

summary judgment and dismissed plaintiff’s complaint.

It is hereby ORDERED that the order and judgment so appealed from

is unanimously affirmed without costs. 

Memorandum: Plaintiff commenced this action seeking damages for,

inter alia, defamation and intentional infliction of emotional

distress. According to plaintiff, defendants engaged in a process to

wrongfully terminate her employment as a teacher in the City of

Niagara Falls School District (District) based upon her alleged

violation of the District’s residency policy. During that process,

defendant Board of Education of City School District of City of

Niagara Falls (Board of Education) undertook an investigation and

ultimately passed a resolution concluding that plaintiff had violated

the residency policy and directed that the process to terminate

plaintiff’s employment be commenced. Plaintiff commenced a CPLR

article 78 proceeding to challenge that process, but retired before

the District terminated her employment. During the litigation of the

proceeding, defendant Angelo Massaro, legal counsel for the District,

made written statements in a memorandum of law submitted to the court

that, according to plaintiff, were defamatory. Defendants, asserting

various absolute privileges and immunities, moved for summary judgment

seeking dismissal of the complaint in its entirety, and Supreme Court
-2- 971 

CA 16-00464 

granted the motion. We affirm.

Initially, we reject plaintiff’s contention that defendants’

conduct and potential liability in this civil action is subject to

review under the arbitrary and capricious standard applicable to

article 78 proceedings. We conclude that the immunities asserted by

defendants in support of their motion are applicable to this civil

action regardless of whether defendants pursued an erroneous course of

action in enforcing the residency policy that resulted, or may have

resulted, in a judgment favorable to plaintiff as petitioner in the

article 78 proceeding (see Lloyd v Town of Wheatfield, 109 AD2d 1084,

1084, affd 67 NY2d 809). 

Turning to the merits, we note that it is well settled that

government officials are absolutely immune for discretionary acts

carried out in the course of official duties and that immunity

attaches “however erroneous or wrong [such conduct] may be, or however

malicious even the motive which produced it” (East Riv. Gas-Light Co.

v Donnelly, 93 NY 557, 559; see Rottkamp v Young, 21 AD2d 373, 375,

affd 15 NY2d 831; Santangelo v State of New York, 101 AD2d 20, 21; see

also Della Villa v Constantino, 246 AD2d 867, 868-869). Moreover,

statements made by government officials in the context of a quasijudicial proceeding such as that at issue here are absolutely

privileged and immunize the communicants from liability in a

defamation action (see Rosenberg v MetLife, Inc., 8 NY3d 359, 365-

366). In addition, it is well settled that public policy bars claims

sounding in intentional infliction of emotional distress against a

governmental entity (see Lauer v City of New York, 240 AD2d 543, 544,

lv denied 91 NY2d 807; Wheeler v State of New York, 104 AD2d 496, 498;

La Belle v County of St. Lawrence, 85 AD2d 759, 761). Thus, we

conclude that the court properly granted the motion. 

Lastly, inasmuch as the alleged defamatory statements made by

Massaro were contained in a writing submitted to a court on behalf of

respondents in the context of plaintiff’s article 78 proceeding, we

conclude that they are absolutely privileged (see Park Knoll Assoc. v

Schmidt, 59 NY2d 205, 209; Mosesson v Jacob D. Fuchsberg Law Firm, 257

AD2d 381, 382, lv denied 93 NY2d 808). 

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court