State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 11, 2015 518491 

519666

________________________________

LYNDSEY WILCOX,

Respondent,

v MEMORANDUM AND ORDER

NEWARK VALLEY CENTRAL SCHOOL

DISTRICT et al.,

Appellants,

et al.,

Defendants.

________________________________

Calendar Date: May 1, 2015

Before: McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

__________

Law Firm of Frank Miller, East Syracuse (Alan J. Pierce of

Hancock Estabrook, LLP, Syracuse, of counsel), for appellants.

Law Office of Ronald R. Benjamin, Binghamton (Ronald R.

Benjamin of counsel), for respondent.

__________

McCarthy, J.P.

Appeals (1) from an order of the Supreme Court (Tait, J.),

entered December 6, 2013 in Tioga County, which, among other

things, modified the proposed judgment, (2) from a judgment of

said court, entered December 19, 2013 in Tioga County, upon a

verdict rendered in favor of plaintiff, (3) from an order of said

court, entered August 6, 2014 in Tioga County, which partially

granted a motion by defendants Newark Valley Central School

District, Mary Ellen Grant and Diane Arbes to set aside the

verdict, and (4) from the amended judgment entered thereon.
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Plaintiff was employed by defendant Newark Valley Central

School District (hereinafter NVCSD) as a probationary physical

education teacher and as the coach of the girls' varsity field

hockey team. At that time, plaintiff lived with her boyfriend,

Todd Broxmeyer – a locally known field hockey authority who,

among other things, served as a volunteer coach to the NVCSD

field hockey teams. In February 2008, approximately two months

after Broxmeyer was arrested and charged with raping a female

field hockey player from a different school district, plaintiff's

employment was terminated. 

Plaintiff then commenced an action against NVCSD, Diane

Arbes – NVCSD's high school principal – and Mary Ellen Grant –

NVCSD's superintendent, as well as the members of the Board of

Education of NVCSD, alleging that defendants maliciously

published defamatory statements about her and that her due

process rights were violated by defendants' failure to provide

her with a name-clearing hearing. Thereafter, certain of

plaintiff's causes of action were dismissed upon defendants'

motion to dismiss (74 AD3d 1558 [2010]), defendants were granted

partial summary judgment dismissing additional causes of action

and this Court converted the federal due process cause of action

into a CPLR article 78 proceeding (107 AD3d 1127 [2013]). 

Plaintiff sought the annulment of the Board's determination

denying her a name-clearing hearing – and an order granting her

such a hearing – and proceeded to trial on causes of action

premised on two alleged defamatory statements: (1) that Arbes had

stated, during a meeting attended by female varsity and junior

varsity field hockey players, the junior varsity coach and school

counselors, that plaintiff was no longer employed by NVCSD and

had acquiesced in or did not protest or challenge her termination

and (2) that Grant had stated to one of the parents of a field

hockey player that plaintiff had acquiesced in or did not protest

or challenge her termination.

Supreme Court granted plaintiff's application to annul the

Board's determination denying her a name-clearing hearing and

ordered such hearing to be provided. After a first trial ended

in a mistrial, a second trial concluded with the jury rendering a

verdict in favor of plaintiff, awarding her $351,990 in lost
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wages from the date of her termination to the date of the

verdict, $2.1 million in future lost wages and $1 million in

damages for past mental anguish, emotional distress, personal

humiliation and/or damage to her reputation. NVCSD, Arbes and

Grant (hereinafter collectively referred to as defendants) appeal

from Supreme Court's order modifying the proposed judgment and

the judgment entered upon the verdict.

Thereafter, defendants moved, pursuant to CPLR 4404 (a), to

set aside the verdict. Supreme Court granted the motion to the

extent of ordering a new trial on the issue of lost wages unless

plaintiff stipulated to a reduction of the verdict to $294,971

for past lost wages and $1,560,000 for future lost wages and

otherwise denied the motion. Plaintiff stipulated to the reduced

award, and an amended judgment was entered accordingly. 

Defendants appeal from the order resolving their posttrial motion

and the amended judgment.1

First addressing the due process claim (the converted CPLR

article 78 proceeding), Supreme Court erred in annulling the

Board's determination and granting plaintiff a name-clearing

hearing. Where "a government employee is dismissed for

stigmatizing reasons that seriously imperil the opportunity to

acquire future employment, the employee is entitled to an

opportunity to refute the charge [or charges]" at a name-clearing

hearing if the employer publicly disclosed the stigmatizing

reasons or if there is a likelihood of future dissemination of

such reasons (Matter of VanDine v Greece Cent. School Dist., 75

1 We dismiss defendants' appeals from both Supreme Court's

order modifying the proposed judgment and its order partially

granting defendants' motion to set aside the verdict because the

right to appeal from those interlocutory orders terminated upon

entry of the final judgments (see Doherty v Schuyler Hills, Inc.,

55 AD3d 1174, 1175 [2008]; Dubray v Pratt, 283 AD2d 869, 869

[2001]). Nonetheless, defendants' appeals from the final

judgments bring the substance of those orders up for our review

(see CPLR 5501 [a] [1]).
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AD3d 1166, 1167 [2010] [internal quotation marks and citations

omitted]; see 107 AD3d at 1131). Judicial review of an

administrative determination such as this one is limited to

whether the determination lacks a rational basis, "was made in

violation of lawful procedure, was affected by an error of law or

was arbitrary and capricious or an abuse of discretion" (CPLR

7803 [3]; see Matter of Barkan v Roslyn Union Free School Dist.,

67 AD3d 61, 65 [2009]; Matter of Weill v New York City Dept. of

Educ., 61 AD3d 407, 408 [2009]). 

Here, plaintiff requested a name-clearing hearing by

February 2008 letter. In that letter, plaintiff requested a

name-clearing hearing to specifically defend against and address

the assertions made by Grant in the statement of reasons for

recommending termination letter (see generally Education Law

§ 3031) and those made by Arbes in a January 2008 letter

directing her to "refrain from any one-on-one conversations with

students."2 Notably, plaintiff's allegations as to the

stigmatizing content of such letters do not include any further

allegations that defendants and the Board had publicly disclosed

those letters or their contents. Nonetheless, plaintiff's

assertion that she was seeking relief in the form of removal of

the statement of reasons letter from her personnel file was

sufficient to apprise the Board of an allegation that there was a

likelihood that such letter or its content would be disseminated. 

As to that allegation, multiple Board members averred that,

before deciding to deny plaintiff's request for a name-clearing

hearing, the Board determined that the statement of reasons

letter had been and would remain confidential. Therefore, given

that plaintiff did not allege that defendants and the Board had

publicly disseminated any stigmatizing materials and considering

the evidence supporting the conclusion that plaintiff's

allegation that the statement of reasons letter was in

plaintiff's personnel file was factually incorrect, there is no

basis to disturb the Board's denial of a name-clearing hearing. 

2 This Court previously held that the statements contained

in these letters were not actionable libel (107 AD3d at 1131; 74

AD3d at 1561).
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Turning to plaintiff's action, Supreme Court did not abuse

its discretion in permitting her to amend her bill of

particulars. A trial court's determination regarding a motion to

amend will not be disturbed on appeal absent an abuse of

discretion (see CPLR 3043 [c]; Harris v Jim's Proclean Serv.,

Inc., 34 AD3d 1009, 1010 [2006]). Generally, leave to amend a

bill of particulars should be freely given, but denial of such a

motion is justified when the motion is late and there is both a

lack of a satisfactory excuse and prejudice to the opposing party

(see Harris v Jim's Proclean Serv., Inc., 34 AD3d at 1010; Sadler

v Town of Hurley, 304 AD2d 930, 931 [2003]). In her original

bill of particulars, plaintiff alleged that she suffered special

damages in the nature of lost wages. Plaintiff sought to amend

that bill of particular to increase the amount of alleged past

lost wages and to allege future lost wages. Although plaintiff

did not move to amend her bill of particulars until after a

mistrial was declared in the first trial, she did so with enough

time before the second trial so that defendants were able to

conduct further discovery and an additional deposition of her. 

Further, given that"[t]his [wa]s not an instance where an

entirely new theory of recovery [wa]s sought to be incorporated

in the bill of particulars," defendants' exposure to greater

liability, on its own, did not show prejudice (Jones v Public

Taxi of Schenectady, 34 AD2d 876, 876 [1970]; see Muff v Lallave

Transp., 3 AD3d 693, 695 [2004]). Accordingly, Supreme Court did

not abuse its discretion in granting plaintiff leave to amend her

bill of particulars (see Muff v Lallave Transp., 3 AD3d at 695;

Jones v Public Taxi of Schenectady, 34 AD2d at 876). In

addition, because defendants did not move before Supreme Court to

preclude plaintiff's expert witness from testifying at the second

trial, defendants' argument that it was error to allow such

testimony due to plaintiff's belated disclosure is not preserved

for our review (see Doviak v Lowe's Home Ctrs., Inc., 63 AD3d

1348, 1352 [2009]; Alaimo v General Motors Corp., 32 AD3d 627,

629 [2006]). 

Supreme Court committed reversible error in permitting

testimony regarding rumors circulating in the community and

plaintiff being snubbed. In its motion in limine, defendants

sought to preclude plaintiff from introducing evidence of the
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republication of the alleged slanderous statements and evidence

of "snubs" experienced by plaintiff at the hands of third parties

to whom defendants were not alleged to have made the slanderous

statements. Supreme Court reserved ruling on the issues and then

overruled defendants' objections made on the aforementioned

grounds that were made during the trial. 

Proof of "ostracism and rejection" to establish damages for

defamation is only admissible if the proof is "'the direct and

well-connected result'" of a defamatory statement at issue (Macy

v New York World-Tel. Corp., 2 NY2d 416, 422 [1957], quoting

Bishop v New York Times Co., 233 NY 446, 454 [1922]). Further,

even when a defendant's slanderous statement is connected by

proof to that statement's republication, "'one who utters a

slander . . . is not responsible for its voluntary and

unjustifiable repetition, without his [or her] authority or

request, by others over whom he [or she] has no control and who

thereby make themselves liable to the person injured'" (Geraci v

Probst, 15 NY3d 336, 342 [2010], quoting Schoepflin v Coffey, 162

NY 12, 17 [1900]). This is because "each person who repeats the

defamatory statement is responsible for the resulting damages"

(Geraci v Probst, 15 NY3d at 342). 

Plaintiff's proof regarding rumors and ostracism fail these

tests. Plaintiff and her witnesses offered no proof that

directly connected Grant's or Arbes' slanderous statements to the

ostracism that plaintiff allegedly suffered (see Macy v New York

World-Tel. Corp., 2 NY2d at 422-423).3 Further, even assuming

that the content of the rumors allegedly spread by community

members allowed for a reasonable inference that said community

members were aware of Grant's or Arbes' slanderous statements,

3 Neither law nor logic supports plaintiff's apparent

contention that the slanderous statements were the only possible

cause of the ostracization. For example, plaintiff's proof

failed to exclude the reasonable possibility that persons who

ostracized plaintiff had done so based on their own independent

conclusions – not affected by the slanderous statements – that

she was blameworthy in relationship to Broxmeyer's conduct. 
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proof of republication was nonetheless improper given the absence

of evidence that defendants had any knowledge of or played any

role in such republication (see Geraci v Probst, 15 NY3d at 344;

Rinaldi v Viking Penguin, 52 NY2d 422, 435 [1981]). Compounding

the effect of the error, Supreme Court did not instruct the jury

that plaintiff had the burden of proving that the ostracism harms

that plaintiff allegedly suffered were actually connected to

Grant's and/or Arbes' statements, despite defendants' request

that it do so. Accordingly, because Supreme Court's error

permitted the jury to award damages for alleged harms to

plaintiff for which defendants were not legally responsible (see

Geraci v Probst, 15 NY3d at 342), the error was not harmless.

Given that defendants do not challenge the jury's

determinations that Grant and Arbes made the respective

statements and that they were defamatory, we remit for a new

trial for the determination of damages based upon proof of harms

limited to those that can be linked by proximate cause to the two

slanderous statements. These determinations render defendants'

remaining contentions academic.

Egan Jr., Lynch and Clark, JJ., concur.

ORDERED that the appeals from the orders entered December

6, 2013 order and August 6, 2014 are dismissed, without costs.

ORDERED that the judgment and amended judgment are

reversed, on the law, without costs, the determination of the

Board of Education of Newark Valley Central School District

denying plaintiff a name-clearing hearing is affirmed, and matter

remitted to the Supreme Court for a new trial as to the action on

damages only.

ENTER:

Robert D. Mayberger

Clerk of the Court