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FILED: BROOME COUNTY CLERK 02/24/2017 06:06 PM
`NYSCEF DOC. NO. 15
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`INDEX NO. EFCA2017000315
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`RECEIVED NYSCEF: 02/24/2017
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`FILED: BROOME COUNTY CLERK 02m2017 06:06 PM
`NYSCEF DOC. NO. 15
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`R«.C«.IV«.D NYSCI
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`EFCA2017000315
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`3F:
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`02/24/2017
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`Exhibit C to Benjamin Affirmation
`
`

`

`FILED: BROOME COUNTY CLERK 02/24/2017 06:06 PM
`NYSCEF DOC. NO. 15
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`INDEX NO. EFCA2017000315
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`RECEIVED NYSCEF: 02/24/2017
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`FILED: BROOME COUNTY CLERK 02m2017 06:06 P I
`NYSCEF DOC. NO. 15
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`iEFCA2017000315
`INDEX NO-
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`R«C«IV«D NYSCEF: 02/24/2017
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`
`
`State ofNew Q’orfl
`Supreme Court, fllppeffizte “Division
`2‘flirrfjuzficidDepartment
`
`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.
`
`from an order of the Supreme Court (Tait, J.),
`Appeals (1)
`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.
`
`

`

`FILED: BROOME COUNTY CLERK 02/24/2017 06:06 PM
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`INDEX NO. EFCA2017000315
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`FILED: BROOME COUNTY CLERK 02m2017 06:06 P I
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`—2—
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`518491
`519666
`
`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
`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
`
`the
`
`

`

`FILED: BROOME COUNTY CLERK 02/24/2017 06:06 PM
`NYSCEF DOC. NO. 15
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`INDEX NO. EFCA2017000315
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`FILED: BROOME COUNTY CLERK 02m2017 06:06 P I
`NYSCEF DOC. NO. 15
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`v3
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`518491
`519666
`
`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.
`
`to CPLR 4404 (a),
`Thereafter, defendants moved, pursuant
`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}
`
`to
`
`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]).
`
`

`

`FILED: BROOME COUNTY CLERK 02/24/2017 06:06 PM
`NYSCEF DOC. NO. 15
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`FILED: BROOME COUNTY CLERK 02m2017 06:06 P I
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`[internal quotation marks and citations
`AD3d 1166, 1167 [2010]
`
`omitted]; see 107 AD3d at 1131).
`Judicial review of an
`administrative determination such as this one is limited to
`
`"was made in
`whether the determination lacks a rational basis,
`violation of lawful procedure, was affected by an error of law or
`was arbitrary and capricious or an abuse of discretion" (CPLR
`7803 [3]; s22 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).
`
`

`

`FILED: BROOME COUNTY CLERK 02/24/2017 06:06 PM
`NYSCEF DOC. NO. 15
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`INDEX NO. EFCA2017000315
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`RECEIVED NYSCEF: 02/24/2017
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`FILED: BROOME COUNTY CLERK 02m2017 06:06 P l
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`RfiCfiIVfiD NYSCEF: 02/24/2017
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`~5—
`
`518491
`519666
`
`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
`
`(ggg Harris v Jim’s Proclean ServLJ 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 (seg Muff v Lallave Transp.,
`3 AD3d at 695;
`
`Jones V Public Taxi of Schenectady, 34 AD2d at 876).
`In
`to
`addition, because defendants did not move before Supreme Court
`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 (sgg 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
`
`

`

`FILED: BROOME COUNTY CLERK 02/24/2017 06:06 PM
`NYSCEF DOC. NO. 15
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`INDEX NO. EFCA2017000315
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`RECEIVED NYSCEF: 02/24/2017
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`FILED: BROOME COUNTY CLERK 02m2017 06:06 P l
`NYSCEF DOC. NO. 15
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`RfiCfiIVfiD NYSCEF: 02/24/2017
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`—6
`
`518491
`519666
`
`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 C03, 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.
`
`

`

`FILED: BROOME COUNTY CLERK 02/24/2017 06:06 PM
`NYSCEF DOC. NO. 15
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`FILED: BROOME COUNTY CLERK 02m2017 06:06 P l
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`—7—
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`518491
`519666
`
`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/0r 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:
`
`RM'MSMM
`
`

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