Opinion
CA 02-02192
May 2, 2003.
Appeal from an order of Supreme Court, Oneida County (Siegel, J.), entered April 3, 2002, which, inter alia, granted in part the motion of defendants Utica City School District Board of Education and D. Victor Pellegrino, individually and as a member of Utica Board of Education, to dismiss the amended complaint against them.
LAW OFFICES OF LEON R. KOZIOL, UTICA (LEON R. KOZIOL OF COUNSEL), FOR PLAINTIFF-APPELLANT.
FERRARA, FIORENZA, LARRISON, BARRETT REITZ, P.C., EAST SYRACUSE (CRAIG M. ATLAS OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly granted those parts of the motion of defendants Utica City School District Board of Education (Board) and D. Victor Pellegrino, individually and as a member of the Board, to dismiss the second, third and fourth causes of action of the amended complaint against them. The amended complaint asserts causes of action arising from the conduct of the Board in investigating corruption charges brought by defendant Perry Jacobs against plaintiff in connection with the performance by plaintiff of his contractual duties as architect for the Utica City School District (School District) on an $8.8 million capital project. Although plaintiff was exonerated from the charges by the Board, plaintiff alleges, inter alia, that the Board "depriv[ed] plaintiff of his procedural rights [to arbitration] under [his] contract with the * * * School District" and inappropriately discussed the charges in public. As against Pellegrino individually, plaintiff alleges that he inappropriately repeated the charges publicly.
Contrary to plaintiff's contention, the amended complaint fails to state a cause of action pursuant to 42 U.S.C. § 1983 for denial of due process, and thus the court properly granted that part of the motion seeking dismissal of the second cause of action. We agree with the Board that the allegations in the amended complaint fail to "rise to the level of 'a stigma-plus injury'" ( Ruggiero v. Phillips, 292 A.D.2d 41, 45; see Morris v. Lindau, 196 F.3d 102, 114). In any event, the amended complaint fails to allege any due process violation. Due process in this context "requires only that, where the government has made public, stigmatizing statements, it must grant at least a minimal hearing at which the [party who is the subject of the statements] has a fair opportunity to rebut the stigmatizing charges. Once that process is observed, the requirements of due process are satisfied" ( Garcia v. Board of Educ. of Socorro Consol. School Dist., 777 F.2d 1403, 1418, cert denied 479 U.S. 814; see Board of Regents of State Colls. v. Roth, 408 U.S. 564, 573; Donato v. Plainview-Old Bethpage Cent. School Dist., 96 F.3d 623, 633, cert denied 519 U.S. 1150). In the amended complaint, which is verified, plaintiff admits that he had an opportunity "to make a responsive presentation to the board," and thus there was no due process violation ( see Garcia, 777 F.2d at 1418).
Contrary to plaintiff's further contention, the court properly granted that part of the motion seeking dismissal of the third cause of action for intentional infliction of emotional distress. We agree with the Board that "the facts alleged in the amended complaint, even if true, are insufficient to state a cause of action for intentional infliction of emotional distress, which requires 'extreme and outrageous conduct [so transcending] the bounds of decency as to be regarded as atrocious and intolerable in a civilized society'" ( Butler v Delaware Otsego Corp., 203 A.D.2d 783, 785). In any event, "a cause of action for intentional infliction of emotional distress should not be entertained 'where the conduct complained of falls well within the ambit of other traditional tort liability'" ( Sweeney v. Prisoners' Legal Servs. of N.Y., 146 A.D.2d 1, 7, lv dismissed 74 N.Y.2d 842, quoting Fischer v. Maloney, 43 N.Y.2d 553, 558), which is the case here. Finally, we conclude that the court properly granted that part of the motion with respect to the fourth cause of action for defamation, dismissing with prejudice so much of that cause of action as is time-barred ( see Egleston v. Kalamarides, 58 N.Y.2d 682, 684) and dismissing without prejudice the remainder of that cause of action for lack of particularity ( see CPLR 3016 [a]; Lesesne v. Lesesne, 292 A.D.2d 507, 509; Dillon v. City of New York, 261 A.D.2d 34, 37-38; cf. Esposito v Billings, 103 A.D.2d 956, 957).