Opinion
November 29, 2001.
Order, Supreme Court, New York County (Michael Stallman, J.), entered April 13, 2000, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Alan E. Wolin, for plaintiff-appellant.
A. Orli Spanier, for defendants-respondents.
Before: Rosenberger, J.P., Williams, Wallach, Lerner, Saxe, JJ.
Plaintiff's first and third causes of action, which challenge defendant Police Department's disqualification of plaintiff from seeking employment as a police officer because of psychological reasons, were properly dismissed for failure to exhaust administrative remedies (New York City Charter § 813[d]). It does not avail plaintiff to couch his claims in terms of a violation of his "rights to substantive and procedural due process", or in other constitutional terms, where resolution of his claims rests upon factual issues that are reviewable administratively (see,Matter of Schulz v. State of New York, 86 N.Y.2d 225, 232, cert denied 516 U.S. 944; Koultukis v. Phillips, 285 A.D.2d 433, 435, 728 N.Y.S.2d 440, 442). Plaintiff's second cause of action for defamation and deprivation of a liberty interest was properly dismissed since the actual defamatory words were not set forth in the complaint (CPLR 3016[a];Farmelant v. City of New York, 187 A.D.2d 281, appeal dismissed, lv denied 81 N.Y.2d 832, cert denied 509 U.S. 927; see, also, Murganti v. Weber, 248 A.D.2d 208). Plaintiff will not be heard to speculate that he was defamed and then to argue that the action should not be dismissed until he has first been given an opportunity to confirm his speculation through disclosure (see, HT Capital Advisors v. Optical Resources Group, 276 A.D.2d 420). Absent allegations particularly setting out defendants' communications to plaintiff's prospective employers, there can be no basis for claiming that the communications were both stigmatizing and false, and thus no basis for claiming deprivation of a liberty interest (see, Board of Regents v. Roth, 408 U.S. 564, 573; Gentile v. Wallen, 562 F.2d 193, 197). In addition, the second cause of action fails for the separate reason that the allegedly defamatory communications were not made in the course of plaintiff's termination from governmental employment (see, Aquilone v. City of New York, 262 A.D.2d 13, 13-14, lv denied 93 N.Y.2d 819).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.