                           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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                                                 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 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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                                                 519666

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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                                                 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
(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
                              -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 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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                                                   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/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
