        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1262
CA 13-01046
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


CRAIG M. SCHULTZ, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TOWN OF WHEATFIELD AND ROBIN R. ZASTROW,
DEFENDANTS-APPELLANTS.


PETRONE & PETRONE, P.C., WILLIAMSVILLE (JAMES H. COSGRIFF, III, OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

DAVID W. POLAK, ATTORNEY AT LAW, P.C., WEST SENECA (DAVID W. POLAK OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County
(Catherine R. Nugent Panepinto, J.), entered October 16, 2012. The
order, inter alia, denied in part the motion of defendants for partial
summary judgment and dismissed plaintiff’s second, third and fifth
causes of action.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of the motion
with respect to the third cause of action and dismissing that cause of
action and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action asserting causes of
action for, inter alia, defamation and constructive discharge from his
employment based upon his alleged demotion from the rank of sergeant.
Plaintiff is a constable employed by defendant Town of Wheatfield
(Town) and a former candidate for public office. He alleged that,
after his unsuccessful bid for election to the Wheatfield Republican
Committee in 2010, the Town demoted and constructively discharged him
without cause and without a hearing in retaliation for his political
activities. Plaintiff further alleged that, during his subsequent bid
for a seat on the Town Board in 2011, which was unsuccessful,
defendant Robin R. Zastrow, acting in his official capacity as Chief
Constable, published defamatory statements about him in a letter to
the Buffalo News. Defendants moved for partial summary judgment
dismissing the second through fifth causes of action, for violations
of plaintiff’s constitutional due process rights and First Amendment
rights, defamation, and constructive discharge, respectively. Supreme
Court granted the motion only with respect to the cause of action for
defamation, and we agree with defendants that the court also should
have granted it with respect to the cause of action for the alleged
violation of plaintiff’s First Amendment rights. We therefore modify
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                                                         CA 13-01046

the order accordingly.

     Contrary to defendants’ contention, we conclude that they failed
to establish their entitlement to judgment as a matter of law with
respect to the causes of action for violations of plaintiff’s
constitutional due process rights and constructive discharge (see
generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
Defendants contend that plaintiff could not have been demoted from the
rank of sergeant because no such position ever existed. Even
assuming, arguendo, that defendants established that plaintiff was not
demoted because no such position ever existed, we conclude that their
submissions on the motion failed to eliminate issues of fact whether
they retaliated against plaintiff because of his political activities
by eliminating his assignments and failing to schedule him for work,
all without notice or a hearing pursuant to Civil Service Law § 75 (1)
(c) (see generally Richardson v City of Saratoga Springs, 246 AD2d
900, 901-902). Defendants’ conclusory assertions that notice and a
hearing “are not at issue” do not establish that the second and fifth
causes of action lack merit (see Winegrad, 64 NY2d at 853).
Defendants contend for the first time on appeal that no hearing was
required, and thus that contention is not properly before us (see
Swegan v Svenson, 104 AD3d 1131, 1132).

     With respect to the cause of action for violation of plaintiff’s
First Amendment rights, plaintiff alleges that Zastrow’s letter was
defamatory in nature and had a chilling effect on his First Amendment
right to engage in political activity. We agree with defendants that
the court erred in denying that part of their motion for partial
summary judgment dismissing that cause of action. Plaintiff has not
challenged the dismissal of his cause of action for defamation, which
allegedly flowed from Zastrow’s letter. Inasmuch as defendant has no
viable common-law defamation cause of action, his First Amendment
cause of action is also without merit. The First Amendment does not
afford a plaintiff the right to run a political campaign that is free
from public criticism (see generally New York Times Co. v Sullivan,
376 US 254, 270-271; Shulman v Hunderfund, 12 NY3d 143, 147).




Entered:   February 7, 2014                    Frances E. Cafarell
                                               Clerk of the Court
