New York State Court of Claims

New York State Court of Claims

MONREAL v. THE STATE OF NEW YORK, #2008-038-583, Claim No. 113889, Motion Nos. M-74059, M-74090


Defendant’s motion for summary judgment granted. In this claim for damages allegedly sustained from libel and slander in the context of an administrative investigation, hearing and revocation of claimants license to practice medicine, claimant failed to raise any triable issue of fact in opposition to defendant’s motion.

Case Information

1 1.The Court has sua sponte amended the caption to reflect the State of New York as the only proper party.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper party.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-74059, M-74090
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Glenn C. King, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 25, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, a physician/neurologist who is prosecuting this claim pro se, seeks damages for injuries that he claims have been caused by the actions of the Office of Professional Medical Conduct (OPMC), an office of the New York State Department of Health that is responsible for, among other things, investigating complaints about physicians. Briefly, this prolix and rambling claim reveals that claimant was the subject of at least one complaint allegedly made to OPMC in the summer of 2004 regarding a consultation and report by claimant concerning a seven-year-old girl, referred to in the claim as “A.F.” The complaint was investigated by OPMC, and the investigation included evaluative reports written by Andrea M. Lefton, M.D. and Jerome S. Haller, M.D., dated February 18, 2005 and March 14, 2005, respectively. The instant claim was filed June 25, 2007. An “Updated/Ammended [sic]” claim (hereinafter “amended claim”) was filed on August 17, 2007, which supplements the claim to allege that claimant’s license was revoked effective July 20, 2007, and to allege specific instances of inquiries by potential employers and professional opportunities lost as a result of OPMC’s actions. Defendant has moved for summary judgment dismissing the claim on various grounds. Claimant opposes the motion, and moves for summary judgment in his favor. Determination of these motions must be preceded by an evaluation of the nature of the amended claim and the viability of its causes of action in this Court and at this time. Thorough review of the amended claim (King Affirmation, Exhibit B) reveals several discernible causes of action: (1) a claim for injuries arising from the allegedly adversarial, biased and otherwise improper conduct of the OPMC during its investigation (¶¶ 4, 6, 9-19, 21-24), including slander and defamation (¶¶ 7-8, 25); (2) a claim for slander against defendant’s counsel (¶ 20), and; (3) a claim for injuries flowing from the publication of the decision of the OPMC and its “Adjudication Board” to revoke claimant’s medical license effective July 20, 2007 (¶ 27).

As implicitly recognized in claimant’s Notice of Motion, the only claims that are properly before this Court are those for libel, slander and defamation. Any alleged misconduct by the OPMC during the course of its investigation, as well as the ultimate determination to revoke claimant’s medical license, cannot serve as a basis for damages in this Court, even if the revocation has, as alleged, caused claimant to suffer injury. The exclusive procedural avenue for seeking judicial review of defendant’s administrative processes and its determination to revoke a physician’s license is a special proceeding before the Appellate Division, Third Department following the final administrative determination (see Public Health Law §§ 230[10][i]; 230-c[5]; see e.g. Matter of Rattray v Novello, 46 AD3d 953 [3d Dept 2007]; Matter of Rowley v New York State Dept. of Health, 3 AD3d 615 [3d Dept 2004]). Simply stated, this Court lacks the authority to review the OPMC’s investigation, the hearing, or the decision to revoke claimant’s medical license. Similarly, claimant’s assertions in his amended claim that he lost job opportunities because potential employers became aware of the OPMC proceedings and determination to revoke his license are not actionable in this Court absent a determination by the Appellate Division that defendant’s conduct or determination was improper.

Claimant asserts a claim for “Slander[2] and Calumnious Defamation” (King Affirmation, Exhibit B, ¶ 25). The amended claim, in paragraphs 4 and 5, complains of libel by Dr. Andrea Lofton [sic] and Dr. Jerome Heller [sic]. These allegations of libel arise generally from a report to the OPMC written by Dr. Lefton following a review of records and a psychiatric evaluation of claimant (King Affirmation, Exhibit A, Document C), and from a letter to the OPMC written by Dr. Haller following his review of claimant’s records and other information (King Affirmation, Exhibit A, Document D). The amended claim does not complain of any specific statement in those documents, but generally alleges that Drs. Lefton and Haller were biased, negative, and failed to balance their views with information provided by claimant. In paragraph 20 of the amended claim, claimant asserts that Assistant Attorney General Roger Williams made a slanderous and defamatory statement about claimant’s mental health in open court during a judicial proceeding apparently related to the production of documents in the course of OPMC’s investigation (King Affirmation, Exhibit A, Document R). In paragraphs 21and 22 of the amended claim, claimant complains of slanderous and defamatory letters from OPMC that were addressed to claimant (King Affirmation, Exhibit A, Documents S and V).

It is well established that a movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Turning to the allegations addressed to the reports of Dr. Lefton and the letter of Dr. Haller, the allegedly libelous or defamatory statements contained in these documents are protected by a qualified privilege because they were made by persons with an interest in the subject of the statement, and were published only to persons with a corresponding interest (see Buckley v Litman, 57 NY2d 516, 520-521 [1982]; Stukuls v State of New York, 42 NY2d 272, 278-279 [1977]; Halegoua v Doyle, 248 AD2d 357 [2d Dept 1998]). In other words, because the documents produced and by Drs. Lefton and Haller and transmitted to OPMC staff were pertinent to the investigation of claimant’s fitness to practice medicine, they are protected by the qualified privilege that applies to information that is exchanged under circumstances which rely upon a free flow of information (see Liberman v Gelstein, 80 NY2d 429, 437 [1992]; see generally Toker v Pollak, 44 NY2d 211 [1978]). The qualified privilege may be defeated by a showing that the alleged statements were made with malice or ill will (see McGovern v Hayes, 135 AD2d 125, 128 [3d Dept 1988] lv denied 72 NY2d 803 [1988]). More specifically, in the context of an investigation by OPMC, experts such as Drs. Lefton and Haller are specifically granted the qualified immunity, holding them harmless unless there is a showing of “actual malice” (see Public Health Law § 230 [16]). In opposition to defendant’s motion, claimant has not made any evidentiary showing that the statements of Drs. Lefton and Haller were actuated by “personal spite, ill will, culpable recklessness or negligence” (McGovern v Hayes, 135 AD2d at 128). Accordingly, defendant is entitled to summary judgment with respect to the allegations set forth in paragraphs 4 and 5 of the amended claim.

Any cause of action for libel or defamation arising from the letters written by OPMC to claimant (King Affirmation, Exhibit A, Documents S, T and V) cannot succeed because claimant has not, as he must, offered any admissible evidence that such letters were read by any third party (see Barber v Daly, 185 AD2d 567, 568-569 [3d Dept 1992]). Thus, defendant is entitled to summary judgment with respect to the allegations set forth in paragraphs 21 and 22 of the amended claim.

Turning to the allegation that claimant was slandered by an Assistant Attorney General during a proceeding in Supreme Court that was related to OPMC’s investigation, “a statement, made in open court in the course of a judicial proceeding, is absolutely privileged if, by any view or under any circumstances, it may be considered pertinent to the litigation” (Martirano v Frost, 25 NY2d 505, 507 [1969]; see Youmans v Smith, 153 NY 214, 219 [1897]; Fowler v Conforti, 194 AD2d 394 [1st Dept 1993]; see also Dworkin v State of New York, 34 AD3d 1014, 1014-1015 [3d Dept 2006]; Grasso v Mathew, 164 AD2d 476, 479 [3d Dept 1991], lv denied 78 NY2d 855 [1991]). “Nothing that is said in the court room may be the subject of an action for defamation unless ... it is ‘so obviously impertinent as not to admit of discussion, and so needlessly defamatory as to warrant the inference of express malice’” (Martirano v Frost, at 508, quoting Youmans v Smith, supra). Here, it is apparent that claimant’s mental health was an issue in the OPMC proceedings, and thus, a comment in open court relating to claimant’s mental health was pertinent to the litigation. Accordingly, the allegation set forth in paragraph 20 of the amended claim is not actionable, and defendant’s motion for summary judgment must be granted.

Thorough review of claimant’s motion for summary judgment demonstrates that he has not submitted any evidence in admissible form that entitles him to judgment as a matter of law.

Accordingly, it is

ORDERED, that claimant’s motion for summary judgment (Motion No. M-74090) is DENIED, and it is further

ORDERED, that defendant’s motion for summary judgment dismissing the claim (Motion No. M-74059) is GRANTED, and Claim Number 113889 is DISMISSED in its entirety.

February 25, 2008
Albany, New York

Judge of the Court of Claims

Papers considered:

(1) Notice of Motion for Summary Judgment (M-74059), dated October 4, 2007;

(2) Affirmation of Glenn C. King, AAG, dated October 4, 2007, with Exhibits A-D;

(3) Defendant’s Memorandum of Law, dated October 4, 2007;

(4) Claimant’s Answer to Defendant’s Motion for Summary Judgment, dated October 6, 2007, with Exhibits A-C;

(5) Notice of Motion for Summary Judgment, dated October 6, 2007;

(6) Claimant’s Motion for Summary Judgment, dated October 6, 2007, with Exhibits A-D;

(7) Claimant’s Brief, dated October 25, 2007, with Exhibits A-C;

(8) Reply Affirmation of Glenn C. King, AAG, dated November 6, 2007.

[2]. The claim actually sounds in slander and libel, as the claim makes allegations of defamatory statements made by the spoken word (slander) and by the written word (libel).