INEX No. 9231/04 TRIL/IAS, PART 6 NASSAU COUNTY. aricle that appeared in the July 17, 2003 issue of the newspaper NEWSDA Y. The Diocese of Rockvile

Transcription

1 AMENDED SHORT FORM ORDER Present: SUPREME COURT - STATE OF NEW YORK HON. GEOFFREY J. O' CONNELL Justice REV. CAJETANUCHENDU, -against- Plaintiff(s), TRIL/IAS, PART 6 NASSAU COUNTY INEX No. 9231/04 NEWSDAY, ROMAN CATHOLIC DIOCESE OF ROCKVILLE CENTRE, WINTHROP-SOUTH NASSAU UNERSITY HOSPITAL SYSTEM, WINTHROP UNIVERSITY HOSPITAL, MARY MILLER Individually and as Executrx of the Estate of Charles Miler, deceased and CHERYL BARTGES, MOTION DATE: 9/25/06 MOTION SEQ. No. 5- MOD Defendant( s). The following papers read on this motion: WinthroplNotice of Motion! Affrmation! Affidavits/Exhibits MilerlNotice of Cross Motion! Affrmation/xhibits BargeslNotice of Cross Motion! Affrmation/xhibits Affrmation in Opposition! Affdavit/xhibits Winthrop Reply Miler Reply Bartges Reply In the sole cause of action of his Complaint Plaintiff alleges that the defendants defamed him in an aricle that appeared in the July 17, 2003 issue of the newspaper NEWSDA Y. The Diocese of Rockvile Centre, has already been granted an Order dismissing the claims against them pursuant to CPLR 3211.

2 Discovery in this action has been completed and a Note oflssue has been filed. Defendants Bartges Miler, and Winthrop-South Nassau University Health System, and Winthrop University Hospital all seek Orders granting them summary judgment pursuant to CPLR ~ The aricle in question dealt with events that occurred on March 20, 2003 involving Charles Miler who was a patient in an intensive care unit in Defendant Winthrop University Hospital and Plaintiff, the Rev. Cajetan Uchendu, a Roman Catholic priest and hospital chaplain. The aricle attributed to members of Charles Miler s family the assertion that Mr. Miller was denied "last rites" because of an argument with Defendant Uchendu. It identified Defendant Mar Miller, Charles Miler s wife, and Defendant Cheryl Barges, his daughter, as being present at the hospital at or about the time the events were transpiring. One quotation was specifically attrbuted to Defendant Mary Miller. The aricle also included quotations attbuted to Jane Mather who was identified as "director of pastoral care at Winthrop. Defendant Winthrop University Hospital moves to dismiss the Complaint as against it on the ground that Jane Mather was not a hospital employee and on the ground that the statements attributed to Jane Miler do not constitute defamation. Aug. 13 Defendant Winthrop University Hospital offers a contract entitled " Pastoral Care Agreement" dated 2001 between it and The HealthCare Chaplaincy, "a not-for-profit corporation " pursuant to which The HealthCare Chaplaincy was to furish chaplains to the hospital and be compensated in retur for "salar, benefits, and administrative fee." The contract provides that Winthrop and The Chaplaincy each intends to continue its independent corporate existence and neither entity assumes any liability or obligation ofthe other entity." Barbara K. Kleine, Vice President for Administration at Winthrop University Hospital, avers that this contract was in effect at the time in question and that Jane Mather was never an employee of the hospital. Deborah A. Gray, Executive Vice-President ofthe Winthrop South Nassau University Health System, also avers that Plaintiff was never an employee of the Health System. Neither The HealthCare Chaplaincy nor Jane Mather individually are defendants in this case. As a general rule there is no vicarious liability for the acts of an independent contractor or its employees on the rationale that one who employs an independent contractor has no right to control the manner in which the work is performed. (Kleeman v Reingold 81 NY2d (1993)). Thus, control over the method and

3 means by which the work is done is key in determining whether the contractor is an employee or an independent contractor. (Lazo v Mak' s Trading Co. 199 Ad2d 165 (1 Dept, 1993)). The factors to be considered include the right to control the work, method of payment, the right to discharge, furnishing of equipment and relative nature of the work (Leon v. Lopez 23 AD3d 882 (3 d Dept. 2005))., among others. While control is usually a question of fact, ifthe evidence related to that issue is uncontested, then it may be determined as a matter oflaw. (Berger v Dykstra, 203 AD2d 754 (3d Dept, 1994)). Defendant Winthrop Hospital avers that the Director of Pastoral Care when PlaintiffUchendu began to serve as a chaplain at the hospital was Rev. Winifred Hess, an employee of The HealthCare Chaplaincy, who supervised and managed the chaplains. The Chaplaincy subsequently replaced Rev. Hess with Jane Mather and Ms. Mather was in turn replaced by the current Director of Pastoral Care. Defendant Hospital denies any role in these personnel decisions. The chaplains' compensation and benefits were the responsibility of The HealthCare Chaplaincy. In opposition, despite having deposed Ms. Kleine, Plaintiff relies entirely upon the Pastoral Care Agreement and in paricular upon a provision that required the Hospital to establish a Pastoral Care Deparment to facilitate pastoral care. The uncontradicted affirmation of Barbara Kleine states that the Pastoral Care Departent consists of a single part-time secretary and a chaplain whose services were directly retained. There is no contention that the employee chaplain was involved in any way with the events giving rise to Plaintiff s claims. There is no evidence that Defendant Winthrop University Hospital controlled the methods and means used by the chaplains supplied by the HealthCare Chaplaincy in discharging their duties. Plaintiff also argues that he is a third pary beneficiary of the contract between Winthrop University Hospital and the Chaplaincy, and that a breach of that contract which injures his " right to work at the hospital" is actionable. This novel argument is without merit. Plaintiff was an at HealthCare Chaplaincy subject to discharge at anytime with or without cause. wil employee of The (Horn v New York Times 100 NY2d 85 (2003)). Any claim that Defendant Winthrop University Hospital had a legal or moral obligation (See, Aymes v. Gateway Demolition, Inc. 30 AD3d to protect Plaintiff from being defamed is without merit. 196 (1 sl Dept. 2006)).

4 Defendant Winthrop University Hospital contends that even if there were a basis for imposing vicarous liability for Jane Mather s statements, the statements are not actionable. There are six statements of which Plaintiff complains; (1) "certainly (the patientj died sooner than anyone expected;" (2) "whether the stress was caused by the priest or the confrontation with the priest, I don t know;" (3) "(IJots oflittle pieces came together in a way that created a very unhappy situation for this family;" (4) "(t)here is more to this than a nasty priest who refused to hear a dying man s confession;" (5) "(hjospital ministry is not something that came comfortably to him. Often, he wanted to make a teaching moment out of what I thought should be a pastoral moment;" and (6) "I wanted him to be more wiling to bring comfort to a family and forget about the rules." (Plaintiffs Bil of Pariculars) Defamation is defined as the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him. (Foster v Churchil 87 NY2d ; Rinaldi v Holt, Rinehart Winston, 42 NY2d 369, 379). "Since falsity is a necessary element of a defamation cause of action and only ' facts ' are capable of being proven false alleging facts can properly be the subject of a defamation action. ", (Gross v New York Times Co., it follows that only statements 80 NY2d 146, , quoting 600 W 115/ St. Corp. v Von Gutfeld 80 NY2d ). Thus, statements of opinion canot give rise to a cause of action for defamation because their falsity cannot be proven. Distinguishing between statements of fact and opinion; entails an examination of the challenged statements with a view toward (1) whether the specific language in issue has a precise meaning which is readily ascertainable; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to "' signal * * * readers or listeners that what is being read or heard is likely opinion, not fact'" (Steinhilber Alphonse 68 NY2d 283, 292 quoting Oilman v Evans 750 F2d , cert denied 471 US 1127; accord Immuno AG. v Moor- Jankowski, 77 NY2d 235, cert denied 500 US 954. (Gross New York Times Co. 80 NY2d ). Defendant Winthrop University Hospital asserts, and the Court agrees, that the statements of Ms. Mather are statements of opinion and not actionable because they cannot be proven to be false. The mere fact that plaintiff claims that he suffered embarrassment or lost an employment opportunity due to others

5 reliance upon these opinions, do not make them actionable. (Wanamaker v. VHA, Inc. 19 AD3d 1011 (4th Dept. 2005)). A reasonable reader of the article in question taking the statements attributed to Jane Mather in context would recognize them as statements of opinion. Defendant Mary Miller and Defendant Cheryl Bartges also seek summary judgment dismissing the claims against them. They contend that truth is an absolute defense to cause of action for defamation and that any statement which may be attributed to either of them is true. The Complaint alleges that no one was present in the room with Plaintiff and Charles Miller at the time the administration oflast rites was discussed between them. While the article attributes to " family members" an assertion that Plaintiff denied Charles Miler s request, the statement attributed directly to Defendant Mar Miller is that her husband; "responded that Uchendo refused him an anointing. " No statement is specifically attributed to the Defendant Bartges. Thus, a fair reading ofthe article would identify the only possible source of the assertion that Plaintiff denied Charles Miller " last rites" as Charles Miller himself. It is essentially uncontested that Charles Miller made such a statement. In their depositions both Rev. Laurence Behan of St. Joseph' s Roman Catholic Church in Garden City and Michael Finnegan, Mr. Miler s nurse in the ICU at the time at issue, testified that Charles Miler stated that he had been denied "last rites" by the Plaintiff. Thus the truth of the statement that Charles Miler anointing" has been established as a matter of law for the purposes of this motion. Whether Charles Miler s assertion was true is a question of fact that responded that Uchendo refused him an canot be determined these papers. Since Defendant Mar Miller is sued both individually and in her capacity as Executrix of the Estate of Charles Miler, the Complaint states a cause of action for defamation against the Estate itself. At issue in that cause of action is not whether Charles Miller said that he had been denied "last rites " but whether he had in fact been denied "last rites." The only witnesses to the events were Charles Miller and Plaintiff. Charles Miller s lips have been sealed by death and, in consequence, Plaintiff s lips may well be sealed at trial by CPLR 4519, the so-called "Dead Man s Statute." Since Plaintiff s tort claim against the Estate is predicated upon the communications he exchanged with the deceased in the ICU, he is a person interested in the event communications. (CPLR 4519; who may well be precluded at trial from testifyng to the Walsh v Town of Cheektowaga, 237 AD2d 947 (4 Dept, 1997); Zibbon Town ofcheektowaga 51 AD2d (4 Dept.

6 1976)). However, Plaintiffhas submitted a sworn statement asserting that he did in fact administer "last rites to Charles Miller and denying that he ever refused to do so. That affidavit is suffcient to raise an issue offact and defeat the motion for summar judgment against the Estate leaving to the trial the question whether and to what effect CPLR 4519 wil be applied. (Philps Kantor 31 NY2d 307 (1972)). Based on the foregoing, the motions of the defendants, Winthrop University Hospital Winthrop-South Nassau University Health System, Mar Miler insofar as she is sued individually and Cheryl Bartges for summary judgment are Granted in their entirety. The motion by Mary Miller as Executrix of the Estate of Charles Miler is denied. It is, SO ORDERED. Dated: J)c 490 Y J. O'CONNELL, J. ENTERED lees 100