Communications made by "individuals participating in a public function, such as judicial, legislative, or executive proceedings" are protected by an absolute privilege

In an action to recover damages for defamation,* Plaintiff appealed an order of a Supreme Court which granted that branch of the motion submitted by two Defendants [hereinafter Defendant 1 and Defendant 2 respectively] for summary judgment dismissing the Plaintiff's causes of action to recover damages for alleged slander per se and libel per se insofar as asserted against Defendant 1. 

Two defendants, Defendant 1 and Defendant 2, moved for summary judgment dismissing the causes of action to recover damages for slander per se and libel per se insofar as asserted against Defendant 1. Supreme Court issued an order granting that branch of the Defendants' motion. The Plaintiff appealed.

The Appellate Division affirmed the Supreme Court's order "insofar as appealed from, with costs".

The Appellate Division's decision reports that Defendant 1 was, at relevant times, a council member for the Town and, among others, filed a complaint against Plaintiff with the Grievance Committee for the Ninth Judicial District alleging that Plaintiff represented a party in a taxpayer action commenced against Defendant 1 and the Town. Plaintiff subsequently became counsel for the Town while still representing the party in the taxpayer action. The Attorney Grievance Committee, First Judicial Department [Committee] ultimately disposed of the complaint by issuing an admonition to the Plaintiff.

In addition, the Appellate Division's ruling notes that Defendant 1, among others, released a media advisory to members of the press and to private individuals stating that Plaintiff had been "reprimanded" by the Committee. Further, during a press conference in front of the Town Hall, Defendant 1 stated, among other things, that the Plaintiff had been admonished and had engaged in "illicit quid pro quo."** 

The Appellate Division noted that communications made by "individuals participating in a public function, such as judicial, legislative, or executive proceedings" are protected by an absolute privilege", citing Toker v Pollak, 44 NY2d 211. Further, said the court, "Absolute privilege is based upon the personal position or status of the speaker and is limited to the speaker's official participation in the processes of government", citing Colantonio v Mercy Med. Ctr., 135 AD3d 686'.

The Appellate Division also noted that Defendants' motion for summary judgment dismissing the causes of action to recover damages for slander per se and libel per se insofar as asserted against Defendant 1 was properly granted by Supreme Court [albeit for reasons different than those relied upon by the Supreme Court]. 

In the words of the Appellate Division, "Assuming without deciding that the challenged statements constitute actionable defamatory statements, [Defendant 1] established, prima facie, that he published the challenged statements while acting in his role as a council member for the Town and was therefore protected by absolute privilege" citing Riggio v County of Nassau, 218 AD3d at 503 and other decisions.

In contrast, citing Alvarez v Prospect Hosp., 68 NY2d 320, the Court noted that Plaintiff failed to raise a triable issue of fact".

* In stating causes of action to recover damages for slander per se and libel per se Plaintiff alleged that the statements in a media advisory and at the press conference were defamatory per se. 

** Illicit quid pro quo refers to illegal or unethical exchanges, usually done in secret, in order to gain an unfair advantage.

Click HERE to access the Appellate Division's decision posted on the Internet.

An applicant seeking disability retirement benefits bears the burden of demonstrating a permanent incapacity from performing the duties of the position

In a proceeding pursuant to CPLR Article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System [Board] which denied the Petitioner's application for disability retirement benefits and the Medical Board of the New York City Employees' Retirement System appeal a judgment of the Supreme Court, which granted the Petitioner's amended petition and annulled the Board's determination, the Appellate Division reversed the Supreme Court's ruling "on the law, with costs," denied Petitioner's amended petition and dismissed the proceeding "on the merits".

Petitioner had applied for disability retirement benefits as a result of two work-related incidents claiming that as a result of the injuries he sustained in those incidents, he could no longer work.* In a proceeding pursuant to CPLR Article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System [Board] which denied the Petitioner's application for disability retirement benefits and the Medical Board of the New York City Employees' Retirement System appealed a judgment of the Supreme Court, which granted the Petitioner's amended petition and annulled the Board's determination.

The Medical Board had reviewed Petitioner's applications and medical documentation a number of times and ultimately issued its fourth report, which was substantively similar to the first three reports but more detailed, finding the Petitioner was not disabled. Petitioner then commenced the instant proceeding pursuant to CPLR Article 78 to review determination of the Board of Trustees.

In the words of the Appellate Division, "An applicant seeking disability retirement benefits bears the burden of demonstrating that she [or he] is permanently incapacitated from performing her [or his] job duties", citing Matter of Hannon v New York State Dept. of Human Rights, 170 AD3d 1175 and other decisions.  The Court also noted that "The Medical Board determines whether a member applying for disability retirement benefits is disabled, and the Board of Trustees is bound by the Medical Board's finding that an applicant is, or is not, disabled for duty" (See Matter of Russell v New York City Employees' Retirement Sys., 155 AD3d 1046).

The Appellate Division held that "a Medical Board's disability determination will not be disturbed if the determination is based on substantial evidence", citing Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, noting that "Substantial evidence in this context means some credible evidence", citing Matter of Maxwell v New York City Employees' Retirement Sys., 210 AD3d 1095,

The Appellate Division's decision also noted that "the Medical Board's determination that the Petitioner did not establish a disability as a result of the two work-related incidents was supported by credible evidence and the record indicates that "the Medical Board considered all of the medical evidence submitted by the [Petitioner] and interviewed and physically examined the[Petitioner] three times". In addition the Court's decision states that:

1. "The record further demonstrates that the [Petitioner's] right hip injury was the result of a preexisting condition and was not caused by the two work-related incidents"; and 

2. Petitioner's carpal tunnel syndrome was not considered a disability as the Petitioner chose to forego surgery.

Accordingly, the Appellate Division found that the Board of Trustees' determination adopting the recommendation of the Medical Board was not irrational or arbitrary and capricious and the Supreme Court should have denied the amended petition and dismissed the proceeding on the merits.

* The Petitioner did not have 10 years of service credit at the time of his application for disability retirement benefits and, therefore, was required to demonstrate that he was "physically . . . incapacitated for performance of gainful employment as the natural and proximate result of an accident not caused by his own willful negligence sustained in the performance of his duties" (See Retirement and Social Security Law §605[b][3]).

Click HERE to access the Appellate Division's decision posted on the Internet.

Challenge to the revocation press credentials issued to an individual by a New York City agency sustained

A petition filed by a New York City agency in an effort to revoke press credentials it had earlier issued to an individual [Respondent] was denied by New York City Office of Administrative Trials and Hearing [OATH] Administrative Law Judge [ALJ] Jonathan Fogel, "in a case of first impression".

Judge Fogel dismissed the petition filed by the New York City Mayor’s Office of Media and Entertainment [Petitioner] seeking to revoke a press credential it had previously issued to Respondent. 

Petitioner alleged that Respondent was not acting in a newsgathering capacity and Respondent misused or misrepresented his credential when he wore it to his own court proceedings and protests. 

The ALJ found that Petitioner failed to prove both charges by clear and convincing evidence. 

With respect to the court proceedings, the Administrative Law Judge held that Petitioner’s video evidence of Respondent wearing his credential outside the courthouse, discussing his case, and stating that he wore his badge with “no issues,” was insufficient to establish that Respondent actually wore the credential inside the proceedings or to influence the judge. 

The ALJ opined that Respondent plausibly asserted that he was newsgathering when he wore the credential outside the courthouse because he was reporting on his own court case. 

Respondent also produced proof that Petitioner had approved his newsgathering methods in connection with his application. 

Addressing "the protests," the ALJ found that video evidence supported Respondent’s assertion that he was newsgathering because he appeared to be broadcasting his commentary during the protests and answering questions from an online audience. 

Rejecting Petitioner’s argument that Respondent wasn’t newsgathering because he wasn’t “neutral,” the ALJ found that it is possible for someone to both attend a protest and engage in newsgathering.

Click HERE to access Administrative Law Judge Fogel's findings and decision. 

Selected items posted on blogs during the week ending August 22, 2025

A Government Leader’s Guide to Meeting Website Accessibility and Compliance Requirements Meet DOJ mandates with this publications from CivicPlus: ensure ADA compliance and better serve all residents. Read Now

Get your AI benchmark and take action! Discover your agency’s AI readiness in just 5 questions — identify roadblocks and know where you stand. Reveal My AI Score! 

Colorado Sags Under $1.2 Billion Loss Due to Federal Tax Changes  Colorado’s “rolling conformity” with the federal tax code, coupled with sweeping tax breaks enacted by Congress, triggered a sudden revenue loss. READ MORE

Hotel-to-Shelter Conversions Continuing Years After Pandemic Lockdowns  Cities and states scrambled to house homeless people in hotels and motels during the emergency phase of the pandemic. Many communities still find it’s a good model. READ MORE

Eliminate wait times. Serve the public faster  Automate check-in, form filling, payments and more with secure self-service - onsite or online. See what’s possible 

Local Governments could be flying blind as federal data disappears  State and local governments depend on federal data for everything from community planning to disaster response. What happens if it goes away? READ MORE 

Nearly 1 in 5 Americans Over 65 Are Still in the Workforce Driven by rising poverty and inadequate retirement income, older people are increasingly turning to employment, with labor force participation in urban areas climbing more steeply. READ MORE 

Practical guides, checklists, and benchmarks for workspace redesign  Whether you’re in IT, facilities, or HR — you’ll find clear takeaways on how to support modern public service work. Visit this interactive guide

Defined Contribution Plans and Alternative Investments Are vehicles like private equity, crypto and real estate a good fit for 401(k)-style public retirement plans — or too risky for savers? Marketers will soon be pitching these alternative investments to public employers. Prudence dictates caution. READ MORE

State and local leaders are navigating significant change

In this 30-minute webinar, Government Technology’s Dustin Haisler and Joe Morris will provide an update on what these changes mean for public agencies and the private-sector partners that support them, featuring insights into:

• The ripple effects of federal policy changes on state and local priorities
• Trends to watch in infrastructure, education, emergency services, and more
• How agencies are adapting their strategies

Whether you're a public-sector leader seeking to refine your agency's strategy or a private-sector vendor wanting to align your solutions with evolving government needs, this Government Technology webinar is designed to provide up-to-the-minute, actionable insights to help you lead effectively in 2025 and beyond.

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Plaintiffs in this action alleged law enforcement personnel engaged in malicious prosecution, fabrication of evidence, and false arrest

The United States Court of Appeals for the Second Circuit's summary of its decision in this action, Carruthers v Colton - 22-3232-cv, is set out below:

"Judgment, entered on November 29, 2022, by the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge), granting the motion to dismiss Carruthers’s complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by Defendants-Appellees Kimberly Colton, Charles Humphreyville, and Kristen Weston (hereinafter, “Defendants”). 

"Carruthers brought claims, pursuant to 42 U.S.C. §1983, for malicious prosecution, fabrication of evidence, false arrest, and failure to intervene against Defendants, who are all New York State Troopers. 

"The claims arose from Defendants’ alleged participation in a traffic stop of Carruthers’s vehicle on September 4, 2017, in Oneida County, New York, and in his subsequent arrest and prosecution for a felony driving while intoxicated (“DWI”) offense, multiple lesser DWI-related offenses, and a traffic infraction. 

"We conclude that the district court correctly dismissed Carruthers’s false arrest claim and the portion of his malicious prosecution claim based on the DWI related charges that were dismissed as part of his guilty plea to the traffic infraction but erred in dismissing Carruthers’s malicious prosecution claim as to the terminated felony charge and his fabrication of evidence claim.

"First, with respect to the false arrest claim, we agree with the district court that Carruthers’s guilty plea to the traffic infraction established probable cause for his arrest and defeats that claim. Second, as to the malicious prosecution claim, the district court correctly held that Carruthers does not have a viable claim as to the DWI-related charges dismissed as part of the negotiated guilty plea. 

"We generally assess the favorable termination element of a malicious prosecution claim charge by charge. Applying that rule to the guilty plea context, when a charge is dismissed as part of a negotiated agreement in which the defendant agrees to plead guilty to a different charge, that dismissal does not constitute a favorable termination for the purposes of a malicious prosecution claim. However, even if a guilty plea has been entered into for one or more charges, a favorable termination can be established for another dismissed charge in the same criminal case if the dismissal was unrelated to the plea disposition. 

"Thus, Carruthers has a plausible claim as to the terminated felony charge because the amendment of that charge to a misdemeanor (which effectively dismissed the felony charge) does not appear, based upon the complaint, to have been terminated as part of the guilty plea disposition. 

"Finally, with respect to the fabrication of the evidence claim, we conclude that Carruthers has adequately alleged particularized facts that, when construed in his favor, could reasonably give rise to the inference that Trooper Colton intentionally fabricated evidence to justify the DWI-related charges. 

"Accordingly, we AFFIRM the judgment of the district court as to the false arrest claim and the malicious prosecution claim insofar as it relates to the DWI related charges dismissed as part of the plea agreement, we VACATE the judgment of the district court as to the malicious prosecution claim only as it 3 relates to the terminated felony charge and the fabrication of evidence claim, and we REMAND for further proceedings consistent with this opinion."

Click HERE to access the full text of the Second Circuit's decision in this matter.

Employment opportunities with New York City's Office of Administrative Trials and Hearings

The New York City Office of Administrative Trials and Hearings [OATH] Trial Division is seeking recent law school graduates for appointment to positions of Law Clerk. 

Working directly with OATH’s Administrative Law Judges, Law Clerks engage in legal research and writing on cases involving civil servant discipline, consumer and worker protection matters, taxi and rideshare licensing, contract disputes involving the city, as well as cases falling under the Campaign Finance Law, Human Rights Law, Conflict of Interest Law, and more.

OATH is also seeking to fill the position of Supervising Law Clerk to head OATH's legal research unit and supervise its staff of Law Clerks. 

The Supervising Law Clerk position requires admission to the New York State Bar; four years of recent full-time responsible, relevant, satisfactory legal experience following admission to any bar, 18 months of which must have been in the supervision of other attorneys, in an administrative, managerial or executive capacity. Experience handling highly complex and significant legal work is a plus. 

Incumbents serving these positions must remain members of the New York State Bar in good standing while so employed by OATH and work to promote access to justice in New York City.

For more details visit https://cityjobs.nyc.gov/ and search for Job ID 720154 (Supervising Law Clerk) or Job ID 720158 (Law Clerk).

Judicial officers act in a judicial capacity when they decide firearms license applications and have absolute immunity from suit in their individual capacities

The Plaintiffs in this action, brought in the United States District Court for the Northern District of New York, are New York State residents who applied for concealed carry licenses pursuant to New York State’s firearms licensing laws*. 

A New York State court judge, Judge Jonathan D. Nichols, serving as a statutory firearms licensing officer, had reviewed and denied the Plaintiffs' applications for failing to meet the statutory criteria for eligibility for such a license. 

The Plaintiffs sued Judge Nichols in his individual and official capacities under color of 42 U.S.C. §1983, alleging that New York’s firearms licensing laws violate their rights under the Second and Fourteenth Amendments to the Constitution of the United States. A Federal District Court dismissed the Plaintiffs’ §1983 claims, holding:

1. Absolute immunity barred Plaintiffs' individual-capacity claims because Judge Nichols acted in his judicial capacity in ruling on their respective applications; and 

2. U.S.C. §1983 and Article III’s case-or-controversy requirement barred Plaintiffs' claims for injunctive relief and declaratory relief".

The Plaintiffs appealed the District Court's rulings. The Second Circuit Court of Appeals affirmed the District Court's decisions.

In so doing the Circuit Court of Appeals reaffirmed its precedent that judicial officers are acting in a judicial capacity when they decide firearms license applications and therefore, "enjoy absolute immunity from suit in their individual capacities". 

The Circuit Court further explained that "Plaintiffs’ specific claims for injunctive relief and declaratory relief against Judge Nichols in his official capacity are barred by Article III’s case-or-controversy requirement". 

* See New York State’s Penal Law §400.00, et seq.

Click HERE to access the Second Circuit's decision posted on the Internet.

The Real Risk Isn’t the Cloud—It’s Premises-Based Software -

Cloud Computing for Lawyers by Rochester, New York Attorney Nicole Black, was published by the American Bar Association. Click HERE to read the whole story.

Jurisdiction's motion for summary judgment denied in an action alleging its law enforcement personnel used excessive force in responding to an incident

The Plaintiffs in this action sought to recover damages based on the alleged use of excessive force by certain officers of a Town's Police Department and other named defendants [Defendants] in the course of certain Defendants' responding to an incident. 

Defendants moved for summary judgment dismissing the Plaintiffs' complaint insofar as asserted against them. Supreme Court denied Defendants' motion and the Defendants' appealed the court's ruling. 

The Appellate Division affirmed the Supreme Court's ruling. explaining:

1. "'Claims that law enforcement personnel used excessive force in the course of an arrest are analyzed under the Fourth Amendment and its standard of objective reasonableness", citing Combs v City of New York, 130 AD3d 862, quoting Moore v City of New York, 68 AD3d 946; and 

2. Determining an excessive use of force claim involving law enforcement personnel requires an analysis of the facts of the particular case, including:

    a: "the severity of the crime at issue; 

    b. "whether the suspect poses an immediate threat to the safety of the officers or others; and 

    c. "whether [the suspect was] actively resisting arrest or attempting to evade arrest by flight".

Further, citing Holland v City of Poughkeepsie, 90 AD3d 841, the Appellate Division opined that "The question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide".

Click HERE to access the decision of the Appellate Division posted on the Internet.

Former Fire Department Treasurer pleads guilty to grand larceny in the second degree

The Former Treasurer of the Vernon Center New York [Fire Department] "pled guilty to grand larceny in the second degree", conceding having stolen more than $300,000 from the Department. As noted in earlier NYPPL summaries of court decisions involving  a public employee stealing public funds, such breaches of the public trust are sometimes  referred to as "jobbery." Merriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain". 

On August 14, 2025 New York State Comptroller Thomas P. DiNapoli issued a press release reporting that Jonnell Rose, a former Treasured of the Vernon Center New York Fire Department, "pled guilty to grand larceny in the second degree" after stealing more than $300,000 from the Fire Department. 

In a press release dated August 14, 2025, Comptroller DiNaoppli, together observations made by Oneida County District Attorney Todd Carville, and New York State Police Superintendent Steven G. James, stated the following:

“Jonnell Rose betrayed his community’s trust and stole over $300,000 meant to protect it,” DiNapoli said. “I thank District Attorney Carville and the New York State Police for their partnership in holding him accountable.”

Carville said, “This crime is particularly disturbing because of the victims that were targeted, the community and the fine men and women who selflessly give their time and talent as volunteer firefighters. I would like to thank the New York State Police and the New York State Comptroller’s Office for their hard work as well as the efforts of my Assistant, ADA Paul Kelly, who ensured that the defendant was held responsible and prosecuted to the fullest extent of the law.”

James said, “This guilty plea demonstrates the vital collaborative work of our law enforcement partners focused on the same goal; holding those who break our laws, accountable. Mr. Rose took advantage of a position he was entrusted in, and stole funds intended to support the Vernon Center Fire Department and the community it serves. I thank our State Police members, the Comptroller’s Office, and Oneida County District Attorney’s Office for their commitment to investigating and prosecuting those who victimize others.” 

A joint investigation by DiNapoli’s office and the State Police found Rose, 52, of Vernon, stole $309,000 from the department over a six-year period from May 2018 to May 2024.

Rose wrote fire department checks to cash, which he pocketed, deposited checks written to various legitimate fire department vendors into his personal accounts and deposited checks intended for the department into his own bank account. 

A forensic examination by DiNapoli’s office revealed that Rose made numerous personal purchases and payments, including crypto currency transactions, credit card payments, and cash withdrawals with the funds he stole from the department.

Rose pled guilty before Judge Michael Nolan in Oneida County Court to Grand Larceny in the Second Degree and will be sentenced on October 28, 2025.

Selected items from various blogs posted on the Internet during the week ending August 15, 2025

New York State’s Local Cybersecurity Reporting Rules Kick In New York Gov. Kathy Hochul has announced that recently approve lawmakers requirements have kicked in and “all municipal corporations and public authorities” must report any “cybersecurity incidents” within 72 hours. Gov. Hochu has also established a Joint Security Operations Center, a data-sharing command center for cybersecurity.

Cyber Resilience for State & Local Government: A Roadmap to Smarter, Faster, Stronger Defense. Learn how to shift from reactive defense to proactive resilience with three key strategies: endpoint protection, real-time response, and unified visibility across hybrid environments. Download the paper.

Now is the time to secure your seat. The New York City Public Sector Cybersecurity Summit to be held on October 23 in New York City is now accepting registrations. Click here to register today to secure your spot.

AI in State and Local Government: Everything You Need to Know.  Artificial Intelligence (AI) often dominates technology discussions. This go-to guide shares everything you need to know to quickly begin implementing AI and developing the appropriate policy for the technology. DOWNLOAD

Preparing Utilities and Local Governments for a Paperless World. The paperless future is here. Is your utility or local government ready? This resource explores how utilities can embrace a paperless future to cut costs, improve operational efficiencies, and meet modern demands. DOWNLOAD

Pennsylvania Counties and Cities Step In to Rescue Struggling Main Streets Municipalities are investing in small-business corridors to combat closures, rebuild after disaster and boost local economies. READ MORE

S.F. Police Union Shifts Leadership to ‘Boots-on-the-Ground’ Advocate
After 30 years patrolling the city’s toughest neighborhoods, Louie Wong now leads the San Francisco Police Officers Association with promises to pursue better pay and earlier retirement benefits. READ MORE