Plaintiff-Appellant, Samuel Albert, a physicist formerly employed at Brooklyn Hospital (the “Hospital”), brought an action in the United States District Court for the Eastern District of New York alleging that the Hospital fired him in breach of his
BACKGROUND
Albert’s Role at the Hospital
Albert began work as an “assistant physicist” in the Hospital’s radiology department in 1994. Loksen, one of the defendants, was his supervisor.
Albert did not have a written .employment contract with the Hospital. Shortly after he was hired, however, he attended an orientation session at which Hospital policies were reviewed. Excerpts from the Hospital’s “Policy and Procedure Manual” were distributed to those attending. Albert claims he was told throughout the hiring process that the Policy and Procedure Manual governed the terms and conditions of his employment and that it barred the Hospital from terminating him for reporting potentially dangerous conditions. He also asserts that he was told at the orientation session that no reprisals were ever taken against people who reported safety violations.
One of Albert’s duties as an assistant physicist was to prepare a device called a “Fletcher Suit applicator” for use in bra-chytherapy treatment for cervical cancer. The applicator is a tube containing radioactive sources which is inserted into a patient’s uterus during the brachytherapy procedure. The sources are sealed cylinders containing pellets of radioactive cesium 137 that have been loaded into the applicator by a physicist. In preparation for treating a patient, the radiation oncologist performing the procedure requests that a physicist prepare the applicator using sources of a specified strength, or level of radioactivity.
The parties dispute the appropriate procedure to be followed when a physician specifies a source of a particular strength that is unavailable at the Hospital. The controversy stems in part from the fact that there are two ways to indicate the strength of a source. A source’s strength at the time it is fabricated is its “nominal value.” Because of radioactive decay, its strength decreases over time. A source’s decayed strength at a particular time post-fabrication is its “actual value.”
Loksen asserts that doctors at the Hospital ordered sources using their nominal values, fully aware that such values were ordinarily greater than the actual values of the Hospital’s stock, and that when a .doctor requested a source of a particular nominal value, he or she wanted that source to be used irrespective of its actual strength. He testified that accordingly, he instructed Albert to have a physician change his or her orders in writing before Albert substituted sources of a different nominal value from those the physician had initially requested.
Albert insists to the contrary that Lok-sen had given him standing instructions to load the applicator with sources of the closest actual values to the nominal values requested by the doctor. He asserts that after an applicator containing loaded sources is inserted into a patient’s body, a computer-generated radiation distribution map guides the supervising physicist in determining how long the applicator should be left there. Albert maintains that after loading an applicator he would ordinarily report the actual values of the sources he had used to Loksen, who would then calculate the appropriate exposure time. By adjusting the exposure time, Albert says, the resulting dose of radiation
The January 30 Incident
On January 30, 1995, while Albert was loading cesium sources stored in the Hospital’s radioactive materials room into an applicator to be used by Dr. Nina Dlugy, a radiation oncologist, two of the sources fell to the floor. Albert was unable to find them. Because no sources of equal strength were available, he loaded the applicator with replacement sources that were weaker than those that had been misplaced.
The parties dispute when and to whom Albert first reported this incident. Albert claims he told Dlugy about the replacement sources as soon as he delivered the applicator to her. He asserts that at that time, Dlugy did not ask, and he did not tell her, about the radioactivity levels of the substituted sources. He further claims that he checked the delivery cart with a Geiger counter, in her presence, to make certain that the missing sources were not on the cart. Another employee, Lilya Fridman, said she overheard Albert tell Dlugy he had dropped the sources and saw him check the cart with the Geiger counter. She also stated that Dlugy was calm and did not ask Albert any questions about the dropped sources or their replacements. Dlugy testified that she does not remember any such conversation.
Loksen and Dlugy maintain that Albert did not inform Dlugy about the replacement sources when he delivered the applicator. Loksen was away from the Hospital at the time of the incident. When he returned later that afternoon, about an hour and a half after the two sources had been dropped, Albert told Loksen what had happened. According to Loksen and Dlugy, it was only then that Albert sought out Dlugy and told her about the substituted sources.
According to Loksen, after Albert provided Dlugy with the details of the source substitution, he returned to Loksen’s office. The two then found the missing sources in the radioactive materials room using a Geiger counter. Albert alleges that he was unable to retrieve the sources earlier because Loksen had taken the particular Geiger counter necessary to find them with him when he left the Hospital. 1
With the original sources recovered, Dlugy decided to remove the applicator from the patient and have the sources changed. Albert assisted her with this procedure. The parties agree that the patient was not injured or endangered by the use of the replacement sources or the subsequent exchange of sources.
Albert asserts that he was upset about what he perceived to be the consistently defective equipment that had caused the dropping of the sources in the first place. He claims that he told Loksen that he intended to inform the Hospital and the appropriate regulatory agencies of both the deficiency of the Hospital’s equipment and Loksen’s frequent absences from the Hospital. According to Albert, Loksen replied that if Albert made any such report he would be fired. Albert also claims to have mentioned to Loksen his concerns about the applicator several times in the weeks before the incident, including when Loksen first gave him the brachytherapy assignment for January 30. Dlugy also acknowledges having told Loksen before
The day after the incident, Loksen met with Buono, the chief administrator of the radiology department, and told her his version of the event. Buono discussed the situation with others at the Hospital, including Dlugy and Dr. Huh, the senior physician in the radiology department. Buono testified that she decided, in accordance with Hospital policy, that Albert should be summarily discharged because of his behavior during the incident. She therefore completed a “Termination Report” to submit to the Hospital’s director of labor relations. The report was, according to Buono, a “collaborative effort” by Loksen and her. It stated that on January 30, Albert had endangered the welfare of a patient; endangered the safety of coworkers through unnecessary radiation exposure; failed to follow the order of a physician and physicist; was dishonest to a physician and a physicist; and neglected established radiation safety procedure.
Albert’s Termination
On February 2, Brooklyn Hospital fired Albert for the reasons stated in the report. Albert was notified of his dismissal that day at a meeting also attended by Buono and Loksen. Albert asserts that Buono told him the basis for his discharge was a statement by Loksen that Albert had deliberately attempted to harm a patient. Albert also claims that one Ms. Norris, the director of labor relations, also told him that Loksen had accused him of deliberately endangering a patient. According to Albert, the purpose of these statements by Loksen and Buono about Albert was to neutralize Albert’s threat to report Lok-sen’s absences from the department, his use of Hospital equipment to perform outside work during working hours, and the Hospital’s inappropriate tolerance of defective equipment. Albert alleges that Lok-sen’s charges have destroyed his professional reputation and left him incapable of obtaining other employment in his field, although it is not clear from the fragmentary record on appeal whether or to what extent Loksen’s alleged statements about Albert were disseminated outside the Hospital.
Procedural History
Albert brought this diversity action in the Eastern District of New York in 1996, alleging breach of contract, defamation, and tortious interference with contractual relations. The defendants moved to dismiss all the claims pursuant to Fed. R.Civ.P. 12(b)(6). Judge John R. Bartels denied the motion and discovery followed. Upon its conclusion, the defendants moved for summary judgment before Judge Raymond J. Dearie. 2 The district court granted the motion. The court found that Albert was an at-will employee with no contractual right of employment; that Loksen’s statements at issue were subject to a qualified privilege that Albert had failed to overcome; and that Loksen and Buono could not have tortiously interfered with Albert’s contractual relations with the Hospital, if any existed, because as Hospital employees they were not third parties to the contract that created those relations, a prerequisite for establishment of the tort.
This appeal followed.
DISCUSSION
I. Standard of Review and Choice of Law
We review the district court’s grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party.
See Tenenbaum v. Williams,
Although Albert is a New Jersey 'resident, New York State was the situs of his employment with thé Hospital, the events around which the suit revolves occurred in New York, the defendants are New York citizens, New York is the forum state, and the parties proceeded in the district court and before us under the tacit agreement that New York law applies. We see no reason for us not to apply the law of New York.
Cf. Celle v. Filipino Reporter Enterprises Inc.,
II. Breach of Contract
Albert alleges that his discharge breached an implied contract of employment between him and the Hospital. He had no written employment agreement with the Hospital, but he claims that oral assurances made to him regarding the Hospital’s employment practices limited the Hospital’s right to discharge him. He further argues that the Hospital had a contractual and regulatory obligation to protect employees who reported hazardous work conditions from retaliation.
New York has a well-established at-will employment doctrine: “[A]bsent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party.”
Sabetay v. Sterling Drug, Inc.,
Albert has not produced any express, written limitations on the Hospital’s rights to discharge its employees. Although he asserts that he relied upon assurances contained in the Hospital’s Policy and Procedure Manual, he has produced nothing from the manual that would limit the Hospital’s right to discharge him. 3
Albert claims to have relied upon oral assurances made by a Hospital representative during an orientation session and on “postings and literature indicating an obligation to seek out and come forward with safety violations.” Accepting this claim as true, as we must at the summary judgment stage, it does not alter his at-will employment status. “[O]ral assurances ... cannot of themselves give rise to a triable question of fact” as to the existence of a contractual relationship.
Fitzgerald,
Albert also directs us to Title IV, Article 175 of the New York City Health Code,
4
which prohibits retaliatory action against employees who report radiation safety violations. .This issue was insufficiently pursued below to require us to hear it on appeal.
See Gurary v. Winehouse,
Albert has failed to demonstrate a genuine issue of material fact as to the existence of an obligation, contractual or otherwise, that the Hospital breached by discharging him. Summary judgment was therefore properly granted to the Hospital on this cause of action.
III. Defamation
Albert alleges that Loksen willfully and maliciously made false and defamatory statements to others at the Hospital about his conduct on January 30. 5 These defamatory statements, Albert argues, resulted in his discharge.
A. Libel or Slander?
“Defamation, consisting of the twin torts of libel and slander, is the invasion of the interest in a reputation and good name.”
Hogan v. Herald Co.,
B. Elements of Slander
The elements of a cause of action for slander under New York law are (i) a defamatory
6
statement of fact, (ii)
Despite the fact that neither the parties nor the district court addressed all of the elements of a cause of action for slander, we discuss each of them. Although we conclude that the plaintiff has raised a triable issue of fact as to each element and, therefore, cannot affirm the district court’s grant of summary judgment,
see Name. Space, Inc. v. Network Solutions, Inc.,
1. Defamatory Statements of Fact.
The record on appeal is unclear as to just what Loksen said to whom. Evidence that Loksen actually made two of the assertedly defamatory statements attributed to him by Albert is clearly hearsay. Albert claims that Buono told him that the reason for his discharge was that “Loksen told her ... [he] had deliberately attempted to harm a patient,” and that Norris told him Loksen had said Albert had “deliberately endangered a patient.” Nothing else in the record on appeal supports the assertion that Loksen in fact made these statements. “When challenged on a motion for summary judgment, a plaintiff may not rely solely on hearsay or conclusory allegations that the slanderous statement was made.”
Snyder v. Sony Music Entm’t, Inc., 252
A.D.2d 294, 298,
There is, however, sufficient non-hearsay evidence in the record from which a jury could properly conclude that Loksen made other defamatory statements about Albert. Loksen testified that in meetings with others, he called Albert “dishonest” with respect to the January 30 incident. He also testified that he told Buono that Albert had “compromised the welfare of a patient.” Those statements, in context, essentially accused Albert of (1) failing to notify Dlugy about the change in the sources, (2) leaving the misplaced sources for them to be stumbled upon by co-workers, and (3) then trying to cover up his misbehavior with lies.
Moreover, the Termination Report accused Albert of “[failure to follow the order of a physician and physicist,” “[e]n-danger[ing] the safety of co-workers,” and “neglect for established radiation safety procedures.” Buono testified that the report was a collaborative effort” between her and Loksen. A reasonable juror could conclude from this concededly sparse evidence that Loksen orally made those statements reflected in the Termination Report, or words to that effect, to Buono.
In deciding whether the jury should be allowed to pass upon statements alleged to be defamatory, the court need only determine that the contested statements “are reasonably susceptible of defamatory connotation.” If any defamatory construction is possible, it is a question of fact for the jury whether the statements were understood as defamatory.
Purgess v. Sharrock,
Accusing a hospital worker such as Albert of compromising the welfare of patients by substituting radioactive sources without telling the doctor who was administrating them to a patient about it, being dishonest with respect to a specific set of statements that he made in an effort to cover up his safety violations, disobeying orders from his superiors with respect to safety, and ignoring established safety procedures may “induce an evil opinion of him in the minds of right-thinking persons,”
Dillon,
Statements very much like those Loksen is alleged to have made, that a co-employee’s work is dangerous and his employment should therefore be terminated, if articulated as an evaluation of his performance, would likely be protected as a statement of opinion. Had Loksen referred to something that Albert in fact had done as “compromising the welfare of patients,” or contrary to safety procedures, or even dishonest,
see Edwards v. National Audubon Soc’y,
But Loksen did more. If Albert’s assertions are true, Loksen in effect accused Albert of failing to inform Dr. Dlugy of the change in strength of the radioactive sources she was administering to a patient. Loksen in effect accused Albert of leaving misplaced sources in a way that endangered co-workers. Loksen in effect accused Albert of then lying about what he did in an attempt to cover it up. Those accusations are more than statements of opinion about Albert’s work performance; they are specific statements of fact — statements capable of objective proof-about what Albert did and did not do. And the statements were all made in the context of Loksen’s seeking the summary termination of Albert, which virtually eliminates the possibility that they were meant as rhetorical hyperbole. The statements thus heavily laden with assertions of fact were capable of a defamatory meaning sufficient to sustain a defamation recovery.
2. Falsity.
A rational juror could conclude that the statements Albert complains of were untrue.
10
Albert, Dlugy, and a radiation oncologist who gave deposition testimony as an expert witness all said that Albert had not endangered
3. Publication.
Under New York defamation law, “publication is a term of art.... A defamatory writing is not published if it is read by no one but the one defamed. Published it is, however, as soon as read by any one else.”
Ostrowe v. Lee,
4. Fault.
The New York Court of Appeals has held that “where the content of [an] article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition, the party defamed may recover” if he or she can establish “by a preponderance of the evidence, that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.”
Chapadeau v. Utica Observer-Dispatch, Inc.,
Whether the subject matter of Loksen’s statements was arguably a matter of legitimate public interest is by no means clear. In light of the extremely broad interpretation of that standard by New York courts, decisions in which
Chapadeau
was held inapplicable because the subject matter was not a matter of legitimate public concern are extremely rare.
See Krauss v. Globe Int’l, Inc.,
The safety of patients undergoing radiation treatment at a public hospital may arguably be a matter of legitimate public concern.
Cf. Konikoff,
On the other hand, the New York Court of Appeals has said that “publications directed only to a limited, private audience are ‘matters of purely private concern.’ ”
Huggins v. Moore,
What is the applicable standard of fault if the statements were not covered by
Chapadeau?
The New York Court of Appeals has not addressed the issue. At least one intermediate appellate court has held that a plaintiff in such circumstances “need show only that [the] defendant [was] negligent in publishing the [statement].”
Krauss,
5. Special harm or actionability per se.
To establish a cause of action in slander, the plaintiff must show either that the statement complained of caused him or her “special harm” or that it constituted slander “per se.”
See Dillon,
There is no proof of “special harm” incurred by Albert in the record on appeal. But we conclude that as a matter of law, the assertions allegedly made by Loksen about Albert, a hospital physicist, that, inter alia, he handled radioactive material in a manner that “compromised the welfare of a patient and[,] if [it] ... continued, ... definitely could have resulted in improper treatment and endangered the patient’s life,” he “endangered the safety of co-workers,” and he “had neglect for established radiation safety procedures” would obviously tend to injure him in his profession. The statement, if false and defamatory, is therefore actionable per se. Pleading and proof of special harm is unnecessary. 13
A defendant forfeits this qualified privilege by making a false, defamatory statement with “malice” of either the common-law or constitutional variety.
See Liberman,
a. Common Law Malice. The district court concluded that as a matter of law, Loksen did not forfeit his qualified privilege by acting with common-law malice. We disagree. The court’s conclusion turned largely on its finding that it was not Loksen but Dlugy who initiated the complaint that led to Abert’s termination. The record on appeal does support a finding that Dlugy initially reported the incident to Huh. But evidence in the record would also support a jury finding that Buono initiated the termination proceeding, and that it was Loksen who first told Buono of Abert’s alleged misconduct. And Loksen concedes that he met with Buono on the morning after the incident and told her that Abert had endangered a patient and had been dishonest. A rational jury could conclude from this evidence that Loksen initiated the termination proceedings.
Material in the record on appeal would also support a finding that Loksen had a motive to defame Abert in order to prevent him from revealing the unsafe conditions at the Hospital and the fact that Loksen was performing other jobs, sometimes with the use of Hospital equipment, during working hours. Abert asserts that he had previously complained to Loksen about defective equipment and lax procedures, and that following the incident on January 30, 1995, he threatened to bring his complaints to Hospital administrators or city officials. Other Hospital employees also testified at their depositions that they had complained to Loksen about defective equipment in the radiology department. Loksen concedes, moreover, that he was using Hospital equipment to perform a second job and had not disclosed that to
In sum, Albert has adduced enough evidence to create a genuine issue of material fact as to whether Loksen initiated the proceeding that led to Albert’s termination solely because, by making false and defamatory statements to Buono, he wished to prevent Albert from reporting his own misconduct. Such evidence, if believed by a jury, could support a finding that Loksen acted with common-law malice. This conclusion could be bolstered by evidence, discussed below, that Loksen may have known or strongly suspected that some of his statements were false.
See Pecue v. West,
b. “Actual Malice.”
Albert also raised a triable issue as to “actual malice” which, under New York law, also defeats a claim of privilege, with respect to some of the alleged statements at issue. As noted, a defendant acts with “actual malice” by making false statements with knowledge of their falsity,
Liberman,
Loksen claimed that Albert endangered a patient’s well-being and failed to follow standard procedures and the prescriptions of a physician. This claim turns on Albert’s alleged failure to obtain Dlugy’s written permission before loading into the applicator a source of a different strength than that Dlugy had originally requested. But there is a genuine issue of fact as to whether such conduct violated the radiology department’s standard procedures. Albert claims he had standing orders to load a source of the closest actual value to the nominal value requested by the doctor and then relay the actual value to Loksen. Were a jury to accept Albert’s version, then it could also conclude that Loksen— who himself had instructed Albert on the department’s standard procedures — was fully aware that Albert had neither “fail[ed] to follow the order of a physician and physicist” nor neglected “established radiation safety procedures,” as claimed in the Termination Report.
Similarly, Albert asserts that it was Loksen’s duty, not Albert’s, to inform the radiation oncologist of the actual value of the source loaded into the applicator and to calculate the appropriate exposure time. Were a jury to credit this claim, it could conclude that Loksen knew that Albert’s failure to inform Dlugy immediately of the actual value of the replacement sources was consistent with standard practice and posed no additional danger to the patient. Thus, Loksen would lose qualified privilege protection with respect to those statements if Abert were to establish by a preponderance of the evidence that they were made by Loksen with knowledge of their falsity or while he in fact entertained serious doubts as to their truth.
Loksen also appears to have accused Albert of endangering co-workers. There is no evidence in the record on appeal from which a jury reasonably could find that Loksen knew that accusation to be false or entertained serious doubts as to its truth.
There are thus triable issues of material fact as to common-law and “actual” malice that would permit a rational jury to conclude that Loksen lost protection of the privilege that covers the statements at issue. A triable issue of fact therefore exists as to every element of Albert’s slander claim against Loksen. Summary judgment should not have been awarded to Loksen on that claim.
IV. Tortious Interference with Contractual Relations
Albert argues that Buono and Loksen tortiously interfered with his employment relationship with the Hospital by procuring his discharge.
Under New York law, the elements of a tortious interference claim are: (a) that a valid contract exists; (b) that a “third party” had knowledge of the contract; (c) that the third party intentionally and improperly procured the breach of the contract; and (d) that the breach resulted in damage to the plaintiff.
Finley v. Giacobbe,
We have already found that Albert, as an at-will employee, did not have an employment contract with the Hospital. New York has adamantly refused to allow employees “to evade the employment at-will rule and relationship by recasting [a] cause of action in the garb of tortious interference with ... employment.”
Ingle v. Glamore Motor Sales, Inc., 73
N.Y.2d 183, 189,
The requirement that the defendant be a third party to the terminated employment relationship determines the outcome of the claim against the Hospital. “[T]he tort of interference with an employment contract cannot lie against the Hospital [because it is] a party to the alleged employment contract.”
14
Kosson v. Algaze,
Both Buono and Loksen were employees of the Hospital and thus would not normally be considered third parties with respect to Albert’s relationship with the Hospital. But a plaintiff may maintain an action for tortious interference against a co-employee by showing that the co-employee “acted outside the scope of [his or her] authority.”
Kosson,
There is also some indication that an action for tortious interference under New York law may lie against a co-employee who committed an independent tortious act against the plaintiff.
See, e.g., Nu-Life Const. Corp. v. Bd. of Educ.,
The district court concluded that neither Buono nor Loksen acted outside the scope of their authority as employees of the Hospital and thus were not “third parties” who could be held liable for tortious interference with the at-will employment arrangement between Albert and the Hospital. As to Buono, this conclusion was clearly correct. There is no evidence that Buono did anything more than compile a report on Albert’s conduct based on information from Loksen and Dlugy. Albert points to nothing in the record to indicate that Buono was independently responsible for any misrepresentations or that she acted with malice of any kind.
We disagree, however, with the district court as to the tortious interference claim against Loksen. There is a genuine issue of fact as to whether Loksen acted with common-law or “actual” malice in making false and defamatory statements about Albert, and specifically whether Loksen was motivated by a desire to undermine Albert’s threats to report safety violations and other misconduct. The same factual dispute precludes summary judgment on the question of whether Loksen was a third-party to Albert’s employment relationship such that he may be held liable for tortious interference. Under Albert’s version of events, Loksen acted purely out of self-interest and undermined the Hospital’s interests by defaming Albert in order to prevent him from reporting safety and disciplinary violations. Such third-party interference with an at-will employee’s employment status is actionable under New York law.
CONCLUSION
For the foregoing reasons, the judgment of the district court as to defendants Brooklyn Hospital and Karen Buono is affirmed; the judgment as to defendant Loksen is reversed and remanded for further proceedings consistent with this opinion.
Notes
. Albert asserts that the Geiger counter that he used to check the delivery cart for the missing sources was a "digital” counter, which is used to measure the strength of radiation fields and which could not have been used to locate them in the radioactive materials room. That task, he testified during his deposition, required the sort of audible "pinging” Geiger counter that Loksen had taken with him out of the hospital.
. Judge Bartels had passed away in the interim.
. Albert now argues that he was not allowed to see the complete manual during discovery. That is something he should have pursued in the district court during the course of discovery, not here.
.Section 175.04(g) reads:
(1) Any worker ... who believes that a violation of this Code ... exists or has occurred ... with regard to radiological working conditions in which the worker is engaged, may request an inspection by giving notice of the alleged violation to the Bureau of Radiological Health. Any such notice shall be in writing, shall set forth the specific grounds for the notice, and shall be signed by the worker....
(2) If, upon receipt of such notice, the Bureau of Radiological Health determines that the complaint meets the requirements set forth in § 175.04(g)(1) and that there are reasonable grounds to believe that the alleged violation exists or has occurred, an inspection shall be made as soon as practicable....
(3)No licensee ... or registrant shall discharge or in any manner discriminate against any worker because such worker has filed any complaint or instituted or caused to be instituted any proceeding under this Code....
24 RCNY Hlth.Code Tit. IV, Art. 175, § 175.04.
. Albert does not argue on appeal that he was defamed by Buono or by the Hospital as the employer of Buono, Loksen or any other employee.
. Modern courts in New York still use variations on arcane definitions of "defamatory”:
. There is no doubt, and the defendants do not suggest otherwise, that the alleged Loksen statements of which Albert complains are "of and concerning” Albert. The issue is therefore not addressed further in this opinion.
. Although
Dillon
omits mention of the "of and concerning” element of the tort reflected in the Restatement, that requirement logically must be and plainly is recognized by New York law.
See Aronson v. Wiersma,
. Under New York's "single instance rule,” the wrongful assertion that a person erred in a single instance does not lower that person in the estimation of others as a matter of law and the assertion is therefore not defamatory.
See, Celle,
. For constitutional reasons,
see Philadelphia Newspapers, Inc. v. Hepps,
. The continued viability of Krauss's holding that such matters are not of public concern is in doubt in light of
Huggins v. Moore,
. The court in
Krauss
applied a negligence standard with little discussion, citing only the Appellate Division, First Department's decision in
Gaeta.
That decision offers no discussion and cites no authority in applying a negligence standard.
Gaeta,
. There are threads of case law in New York holding or suggesting that entirely apart from the requirement that a plaintiff prove special (pecuniary) damages in some defamation cases, such a plaintiff must
always
establish that his or her reputation incurred some injury as a result of the defamatory communication in order to prevail.
Compare Silberman v. Georges,
. Albert argued below that the Hospital was vicariously liable for the alleged tortious interference by Buono and Loksen. The district court rejected that claim. Albert does not contest that ruling on this appeal.