IN THE MATTER OF LUTHER SWINTON, JR., APPELLANT, v. HOWARD SAFIR, &C.,
RESPONDENT.
93 N.Y.2d 758 (1999).
October 19, 1999
1 No. 153
(99 NY Int. 0133)
Decided October 19, 1999
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
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Rosemary Carroll, for appellant.
Sharyn Rootenberg, for respondent.
LEVINE, J.:
Petitioner, while a probationary police officer in the New York City
Police Department, was terminated from that employment following an
investigation by the Department's Internal Affairs Bureau (IAB) of a
confrontation he had with awoman at his apartment. Upon leaving the
apartment, the woman, whom he had previously dated, made 911 calls for
help and told the responding officers that petitioner had assaulted
and attempted to rape her. She confirmed this in an interview with
investigating officers but expressed a desire to drop all charges
because she "felt sorry" for petitioner. Later, she retracted her
accusation and denied that any incident occurred.
Upon the completion of its investigation, IAB issued a report in which
it concluded that the incident had in fact occurred as the woman
originally related, and that petitioner had misrepresented the facts
in responding to questions during the investigation. This was based
not merely on an evaluation of the credibility of the woman's initial
statements and subsequent recantation. In addition, IAB identified
conflicts between petitioner's version and the observations of the
officers who responded to the 911 call, and significant discrepancies
between the sequence of events petitioner related and the
automatically recorded times of the 911 calls.
Formal disciplinary charges of attempted rape, assault and making
false statements to IAB investigators were brought against petitioner.
Additionally, IAB recommended his dismissal. That recommendation was
SNIPPETS:
Sharyn Rootenberg, for respondent.
Petitioner, while a probationary police officer in the New York City Police Department, was
She confirmed this in an interview with investigating officers but expressed a desire to drop
a record of the disciplinary charges and their resolution by his dismissalwere placed in his
Petitioner then brought this CPLR article 78 proceeding in which he challenges the Police
In one additional cause of action, petitioner alleges that his personnel records contained
26, 43 NY2d 520, 525).
As a probationary employee, petitioner had no right to challenge the termination by way of a
Petitioner has made at least a preliminary demonstration that his personnel file includes
Respondent's answer "admits that petitioner's personnel record indicates that petitioner made
Certainly, petitioner's personnel file contains far more serious charges than that of
Hence, his entitlement to that hearing turns on whether he has satisfied the final element,
Concededly, there has not yet been any public disclosure of the findings of petitioner's
Petitioner claims that it is sufficient that there is a likelihood that hisfile will be
This is the first time we have been called upon squarely to decide whether actual
The Federal Circuit courts that have addressed the issue are almost equally divided.
We conclude that, despite these apprehensions, where the discharged employee is seeking only
It is hornbook law that defamation is not actionable before there has been publication --
The risk of a discharged employee's being forced to reveal potentially damaging information
In Matter of Lentlie v Egan, this Court found insufficient proof of the dissemination element
Although the dissent in Lentlie relied on allegations in the petition of dissemination
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