Jim Callaghan v UFT: Appellate Division Decision November 5, 2015

Callaghan v United Fedn. of Teachers

2015 NY Slip Op 08049

Decided on November 5, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 5, 2015 
Sweeny, J.P., Acosta, Richter, Manzanet-Daniels, JJ.

16030 109246/11 

[*1] James V. Callaghan, Plaintiff-Appellant, 

v

United Federation of Teachers, et al., Defendants-Respondents.

Law Offices of Stewart Lee Karlin P.C., New York (Stewart Lee Karlin of counsel), for appellant.

Stroock & Stroock & Lavan LLP, New York (Beth A. Norton of counsel), for respondents.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered July 18, 2013, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the third cause of action, for defamation, and the fourth cause of action, for violation of the state constitutional right to free speech, unanimously affirmed, without costs.

Supreme Court properly dismissed the third cause of action, for defamation, because, even to the extent that some of the statements about plaintiff's disciplinary and professional history are assertions of fact, the statements were made by UFT officials in their official capacities, and they cannot be held liable for acts committed in their capacity as union

representatives (see Duane Reade, Inc. v Local 338 Retail, Wholesale, Dept. Store Union, UFCW, AFL-CIO, 17 AD3d 277 [1st Dept 2005], lv denied 5 NY3d 797 [2005]).

The court also properly dismissed the fourth cause of action, alleging a violation of plaintiff's free speech rights. The claim fails as a matter of law since the UFT is a private entity (see SHAD Alliance v Smith Haven Mall, 66 NY2d 496, 502 [1985]; see also Engstrom v Kinney Sys., 241 AD2d 420, 424 [1st Dept 1997], lv denied 91 NY2d 801 [1997]). Courts in this State have consistently held that unions, even those representing public employees, such as the UFT, are not state actors (see Ciambriello v County of Nassau, 292 F3d 307, 323 [2nd Cir 2002]; see also Driskell v New York City, 2011 WL 6812516, *3, 2011 US Dist LEXIS 148294, *9 [ED NY 2011]). Plaintiff's conclusory allegation that the UFT acted in concert with a state actor does not suffice to state a claim against the UFT (see Ciambriello at 324). Nor did plaintiff allege facts that would show that the State "is so entwined with the regulation of the private conduct as to constitute State activity"; that "there is meaningful State participation in the activity"; or that "there has been a delegation of what has traditionally been a State function to a private person" (SHAD Alliance, 66 NY2d at 505).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 5, 2015

CLERK

Phil Nobile and Jim Callaghan Describe Sabotage for ATR Rights by Howie Shoor at the UFT

Jim and Phil chime in on UFT sabotage of the ATR right to recognition by the Union.

Friday, October 26, 2012

UFT Borough Rep Howie Schoor Thwarted in Attempt to Swipe Nobile ATR Email List

Jim Callaghan After He was Fired From the UFT

LINK

The noble Philip Nobile writes Howie a love letter in response to Schoor's actions at the Brooklyn ATR meeting and former NY Teacher ace reporter Jim Callaghan chimes in with his own Howie Schoor story. But one would expect Howie to try to keep ATRs from organizing since the UFT pays him 200 grand to do that

Howie,
I have criticized the UFT for its anti-democratic tendencies and contempt for free speech. Shameful examples: the censorship of NEW YORK TEACHER and EDWIZE, the strangulation of the Executive Committee's open mike,
the Bolshevik regulation of the Delegates Assembly, and the refusal to grant ATRs the same level of representation as rubber roomers of yesteryear.

But at your ATR meeting last night you and the union reached a new low when you and your representatives tried to sabotage my attempt to organize ATRs. Since you have refused to share the sign-up list with us, I started one of our own. I passed around a pad to gain signatures and contact information. While I was focused on Amy's spirited presentation from the front row, one of the ATRs in the rear, probably thinking that the list belonged to the UFT, handed it to Ellen Driesen who was walking the microphone around the room during the Q & A. Driesen knew purpose and the provenance of the list since she saw me bring it to the back rows.

A teacher named Vincent DeSiano kept his eye on the Dreisen. He told me that she delivered the pad to you while you were was standing off to the side at the front of the room flanked by some reps including John Capuano, a new special rep but apparently apprenticed in the union's dark arts. Capuano retired from the conference room and proceeded to trash the list out of sight in the corridor. He ripped off and crumpled the the top sheet. Before he could swallow the evidence, DeSiano intervened, retrieved the sheet and the pad, and brought it to me.

I immediately confronted Capuano in the corridor. He declined to state his last name or position, which I learned later from another rep. Not yet apprised of your hand-off to Capuano, I complained to you. You said you would look into the situation, but I sensed no indignation. When I learned of your role, I confronted you. "I know nothing about it," you said, none too convincingly.

I demand a written apology and full explanation from you, Dreisen, and Capuano regarding your dirty trick, a squalid attempt to prevent ATRs from organizing. Bad enough that the UFT denies good standing ATRs the same level of representation once afforded to bad standing rubber roomers of the past. 

Philip

  Jim Callaghan:

Ask Howie about a bigger dirty trick:

When I was investigating shakedowns by Allied Barton guards at the Staten Island rubber room- including demanding-in writing--- $20 for a holiday party from the detainees, Howie told me to lay off. (I have the photos of the sign put up by Allied Barton).

Howie then sent my emails to him and his emails to me to the D.O.E. official in charge of the Staten Island rubber room.

The "official" catering menu had 20 mis-spellings and used the rubber room phone number as its "business phone.

There wasn't enough food at the party and members felt ripped off.
Ellie Engler and LeRoy Barr then had me transferred out of the Staten Island room- 2 train stops from my house and sent Ron Issac from Queens to Staten Island. (Issac has been putting on a great act for five years of complaining about not getting any work to do on the three days he shows up at the office and leaves at 2:00 every day. So why did Randi hire him at $80k, plus a five year pension which is vested this year?). Ask the ICE caucus.

As punishment, I was re-assigned to the Manhattan and Brooklyn rubber rooms, where all I was allowed to do was listen to members vent- with good reason.
I was not allowed to help them, write about them in the NY Teacher or improve their conditions. (Park Place in Brooklyn at one point had 24 people in a 500 square foot room).

I have copies of Schoor's quisling letters to the DOE officials. -He was trying to show them how he had "ordered" me off the corruption story. The D.O.E. official had a legal responsibility to report the corruption to Condon. We will see what happened as my case winds it way through the courts and we get to depositions and discovery. (Mulgrew has spent over $100,000 fighting my case using Randi's old firm).

FYI: Allied is owned by a close pal of the mayor-Ron Pereleman. (not that Randi or Mulgrew would protect the company for that reason). 
Feel free to re-post or circulate.