Justice Robert J. Muller
The account clerk for the Town of Jay, D’Angelo, had charges filed against her in connection with an internal investigation revealing she credited herself and others with unearned leave time. D’Angelo resigned and the parties entered into a “resignation/release” providing that the town was to refrain from making any derogatory statements against her. A report by the comptroller with findings against D’Angelo, was released to the public. Town Supervisor Douglas’ allegedly derogatory statements regarding the findings were also published and D’Angelo sued seeking damages for breach of contract. The court noted defendants met their burden of showing entitlement to summary judgment, but D’Angelo raised triable issues regarding defendants’ failure to perform, an element of her claim. It noted while the release was intended to exclude statements by the comptroller’s office in its report, it was not intended to exclude statements made by the town in response to the report. The court found such statements formed the basis for defendants’ failure to perform under the confidentiality terms of the release. Yet as D’Angelo failed to raise a triable issue regarding damages, defendants were granted summary judgment dismissing the complaint.