DAVID KAMCHI ET AL., Appellants, v CHARNA WEISSMAN, Individually and as President of the Board of Trustees of Congregation Shaarey Israel, et al., Respondents.
Supreme Court, Appellate Division, Second Department, New York
December 31, 2014
1 NYS3d 169
Kaiser Saurborn & Mair, P.C., New York City (Henry L. Saurborn, Jr. of counsel), for appellants.
Savad Churgin, Nanuet (Susan Cooper and Joseph Churgin of counsel), for respondents.
Zane and Rudofsky, New York City (Edward S. Rudofsky of counsel), for amicus curiae United Synagogue of Conservative Judaism.
OPINION OF THE COURT
Dickerson, J.
Introduction
The plaintiffs are members of the Congregation Shaarey Israel (hereinafter the Congregation), and the Congregation‘s former rabbi, Michael Dick (hereinafter the Rabbi). The defendants include members of the Congregation‘s Board of Trustees (hereinafter the Board). The Rabbi had been employed as rabbi of the Congregation by an agreement which was to expire on July 31, 2011. As that date approached, the Board voted to deny the Rabbi renewal or extension of his employment agreement. According to the plaintiffs, on several occasions, members of the Congregation called for a congregation-wide vote on the matter. However, the Board refused to allow such a vote. The plaintiffs commenced this action alleging that
Factual and Procedural Background
The plaintiffs David and Lynn Kamchi and Carol Boxer are members of the Congregation. The Rabbi is an ordained rabbi, and was formerly the rabbi of the Congregation. The defendants are members of the Board, including the defendant Charna Weissman, who, at all relevant times, was the president of the Congregation.
As set forth in the complaint, by written agreement dated March 24, 2009, the Congregation agreed to employ the Rabbi for a three-year term, from August 1, 2008, through July 31, 2011. On October 28, 2010, at a meeting of the Board, Weissman, without issuing prior notice that such a decision was under consideration, proposed that the Rabbi be denied renewal or extension as spiritual leader of the Congregation. A vote was taken and the Board approved Weissman‘s proposal.
On November 18, 2010, the Board held another meeting. At that meeting, members of the Congregation objected to the Board‘s vote, claiming that it violated the Congregation‘s
In December 2010, 12 Board members submitted a petition demanding that Weissman call a special meeting of the Congregation to discuss the continued employment of the Rabbi by the Congregation following the expiration of his original agreement and, thereafter, for a vote on the matter. On December 21, 2010, Weissman announced that the Board had scheduled a special meeting of the Congregation for January 11, 2011. The plaintiffs allege that Weissman indicated that a vote concerning the Rabbi‘s future with the Congregation would be held at the meeting. However, when that meeting was eventually held on March 8, 2011, after being rescheduled, an agenda was distributed which indicated that no vote would be taken, but rather only a discussion would be held. According to the plaintiffs, upon realizing that the written agenda did not provide for a vote, many Congregation members simply left the meeting. Nonetheless, at the meeting, a motion was made, and seconded, to approve a new three-year term for the Rabbi. However, the defendant Joel Scheinert, whom Weissman appointed to oversee the meeting, refused to allow a vote on the motion.
The plaintiffs further claim that during the meeting, the defendant Bill Bradin defamed the Rabbi in front of those Congregation members in attendance. Specifically, Bradin allegedly stated,
“that [the Rabbi] did not show up for morning services; that he failed to perform outreach for young families; that he used a different prayer book than the Congregation; that he failed to lead Friday services when special evenings were planned for the same day; that he allowed non-[k]osher foods into the Congregation‘s kitchen and did not properly control the kosher validation of the kitchen; and, that he did not lead the Jewish High Holiday services.”
The plaintiffs allege that Bradin‘s statements “cast [the Rabbi] in a negative light and reflected adversely on his competence as a rabbi, and harmed his standing and reputation with the congregants and others in the community.” The plaintiffs fur-
On March 24, 2011, Weissman was presented with another petition, signed by 29 Congregation members, demanding that the Congregation be permitted to vote on whether to retain the Rabbi beyond the expiration of his original agreement. However, Weissman and other Board officers refused to allow a vote. At a Board meeting on April 28, 2011, Weissman rejected the petition, and thereafter she and the Board‘s officers refused to schedule a special meeting for the Congregation to vote on whether to retain the Rabbi.
The plaintiffs commenced this action against Weissman, Bradin, and other members of the Board. In the first cause of action, the plaintiffs alleged that the defendants’ actions violated
To substantiate their claim that they were entitled to a qualified privilege under
In opposition, the plaintiffs argued that the defendants were not entitled to immunity pursuant to
In an order dated July 19, 2012, the Supreme Court granted that branch of the defendants’ motion which was pursuant to
“applies only to the salary of the minister . . . the trustees cannot choose the salary of the minister, or take such salary away from the minister. It plainly does not apply to the selection, hiring or firing of a minister, as plaintiffs assert. Plaintiffs’ interpretation of this section, skewed by their deliberate misquoting of it, is thus entirely misplaced.” (2012 NY Slip Op 33729[U], *3.)
The court further concluded that the Board‘s decision not to renew or extend the Rabbi‘s employment agreement did not violate the Congregation‘s bylaws. In this regard, the court noted that while the Congregation‘s bylaws contained a general provision authorizing members of the Congregation to vote on “any question affecting the Congregation,” it also contained a specific provision expressly authorizing members of the Congregation to vote on the hiring of a rabbi. In the court‘s view, to read the general provision as authorizing the Congregation to vote on the extension or retention of a rabbi, or whether a rabbi‘s contract should be permitted to lapse, would render superfluous the specific provision which expressly authorized the Congregation to vote only on the hiring of a rabbi.
Turning to the fifth cause of action, alleging defamation, the Supreme Court first concluded that the plaintiffs could not es-
With respect to the seventh cause of action, the Supreme Court held that since this cause of action was “based entirely on the premise that defendants did something wrong by not allowing the vote,” and since the court had “already determined that a vote was unnecessary,” this cause of action also “must fail as a matter of law.” (2012 NY Slip Op 33729[U], *6.)
In light of its determination that the complaint failed to state a cause of action, the Supreme Court did not address that branch of the defendants’ motion which was pursuant to
The plaintiffs appeal.
Analysis
Standard of Review
“In assessing the adequacy of a complaint under
“A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to
“Indeed, a motion to dismiss pursuant to
CPLR 3211 (a) (7) must be denied ‘unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it‘” (Sokol v Leader, 74 AD3d at 1182, quoting Guggenheimer v Ginzburg, 43 NY2d at 275).
Religious Corporations Law
An allegation essential to much of the plaintiffs’ action is that the defendants violated
“The primary purpose of the
“The general powers and duties of the trustees of religious corporations are set forth in
“[b]ut this section does not give to the trustees of an incorporated church, any control over the calling, settlement, dismissal or removal of its minister, or the fixing of his salary; or any power to fix or change the times, nature or order of the public or social worship of such church” (
Religious Corporations Law § 5 ).
“A corporate meeting of an incorporated church, whose trustees are elective as such, may give directions, not inconsistent with law, as to the manner
in which any of the temporal affairs of the church shall be administered by the trustees thereof; and such directions shall be followed by the trustees. The trustees of an incorporated church to which this article is applicable, shall have no power to settle or remove or fix the salary of the minister, or without the consent of a corporate meeting, to incur debts beyond what is necessary for the care of the property of the corporation; or to fix or [change] the time, nature or order of the public or social worship of such church, except when such trustees are also the spiritual officers of such church” ( Religious Corporations Law § 200 [emphasis added]).
“When presented with a question of statutory interpretation, our primary consideration ‘is to ascertain and give effect to the intention of the Legislature‘” (Perez v Levy, 96 AD3d 729, 730 [2012], quoting Riley v County of Broome, 95 NY2d 455, 463 [2000]). “The statutory text is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning” (Perez v Levy, 96 AD3d at 730; see Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]; Matter of State of New York v Ford Motor Co., 74 NY2d 495, 500 [1989]). “[M]eaning and effect should be given to every word of a statute” (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104 [2001]).
In concluding that those causes of action premised on an alleged violation of
We disagree with the Supreme Court‘s interpretation of the operative language. We conclude that a more natural reading of the provision “[t]he trustees . . . shall have no power to settle or remove or fix the salary of the minister” (
Under the Supreme Court‘s interpretation of the relevant language, the words “settle” and “fix” would have the same meaning, thus rendering one of these terms superfluous. “‘Words are not to be rejected as superfluous where it is practicable to give each a distinct and separate meaning‘” (Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104, quoting Cohen v Lord, Day & Lord, 75 NY2d 95, 100 [1989]; see
Additionally, our interpretation of the statute, prohibiting the trustees from settling or removing the minister, or fixing his or her salary, is supported by the consistent, and quite similar, language set forth in
Again, after delineating certain powers of trustees of religious corporations,
The relatively few courts that have addressed the matter are in agreement that
In the order appealed from, the Supreme Court relied on Matter of Saffra v Rockwood Park Jewish Ctr. (239 AD2d 507 [1997]). That was a proceeding pursuant to
This case indeed bears significant similarities to Saffra. Here, the Rabbi‘s contract was allowed to lapse, terminating his engagement as rabbi of the Congregation. However, critically, in this case, the Board affirmatively barred the Congregation from voting on the issue of extending or renewing the Rabbi‘s contract. It is undisputed that the Board refused to allow the Congregation to vote on the matter. Again, as discussed above, pursuant to
We further find, contrary to the Supreme Court‘s conclusion, that the Congregation‘s bylaws did not limit the Congregation‘s authority to the hiring of a rabbi only, and exclude from the ambit of the Congregation‘s authority the power to extend or renew a hired rabbi‘s contract.
Article XXIII of the Congregation‘s bylaws broadly authorizes Congregation members in good standing “[t]o vote for Class IV Trustees and on any question affecting the Congregation.” It cannot reasonably be disputed that the choice of spiritual leader of a congregation, and whether to renew that individual‘s appointment, is a “question affecting the Congregation.” Indeed, one court observed, in the context of a case involving the discharge of the pastor of a Baptist Church, that the office of spiritual leader of a congregation
“is one of dignity, reverence and esteem. Its import to the members of the congregation is of the greatest significance. It is one in which the entire congregation shares interest and one in the continuation of which, the entire congregation is entitled to a voice. It is not an office to be lightly bestowed or withdrawn” (Matter of Hayes v Board of Trustees of Holy Trinity Baptist Church of Amityville, 225 NYS2d 316, 320 [Sup Ct, Suffolk County 1962]).
In finding that Article XXIII conferred no such right upon the Congregation, the Supreme Court relied upon the fact that the Congregation‘s authority to hire a rabbi is expressly addressed elsewhere in the bylaws. In Article XII, entitled “THE RABBI,” the bylaws state, among other things, that a “Rabbi shall be employed, engaged, retained and hired for a period of time and upon terms to be determined by the Board of Trustees and the Congregation, as the Rabbi and spiritual leader of this Congregation. The Members, at a Congregational meeting, shall approve the hiring of the Rabbi.”
We disagree with the Supreme Court‘s conclusion that, if the bylaws are interpreted such that Article XXIII authorizes the Congregation to vote on the matter of renewing or extending its rabbi‘s engagement with the Congregation, the above provision of Article XII would be rendered superfluous, in contravention of well-settled contract interpretation principles (see generally Two Guys from Harrison-N.Y. v S.F.R. Realty Assoc., 63 NY2d 396, 403 [1984]; Givati v Air Techniques, Inc., 104 AD3d 644,
For these reasons, we conclude that the plaintiffs’ allegations that the defendants’ conduct in preventing the Congregation from determining whether to retain the Rabbi violated
Defamation
In the fifth cause of action, the plaintiffs assert that Bradin made defamatory statements about the Rabbi at a meeting of the Congregation.
“‘The elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se‘” (Matter of Konig v CSC Holdings, LLC, 112 AD3d 934, 935 [2013], quoting Geraci v Probst, 61 AD3d 717, 718 [2009]). “Since falsity is a necessary element of a defamation cause of action and only ‘facts’ are capable of being proven false, ‘it follows that only statements alleging facts can properly be the subject of a defamation action‘” (Gross v New York Times Co., 82 NY2d 146, 152-153 [1993], quoting 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 139 [1992]). “‘In determining whether a complaint states a cause of action to recover damages for defamation, the dispositive inquiry is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the plaintiff‘”
(Matter of Konig v CSC Holdings, LLC, 112 AD3d at 935, quoting Goldberg v Levine, 97 AD3d 725, 725 [2012]). “Whether a particular statement constitutes an opinion or an objective fact is a question of law” (Mann v Abel, 10 NY3d 271, 276 [2008]; see Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 381 [1977]). “Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” (Mann v Abel, 10 NY3d at 276; see Weiner v Doubleday & Co., 74 NY2d 586, 593 [1989]; Steinhilber v Alphonse, 68 NY2d 283 [1986]). The Court of Appeals has characterized the matter of distinguishing between opinion and fact for purposes of defamation analysis as “a difficult task” (Mann v Abel, 10 NY3d at 276 [internal quotation marks omitted]). Factors the Court of Appeals has identified to be considered in performing this task include: “(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact” (Mann v Abel, 10 NY3d at 276 [internal quotation marks omitted]; see Brian v Richardson, 87 NY2d 46, 51 [1995]; Gross v New York Times Co., 82 NY2d at 153; Steinhilber v Alphonse, 68 NY2d 283, 292 [1986]).
In their complaint, the plaintiffs allege that at the meeting of the Congregation on March 8, 2011, Bradin stated,
“that [the Rabbi] did not show up for morning services; that he failed to perform outreach for young families; that he used a different prayer book than the Congregation; that he failed to lead Friday services when special evenings were planned for the same day; that he allowed non-[k]osher foods into the Congregation‘s kitchen and did not properly control the kosher validation of the kitchen; and, that he did not lead the Jewish High Holiday services.”
Contrary to the defendants’ contention, these statements have precise meanings which are readily understood, and they are thoroughly capable of being proven true or false (see gener-
ally Mann v Abel, 10 NY3d at 276; Brian v Richardson, 87 NY2d at 51; Gross v New York Times Co., 82 NY2d at 153; Steinhilber v Alphonse, 68 NY2d at 292). Thus, the defamation cause of action is not subject to dismissal on the ground that the alleged statements constitute nonactionable expressions of opinion. We also reject the defendants’ contention that the defamation claim fails to state a cause of action because Bradin‘s statements were protected by a qualified privilege, and insufficient facts were alleged to show that he spoke with malice necessary to defeat privilege. “Courts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether” (Liberman v Gelstein, 80 NY2d 429, 437 [1992]). “When compelling public policy requires that the speaker be immune from suit, the law affords an absolute privilege, while statements fostering a lesser public interest are only conditionally privileged” (id.; see 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d at 135-136). “One such conditional, or qualified, privilege extends to a ‘communication made by one person to another upon a subject in which both have an interest‘” (Liberman v Gelstein, 80 NY2d at 437, quoting Stillman v Ford, 22 NY2d 48, 53 [1968]; see Diorio v Ossining Union Free School Dist., 96 AD3d 710, 712 [2012]). This qualified privilege has been applied to communications carried out “in furtherance of a common interest of a religious organization” (Berger v Temple Beth-El of Great Neck, 41 AD3d 626, 627 [2007]). The rationale for applying this qualified privilege in circumstances such as this “is that so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded” (Liberman v Gelstein, 80 NY2d at 437).
The protection of this so-called “common interest” qualified privilege “may be dissolved if plaintiff can demonstrate that defendant spoke with ‘malice‘” (Liberman v Gelstein, 80 NY2d at 437; see Diorio v Ossining Union Free School Dist., 96 AD3d at 712). “To establish the malice necessary to defeat the privilege, the plaintiff may show either common-law malice, i.e., spite or ill will, or may show actual malice, i.e., knowledge of falsehood of the statement or reckless disregard for the truth” (Diorio v Ossining Union Free School Dist., 96 AD3d at 712 [internal quotation marks omitted]; see Liberman v Gelstein, 80 NY2d at 437-438; see also New York Times Co. v Sullivan, 376 US 254, 280 [1964]).
Here, the plaintiffs alleged that Bradin‘s statements “were made with the intent to and did undermine [the Rabbi‘s] authority as the spiritual leader of the congregation, and also to aid and further the defendants’ goal to interfere with and prevent the efforts by [the Rabbi] and some members of the congregation to secure his continued employment by [the Congregation].”
The plaintiffs also alleged that “Bradin‘s false statements cast [the Rabbi] in a negative light and reflected adversely on his competence as a rabbi, and harmed his standing and reputation with the congregants and others in the community.” Contrary to the Supreme Court‘s determination, affording the complaint a liberal construction, accepting all facts as alleged in the pleading to be true, and according the plaintiffs the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Santana v Leith, 117 AD3d 711 [2014]; Sacher v Beacon Assoc. Mgt. Corp., 114 AD3d at 656; Young v Brown, 113 AD3d at 761; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]), it sufficiently alleged that Bradin made false statements of fact with common-law malice so as to overcome the common-interest qualified privilege. “Since . . . the burden does not shift to the nonmoving party on a motion made pursuant to
CPLR 3211 (a) (7) , a plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant toCPLR 3211 (a) (7) ” (Shaw v Club Mgrs. Assn. of Am., Inc., 84 AD3d 928, 931 [2011] [internal quotation marks omitted]; see Sokol v Leader, 74 AD3d at 1182; Kotowski v Hadley, 38 AD3d 499, 500-501 [2007]).Finally, as alleged, Bradin‘s defamatory statements would “tend to injure [the Rabbi] in [his] trade, business, or profession,” and thus would constitute slander per se (see Shaw v Club Mgrs. Assn. of Am., Inc., 84 AD3d at 930). Accordingly, the plaintiffs were not required to allege or prove special damages, as the law presumes that damages will result (see Liberman v Gelstein, 80 NY2d at 435; Shaw v Club Mgrs. Assn. of Am., Inc., 84 AD3d at 930).
Accordingly, the Supreme Court erred in granting that branch of the defendants’ motion which was to dismiss the fifth cause of action pursuant to
CPLR 3211 (a) (7) for failure to state a cause of action.
Qualified Immunity Turning to that branch of the defendants’ motion which was to dismiss the complaint pursuant to
CPLR 3211 (a) (11) , which the Supreme Court did not address,N-PCL 720-a provides, in pertinent part, and with exceptions not relevant here,“no person serving without compensation as a director, officer or trustee of a corporation, association, organization or trust described in section 501 (c) (3) of the United States internal revenue code shall be liable to any person other than such corporation, association, organization or trust based solely on his or her conduct in the execution of such office unless the conduct of such director, officer or trustee with respect to the person asserting liability constituted gross negligence or was intended to cause the resulting harm to the person asserting such liability” (
N-PCL 720-a ).Thus, ”
Not-For-Profit Corporation Law § 720-a confers a qualified immunity on uncompensated directors, officers, and trustees of certain not-for-profit corporations” (Samide v Roman Catholic Diocese of Brooklyn, 5 AD3d 463, 465 [2004]; see Norment v Interfaith Ctr. of N.Y., 98 AD3d 955, 956 [2012]; Palmieri v Marx, 7 AD3d 688, 688 [2004]; see also Bernbach v Bonnie Briar Country Club, 144 AD2d 610, 611 [1988]).On a defendant‘s motion pursuant to
CPLR 3211 (a) (11) to dismiss a complaint premised on the qualified immunity conferred byN-PCL 720-a , the court must first determine whether the defendant is entitled to the benefit ofN-PCL 720-a immunity (seeCPLR 3211 [a] [11] ). If so, the court must then determine “whether there is a reasonable probability that the specific conduct of such defendant alleged constitutes gross negligence or was intended to cause the resulting harm” (CPLR 3211 [a] [11] ). Only if the court finds that the defendant is entitled to the benefits ofN-PCL 720-a immunity, and finds that there is no reasonable probability of gross negligence or intentional harm, will the defendant be entitled to dismissal of the causes of action asserted against that defendant (seeCPLR 3211 [a] [11] ).It is not disputed that the defendants are serving, without compensation, as “director[s], officer[s] or trustee[s] of a corporation, association, organization or trust described in section 501 (c) (3) of the United States internal revenue code,” and that the wrongs alleged were the result of conduct undertaken
in the execution of these roles ( N-PCL 720-a ). Thus, they established, as an initial matter, their entitlement to the benefit ofN-PCL 720-a immunity. Therefore, we must determine “whether there is a reasonable probability that the specific conduct of such defendant[s] alleged constitutes gross negligence or was intended to cause the resulting harm” (CPLR 3211 [a] [11] ).Initially, we note that the qualified immunity afforded by
N-PCL 720-a is not applicable to the sixth cause of action, since that claim seeks a declaratory judgment and injunctive relief rather than money damages.With regard to the remaining causes of action which seek money damages based on the defendants’ conduct in usurping the Congregation‘s authority, the gravamen of the plaintiffs’ claims are that the defendants, “in bad faith and with malice,” usurped the Congregation‘s authority in “refusing to allow the congregation to” vote on the issue of the Rabbi‘s retention. The plaintiffs have alleged that the defendants refused to allow the congregants to vote on the matter in violation of
Religious Corporations Law § 200 and the Congregation‘s bylaws, and notwithstanding several petitions and letters delivered to the defendants requesting that the Congregation be permitted to vote on the matter. Additionally, with regard to the defamation cause of action, as concluded above, the plaintiffs alleged malice. In short, essentially all of the plaintiffs’ allegations involve the intentional infliction of harm by the defendants (see generallyCPLR 3211 [a] [11] ).It has been held that
“[u]nlike the low threshold for defeating a motion to dismiss under other provisions of
CPLR 3211 , a plaintiff faced with a motion pursuant toCPLR 3211 (a) (11) should lay bare proof supporting the alleged grossly negligent or intentional conduct and ‘[t]he mere possibility that such proof can develop does not suffice to keep the case alive‘” (Krackeler Scientific, Inc. v Ordway Research Inst., Inc., 97 AD3d 1083, 1084 [2012] [citation omitted], quoting David D. Siegel, Practice Commentaries, McKinney‘s Cons Laws of NY, Book 7B, CPLR C3211:34a at 55).However, given the nature of the specific allegations as well as certain undisputed circumstances in this case, including the Board‘s refusal to allow the Congregation to vote notwithstand-
ing several demands, on this record, we conclude that there is a reasonable probability that the plaintiffs can establish that the defendants’ actions constituted gross negligence or were intended to cause the resulting harm (see CPLR 3211 [a] [11] ; see also Norment v Interfaith Ctr. of N.Y., 98 AD3d at 956; cf. Pontarelli v Shapero, 231 AD2d 407, 410-411 [1996]). Accordingly, at this stage, the defendants are not entitled to the benefit of the qualified immunity conferred byN-PCL 720-a .Based on all of the foregoing, the Supreme Court erred in granting that branch of the defendants’ motion which was to dismiss the complaint pursuant to
CPLR 3211 (a) (7) for failure to state a cause of action. Moreover, the defendants were not entitled to dismissal of the complaint pursuant toCPLR 3211 (a) (11) on the ground that their conduct was protected by a qualified immunity.Accordingly, the order is reversed, on the law, with costs, and the defendants’ motion to dismiss the complaint is denied.
SKELOS, J.P., LEVENTHAL and HALL, JJ., concur.
Ordered that the order is reversed, on the law, with costs, and that branch of the defendants’ motion which was pursuant to
CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action is denied.