Spring v. County of MonroeSpring v. County of Monroe
It is hereby ordered that the order so appealed frоm is unanimously modified on the law by granting the motion of defendants County of Monroe, Monroe Community Hospital, Maggie Brooks, as Monroe County Executive, Daniel M. DeLaus, Jr., Esq., William K. Taylor, Esq., Brett Granville, Esq., and Merideth H. Smith, Esq., in part and dismissing the first and second causes of action, and as modified the order is affirmed without costs.
Memorandum: In this action arising from plaintiff‘s employment at defendant Monroe Community Hospital (MCH), plaintiff asserted three causes of action against various defendants. The first cause of action, for legal malpractice, was asserted against defendants Daniel M. DeLaus, Jr., Esq., William K. Taylor, Esq., Brett Granville, Esq., and Merideth H. Smith, Esq. (collectively, County attorneys). The second cause of action, for negligence, was assеrted against MCH, the County attorneys, and defendants County of Monroe (County), and Maggie Brooks, as Monroe County Executive. The third cause of action, for defamation, was assertеd against Brooks and defendant Karen Fabi. The County, MCH, Brooks, and the County attorneys (collectively, County defendants) and Fabi made separate motions to dismiss the complaint against them. The County defendants and Fabi now appeal from an order that denied the motions, and we modify the order by granting the County defendants’ motion in part and dismissing the first and second causes of action.
Wе agree with the County attorneys that Supreme Court erred in denying that part of the motion of the County defendants seeking to dismiss the legal malpractice cause of actiоn, and we therefore modify the order accordingly. It is well established that, “[t]o recover damages for legal malpractice, a plaintiff must prove, inter alia, the existence of an attorney-client relationship” (Moran v Hurst, 32 AD3d 909, 910 [2006]; see Berry v Utica Natl. Ins. Group, 66 AD3d 1376, 1376 [2009]; Rechberger v Scolaro, Shulman, Cohen, Fetter & Burstein, P.C., 45 AD3d 1453, 1453 [2007]). In a prior appeal arising from the same incident as here, we determined that plaintiff did not have an attorney-client relationship with the County attorneys inasmuch as “[c]ounsel for the County represented [plaintiff] only in [plaintiff‘s] capacity as a County employee” (Matter of
We further agree with the County defendants that thе court erred in denying that part of their motion seeking to dismiss the negligence cause of action, and we therefore further modify the order accordingly. “In a negligence-bаsed claim against a municipality, a plaintiff must allege that a special duty existed between the municipality and the plaintiff” (Kirchner v County of Niagara, 107 AD3d 1620, 1623 [2013]; see Valdez v City of New York, 18 NY3d 69, 75 [2011]; Laratro v City of New York, 8 NY3d 79, 82-83 [2006]). Here, plaintiff‘s complaint fails to allege the existence of any special duty, and therefore plaintiff‘s second cause of action should also be dismissed.
To the extent that the court determined pursuant to
We reject the contentions of the County defendants and Fabi that the court erred in denying those parts of the motions seeking to dismiss the defamation cause of action asserted only against Brooks and Fabi. It is well established that “[t]he 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” (D‘Amico v Correctional Med. Care, Inc., 120 AD3d 956, 962 [2014]). A plaintiff in a defamation action “must allege that he or she suffered ‘special damages‘—‘the loss of something having economic or pecuniary value‘” (El Jamal v Weil, 116 AD3d 732, 733-734 [2014]), unless the defamatory statement falls within one of the four “pеr se” excep-
With respect to Brooks, we reject the contention of the County defendants that her statements were not defamation per se. “[G]ranting ‘evеry possible inference’ to plaintiff (Accadia Site Contr., Inc. v Skurka, 129 AD3d 1453, 1454 [2015]), we conclude that Brooks’ statements constitute defamation per se inasmuch as they allegedly injure plaintiff in his professional standing (see Elibol v Berkshire-Hathaway, Inc., 298 AD2d 944, 945 [2002]; see generally Accadia Site Contr., Inc., 129 AD3d at 1454). Furthermore, contrary to the County defendants’ contention, “the complaint contains sufficient allegations that [Brooks] acted with malice in making the alleged defamatory statements to withstand that part of [the County] defendants’ motion seeking dismissal of the defamation cause of action” against Brooks (Kondo-Dresser v Buffalo Pub. Schools, 17 AD3d 1114, 1115 [2005]; cf. O‘Neill v New York Univ., 97 NY3d 199, 213 [2012]).
With respect to Brooks and Fabi, we аlso reject the contentions of the County defendants and Fabi that the alleged defamatory comments made by Brooks and Fabi were not actionable inasmuch as they were statements of opinion. “While a pure opinion cannot be the subject of a defamation claim, an opinion that ‘implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, . . . is a mixed opinion and is actionable‘” (Davis v Boeheim, 24 NY3d 262, 269 [2014]). “What differentiates an actionable mixed opinion from a privileged, pure opinion is ‘the implication that the speaker knows certain facts, unknown to [the] audience, which support [the speaker‘s] opinion and are detrimental to the person being discussed‘” (id.). Here, at this early stage of the litigation, we cannot state as a matter of law that the allegedly defamatory statements made by Brooks and Fabi are pure оpinion (see id. at 274).
The parties’ remaining contentions either are without merit, are improperly raised for the first time on appeal, or have been