This action was commenced by plaintiff, a former court clerk of the Town Court of Conklin, seeking damages for violations of Civil Service Law § 75-b (The Whistleblower Statute), slander and libel, mental and emotional trauma, anguish and humiliation, as well as punitive damages resulting from her termination. [*2]

By way of this motion, defendants have collectively moved for dismissal of this action on the grounds of documentary evidence (CPLR § 3211 [a] [1]), violation of the applicable statute of limitations (CPLR § 3211 [a][5]), failure to state a cause of action (CPLR § 3211 [a] [7]), lack of personal jurisdiction (CPLR § 3211 [a][8]), failure to state any culpable conduct by the Town of Conklin, that the statements alleged are not defamatory, and that defendants are protected by an absolute and/or qualified privilege.

By way of cross-motion, plaintiff seeks permission to amend her complaint by removing The Town Board of the Town of Conklin as a party defendant, removing various factual allegations, and deleting the cause of action based upon Civil Service Law § 75-b (The Whistleblower Statute). Plaintiff opposes the remaining portions of defendants' motion.

The court heard oral argument of counsel on May 13th, 2011.

Suffice it to say that disagreements arose between plaintiff and Justice Ayres regarding his handling of court cases the details of which are not pertinent to the issues before this court. Plaintiff states that she reported Justice Ayres to the Town Supervisor, as well as the Office of Court Administration, both of which allegedly told her to deal directly with Justice Ayres.

On September 24th, 2009, plaintiff alleges that she was talking with the Town Supervisor when Justice Ayres approached her and informed her that she was fired.

On September 25th, 2009, a special meeting of the Town Board of the Town of Conklin was held with Justice Ayres in attendance during which the following exchanges took place as set forth in the official town minutes:

Town Justice J. Marshall Ayres apprised the Town Board that he had contacted the New York State Judicial Office and was informed that the Court Clerk works "at the pleasure of the Court," which he explained means that he can legally remove a Court Clerk and replace that person with a different Court Clerk, as long as he stays within the amount of money budgeted for the position....

Mr. Finch [board member] asked if the current Court Clerk had been given adequate written and verbal warnings and Judge Ayres replied that he has "four pages of warnings documents in her file," of which the current Court Clerk is aware, according to Judge Ayres....

[in response to the proposal to hire a new Court Clerk that was a non-resident] Mr. Finch asked Judge Ayres "Couldn't you find somebody from this area, or from New York?" Judge [*3]Ayres replied, "This is a position where I need someone I can trust, and someone who can keep their mouth shut, and who can do the work without making a bunch of mistakes...if you get someone in here for cheap, you could end up back down at County Court again."

(Hatch Affirmation, Exhibit C).

The record reflects that said minutes were approved at a Regular Town Board Meeting on October 13, 2009.^[FN1]

The original Summons and Complaint were filed on October 11, 2010.

The court will begin its analysis with plaintiff's cross-motion to amend her complaint

which seeks to remove The Town Board of the Town of Conklin as a party defendant, remove various factual allegations, and delete the cause of action based upon Civil Service Law § 75-b (The Whistleblower Statute).^[FN2]

It is well-settled that leave to amend a pleading pursuant to CPLR § 3025 (b) shall be freely given and will remain undisturbed in the absence of an abuse of discretion (Hanchett v Graphic Techniques, 243 AD2d 942, 943 [3rd Dept 1997]). Moreover, such leave should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit (Letterman v Reddington, 278 AD2d 868 [4th Dept 2000]).

In the first instance, the court notes that the proposed amendment seeks merely to remove factual allegations and delete certain parties and causes of action, rather than add any factual allegations, parties, and/or causes of action. To the extent that defendants object to plaintiff's failure to submit any proof other than an attorney's affirmation, the court finds that in a situation such as this, namely where there are no additions proposed but merely deletions from a previously verified complaint, then the submission of an attorney's affirmation is sufficient. In this court's view, defendants have not demonstrated the requisite prejudice - or any prejudice for that matter - that would result from the proposed amendment nor are the proposed amendments patently lacking in merit. [*4]

In view of the foregoing, plaintiff's cross-motion to amend the pleadings is granted and the court will address defendants' motion to dismiss as if directed to the proposed amended complaint.^[FN3]

II.DEFENDANTS' MOTION TO DISMISS

Defendants' motion to dismiss contains numerous grounds for dismissal, but the primary focus of defendants' motion is two-fold, namely that the action is barred by the applicable statute of limitations (CPLR § 3211 [a][5]) and fails to state a cause of action by failing to allege any culpable conduct by the Town of Conklin, that the statements alleged are not defamatory, and that defendants are protected by an absolute and/or qualified privilege (CPLR § 3211 [a] [7]).

To the extent that defendants' Notice of Motion also alleges a basis for dismissal on the grounds of documentary evidence (CPLR § 3211 [a] [1]), the court finds such grounds totally without merit. Defendants' so-called documentary proof are the minutes from the Town Board special meeting. The court finds such minutes do not equate to the type of documentary proof required by CPLR § 3211 (a)(1) (Fontanetta v John Doe I, 73 AD3d 78 [2nd Dept 2010]).

Additionally, defendants' Notice of Motion also cites as a ground for dismissal a lack of personal jurisdiction under CPLR § 3211 (a)(8), but there is no further discussion thereof in the moving papers and, as such, it is deemed abandoned.

The court now turns to the substantive portions of defendants' motion, namely the statute of limitation and failure to state a claim arguments.

A.STATUTE OF LIMITATIONS

The Third Department has stated the applicable burden of proof relating to a motion to dismiss premised upon a statute of limitations defense as follows:

[w]hen a party moves pursuant to CPLR 3211 (a) (5) for a judgment dismissing a claim on the ground that it is barred by the Statute of Limitations, it is that party's burden initially to establish the affirmative defense by prima facie proof that the Statute of Limitations had elapsed [citation omitted]. This burden does not include an obligation on the moving party's part to negate any or all exceptions that might apply to the statutory period [citation omitted]. Instead, the burden shifts to the party opposing the motion to aver evidentiary facts establishing that the case at hand falls within such exceptions [citation omitted].

(Hoosac Val. Farmers Exch. v AG Assets, 168 AD2d 822, 823 [3rd Dept 1990]).

Here, defendants argue that this action as against the Town and the Town Justice is governed by the one-year statute of limitations in CPLR § 215 (3), while plaintiff argues that this [*5]action is governed by the one year and ninety day statute of limitations from GML § 50-i.

In this court's view, defendants have met their burden of establishing their affirmative defense by prima facie proof that the one-year statute of limitations in CPLR § 215 (3) is applicable and had elapsed as of the time of commencement. More specifically, defendants' reliance upon the Third Department cases of Bardi v Warren County Sheriff's Dept., 260 AD2d 763 (3rd Dept 1999), and Pravda v County of Saratoga, 224 AD2d 764 (3rd Dept 1996), lv denied 88 NY2d 809 (1996), is well placed. The Third Department could not have been any clearer than in Bardi when Justice Crew stated (with respect to action No. 2 therein) that the causes of action against the County, its District Attorney, the Sheriff, and two deputy sheriffs sounded in intentional torts and were "subject to the one-year Statue of Limitations set forth in CPLR 215" (Bardi, 260 AD2d at 764).

Plaintiff's attempts to distinguish Bardi and Pravda by paraphrasing what the Third Department really meant to say and citations to decisions by other departments such as Ruggiero v Phillips, 292 AD2d 41 [4th Dept 2002]) are unavailing. While the court understands the distinctions that plaintiff is attempting to make, this court is bound by the clear language of those Third Department decisions. The court finds that plaintiff has failed to meet her burden of opposing the motion. Consequently, the court finds that this defamation action as against both defendants, the Town and the Town Justice, is governed by the one-year statute of limitations in CPLR § 215 (3).

This conclusion, however, does not end the court's inquiry on the subject of the statue of limitations. The next issue is the proper accrual date from which the one-year statute of limitations in CPLR § 215 (3) runs with respect to the libel and slander aspects of this defamation action.

With respect to the slander portion of this action, it is undisputed that Justice Ayres made his verbal comments at a special meeting of the Town Board on September 25, 2009. To the extent that this action against the Town and/or Town Justice is premised solely on Justice Ayers' verbal statements made at that meeting this action had to be commenced on or before September 27th, 2010.^[FN4] It was not. Thus, plaintiff's action which was commenced on October 11, 2010 is untimely with respect to any slander cause of action. Accordingly, in view of the foregoing, to the extent that defendants' motion to dismiss is directed toward the slander cause of action, said motion must be granted.

With respect to the libel portion of this action, the libel cause of action could not accrue until the minutes were "published" as that term is defined in defamation cases. Although this argument was not presented by plaintiff, there is case law indicating that the publication, thus [*6]accrual, would not begin until either the signing of the minutes, the filing in the Town Clerk's Office, or the posting on the Town's website (Duquette v Town of Peru Town Board, 18 Misc 3d 1129[A] [2008]). The record reflects that the minutes were approved at a Regular Town Board Meeting on October 13, 2009, but neither party provided to the court the date on which the minutes were signed, filed, and/or posted on the Town's website. In any event, inasmuch as those minutes were approved on October 13, 2009, the signing, filing and posting on the website could only have occurred, at the earliest, on that date, namely October 13, 2009. Thus, for argument purposes, the court will deem the accrual date of the libel cause of action as October 13, 2009. Accordingly, any libel cause of action based upon the publication of those minutes is timely since this action was filed on October 11, 2010 which is within one year from the earliest possible date of accrual. Thus, in view of the foregoing, defendants' motion to dismiss for failing to timely commence this libel action must be denied.

Accordingly, the court will now address defendants' second basis for dismissal, namely their argument the sole remaining libel cause of action fails to state a cause of action.

B.FAILURE TO STATE A CAUSE OF ACTION

It is well-settled that on a CPLR § 3211 (a) (7) motion to dismiss for failure to state a cause of action, a court must accept the facts alleged in the complaint as true and accord plaintiff the benefit of every possible inference and determine whether the facts as alleged fit within any cognizable legal theory (Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314 [2002]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Defendants have alleged that the complaint fails to state a cause of action because the statements alleged are not defamatory and, in any event,

defendants are protected by an absolute and/or qualified privilege.

1.Alleged defamatory statements

Defendants argue that the special board minutes do not contain any defamatory language as a matter of law and thus this action fails to state a cause of action.^[FN5]

The issue of whether particular words are defamatory is a legal question that may be determined as a matter of law (Tracy v Newsday, Inc., 5 NY2d 134, 136 [1959]). The analysis requires that "[t]he words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction [citations omitted]" (Aronson v Wiersma, 65 NY2d 592, 594 [1985]; emphasis added).

The allegedly defamatory language at issue here are the following two portions from the [*7]special board minutes:

Mr. Finch [board member] asked if the current Court Clerk had been given adequate written and verbal warnings and Judge Ayres replied that he has "four pages of warnings documents in her file," of which the current Court Clerk is aware, according to Judge Ayres....

[in response to the proposal to hire a new Court Clerk that was a non-resident] Mr. Finch asked Judge Ayres "Couldn't you find somebody from this area, or from New York?" Judge Ayres replied, "This is a position where I need someone I can trust, and someone who can keep their mouth shut, and who can do the work without making a bunch of mistakes...if you get someone in here for cheap, you could end up back down at County Court again."

(Emphases added).

As a matter of law, the court finds that neither portion of the quoted portion of said minutes can be read as defamatory.

The court will first address the phrase contained in the minutes referencing "four pages of warning". Generally, a statement may be considered either libelous per se or libelous per quod (by inference) (Cole Fischer Rogow, Inc. v Carl Ally, Inc., 29 AD2d 423, 427 [1st Dept 1968], affd 25 NY2d 943 [1969]). Here, because plaintiff did not plead special damages, her claim is one for libel per se. A statement will only be considered libelous per se if it tends to injure the plaintiff in their trade, business or profession (Aronson, 65 NY2d at 594-595; Liberman v Gelstein, 80 NY2d 429, 435 [1992]).^[FN6]

In this court's view, the reference to "four pages of warning" simply does not defame plaintiff in her business, profession or trade, namely her abilities as a court clerk. Stated another way, the reference to "four pages of warning" requires reference to extrinsic facts to give that phrase any defamatory import (Aronson, 65 NY2d at 594-595; Newsday, Inc. v Peck Contr., 87 AD2d 326, 327 [1st Dept 1982], lv dismissed 57 NY2d 885 [1982]; Clemente v Impastato, 274 AD2d 771, 773 [3rd Dept 2000]). The Court of Appeals has stated that "[t]o be actionable as words that tend to injure another in his or her profession, the challenged statement must be more than a general reflection upon [plaintiff's] character or qualities. Rather, the statement must reflect on her performance or be incompatible with the proper conduct of her business [citations omitted]" (Golub v Enquirer/Star Group, 89 NY2d 1074, 1076 [1997]). For instance, if the four pages of warning involved plaintiff's failure to hand in time sheets that would be no reflection upon her performance as a court clerk (Aronson, 65 NY2d at 594). As such, the court finds that since resort to extrinsic evidence (the actual warnings) is necessary to determine the nature of the warnings, this statement cannot constitute libelous per se as a matter of law.

With respect to the second statement, Justice Ayres stated "This is a position where I need [*8]someone I can trust, and someone who can keep their mouth shut, and who can do the work without making a bunch of mistakes...if you get someone in here for cheap, you could end up back down at County Court again [emphasis added]." The court also finds this language not libelous per se as a matter of law. First and foremost, the language clearly refers to a list of general qualifications for this particular position and not a list of attributes that this plaintiff was lacking. Stated another way, the court finds that this statement was not a statement of fact or opinion about plaintiff, but rather a statement by Justice Ayres of the attributes he required in filling this position, and nothing in his statement impugns plaintiff's abilities (Wilcox v Newark Val. Cent. School Dist., 74 AD3d 1558 [3rd Dept 2010]). The court finds as a matter of law that these words are not reasonably susceptible of the defamation interpretation posited by plaintiff, since to do so would strain the words beyond their fair meaning. Additionally, the reference to ending up "back down at County Court again" was clearly a reference to plaintiff's predecessor who was criminally charged in connection with her duties and had nothing to do with plaintiff. Consequently, the court finds this language is not libelous per se as a matter of law and, as such, defendants' motion to dismiss for failure to state a cause of action should be granted.

2.Absolute Privilege

Parenthetically, even if the court had found either or both portions of said minutes to constitute defamatory language or even questions of fact relative thereto, the court would have found defendants protected by an absolute privilege.

An absolute privilege serves to protect public officials from liability when acting within their public duties (Rosenberg v MetLife, Inc., 8 NY3d 359 [2007]). Here, it is undisputed that the minutes at issue arose from an official public meeting of the Town Board. While the Town Board would have been entitled to enter executive session to discuss personnel issues, once they chose to proceed in an open meeting, it was duty bound to accurately record minutes of that meeting and to make those minutes public (Public Officers Law § §102 & 106). Furthermore, the court finds that Justice Ayres was also acting in his official duties, albeit his administrative duties rather than his judicial duties. In determining whether an absolute privilege is proper "[t]he guiding principle in determining the availability of this privilege must be the relationship between the speaker's fulfillment of his public duties and the circumstances of his speech" (Clark v McGee, 49 NY2d 613, 620 [1980]). Here, the court finds that the subject matter of this language at issue - the hiring of a court clerk - and the forum in which it was held - a special public town board meeting - places the comments between the Town Board and Justice Ayres within the ambit of protection of absolute privilege (Clark, 49 NY2d 613; Monroe v Schenectady County, 266 AD2d 792 [3rd Dept 1999]; Baumblatt v Battalia, 134 AD2d 226, 228-229 [2nd Dept 1987]).^[FN7]

In view of the foregoing, the court finds that defendants' motion to dismiss should be granted and the complaint as amended dismissed.

This constitutes the order of the court.

Dated:June 20, 2011

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court