The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
In the February 25, 2011 Decision and Order, the Court granted Plaintiff's application to amend her Complaint at ¶ 20(G) to include the allegation that Defendant Nichols told a representative of Bassett Hospital not to hire Plaintiff "since her performance at the Village Police Department was 'not to standards.'" Plaintiff amended the Complaint, and Defendant now moves to dismiss Plaintiff's: (1) common law defamation claim; (2) New York State Human Rights Law claim against Defendant Nichols; and (3) breach of contract claim. See Cross-motion, dkt. # 100. For the reasons that follow, the motion is denied.
The defamation claim asserted in the Amended Complaint contains allegations of statements that are susceptible to a defamatory connotation. See Am. Compl., ¶ 20(G). *fn1
The allegation that Defendants told a Bassett Hospital representative that Plaintiff was terminated from the Village of Cooperstown Police Department because "she was making sexual advances towards her married sergeant and her behavior was so disruptive that they had to terminate her," *fn2 if false, is defamatory in that it "tends to expose [Plaintiff] to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of [her] in the minds of right-thinking persons, and to deprive [her] of their friendly intercourse in society." Dillon v. City of New York, 261 A.D.2d 34, 37-38 (N.Y. App. Div. 1st Dept. 1999).
The addition of the allegation that "Defendant Nicols and others acting in concert with her, defamed and maligned Plaintiff and her character when they maliciously advised Bassett Hospital that Plaintiff should not be hired since her performance at the Village Police Department was 'not to standards'" does not warrant dismissal of the claim. The "up to standards" statement, when considered in context, is itself susceptible to a defamatory connotation. See Allen v. CH Energy Group, Inc., 58 A.D.3d 1102, 1103 (N.Y. App. Div. 3rd Dept. 2009)(The context of the entire statement must be considered, "tested against the understanding of the average [person].")(citation omitted); Rossi v. Attanasio, 48 A.D.3d 1025, 1027 (N.Y. App. Div. 3rd Dept. 2008)("A statement which concerns a person in [her] trade or business and tends to injure [her] therein is actionable per se .") (interior quotation marks and citations omitted). Thus, even if the "up to standards" statement is merely the opinion of the speaker, a fact finder could conclude, when viewed in context, that it was spoken with a defamatory purpose. See 02/25/11 Dec. & Ord., p. 23. *fn3 Therefore, the motion on this ground is denied.
b. NYSHRL Hostile Work Environment Claim
The Court's August 11, 2011 Decision and Order, which reinstated the § 1983 Equal Protection hostile work environment claim against Nichols, defeats Defendants' argument that the NYSHRL hostile work environment claim against Nichols (alleging that she failed to take appropriate action in response to Plaintiff's complaints of sexual harassment) must be dismissed. As explained in the August 11, 2011 Decision and Order, a question of fact exists as to when Nichols was advised of a course of sexual harassment perpetrated against Plaintiff. Moreover, a question of fact exists as to the action that Nichols took in response to Plaintiff's complaints. Thus, the motion in this regard is denied.
c. Breach of Contract Claim
Defendants also seek to dismiss Plaintiff's breach of contract claim. The breach of contract claim asserted in the Amended Complaint is the same as the breach of contract claim in the Complaint. Defendants do not explain why the claim was not addressed on their summary judgment motion, nor do they provide any basis for dismissal other than to assert that the Amended Complaint "fails to identify the purported contract or the defendants' breach of same." Cross Mot., p. 8. Plaintiff counters:
The Employee Handbook of the Village of Cooperstown prohibits sexual harassment and guarantees employees who report sexual harassment that "The Village will not in any way retaliate against [that] individual". (Bosman, Aff., Exh. C). By bringing this motion now Defendants have deprived the Plaintiff of a full and fair opportunity to litigate the issue. They have not established the absence of a material fact issue with respect to Plaintiff's contract claim which Plaintiff pled and grounded in the rules and regulations provided to her in an Employee Handbook of the Village of Cooperstown. Plf. Opp., p. 7.
Although the claim appears to be duplicative of Plaintiff's Title VII and NYSHRL retaliation claims, that determination cannot be made on the instant Rule 12(b)(6) motion. Because Plaintiff has asserted a plausible breach of contract claim, see Am. Compl., ¶¶ 19, 53-55, *fn4 the motion in this ...