HARRIS, CHESWORTH, JOHNSTONE & WELCH, LLP, ROCHESTER
(EUGENE WELCH OF COUNSEL), FOR DEFENDANTS-APPELLANTS 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.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL),
FOR DEFENDANT-APPELLANT KAREN FABI.
CULLEY, MARKS, TANENBAUM & PEZZULO, LLP, ROCHESTER (GLENN
E. PEZZULO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PERADOTTO, J.P., DEJOSEPH, NEMOYER, AND CURRAN, JJ.
from an order of the Supreme Court, Monroe County (James P.
Murphy, J.), entered June 6, 2016. The order, inter alia,
denied the motions of defendants to dismiss the complaint.
hereby ORDERED that the order so appealed from 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
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 asserted 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 asserted 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.
these motions to dismiss, we accept the facts alleged in the
complaint as true and accord plaintiff the benefit of every
favorable inference (see Daley v County of Erie, 59
A.D.3d 1087, 1087-1088). According to plaintiff, he became
employed by the County in 2001 and became the Executive
Health Director/Chief Administrative Officer of MCH in 2004.
In February or March 2013, "questions were raised"
regarding the treatment of a patient of MCH and, in March
2013, an investigation was commenced by the New York State
Department of Health (DOH) and the New York State Attorney
General. The County provided plaintiff with legal
representation by the County attorneys. Although plaintiff
was assured that there was no conflict of interest, the
County attorneys were also representing the County and other
MCH staff members, whose interests were adverse to plaintiff.
On March 29, 2013, the DOH issued a statement of deficiency
that included accusations against plaintiff with respect to
the treatment of a patient at MCH. In or around April 2013,
the County hired an independent consultant to assist with a
response to the statement of deficiencies and to contest
DOH's allegations by preparing and filing an
"Informal Dispute Resolution" (IDR/appeal). The
consultant invited plaintiff to provide her with any
information, and she told plaintiff that she agreed with him
that an IDR/appeal should be filed. The written IDR/appeal
report was finalized on April 25, 2013 but, at the last
minute, the County attorneys decided not to submit it. In
plaintiff's view, the filing of the IDR/appeal was in his
best legal interests and would have protected his reputation,
his license as a nursing home administrator, and his position
as executive director of MCH. On May 8, 2013, plaintiff
requested that he be represented by private counsel. The
County defendants did not respond to that request and, on May
10, 2013, plaintiff was terminated.
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 action, 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 A.D.3d 909, 910; see Berry v Utica Natl.
Ins. Group, 66 A.D.3d 1376, 1376; Rechberger v
Scolaro, Shulman, Cohen, Fetter & Burstein, P.C., 45
A.D.3d 1453, 1453). 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 Spring v County of Monroe,
141 A.D.3d 1151, 1152). Consequently, plaintiff is
collaterally estopped from claiming here that the County
attorneys represented him individually (see generally
Buechel v Bain, 97 N.Y.2d 295, 303-304, cert
denied 535 U.S. 1096). Thus, the legal malpractice cause
of action must be dismissed because there was no
attorney-client relationship between plaintiff and the County
attorneys (see Berry, 66 A.D.3d at 1376;
Moran, 32 A.D.3d at 911-912).
further agree with the County defendants that the 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-based 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
A.D.3d 1620, 1623; see Valdez v City of New York, 18
N.Y.3d 69, 75; Laratro v City of New York, 8 N.Y.3d
79, 82-83). Here, plaintiff's complaint fails to allege
the existence of any special duty, and therefore
plaintiff's second cause of action should also be
extent that the court determined pursuant to CPLR 3211 (d)
that the County defendants' motion was premature, we
conclude with respect to the legal malpractice cause of
action that there was no showing that "additional
discovery would disclose facts essential to justify
opposition' to defendants' motion, " inasmuch as
discovery will not reveal an attorney-client relationship
between plaintiff and the County attorneys (Bouley v
Bouley, 19 A.D.3d 1049, 1051). With respect to the
negligence cause of action, additional discovery is not
warranted inasmuch as it could not remedy plaintiff's
failure to plead a special duty.
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
A.D.3d 956, 962). 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
A.D.3d 732, 733-734), unless the defamatory statement falls
within one of the four "per se" exceptions, which
"consist of statements (i) charging plaintiff with a
serious crime; (ii) that tend to injure another in his or her
trade, business or profession; (iii) that plaintiff has a
loathsome disease; or (iv) imputing unchastity to a
woman" (Liberman v Gelstein, 80 N.Y.2d 429,
435). " A statement imputing incompetence or
dishonesty to the plaintiff is defamatory per se if there is
some reference, direct or indirect, in the words or in the
circumstances attending their utterance, which connects the
charge of incompetence or dishonesty to the particular
profession or trade engaged in by plaintiff" (Van
Lengen v Parr, 136 A.D.2d 964, 964).
respect to Brooks, we reject the contention of the County
defendants that her statements were not defamation per se.
"[G]ranting every possible inference' " to
plaintiff (Accadia Site Contr., Inc. v Skurka, 129
A.D.3d 1453, 1454), 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 A.D.2d 944, 945; see
generally Accadia Site Contr., Inc., 129 A.D.3d 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 A.D.3d
1114, 1115; cf. O'Neill v New York Univ., 97
A.D.3d 199, 213).
respect to Brooks and Fabi, we also 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 N.Y.3d 262, 269).
"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' " ...