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Aaron TYK, Plaintiff, v. BROOKLYN COMMUNITY BOARD 12, CITY OF NEW YORK, Yidel Perlstein, Moshe Weider, Yeruchim Silber, Anna Cali, Barry Spitzer, and Wolf Sender, Defendants.
Recitation, as Required by CPLR 2219 (a), of the Papers Considered:
Notice of Motion, Affirmations, and
Memorandum of Law Annexed 1-2, 3; 4-5, 6
Affirmation (Affidavit) in Opposition and
Memorandum of Law Annexed 7-8, 9
Transcript of Oral Argument 10
Defendants' Supplemental Memorandum of Law 11
Plaintiff's Affirmation in Response 12
Plaintiff's Supplemental Affirmation 13
Transcript of Additional Oral Argument 14
In this action challenging removal of plaintiff Aaron Tyk (plaintiff) as an appointed member of defendant Brooklyn Community Board 12 (the Board), defendants move, sequence number 1, for an order, pursuant to CPLR 3211 (a) (7), dismissing plaintiff's complaint. Plaintiff cross-moves, sequence number 2, for leave, pursuant to CPLR 3025 (b), to amend his complaint. The Court initially heard oral argument on November 6, 2015 and the matter was reserved. However, after review of the motions a sua sponte order was entered on January 13, 2016, setting the matter down for further oral argument on February 9, 2016.
The power of a community board, such as the Board at issue, is derived from the New York City Charter. Section 2800 (b) provides that “[a]n appointed member may be removed from a community board for cause ․ by a majority vote of the community board.” Section 2801 (a) provides that “[a] majority of the appointed members of any community board shall constitute a quorum of such board.” Section 2801 (b) provides that “the act, determination or decision of the majority of the members present entitled to vote during the presence of a quorum, shall be held to be the act, determination or decision of such board.” Consistent with the City Charter, the Board's bylaws (in Art IV, § 2, and Art XV) permit a Board member to be removed for cause. More specifically, the Board's bylaws (in Art XV, §§ 1-4) set forth the following procedure for effectuating removal of a Board member for cause (emphasis in the original):
“Section 1 - Motion made to institute removal proceedings can be made at any regular meeting of the Board.
Section 2 - Approval of such Motion must be made by a majority of the entire appointed membership of the Board.
Section 3 - ․ The Chairperson SHALL make a Motion before the Board recommending the removal of the member․ Notice of this provision would be included in the monthly notice of meeting sent to members.
At the monthly meeting where the Chairperson is requested to make a Motion to the Board, the member has a right to appear before the Board for a Hearing, as set forth in ․ Section 4․
Section 4 - The member in question may appear before the Board on his behalf.”
In this case, plaintiff was an appointed member of the Board before his removal. On Friday afternoon, June 20, 2014, plaintiff received an email from Board Chairman Yidel Perlstein (the Chairman), informing him that a motion for his removal would be made at a Board meeting to be held the following Tuesday, June 24, 2014. The Chairman's email outlined the reasons for his removal. Within a few minutes of his receipt of the Chairman's email, plaintiff emailed him back with a response, “Let the fun begin.” On June 23, 2014, the day before the scheduled meeting, plaintiff faxed his letter to the Chairman requesting that the matter of his removal be set down for a hearing with at least one week's prior notice. There was no response to plaintiff's request.
On June 24, 2014, a meeting of the Board was held, as scheduled. Plaintiff and thirty-three other board members attended the meeting. The Board, which consisted of fifty members, had the necessary quorum with which to act at the meeting. One of the scheduled items on the agenda for the meeting was “-hairman's Remarks - Yidel Perlstein[;] Motion by the Chairman to remove a Board Member for cause.” According to the minutes of the meeting, (1) the Chairman gave a brief summary of why he recommended plaintiff's removal from the Board, (2) plaintiff spoke in his defense, and (3) twenty-nine Board members voted to remove plaintiff as a member of the Board, two Board members abstained from voting, and only one Board member opposed plaintiff's removal. The minutes of the meeting further stated that a “[c]opy of the Chairman's summary is on file at the office [of the Board] for anyone who wishes to review it.”
One month after his removal from the Board (July 24, 2014), plaintiff commenced the instant action for damages. His original complaint asserted four causes of action: (1) violation of due process, (2) breach of fiduciary duty, (3) breach of fiduciary duty/contract, and (4) defamation arising out of Chairman's statements at the June 24th meeting. After defendants moved to dismiss, plaintiff cross-moved for leave to serve an amended complaint. His proposed amended complaint, dated July 22, 2015, asserts five causes of action: (1) violation of due process under the Fourteenth Amendment to the United States Constitution (the 14th Amendment), (2) denial of liberty under the 14th Amendment, (3) breach of fiduciary duty, (4) breach of fiduciary duty/contract, and (5) defamation.
At oral argument, plaintiff clarified that his amended claims, no matter how denominated, fell into two broad categories: the due-process claims and the defamation claims. In support of his due-process claims, he alleges that the way by which he was removed from the Board denied him procedural due process. In particular, he alleges that, at the June 24, 2014 meeting, he was only given an opportunity to make a statement immediately before the vote on his removal was taken, but that he was never given an opportunity, in advance of the meeting, to address the underlying allegations, to make a record, and to consult with counsel - all as more fully set forth in the margin.1 In support of his defamation claims, plaintiff alleges that he was slandered at the June 24th meeting and, in addition, was libeled in the minutes of the June 24th meeting, which minutes the Chairman emailed to the Board on or about September 22, 2014. Regarding the minutes, plaintiff urges the Court to find that publication for purposes of defamation may have occurred (or will occur) because the minutes are on file with the Board and are made available to anyone who requests them.2 He further alleges (in ¶ 17 of his Amended Complaint) that separately he was slandered at a Board meeting held on June 26, 2013, approximately one year before his removal, when the Chairman allegedly stated that plaintiff had threatened several police officers and Board members.
As the initial matter, the Court notes that plaintiff's service of a motion for leave to amend his complaint does not render academic defendants' pending motion to dismiss which was addressed to his original complaint (see Livadiotakis v. Tzitzikalakis, 302 AD2d 369, 370, 753 N.Y.S.2d 898, 898 [2 Dept., 2003] [“It has long been the rule in this Judicial Department that a motion to dismiss which is addressed to the merits may not be defeated by an amended pleading.”] ). The Court further notes that although defendants' motion to dismiss is directed to the original complaint, defendants have addressed the merits of the amended complaint, arguing that it, too, fails to state a cause of action. As both sides have had an ample opportunity to address the impact of the amended complaint on defendants' extant motion to dismiss, the Court is treating defendants' motion as one challenging the amended complaint (see Sage Realty Corp. v. Proskauer Rose LLP, 251 AD2d 35, 38, 675 N.Y.S.2d 14, 17 [1 Dept., 1998] [motion to dismiss related to initial complaint properly applied to amended complaint] ). Accordingly, the amended complaint, dated July 22, 2015, is deemed served on defendants, and plaintiff's motion for leave to amend in sequence number 2 is denied as academic. The Court now turns to the merits of plaintiff's claims.
Plaintiff's Due-Process Claims
Plaintiff's due-process claims fail to state a cause of action because the availability of CPLR Article 78 review of his removal as the Board member satisfies the due-process requirements (see State v. Dennin, 17 AD3d 744, 746, 792 N.Y.S.2d 682, 685 [3 Dept., 2005]; Matter of Bros. of Mercy Nursing & Rehabilitation Ctr. v. De Buono, 292 AD2d 775, 776, 740 N.Y.S.2d 170, 174 [4 Dept., 2002], appeal dismissed 98 NY2d 692, 747 N.Y.S.2d 409 , lv denied 99 NY2d 502, 752 N.Y.S.2d 589  ).
Although the Court has the discretion to convert this action to one under Article 78 (see CPLR 103 [c] ) and, by the sua sponte interim order, dated January 13, 2016, invited the parties to brief the specific issue of whether the conversion is appropriate, plaintiff has expressly opposed the conversion, stating on the record of the February 9, 2016, oral argument (tr at 12, lines 3-9) that he purposefully elected not to commence an Article 78 proceeding. Accordingly, plaintiff's due-process claims are dismissed.
Plaintiff's Defamation Claims
Plaintiff's defamation claims consist of (1) the alleged slander of him at the June 24, 2014, meeting at which he was removed as a Board member; (2) the alleged slander of him, approximately one year prior, at the June 26, 2013, meeting, and (3) the alleged libel of him contained in the September 22, 2014, minutes of the June 24, 2014, meeting.
The Alleged Slander at the June 24, 2014 Meeting
“An absolute privilege immunizes a communicant from liability in a defamation action [and] ․ generally is reserved for communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings” (Rosenberg v. MetLife, Inc., 8 NY3d 359, 365, 834 N.Y.S.2d 494, 497  ). “[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, 427 N.Y.S.2d 740, 745  ).
Here, the Court finds that the subject matter of the alleged slander at issue - removal of a Board member - and the forum in which it was held - a community board meeting - place the comments made by the Chairman within the ambit of protection of absolute privilege (see Monroe v. Schenectady County, 266 AD2d 792, 795, 699 N.Y.S.2d 164, 166 [3 Dept., 1999] [absolute privilege providing immunity in defamation action attached to sheriff acting within the scope of his duties in publishing the charges in a disciplinary action]; Baumblatt v. Battalia, 134 AD2d 226, 228, 520 N.Y.S.2d 571, 574 [2 Dept., 1987] [“(T)he claims ․ that (plaintiff) Chief Baumblatt was defamed, fail on the ground of privilege. The Town Supervisor and the other members of the town board enjoy an absolute privilege against a claim of defamation where, as here, the defamatory statements are made in the discharge of their responsibilities about matters within the ambit of their duties.”] ). Accordingly, plaintiff's defamation claims, to the extent premised on the allegedly slanderous statements made at the June 24, 2014, meeting in connection with his removal as a Board member, are dismissed as barred by the absolute privilege.
The Alleged Slander at the June 26, 2013 Board Meeting
The statute of limitations for an action to recover damages for defamation is one year (see CPLR 215  ), measured from the date of publication of the allegedly defamatory statement (see Nussenzweig v. diCorcia, 9 NY3d 184, 188, 848 N.Y.S.2d 7, 8  ). Plaintiff alleges that the Chairman made an allegedly slanderous statement about him at the June 26, 2013, Board meeting. Since plaintiff instituted this action on July 24, 2014, or more than one year after this allegedly slanderous statement was made, this statement is non-actionable.
The Alleged Libel in the September 22, 2014 Minutes
Generally, a statement may be considered either libelous per se or libelous by inference (see Cole Fischer Rogow, Inc. v. Carl Ally, Inc., 29 AD2d 423, 427, 423, 288 N.Y.S.2d 556, 562 [1 Dept., 1968], affd 25 NY2d 943, 305 N.Y.S.2d 154  ). Here, because plaintiff did not plead special damages, his claim is one for libel per se. A statement will only be considered libelous per se if it tends to injure the plaintiff in his trade, business, or profession (see Aronson v. Wiersma, 65 NY2d 592, 594-595, 493 N.Y.S.2d 1006, 1008  ).
Here, plaintiff claims as libelous the statement in the minutes that a “[c]opy of the Chairman's summary is on file at the office for anyone who wishes to review it.” Determining the nature of the Chairman's summary would require delving into extrinsic facts, but “statements cannot be slanderous per se if reference to extrinsic facts is necessary to give them a defamatory import” (Coe v. Town of Conklin, 94 AD3d 1197, 1200, 942 N.Y.S.2d 255, 258 [3 Dept., 2012] [internal quotation marks omitted] ). Moreover, since the minutes at issue arose from an official public meeting of the Board, the Board was duty bound to record minutes of that meeting and to make those minutes public (see Public Officers Law §§ 102  - ; 106 ,  ). Thus, plaintiff's defamation claims, to the extent premised on the contents of the September 22, 2014, minutes, fail to state a cause of action.
Defendants' motion to dismiss in sequence number 1 is granted, and the amended complaint is dismissed in its entirety without costs and disbursements. Plaintiff's cross motion to amend in sequence number 2 is denied as academic.
This constitutes the decision, order, and judgment of the Court.
Defense counsel shall serve a copy of this decision, order, and judgment on plaintiff with notice of entry and shall file an affidavit of said service with the County Clerk.
1. . See Transcript Feb. 9, 2016 at 12, lines 6-11 (plaintiff's statement, “I am not seeking a review of that determination as to whether my removal was proper or not. That's not before this Court. That's not in my complaint. That issue is not for adjudication.”); at 15, lines 18-20 (plaintiff's statement, “ ‘Give me a week's notice, so I can consult with counsel, and I can present testimony,’ I believe that's reasonable.”); at 16, lines 11-20 (plaintiff's statement, “They [the Board] have to give due process, which is proper notice. And an opportunity to be heard. Which is the second element. For me to present the case exactly what the allegations are. To address those allegations. Give background to the allegations. And make a record. So that's possible, should I want to proceed with a review. But I wasn't given that. I was given an opportunity just to make a statement prior to vote.”); at 18, lines 2-14 (colloquy between plaintiff and the Court: “[Plaintiff:] I was not given an opportunity to address the charges. To present testimony. To discuss the basis for the charges․” The Court: “You were not given an opportunity to speak at that meeting?” Plaintiff: “Just a couple of minutes to make a statement.” The Court: “You were heard, but you weren't given enough time sufficient to your liking?” Plaintiff: “As necessary. Objectively, not subjectively. I contend and argue ․ objectively it was not sufficient time.”).
2. . See Transcript Feb. 9, 2016 at 19, line 24 - at 20, line 9 (plaintiff's statement, “the minutes of the June meeting were disseminated to the board members by means of this e-mail in September. And if one looks ․ to the second paragraph of the last page [of the minutes], stated therein is a copy of the [Chairman's] summary ․ is on file at the office for anyone who wishes to review it. So by means of this e-mail, which was disseminated in September, the public was given notice of the statements made by the chairman at the June meeting. That is my contention.”); at 21, lines 15-25 (colloquy between plaintiff and the Court: “[Plaintiff:] It [the minutes] gives notice that there is a statement on file. It tells them there is a statement on file․ [I]t flags them to a statement on file that if you really want to see, take a look at it.” The Court: “The statement, the alleged defamatory statement is not in these minutes. It is on record, and because these minutes notify people that they have the right to go and review the records, is the basis for you relying on [the minutes distributed in] September?” Plaintiff: “Yes, Judge.”).
Lara J. Genovesi, J.
Response sent, thank you
Docket No: 10841/14
Decided: March 09, 2016
Court: Supreme Court, Kings County, New York.
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