Opinion
Index No. 601810/2023
01-12-2024
Charlene KAGEL-BETTS, Plaintiff, v. Mayor Jesse WARREN and the Village of Southampton, Defendants.
Upon the E-file document list numbered 4 to 9, 11 to 18, 26 to 45, 51 to 58, and 64 to 67, read and considered on the motion of defendant Mayor Jesse Warren for an order pursuant to CPLR 3211 (a)(1) and (a)(7) dismissing plaintiff's complaint, on the motion of defendant The Village of Southampton for an order pursuant to CPLR 3211 (a)(1) and (a)(7) dismissing plaintiff's complaint, and on the cross-motion of plaintiff for an order requiring defendants to produce an investigative report; it is
ORDERED that the motion of defendant Mayor Jesse Warren for an order pursuant to CPLR 3211 (a)(1) and (a)(7) dismissing plaintiff's complaint, is granted, as set forth herein; and it is further
ORDERED that the motion of defendant The Village of Southampton for an order pursuant to CPLR 3211 (a)(1) and (a)(7) dismissing plaintiff's complaint, is granted, as set forth herein; and it is further
ORDERED that the motion of plaintiff for an order requiring defendants to produce an investigative report is denied, as academic.
This is an action by plaintiff Charlene Kagel-Betts ("plaintiff") commenced by the filing of a summons and verified complaint on January 23, 2023 alleging claims pursuant to New York Executive Law section 296 (" Executive Law 296") , and slander per se, arising from her employment as Village Administrator for defendant The Village of Southampton ("the Village"). Plaintiff was appointed to the position of Village Administrator on October 1, 2020 at an organizational meeting by resolution adopted by a majority of the Southampton Village Board of Trustees, a position which plaintiff still holds to this date. The complaint alleges that plaintiff has been discriminated against based upon her age and gender, subjected to a hostile work environment, retaliated against, and slandered by the Village's prior Mayor defendant Mayor Jesse Warren ("Warren"). Plaintiff asserts, inter alia, that she was excluded from meetings and communications, that a task she had performed was either assumed by Warren or his newly hired assistant, and that she was subjected to harassing emails from Warren. The slander per se claim is based upon a comment by Warren at a public forum in regard to a Cooper's Beach food concession contract wherein he stated "[t]here was cause for concern because the highest bidder was also related to the Village Administrator and to me that gave the appearance of impropriety." Defendants now move to dismiss the complaint pursuant to CPLR 3211 (a)(1) and (a)(7). Plaintiff cross-moves for an order requiring defendants to produce an investigative report. Plaintiff does not cite to a CPLR section in her notice of motion, however, in the attorney affirmation, she relies upon CPLR 3124. Such a discovery motion, however, would be deemed premature prior to the issuance of a preliminary conference order (see 22 NYCRR 202.8 [f]). The motion, nevertheless, is denied as academic, as the complaint is dismissed pursuant to CPLR 3211 (a)(7).
Executive Law 296 is also referred to as the New York State Human Rights Law.
On a motion to dismiss a complaint based on documentary evidence pursuant to CPLR 3211 (a) (1), such a motion will only be granted where the documentary evidence that forms the basis of the defense is such that it resolves all of the factual allegations as a matter of law, and conclusively disposes of the plaintiff's claims (see Turkat v Lalezarian Developers, Inc. , 52 AD3d 595, 596, 860 NYS2d 153 [2d Dept 2008] ). The court may grant a motion to dismiss pursuant to CPLR 3211 (a) (1) "only where the documentary evidence utterly refutes plaintiff's allegations, conclusively establishing a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. of NY , 98 NY2d 314, 326 746 NYS2d 858 [2002] ; Sobel v Ansanelli , 98 AD3d 1020, 951 NYS2d 533 [2d Dept 2012] ; Harris v Barbera , 96 AD3d 904, 947 NYS2d 548 [2d Dept 2012] ). In order to qualify as "documentary evidence" the printed materials "must be unambiguous and of undisputed authenticity" ( Fontanetta v John Doe 1 , 73 AD3d 78, 86, 898 NYS2d 569 [2d Dept 2010] ). For example, judicial records, mortgages, deeds, and contracts have been found to qualify as documentary evidence (see S & J Service Ctr., Inc. v Commerce Commercial Group, Inc., 178 AD3d 977, 112 NYS3d 584 [2d Dept 2019] ). On the other hand, affidavits, deposition testimony, letters, and electronic mail are not considered documentary evidence under CPLR 3211 (a)(1) (see Gawrych v Astoria Federal Savings and Loan, 148 AD3d 681, 48 NYS3d 450 [2d Dept 2017] ; Granada Condominium III Assn. v Palomino, 78 AD3d 996, 913 NYS2d 668 [2d Dept 2010] ). Defendants have not provided the Court with any documentary evidence upon which to grant their motion pursuant to CPLR 3211 (a)(1).
In determining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Matneja v Zito , 163 AD3d 800, 801, 81 NYS3d 174 [2d Dept 2018] ; see also Rosenblum v Island Custom Stairs, Inc. , 130 AD3d 803, 803, 14 NYS3d 82 [2d Dept 2015] ; Country Pointe at Dix Hills Home Owners Assn., Inc. v Beechwood Organization , 80 AD3d 643, 649, 915 NYS2d 117 [2d Dept 2011], quoting Schneider v Hand , 296 AD2d 454, 744 NYS2d 899 [2002] ). The test of the sufficiency of a pleading is " ‘whether it gives sufficient notice of the transaction, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments’ " ( Hampshire Prop. v BTA Bldg. & Developing, Inc. , 122 AD3d 573, 573, 996 NYS2d 129 [2d Dept 2014], quoting Leon v Martinez , 84 NY2d 83, 88, 614 NYS2d 972 [1994] ; see also JPMorgan Chase v J.H. Electric of NY, Inc. , 69 AD3d 802, 803, 893 NYS2d 237 [2d Dept 2010], quoting Moore v Johnson , 147 AD2d 621, 621, 538 NYS2d 28 [1989] ). Thus, the inquiry is whether the pleading states a cause of action, not whether the plaintiff has a cause of action ( Sokol v Leader , 74 AD3d 1180, 904 NYS2d 153 [2d Dept 2010] ). "Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus in determining a motion to dismiss" ( EBC I, Inc. v Goldman, Sachs & Co. , 5 NY3d 11, 19, 799 NYS2d 170 [2005] ). However, "conclusory averments of wrongdoing are insufficient to sustain a complaint unless supported by allegations of ultimate facts" ( Muka v Greene County , 101 AD2d 965, 965, 477 NYS2d 444 [4th Dept 1984] ; see also DiMauro v Metropolitan Suburban Bus Auth. , 105 AD2d 236, 483 NYS2d 383 [2d Dept 1984] ; Melito v Interboro Mut. Indem. Ins. Co. , 73 AD2d 819, 423 NYS2d 742 [4th Dept 1979] ; Greschler v Greschler , 71 AD2d 322, 422 NYS2d 718 [2d Dept 1979] ). Thus, "factual allegations which are flatly contradicted by the record are not presumed to be true, and ‘[i]f the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action’ " ( Deutsche Bank Natl. Trust Co. v Sinclair , 68 AD3d 914, 915, 891 NYS2d 445 [2d Dept 2009], quoting Peter F. Gaito Architecture, LLC v Simone Dev Corp. , 46 AD3d 530, 530, 846 NYS2d 368 [2d Dept 2007] ). "Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" ( Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d 137, 141-42, 53 NYS3d 598 [2017] ). On a motion to dismiss, it is well established that the court may consider the affidavit of the plaintiff to remedy any purported defects in the complaint ( Rovello v Orofino Realty Co., 40 NY 633, 636, 389 NYS2d 314, 316 [1976] ; Sheroff v Dreyfus Corp., 50 AD3d 877, 855 NYS2d 902 [2d Dept 2008] ).
On a claim of discrimination in violation of Executive Law 296, a plaintiff must allege that "(1) he or she is a member of a protected class, (2) he or she was qualified to hold the position, (3) he or she suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination" ( Bilitch v New York City Heath & Hosps. Corp., 194 AD3d 999, 148 NYS3d 238 [2d Dept 2021] ).
Here, the complaint alleges that Warren discriminated against plaintiff on the basis of her gender and age. Most of the allegations in the complaint are alleged to have occurred beginning in or about July of 2022. An understanding of the role of plaintiff's position as Village Administrator is necessary for a proper analysis of the discrimination claims asserted in the complaint. The duties and responsibilities of the Village Administrator are set forth in section 3-12 of the Village Code, which reads:
§ 3-12. Powers and duties. [Amended 8-12-2010 by L.L. No. 5-2010]
Subject to the direction, control and approval of the Mayor and Board of Trustees, the Village Administrator shall :
This limiting language is excluded from plaintiff's verified complaint.
A. See that all laws applicable to the Village, its officers and employees and all local laws, resolutions, rules and regulations of the Village are faithfully executed and enforced.
B. Supervise and coordinate, without, however, interfering with the normal authority and duties of the department heads , on behalf of the Village Board of Trustees, all functions and activities of the Village and of its officers and employees, except that the Village Administrator shall not supervise the Zoning Board of Appeals, Planning Board, Board of Architectural Review and Historic Preservation, Housing Commission, Village Attorney or Village Engineer.
C. Prepare reports to the Mayor and Board of Trustees on the affairs of the Village and recommend to them such measures as the Village Administrator may deem necessary or appropriate for the purpose of attaining greater efficiency and economy in the government and operation of the Village.
D. Exercise general supervision over all expenditures of the Village in accordance with the budget and keep the Board of Trustees fully advised of the financial condition of the Village and its anticipated financial needs.
E. Prepare annually a tentative budget for consideration by the Board of Trustees and serve as Budget Officer when so designated by the Mayor in accordance with § 5-500 of the Village Law .
The emphasized content also was excluded from plaintiff's verified complaint.
(Village Code of the Village of Southampton section 3-12)(emphasis added).
For the age and gender discrimination claims to sustain a motion to dismiss, the complaint is required to allege that plaintiff suffered adverse employment action and that the adverse action occurred under circumstances giving rise to an inference of discrimination (see Bilitch v New York City Heath & Hosps. Corp , supra ). "An adverse employment action requires a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation’ " ( Forrest v Jewish Guild for the Blind, 3 NY3d 295, 306, 786 NYS2d 382 [2004] [citations and internal quotations marks omitted]; see also Golston-Green v City of New York, 184 AD3d 24, 37, 123 NYS3d 656 [2d Dept 2020] ).
While the complaint lists the elements required for gender and age discrimination claims, the respective discrimination counts only refer to "treatment that was disparate from other similarly situated employees" and "the attempted demotion and other adverse actions directed against her." These vague, conclusory, and generalized allegations of adverse employment actions are insufficient (see Polite v Marquis Marriot Hotel, 195 AD3d 965, 146 NYS3d 524 [2d Dept 2021] ). The only specific adverse employment action alleged in the complaint is plaintiff's claim that her "Chief of Staff" related duties of directing department heads was reassigned "to a less qualified twenty-seven-year-old employee."
The sum and substance of the adverse actions appear to be based upon plaintiff's misunderstanding of her role and function as Village Administrator and more importantly, that she was not appointed to serve as Warren's Chief of Staff. For example, the complaint alleges that Warren excluded plaintiff from meetings and communications, that Warren advised her not to discipline an employee for following Warren's directions, and that plaintiff's purported "Chief of Staff" related function of directing department heads was transferred to Warren's new younger and less-qualified assistant. Plaintiff's title and functions, however, were not that of Chief of Staff, but rather Village Administrator, and under section 3-12 of the Village Code, the Village Administrator does not exclusively direct department heads and the Village Administrator does not exclusively supervise Village employees. Moreover, all of the tasks and functions to be performed by the Village Administrator under section 3-12 of the Village Code are subject to the direction, control, and approval of the Mayor and the Village Board of Trustees. Further, there are no allegations in the complaint that plaintiff was prevented from communicating with department heads or that her responsibilities were altered in any way. Plaintiff was not terminated, her pay and benefits were not decreased, and she was not demoted but remained, and still remains, the Village Administrator under the parameters of section 3-12 of the Village Code. None of the allegations of the complaint, nor those of plaintiff's affidavit, rise to the level of an adverse employment action (see e.g. Forrest v Jewish Guild for the Blind, 3 NY3d at 306-307 ; see also Fraser v MTA Long Island Rail Road, 295 FSupp3d 230, 259-265 [EDNY 2018] [exclusion from meetings and transfer of tasks were not adverse employment actions]; Cotterell v Gilmore, 64 FSupp3d 406, 423 [EDNY 2014] ; Watson v Paulson, 578 FSupp2d 554, 565 [SDNY 2008] ; Furfero v St. John's Univ., 94 AD3d 695, 941 NYS2d 639 [2d Dept 2012] ).
The complaint alleges that plaintiff's "Treasurer duties" remained and that those functions kept her "pretty busy."
In addition, the complaint does not allege that any discriminatory or disparaging comments were made by Warren to plaintiff regarding her age or gender or that plaintiff was treated differently because of her gender or age that would give rise to even an inference of discrimination (see e.g. Acala v Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., ––– AD3d ––––, ––– NYS3d ––––, 2023 NY Slip Op. 06345, 2023 WL 8608819 [2d Dept 2023] ; Ayers v Bloomberg, L.P., (203 AD3d 872, 874, 165 NYS3d 554 [2d Dept 2022] ; see also Fraser v MTA Long Island Rail Road, supra ). As to the complaint's allegations that Warren sent plaintiff harassing emails, such assertions are refuted by the actual content of the emails referred and attached to plaintiff's affidavit, which amplifies the allegations of the complaint. In any event, such communications cannot be the basis of a claim of either age or gender discrimination in the absence of an adverse employment action, which as stated, the complaint does not support. What amount to "mere personality conflicts must not be mistaken for unlawful discrimination, lest the antidiscrimination laws ‘become a general civility code’ " ( Forrest v Jewish Guild for the Blind, supra , 3 NY3d at 309-310 [and cases cited therein]). Therefore, plaintiff's claims of age and gender discrimination are dismissed, as plaintiff fails to allege an adverse employment action and that any alleged adverse action occurred under circumstances giving rise to an inference of gender or age discrimination.
Plaintiff's hostile work environment claim is also dismissed. "A hostile work environment exists where the workplace is ‘permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment’ " ( La Marca-Pagano v Dr. Steven Phillips, P.C. , 129 AD3d 918, 919, 12 NYS3d 192 [2d Dept. 2015] ) quoting Harris v Forklift Systems, Inc. , 510 US 17, 21, 114 S Ct 367 [1993] ; see also Forrest v Jewish Guild for the Blind , supra ). The hostile work environment count alleges that plaintiff received harassing emails from Warren, that Warren failed to respond to certain texts and phone calls, that plaintiff was excluded from meetings and written communications, and that plaintiff's purported "Chief of Staff" related duties were reassigned to Warren's new assistant. While the complaint alleges that the claimed hostile work environment caused plaintiff to be unable to complete her tasks, the complaint does not provide any examples to support this claim. While plaintiff may have perceived certain communications or actions to be offensive, taken together, the allegations of the complaint, as amplified by plaintiff's affidavit, do not allege an environment so severe or pervasive as to permeate the workplace and alter the conditions of plaintiff's employment (see Forrest v Jewish Guild for the Blind , supra ; Johnson v North Shore Long Is. Jewish Health Sys., Inc. , 137 AD3d 977, 27 NYS3d 598 [2d Dept. 2016] ; La Marca-Pagano v Dr. Steven Phillips, P.C. , supra ).
The retaliation claim also fails to state a cause of action. Executive Law 296 (7) provides that it:
shall be an unlawful discriminatory practice for any person engaged in any activity to which this section applies, to retaliate or discriminate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article. Retaliation may include, but is not limited to, disclosing an employee's personnel files because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article, except where such disclosure is made in the course of commencing or responding to a complaint in any proceeding under this article or any other civil or criminal action or other judicial or administrative proceeding as permitted by applicable law.
( Executive Law 296 [7] ; see also Forrest v Jewish Guild for the Blind , 3 NY3d 295, 327, 786 NYS2d 382 [2004] ). In order to make a prima facie showing of unlawful retaliation, a "plaintiff must show that (1) she has engaged in a protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse employment action" ( Forrest v Jewish Guild for the Blind , supra at 312-313; Keceli v Yonkers Racing Corp. , 155 AD3d 1014, 1016, 66 NYS3d 280 [2d Dept 2017] ; see also Ananiadis v Mediterranean Gyros Prods., Inc. , 151 AD3d 915, 54 NYS3d 155 [2d Dept 2017] ; La Marca-Pagano v Dr. Steven Phillips, P.C. , 129 AD3d 918, 12 NYS3d 192 [2d Dept 2015] ).
With respect to the adverse employment element of a claim for retaliation, a plaintiff need only show that the challenged action was "harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination" ( Hicks v Baines , 593 F3d 159, 162 [2d Cir 2010], quoting Burlington N. & Santa Fe Ry. Co. v White , 548 US 53, 57, 126 S Ct 2405 [2006] ; see also Keceli v Yonkers Racing Corp. , supra ). The causal connection element may be established either "indirectly by showing that the protected activity was followed closely by retaliatory treatment, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant" ( Calhoun v County of Herkimer , 114 AD3d 1304, 1307, 980 NYS2d 664 [4th Dept 2014] ; see Gordon v New York City Bd. of Educ. , 232 F3d 111, 117 [2d Cir. 2000], or based upon a showing of disparate treatment of similarly situated employees (see Dotson v J.C. Penney Co., Inc. , 159 AD3d 1512, 73 NYS3d 703 [4th Dept], lv denied 32 NY3d 902, 84 NYS3d 855 [2018] ).
The complaint does not allege that plaintiff engaged in any protected activity under Executive Law 296. "An employee engages in ‘protected activity’ by opposing or complaining about unlawful discrimination" ( Clarson v City of Long Beach, 132 AD3d 799, 18 NYS3d 397 [2d Dept 2015] [citations and internal quotations omitted]). The complaint alleges that plaintiff received a complaint submitted by "Secretary Doe" regarding a promotion and/or raise that "Secretary Doe" claims was promised her by Warren and a complaint by "Secretary Doe" that she was entitled to overtime pay. Plaintiff's actions regarding the "Secretary Doe" claims do not relate to any activities to which Executive Law 296 applies. There are no unlawful discriminatory components to any of the claims of "Secretary Doe" nor is there any factual support in the complaint or in plaintiff's affidavit to indicate that plaintiff engaged in protected activity (see e.g. Polite v Marquis Marriot Hotel, 195 AD3d 965, 146 NYS3d 524 [2d Dept 2021] ; Brunache v MV Transp., Inc., 151 AD3d 1011, 59 NYS3d 37 [2d Dept 2017] ; Borawski v Abulafia, 140 AD3d 817, 33 NYS3d 412 [2d Dept 2016] ; Clarson v City of Long Beach , supra ; Adeniran v State of New York, 106 AD3d 844, 965 NYS2d 163 [2d Dept 2013] ).
Further, in the context of a retaliation claim, an adverse employment action is one that is materially adverse, that is, "one which might have dissuaded a reasonable worker from making or supporting a charge of discrimination" ( Shapiro v State, 217 AD3d 700, 191 NYS3d 124 [2d Dept 2023] ). "The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm" ( Reichman v City of New York, 179 AD3d 1115, 117 NYS3d 280 [2d Dept 2020] quoting Burlington Northern & Sante Fe Ry. Co. v White, 548 US 53, 67, 126 S Ct 2405, 2414 [2006] ). Plaintiff's claims of being excluded from certain meetings and communications are insufficient (see e.g. Fraser v MTA Long Island Rail Road, 295 FSupp3d 230, 259-260 [EDNY 2018] ; Cotterell v Gilmore, 64 FSupp3d 406, 434 [EDNY 2014] ; Watson v Paulson, 578 FSupp2d 554, 566-567 [SDNY 2008] ). Plaintiff suffered no injury or harm but rather, continued to be employed as the Village Administrator, received two raises since her hire, and never lost any of her benefits. Apart from plaintiff's incorrect perception that one or two minor aspects of her role as Village Administrator had been reassigned to Warren's new assistant, plaintiff's terms and conditions of employment and salary remained the same (see Silvis v City of New York , 95 AD3d 665, 665, 946 NYS2d 22 [1st Dept 2012], lv denied 20 NY3d 861, 964 NYS2d 84 [2013], quoting Matter of Block v Gatlin , 84 AD3d 445, 445, 922 NYS2d 327 [1st Dept], lv denied 17 NY3d 709, 930 NYS2d 553 [2011] ; Chin v New York City Hous. Auth. , 106 AD3d 443, 965 NYS2d 42 [1st Dept 2013] ; Mejia v Roosevelt Is. Med. Assocs. , 95 AD3d 570, 944 NYS2d 521 [1st Dept 2012], lv denied 20 NY3d 1045, 961 NYS2d 374 [2013] ).
Notwithstanding, there is insufficient temporal proximity between plaintiff's alleged protected activity and the purported adverse actions to support a claim of retaliation (see Clark County Sch. Dist. v Breeden , 532 US 268, 121 S Ct 1508 [2001] ; Forrest v Jewish Guild for the Blind , supra ; Shapiro v State, 217 AD3d 700, 191 NYS3d 124 [2d Dept 2023] ; Keceli v Yonkers Racing Corp., 155 AD3d 1014, 66 NYS3d 280 [2d Dept 2017] ; Langton v Warwick Val. Cent. Sch. Dist., 144 AD3d 867, 41 NYS3d 257 [2d Dept 2016] ; Cotterell v State of New York, 129 AD3d 653, 10 NYS3d 558 [2d Dept 2015] ). The alleged protected activity occurred months prior to the time when it is alleged that the conflicts between plaintiff and Warren began.
The fifth cause of action for slander per se also is dismissed. The complaint alleges that Warren falsely accused plaintiff of "engaging in conduct having the appearance of impropriety." The statement by Warren is set forth in plaintiff's complaint as follows:
In this particular process there was cause for concern [4:11-4:15] .... There was cause for concern because the highest bidder was also related to the Village Administrator and to me that gave the appearance of impropriety [5:20-5:36]. When we go through ethics training they say ... more often than not ethics is determined by the appearance of impropriety ... I was very disappointed at the way it went down [5:37-10:54].
The complaint further alleges that Warren knew prior to making this comment "that plaintiff had recused herself from any participation in the bidding process and the award of the contract."
"The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace, (b) published without privilege or authorization to a third party (c) amounting to fault as judged by, at a minimum, a negligence standard, and either causing special harm or constitute defamation per se" ( Bowen v Van Bramer, 205 AD3d 674, 674-675, 168 NYS3d 107 [2d Dept 2022] ; see also Dillon v City of New York, 261 AD2d 34, 37-38, 704 NYS2d 1 [1st Dept 1999] ; Thomas H. v Paul B. , 18 NY3d 580, 584, 942 NYS2d 437 [2012] ; Foster v Churchill , 87 NY2d 744, 751, 642 NYS2d 583 [1996] ; Epifani v Johnson , 65 AD3d 224, 882 NYS2d 234 [2d Dept 2009] ; Salvatore v Kumar , 45 AD3d 560, 845 NYS2d 384 [2d Dept 2007], lv denied 10 NY3d 703, 854 NYS2d 104 [2008] ).
"In cases involving defamation per se, the law presumes that damages will result, and special damages need not be alleged or proven" ( Gatz v Otis Ford, 274 AD2d 449, 450, 711 NYS2d 467 [2d Dept 2000] ). The per se categories include those statements: (1) that the plaintiff committed a crime; and (2) that tend to injure the plaintiff in his or her trade, business or profession (see Whelan v Cuomo, 220 AD3d 979, 981, 198 NYS3d 739, 742 [2d Dept 2023] ). When the defamatory statement falls into one of these categories, "the law presumes damage to the slandered individual's reputation so that the cause of action is actionable without proof of special damages" ( 60 Minute Man v Kossman, 161 AD2d 574, 575, 555 NYS2d 152 [2d Dept 1990] ). To be actionable as words that tend to injure another in her profession, the challenged statement must be more than a general reflection upon the person's character or qualities; rather, the statement must reflect on her performance or be incompatible with the proper conduct of her business (see Golub v Enquirer/Star Group, Inc., 89 NY2d 1074, 659 NYS2d 836 [1997] ).
"Since falsity is a necessary element of a defamation cause of action and only ‘facts’ are capable of being proven false, ‘it follows that only statements alleging facts can properly be the subject of a defamation action’ " ( Bowen v Van Bramer, 205 AD3d at 675, 168 NYS3d at 109 quoting Gross v New York Times Co. , 82 NY2d 146, 152-153, 603 NYS2d 813 [1993], quoting 600 W. 115 th St. Corp. v Von Gutfeld , 80 NY2d 130, 139, 589 NYS2d 825 [1992] ; see also Thomas H. v Paul B. , 18 NY3d 580, 942 NYS2d 437 [2012] ; Brian v Richardson , 87 NY2d 46, 637 NYS2d 347 [1995] ). Conversely, expressions of pure opinion, whether false or not, libelous or not, pernicious or not, are protected speech under the First Amendment (see Mann v Abel, 10 NY3d 271, 885 NYS2d 31 [2008] ; Steinhilber v Alphonse , 68 NY2d 283, 508 NYS2d 901 [1986] ; Rinaldi v Holt, Rinehart & Winston , 42 NY2d 369, 397 NYS2d 943 [1977] ; Melius v. Glacken , 94 AD3d 959, 943 NYS2d 134 [2d Dept 2012] ). Expressions of "mixed opinion," that is, statements that imply they are based upon facts which justify such opinion but which are unknown to the reader or listener, however, are actionable (see Steinhilber v Alphonse , 68 NY2d 283, 508 NYS2d 901 ; Sandals Resorts Intl. Ltd. v Google, Inc. , 86 AD3d 32, 925 NYS2d 407 [1st Dept 2011] ). When tasked with distinguishing between a statement of fact and a statement of opinion, a court must consider the following factors: "(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context surrounding the circumstances are such as to signal ... readers or listeners that what is being read or heard is likely to be opinion, not fact" ( Mann v Abel, 10 NY3d at 276, 856 NYS2d 31 ; see also Gross v New York Times Co. , 82 NY2d 146, 153, 603 NYS2d 813 ; Steinhilber v Alphonse , 68 NY2d 283, 292, 508 NYS2d 901 ).
"On a motion to dismiss a defamation claim, the court must decide whether the statements, considered in the context of the entire publication, are ‘reasonably susceptible of a defamatory connotation ...." ( Stepanov v Dow Jones & Co., 120 AD3d 28, 987 NYS2d 37 [1st Dept. 2014] citing Silsdorf v Levine, 59 NY2d 8, 462 NYS2d 822 cert. denied 464 U.S. 831 [1983] ). "The question is not whether there is an isolated assertion of fact; rather, it is necessary to consider the [statement] as a whole, including its tone and apparent purpose, as well as the overall context of the publication, to determine whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff" ( Udell v NYP Holdings, Inc., 169 AD3d 954, 94 NYS3d 314 [2d Dept 2019] quoting Stolatis v Hernandez, 161 AD3d 1207, 77 NYS3d 473 [2d Dept. 2018] ; see also Whelan v Cuomo, supra ).
Applying these principles, the Court finds that the alleged defamatory statement was merely Warren's opinion that there was an appearance of impropriety in the contract being awarded to the highest bidder who had a familial relationship to the Village Administrator. No statement was made by Warren that plaintiff acted improperly or engaged in any illegal or improper activities (see Whelan v Cuomo, supra; Bowen v Van Bramer , supra ). Moreover, in plaintiff's complaint and her affidavit, plaintiff describes herself and her position as that of a public figure and, indeed, her position is of such "apparent importance" that the residents of the Village of Southampton "would have an independent interest" in her "qualifications and performance" ( Dattner v Pokoik, 81 AD2d 572, 573, 437 NYS2d 425 [2d Dept 1981] [Village building inspector found to be a public figure]). As a public figure, the complaint must allege actual malice on the part of Warren (id. ). Inasmuch as there are no allegations of actual malice, the complaint fails to state a claim of slander per se. Furthermore, Warren's statement was made during a public forum attended by Village residents at which a discussion arose regarding the subject contract. As defendants correctly assert, the statement involved a matter of public interest and concern. As such, the statement made by Warren was privileged and is not actionable (see Riggio v County of Nassau, 218 AD3d 502, 193 NYS3d 84 [2d Dept 2023] ; Yoo v Choi, 210 AD3d 1062, 179 NYS3d 326 [2d Dept 2022] ).
Based upon the foregoing, and accepting the facts alleged in the complaint as true and affording plaintiff every reasonable inference therein, no claims have been stated against the defendants. Any allegations or arguments made by plaintiff not explicitly addressed herein have been considered and deemed to be without merit.
Accordingly, the motions by defendants Mayor Jesse Warren and The Village of Southampton for dismissal of the complaint pursuant to CPLR 3211 (a)(7) are granted. The cross-motion by plaintiff is denied as academic.
The foregoing constitutes the decision and Order of the Court.