Opinion
65, CA 17–01518
03-16-2018
Mark WEGNER, Plaintiff–Respondent, v. TOWN OF CHEEKTOWAGA, Mary Holtz, Supervisor, Gerald Kaminski, Councilmember, James Rogowski, Councilmember, and Christine Adamczyk, Councilmember, Defendants–Appellants.
HODGSON RUSS LLP, BUFFALO (RYAN J. LUCINSKI OF COUNSEL), FOR DEFENDANTS–APPELLANTS. MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
HODGSON RUSS LLP, BUFFALO (RYAN J. LUCINSKI OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum: Plaintiff commenced this defamation action seeking damages based on allegations that defendants made false accusations that plaintiff engaged in "monetary waste, abuse and criminal actions ... in his deployment of manpower" in his role as the Highway Superintendent of the Town of Cheektowaga. Defendants moved to dismiss the complaint pursuant to CPLR 3016(a), and plaintiff cross-moved to compel discovery. Defendants appeal from an order that denied their motion, granted the cross motion, and directed plaintiff to file an amended complaint within 60 days of receiving discovery from defendants.
We conclude that Supreme Court erred in denying defendants' motion. Plaintiff did not set forth in the complaint "the particular words complained of," as required by CPLR 3016(a), and the complaint did not "state the ‘time, place, and manner of the allegedly false statements and to whom such statements were made’ " ( Nesathurai v. University at Buffalo, State Univ. of N.Y., 23 A.D.3d 1070, 1072, 804 N.Y.S.2d 195 [4th Dept. 2005] ; see Keeler v. Galaxy Communications, LP, 39 A.D.3d 1202, 1203, 834 N.Y.S.2d 411 [4th Dept. 2007] ).
We also conclude that the court erred in granting plaintiff's cross motion inasmuch as "he may not use discovery—either pre-action or pretrial—to remedy the defects in his pleading" ( Weinstein v. City of New York, 103 A.D.3d 517, 517–518, 959 N.Y.S.2d 433 [1st Dept. 2013] ; see Naderi v. North Shore–Long Is. Jewish Health Sys., 135 A.D.3d 619, 620, 24 N.Y.S.3d 55 [1st Dept. 2016] ). Nevertheless, because there may be a basis for a defamation cause of action against defendants, we grant plaintiff leave to replead in the exercise of our discretion (see Keeler, 39 A.D.3d at 1203, 834 N.Y.S.2d 411 ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the cross motion is denied, the motion is granted, the complaint is dismissed, and in the exercise of discretion plaintiff is granted leave to replead.