Plaintiff commenced the instant action against defendant asserting a cause of action for slander. Defendant moves to dismiss the action pursuant to CPLR 3211(a)(7) on the ground that the complaint fails to state a cause of action. For the reasons set forth below, defendant's motion is denied.

The relevant facts are as follows. Brent Meltzer, an attorney working for defendant, wrote a letter to the New York City Housing Authority (NYCHA) seeking to adjourn a hearing in a Housing Court matter on the basis of plaintiff's mental incapacity, mental illness and because of the numerous medications plaintiff was taking. Defendant did not represent plaintiff in the Housing Court matter, but wrote the letter "as a friend of the court." Plaintiff then commenced this action against defendant for slander based on the statements in the letter.

Defendant's motion to dismiss the complaint on the ground that the statements at issue are subject to the absolute privilege for statements relating to judicial proceedings is denied on the ground that the absolute privilege does not cover statements made by Meltzer. An absolute [*2]privilege confers immunity from liability for an otherwise defamatory statement regardless of the speaker's motive in making the statement. Park Knoll Assocs. v Schmidt, 59 NY2d 205 (1983). The Court of Appeals has stated that "[i]n judicial proceedings, the protected participants include the Judge, the jurors, the attorneys, the parties and the witnesses [who are] granted protection for the benefit of the public, to promote the administration of justice, and only incidentally for the protection of the participants." Id. The Court explained that "[t]he immunity does not attach solely because the speaker is a Judge, attorney, party or a witness, but because the statements are . . . 'spoken in office'". Id. The Court of Appeals held in Park Knoll that a volunteer who assisted certain tenants in making complaints to the State Division of Housing and Community Renewal did not enjoy an absolute privilege because she was not an attorney, party or witness to the proceedings and thus had no "office" in the judicial proceedings. Moreover, the judicial proceedings privilege does not protect an attorney who has been discharged as counsel. Silverman v Clark, 35 AD3d 1 (1st Dept 2006).

In the instant case, defendant has failed to establish that the statements made by Meltzer in the letter to the NYCHA are covered by the judicial proceedings privilege. In the letter, Meltzer clearly states that he is not presently representing plaintiff in the Housing Court proceeding and that he is writing the letter "as a friend of the court." Thus, Meltzer was not plaintiff's attorney, a party, witness, judge or juror in the Housing Court proceeding. Like the volunteer in Park Knoll, Meltzer had no "office" in the Housing Court litigation. Accordingly, he cannot receive the protection of the judicial proceedings privilege.

Defendant's motion to dismiss the complaint on the ground that the statements at issue are true is also denied. It is well settled that on a motion to dismiss for failure to state a cause of action, the court must accept "each and every allegation forwarded by the plaintiff without expressing any opinion as to the plaintiff's ability ultimately to establish the truth of these averments before the trier of facts." 219 Broadway Corp. v Alexander's Inc., 46 NY2d 506, 509 (1979). If the court finds that plaintiff is entitled to recovery on any reasonable view of the facts, the court must declare plaintiff's complaint legally sufficient. Rovello v Orofino Realty Co., Inc., 40 NY2d 633 (1976).

In the instant action, plaintiff's complaint sufficiently sets forth a cause of action for defamation against defendant based on the statements made by Meltzer in the letter to the NYCHA. Plaintiff's complaint and the papers attached to it, which include opinions from doctors as well as plaintiff's sister, state that plaintiff is mentally competent. Since this is a motion to dismiss directed at the sufficiency of the pleading, the court must accept as true plaintiff's allegations that he is mentally competent. Therefore, defendant's motion to dismiss on the ground that the allegedly defamatory statements are true is denied.

Based on the foregoing, defendant's motion to dismiss is denied. This constitutes the decision and order of the court.

DatedEnter: _______________________________

J.C.C.