The following papers numbered 1 to 3 were used on this motion this 15th day of February, 2011:

[001]Notice of Motion [Defendants](Affirmation in Support)................................1

Affirmation in Opposition [Plaintiff]......................................................................2

Reply Affirmation [Defendants] ..............................................................................3

____________________________________________________________________ ________________________

This action was commenced by the plaintiff on or about September 24, 2010, alleging defamation and negligent hiring by defendants Lilas Borsa and Hardin Kundla McKeon Poletto & Polifroni, P.A., [hereinafter "Hardin Kundla"], respectively. The defendants, in lieu of an answer, moved to dismiss the action pursuant to CPLR § 3211(a)(1) and (a)(7)^[FN1].

It is undisputed that on September 18, 2009, the plaintiff, an attorney, Mr. Patrick F. Bisogno and defendant, also an attorney, Lilas Borsa, employed by co-defendant Hardin Kundla appeared as adversaries on a matter in the Supreme Court, State of New York, Bronx County. During that proceeding, Ms. Borsa contends that Mr. Bisogno, inter alia, behaved in such a manner as to cause her to feel physically intimidated, harassed and threatened. As a result of this, Ms. Borsa spoke with several individuals to investigate her options and ensure her future security. Ms. Borsa spoke with a co-counsel Mr. Robert Mazariegos, present during the conference, to ascertain his assessment of Mr. Bisogno's behavior. She contacted Ms. Helen Corporan and Lieutenant Alfano with regards to future security in the courthouse. Ms. Borsa also wrote a letter to the Judge presiding over the matter (although the conference occurred before the Judge's law secretary) and copied Ms. Jill Laurie Goodman (counsel to the New York State Judicial Committee on Women in the Courts) with whom Ms. Borsa spoke for guidance.

On September 25, 2009, Ms. Borsa wrote a letter to the Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts [hereinafter "Grievance Committee"]. On May 3, 2010, the Grievance Committee "determined that there was no breach of the Code of Professional Responsibility or the Rules of Professional Conduct on [Mr. Bisogno's] part and the complaint was dismissed". Thereafter, on September 24, 2009, Mr. Bisogno commenced this action alleging that Ms. Borsa defamed him in her statement to the Grievance Committee and to [*2]the individuals she contacted with regard to the incident. In addition, Mr. Bisogno's complaint also contends that defendant Hardin Kundla negligently hired Ms. Borsa as they "should have known that Defendant LILAS BORSA was of a malicious nature and prone to defamatory acts". Presently, the defendants, in lieu of an answer, have brought this motion to dismiss based upon documentary evidence and failure to state a cause of action.

Pursuant to CPLR § 3211 (a)(1), "a party may move for judgment dismissing one or more causes of action asserted against him on the ground that a defense is founded upon documentary evidence". Further, "a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" and "resolves all factual issues" (City Line Rent a Car, Inc. v. Alfess Realty, 33 AD3d 835, 835 [2d Dept. 2006]; Kupersmith v. Winged Foot Golf Club, 38 AD3d 847, 848 [2d Dept. 2007]; New York Community Bank v. Snug Harbor Square Venture, 299 AD2d 329, 329-30 [2d Dept. 2002]).

"In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the pleaded facts are accepted as true and given every favorable inference . . . [t]he court must determine whether the factual allegations taken from the four corners of the complaint manifest any cognizable cause of action" (Klepetko v. Reisman, 41 AD3d 551, 551 [2d Dept., 2007]; Gershon v. Goldberg, 30 AD3d 372, 273 [2d Dept., 2006]). Additionally, all "facts pleaded are to be presumed to be true and are to be accorded every favorable inference, although bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration" (Gershon v. Goldberg, 30 AD3d at 373; Dinerman v. Jewish Bd. of Family and Children's Services, Inc., 55 AD3d 530, 530-531 [2d Dept., 2008]). "The sole criterion is whether from the complaint's four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (Gershon v. Goldberg, 30 AD3d 372, 373 [2d Dept. 2006]; Danna v. Malco Realty, Inc., 51 AD3d 621, 621 [2d Dept., 2008])^[FN2].

Plaintiff's first cause of action alleges defamation, "[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'" (Salvatore v. Kumar, 45 AD3d 560, 563 [2d Dept., 2007][emphasis added]). However, the Court of Appeals has recognized that [*3]

privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable. Because the perceived social benefit in encouraging free speech or the discharge of governmental responsibility sometimes outweighs the individual's underlying right to a good reputation, the individual's right may have to yield to a privilege granted the speaker barring recovery of damages for the defamatory statements. The privilege may be either absolute or conditional depending on the occasion and the position or status of the speaker. The difference is in the degree of protection afforded the speaker. If the privilege is absolute, it confers immunity from liability regardless of motive. If it is conditional or qualified, it can be lost by plaintiff's proof that defendant acted out of malice (Park Knoll Associates v. Schmidt, 59 NY2d 205, 209 (1983); Garson v. Hendlin, 141 AD2d 55, 59-60 [2d Dept., 1988]).

Further, the Court has recognized absolute privilege in very few circumstances but undoubtedly in judicial and quasi-judicial proceedings (id.).

The principle underlying the absolute privilege for judicial proceedings is that the proper administration of justice depends upon freedom of conduct on the part of counsel and parties to litigation' which freedom tends to promote an intelligent administration of justice' and [a]s a matter of public policy, the possible harm to individuals barred from recovering for defamatory statements made in connection with judicial proceedings is deemed to be far outweighed by the need . . . to encourage parties to litigation, as well as counsel and witnesses, to speak freely in the course of judicial proceedings (Sexter & Warmflash, P.C. v. Margrabe, 38 AD3d 163, 171-172 [1st Dept., 2007]).

Absolute "immunity applies to the participants in judicial proceedings as well as to those involved in administrative proceedings in which the administrative body performs quasi-judicial' functions such as holding hearings resulting in remedial action" (Schettino v. Alter, 140 AD2d 600, 601 [2d Dept., 1988]). As a result, courts have long recognized that "[a] statement made by counsel during a judicial proceeding, even if made with malice or bad faith, is protected by absolute privilege as long as the statement may, in some way, be considered pertinent to the litigation" (Rabiea v Stein, 69 AD3d 700, 700 [2d Dept., 2010][finding that statements made in settlement negotiations were protected by absolute privilege]). In defining "pertinent to the litigation" courts must use the "extremely liberal" test and resolve any doubt in favor of pertinence (Sexter & Warmflash, P.C. v. Margrabe, 38 AD3d at 173-174). In other words,

[a] statement made in the course of judicial proceedings is privileged if, by any view or under any circumstances, it may be considered pertinent to the litigation'. Thus, the narrow and technical rules normally applied to determine the admissibility of evidence' are not used to determine a statement's pertinence for purposes of privilege analysis. To be actionable, a statement made in the course of judicial proceedings must be so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame' (Sexter & Warmflash, P.C. v. Margrabe, 38 AD3d at 173-174).

Moreover, it is essential to note that "[t]he absolute privilege is not limited to statements made on the record during oral testimony or argument, or set forth in a formal litigation [*4]document . . . " and in fact, "the privilege is extended to all pertinent communications among the parties, counsel, witnesses, and the court" (id.). Courts have recognized absolute privilege in a broad sense in all aspects of litigation (Impallomeni v. Meiselman, 272 AD2d 579, 579 [2d. Dept., 2000][recognizing absolute privilege and prohibiting a defamation claim after a pro se litigant wrote a letter expressing his displeasure with a court reporter]; Sinrod v. Stone, 20 AD3d 560, 562 [2d Dept., 2005][applying the absolute privilege to all letters, statements or claims made to the Grievance Committee]). The question of whether a statement is privileged is a question of law for the court and proper to determine on a motion to dismiss (Sexter & Warmflash, P.C. v. Margrabe, 38 AD3d at 174).

Here, from the four corners of the complaint, and giving plaintiff every favorable inference, he has failed to state a cause of action for defamation. Plaintiff's publication of the alleged defamatory statements occurred when she spoke to co-defendant, the Judge presiding on the case, courthouse security personal and counsel on her options. Clearly, defendant Borsa's alleged publication occurred in the context of a litigation proceeding as her statements to the Judge, co-counsel and courthouse security personal were related to the case she was appearing on, in other words, protected by absolute privilege as they were pertinent to the litigation proceeding. In addition, this court finds that the documentary evidence submitted by the defendants, namely, the letter written by Ms. Borsa to the Grievance Committee (which courts have made abundantly clear is a quasi-judicial proceeding where any statements made in relative connection with are protected by absolute privilege) establishes that any complaints, letters or statements by Ms. Borsa to such Committee are protected by absolute privilege (Weiner v. Weintraub, 22 NY2d 330, 332 [1968]).

Plaintiff's attempt to bring the instant defamation suit is abhorrent. It is of paramount importance to "encourage those who have knowledge of dishonest or unethical conduct on the part of lawyers to impart that knowledge to the Grievance Committee or some other designated body for investigation" (Weiner v. Weintraub, 22 NY2d 330, 332 [1968]). Whether or not the allegations by Ms. Borsa against Mr. Bisogno are valid is irrelevant ^[FN3], as the statements were made in a litigation conference and thereafter only to the court, court officers, co-counsel and advisory counsel all related to the litigation proceedings. This court finds no evidence that there was any publication by the defendant Borsa and any alleged publication is protected by absolute privilege as statements made within the context of a litigation proceeding. As the Court of Appeals has strongly declared, and this court resoundingly echos, "whatever the hardship on a particular attorney, the necessity of maintaining the high standards of our bar — indeed, the proper administration of justice — requires that there be a forum in which clients or other persons . . . may state their complaints, have them examined and, if necessary, judicially determined" (id.). The right of Ms. Borsa or any attorney, to report a colleague to the Grievance Committee based upon conduct they feel may violate a Rule of Professional Conduct strongly outweighs the right of the plaintiff's reputation.

With respect to the plaintiff's second cause of action against defendant Hardin Kundla alleging negligent hiring of Ms. Borsa, plaintiff is required to show "that the employer knew or should have known of the employee's propensity for the conduct which caused the injury" [*5](Marilyn S. v Independent Group Home Living Program, Inc., 73 AD3d 895, 897, 898 [2d Dept., 2010]; Segel v. St. John's Univer., 69 AD3d 702, 703 [2d Dept., 2010]). "Moreover, there is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee" (Jackson v. New York Univ. Downtown Hosp., 69 AD3d 801, 802-803 [2d Dept., 2010]).

Again, affording the plaintiff the benefit of every favorable inference and determining whether from the four corners of the complaint it states a cognizable cause of action for negligent hiring, this court finds in the negative. There has been absolutely no indication that defendant Harden Kundla knew or should have known that Ms. Borsa would alleged make defamatory remarks. This cause of action is completely inappropriate and dismissed (Jackson v. New York Univ. Downtown Hosp., 69 AD3d at 803; Schiffer v. Sunrise Removal, Inc., 62 AD3d 776, 779-780 [2d Dept., 2009][granting summary judgment on a negligent hiring claim where there was no evidence that employee every operated a vehicle negligently prior or that employer has any reason to believe employee would operate it negligently]).

Accordingly it is,

ORDERED that the defendants Lilas Borsa and Hardin, Kundla, McKeon, Poletto & Polifroni, P.A.'s motion [001] to dismiss the complaint in its entirety, is hereby granted, and it is further

ORDERED that the Clerk enter judgment accordingly.

E N T E R,

Dated: 3/28/11____________________________________

Hon. Judith N. McMahon

Justice of the Supreme Court