Brinn v. Syosset Public Library et al

Filing 38

EXHIBIT by Joshua Brinn. Related document: 36 Affidavit in Opposition to Motion filed by Joshua Brinn. (Attachments: # 1 Exhibit Part 2) (Glueckert, Lisa)

Brinn v. Syosset Public Library et al

Doc. 38 Att. 1

POINT III QUALIFIED IMMUNITY DOES NOT PROTECT THE INDIVIDUAL DEFENDANT IN THEIR INDIVIDUAL CAPACITIES Qualified immunity "generally shields government officials from liability for damages on account of their performance of discretionary official functions 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Ying Jing Gan v. City of New York, 996 F.2d 522, 531 (2d Cir. 1993), quoting, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To

determine if a right was clearly established, the Court must consider: (1) whether the right in question was defined with 'reasonable specificity'; (2) whether the decisional law of the Supreme Court and the applicable Circuit Court support the existence of the right in question; and (3) whether under pre-existing law a reasonable defendant official would have understood that his or acts were unlawful. Dean v. Blumenthal, 577 F.3d 60, 68 (2d Cir. 2009), citing, Jermosen v, Smith, 945 F.2d 547, 550 (2d Cir. 1991). A court

has to determine whether, based on the pleading, "the defendants should have known that the specific actions complained of violated plaintiff's freedom of speech." Lewis v. Cohen, 165 F.3d 154, 166-67 (2d Cir. 1999). Defendants claim that its termination of the plaintiff for petitioning the government for redress under the First Amendment
13

Dockets.Justia.com

is protected by qualified by qualified immunity because it was objectively reasonable for the defendants to believe that its termination did not violate the First Amendment. premise their alleged
~objectively

Defendants

reasonable" belief upon the

fact that plaintiff could not have violated the First Amendment because the Notice of Claim
~fails

to reveal any clearly

delineated issues of public concern that would have put a reasonable person on notice that First Amendment rights were implicated" (Library Defendants brief at p. 15). Again,

defendants claim that the First Notice of Claim pertained to personal and private matters, and not to matters of pUblic concern, which is entirely irrelevant to the constitutional analysis of plaintiff's claims. As set forth in Point II, supra,

the Pickering test does fiQt apply to private citizens who seek to petition the government for redress. Plaintiff's Notice of Claim
~the

constitutes a petition for redress under the law, since

right of petition applies with equal force to a person's right to seek redress from all branches of government." Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988). Defendants cannot retaliate The

against a person for exercising his First Amendment rights. individual Library Defendants' attempt to claim qualified immunity based on an objectively reasonable belief that the

Notice of Claim did not pertain to matters of public concern must fail since the Pickering test does not apply, and the activities

]4

of the defendants, as set forth in Point IV, supra, which include unlawful disclosure of Library records, a criminal notarial act, and an attempt to obtain a release through fraud, indicate that

defendants used unlawful means and should have known, objectively, that both the means and the substance of the retaliation was unlawful.

15

POINT IV PLAINTIFF PROPERLY PLEADS THAT DEFENDANTS INTENTIONALLY INTERFERED WITH A BUSINESS OPPORTUNITY BY TERMINATING HIM FOR REFUSING TO SIGN A RELEASE IN FAVOR OF THE LIBRARY To plead tortuous interference with a business opportunity: a plaintiff must demonstrate that the defendant's interference with its prospective business relations was accomplished by 'wrongful means' or that defendant acted for the sole purpose of harming the plaintiff. 'Wrongful means' includes physical violence, fraud, misrepresentation, civil suits, criminal prosecutions and some degree of economic pressure, but more than simple persuasion is required. Snyder v. Sony Music Entertainment. Inc., 252 A.D.2d 294, 300-01, 684 N.Y.S.2d 235 (1 s t Dep't 1999). This is true, even where

plaintiff is an employee at will. Hoesten v. Best, 34 A.D.3d 143, 159, 821 N.Y.S.2d 40 J
";

(First Dep't. 2006) ("As an at-will employee

with no written contract, plaintiff could only succeed on his tortious interference claim if he established that Best acted solely to harm him or used wrongful means to achieve the interference"); Taylor v. New York University, 7 A.D.3d 401, 402, 776 N. Y. S. 2d 474
(lst

Dep't. 2004).

As set forth in Friedman v. Coldwater Creek, Inc., 551 F.Supp.2d 164, 170 (S.D.N.Y. 2008): for Defendants' interference to constitute the kind of 'wrongful means' that will support Plaintiff's claim for tortious interference, one of the following must be true: (1) that conduct must amount to an independent crime or tort; (2) that conduct

16

must have been taken solely out of malice; or (3) that conduct must amount to 'extreme and unfair' economic pressure. In the present matter, despite the fact that Defendants blithely contend that there plaintiff has not pled any "malice" or "unlawful means," the pleading establishes that the defendants committed crimes, acted out of malice, and exerted undue economic pressure by having plaintiff terminated from his employment at Morris Duffy because he would not release the Library. First, the Library Defendants disclosed confidential library records to the other defendants
(~

27 of Complaint), including

plaintiff's employer and an insurance company who were not involved in the Library's suspension of plaintiff's privileges. This violates CPLR 4509, which requires that "Library records . . shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute." Second, the Library Defendants conspired with the other defendants to procure a release by misrepresentation, deceit, fraud, and criminal notary fraud. As set forth in the Brinn

Declaration, plaintiff was shown only the signature page of what purported to be a release, which was unlawfully pre-notarized. § 135-a(2) of the Executive Law provides that "raJ notary public or

17

commissioner of deeds, who in the exercise of the powers, or in the performance of the duties of such office shall practice any fraud or deceit, the punishment for which is not otherwise provided for by this act, shall be guilty of a misdemeanor." offering a pre-notarized partial release to plaintiff, and secreting the fact that the document was a release, defendants engaged in misrepresentation, deceit, fraud, and criminal conduct. This is sufficient to establish tortious interference By

with plaintiff's business opportunity as an associate attorney at Morris Duffy. See, Williams & Co, v, Collinse Tuttle & Co., 6 A,D,2d 302, 176 N.Y.S.2d 99 (pt Dep't. 1958) (sustaining a complaint for tortious interference with business opportunity where defendants conspired to deprive plaintiff of a real estate commission) , Further, the Library engaged in "interference" because it had no legitimate business interest in plaintiff's employment as an associate attorney with Morris Duffy. The Library Defendants'

interference in Brinn's employment with Morris Duffy had no relationship to its mission of running a Library, and the method of their interference, as set forth above, was tortuous. Defendants' reliance on Hoeston, and similar cases, is misplaced. In all the cases relied upon by defendants, the defendant had a legitimate interest to "interfere" with the plaintiff's employment relationship. In this case, plaintiff's grievance

18

against the Library for his suspension had no relationship to his employment and an insurance company that referred business to plaintiff's employer. Therefore, defendants acted maliciously

and used "unlawful means" to intimidate and coerce Morris Duffy to terminate plaintiff because he would not sign a release in favor of the Library. For instance, in Hoeston, plaintiff, a stage manager for a television program employed by ABC, sued a union official for reporting his abusive behavior toward actors while on the job. The Union defendant had a legitimate interest in intervening by reporting the conduct of one of its members to an employer with which the Union has a collective bargaining agreement. Similarly, in Lawrence v. Union of Orthodox Jewish Corporations of America, 32 A.D.3d 304, 820 N.Y.S.2d 60 (1 s t Dept. 2006), plaintiff employee (employed by a kosher slaughterhouse) sued the Orthodox Union (aU), a kosher certifying organization, alleging that the au threatened to boycott the slaughterhouse if plaintiff were not terminated from the slaughterhouse. Again, defendant

had a legitimate business reason to intervene and ensure that all the requirements of kosher food preparation were complied with at the slaughterhouse. In Snyder v. Sony Music Entertainment, 252

A.D.2d 294~ 684 N.Y.S.2d 235 (1 s t Dep't 1999) (where opposing counsel informed plaintiff's law firm that plaintiff was acting outside the scope of his employment with his law firm) and Taylor

19

v. New York University Medical Center, 7 A.D.3d 401, 776 N.Y.S.2d 474 (2004) (where plaintiff's former employer brought a "conflict

of interest H to the attention of plaintiff's current employer), the
defend~nts

had legitimate reasons, and used legitimate means, Also, in

to inform plaintiffs' former employers about plaintiff.

Lobel v. Maimonides Medical Center, 39 A.D. 3d 275, 835 N.Y.S.2d 28 (2007), a co-employee was alleged to have interfered in plaintiff's contract with his employer. The court found that the

co-employee was motivated by his own self interest, stating, "it is clear that any motivation on [the defendant's] part was based on economic self-interest and not for the sole purpose of harming plaintiff." .IQ...... at 277. These cases are inapposite to the present matter, in which the Library Defendants had no legitimate economic self-interest to meddle in plaintiff's employment. Further, the interference

was accomplished by criminal means, misrepresentation, and deceit. The Library Defendants' interest in obtaining a release

from Brinn;s constitutional claims is not "economic self interest H within the purview of governing caselaw. And any

"justification" proffered by defendants for its interference raises a jury question, which should not be resolved on a pleading. United Euram Corp. v. Occidental Petroleum Corp., 123 Misc.2d 574, 577-78, 474 N.Y.S.2d 372, 375 (Sup. Ct. 1984).
Since~all defendants conspired to dismiss plaintiff because

20

of his constitutional claims, and did so by disseminating confidential records, fraudulently attempting to procure a release, criminally pre-notarizing plaintiff's signature, and having plaintiff terminated when he refused to sign the release, these facts sustain a plausible pleading of intentional interference with a business opportunity.

21

POINT V PLAINTIFF PLEADS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS To plead a claim of intentional infliction of emotional distress, plaintiff must demonstrate that (i) engaged in extreme and outrageous conduct; the defendant

(ii) defendant

intended to cause or disregarded a substantial probability of causing severe emotional distress; (iii) a causal connection

between the conduct and injury; and (iv) severe emotional distress. Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d
3~O,

353 (1993).

Liability is found

~only

where the

conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Murphy v. American Horne Prods. Corp., 58 N.Y.2d 293, 303 (1983). In the present matter, plaintiff pleads that, because of his suspension from a Library, the Library defendants, Utica Mutual Insurance Company, and Morris Duffy conspired to terminate him because he 'would not sign a document releasing the Library from liability.' Plaintiff's dispute with the Library had no relation to his employment as an associate attorney with Morris Duffy .. Yet the Library defendants enlisted plaintiff's employer, and an insurance company that provides work to plaintiff's employer, to maliciously exert undue economic pressure upon plaintiff.

22

Further the defendants proffered a signature page of a release, without permitting plaintiff to examine the full document, pren o t a r i z e d his signature (which constitutes a misdemeanor), disclosed confidential library records in violation of law, and terminated plaintiff when he would not execute a release in favor of the Library. This is sufficient to plead intentional 15 A.D.2d 62,

infliction of emotional distress. Halio v. Lurie,

222 N.Y.S.2d 759 (2d Dep't. 1961); Sanchez v. Orozco, 178 A.D. 2d 391, 578 N.Y.S.2d 145 (1 s t Dept. 1991); Atherton v. 21 East Corp., 149 A.D. 2d 354, 539 N.Y.S.2d 933 (1 s t Dept. 1989).
92~

CONCLUSION For the foregoing reasons, plaintiff requests that this Court deny defendants' motion to dismiss, and grant such other and further relief as the Court deems just and equitable. Dated: October 12, 2009 Mineola, NY Respectfully submitted, RAYMOND NARDO (RN 4773) Attorney for Plaintiff 129 Third Street Mineola, NY 11501 [phone]

23

CERTIFICATE OF SERVICE I certify that on October 12/ 2009/ I, Raymond Nardo, served by XXX mail, first class overnite mailed served via ECF the enclosed: Brief on Behalf of Plaintiff in Opposition to the Library Defendants' Motion to Dismiss to Counsel for the defendants located at: Thomas A. Catalano, Esq. Lester Schwab Katz & Dwyer 120 Broadway New York, NY 10271 Sherri N. Pavloff, Esq. FARBER BROCKS & ZANE L.L.P. 51 Charles Street, Second Floor Mineola, NY 11501 Peter Contini, Esq. L'Abbate, ~alkan, Colavita & Contini, L. L:"P . ..../ 1 0 0 1 Franklin Avenue Garden City, NY 11530 return receipt requested faxed >(electronically mailed

DATE

l 01,'J-jd!
'

7

/

Amy Meachum

From:
Sent:

To:
Subject: Attachments:

Sherri N. Pavloff . Monday, October 12, 20092:12 PM . Braden Farber FW: Brinn v. Syosset Brinn. Declaration. pdf; Brinn. Library.Opposiion.pdf; Brinn.Utica.Opposition.pdf

Sherri N. Pavloff FARBER BROCKS &ZANE L.L.P. 51 Charles street, Second Floor Mineola, New York 11501 [phone] Fax [phone] [e-mail] www.fbzlaw.com IMPORTANT NOTICE: NOTICE OF ATTORNEY'S CONFIDENTIALITY: The material submitted herewith contains and is intended to be a confidential transmission of information or documents from FARBER BROCKS &ZANE L.L.P. which is legally privileged. The materials or information enclosed are intended only for the use of the individual or entity named in this transmission. If you are not the intended recipient, any disclosure, copying, distribution or the taking of any action in reliance on the contents of this transmission is strictly prohibited. If you have received this telecopy transmission in error, please notify us by telephone immediately, so that we can arrange for the return of the original documents to us at our cost. -----Original Message----From: [e-mail] [mailto:[e-mail]] Sent: Monday, October 12, 2009 1:20 PM To: [e-mail] [e-mail] Sherri N. Pavloff Subject: Brinn v. Syosset Counsel, Enclosed please find the Declaration of Joshua Brinn along with the briefs submitted on behalf of plaintiff in opposition to the Library's and Utica's motion to dismiss. I have mailed hardcopies to:each party, including an extra courtesy copy for Judge Platt. Contact me if you have any questions. Raymond Nardo, Esq. 129 Third Street Mineola, NY 11501 [phone] (tel) [phone] (fax) www.raynardo.com Are you an Iron Chef? Get info for hospitality, catering, pastry. Over le0 programs. q http://thirdpartyoffers.juno.com/TGL2141/c?cp=YjPlchkSgyr45-Z1hW2ynQAAJ1DDypoTPHXWmKHpDHPekHAAQAAAAFAAMAEocrj8AAAMlAAAAAAAAAAAAAAAYAMAAAAAA=
1

Amy Meachum
From: Sent: To: Subject: Attachments:

Sherri N. Pavloff . Monday, October 12, 2009 2: 12 PM Braden Farber FW: Brinn v. Syosset c Brinn.Utica.Opposition.pdf

Sherri N. Pavloff FARBER BROCKS &ZANEL.L.P. 51 Charles Street, Second Floor Mineola, New York 11S01 [phone] Fax [phone] [e-mail] www.fbzlaw.com IMPORTANT NOTICE: NOTICE OF ATTORNEY'S CONFIDENTIALITY: The material submitted herewith contains and is intended to be a confidential transmission of information or documents from FARBER BROCKS &ZANE:L.L.P. which is legally privileged. The materials or information enclosed are intended only for the use of the individual or entity named in this transmission. If you are not the intended recipient, any disclosure, copying, distribution or the taking of any action in reliance on the contents of this transmission is strictly prohibited. If you have received this telecopy transmission in error, please notify us by telephone immediately, so that we can arrange for the return of the original documents to us at our cost. -----Original Message----From: [e-mail] [mailto:[e-mail]] Sent: Monday, October 12, 2009 2:09 PM To: [e-mail]; [e-mail]; Sherri N. Pavloff Subject: Re: Brinn v. Syosset It appears that I inadvertently sent the library opposition twice. Enclosed is plaintiff's opposition to Utica'~ motion to dismiss. Hardcopies have been mailed. Raymond Nardo, Esq. 129 Third Street Mineola, NY 11501 [phone] (tel) [phone] (fax) www.raynardo.com

o.

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1

RAYMOND NARDO, Esq.
ATTORNEY FOR PLAINTIFF 129 Third Street Mineola, NY 11501 [phone]

UNITED STATES DISTRICT COURT for the EASTERN DISTRICT OF NEW YORK
JOSHUA BRINN

Plaintiff,
09-01151 (TCP) (WOW)

-againstSYOSSET PUBLIC LIBRARY, MORRIS DUFFY ALONSO & FALEY, UTICA NATIONAL INSURANCE COMPANY,JUDITH LOCKMAN, in her individual and professional capacities, ROBERT GLICK, Trustee if the SYOSSET PUBLIC PUBLIC LIBRARY in his individual and professional capacities

Defendants.
BRIEF ON BEHALF OF PLAINTIFF IN OPPOSITION TO UTICA 'NATIONAL INS. CO.'s MOTION TO DISMISS

Dated: October 12, 2009

TABLE OF CONTENTS TABLE OF AUTHORITIES STATEMENT OF FACTS ARGUMENT ii 1
2

POINT I 2 PLAINTIFF'S CLAIM SETS FORTH PLAUSIBLE CLAIMS OF RELIEF UNDER RULE 8 OF THE FEDERAL RULES OF CIVIL PROCEDURE 2 POINT I I . . . . . . 9 THE PLEADING ALLEGES A PLAUSIBLE VIOLATION OF THE FIRST AMENDMENT ................9 A. B. Plaintiff's Grievance Need not Raise a "Matter of Public Concern" . . . . . .
.9

Plaintiff Pleads a Valid First Amendment Retaliation Claim because he was Terminated for Petitioning the Government 11 14 14

POINT I I I .............. THE COMPLAINT ALLEGES SUFFICIENT FACTS TO APPLY 42 U.S.C. § 1983 TO UTICA

POINT IV . . . . .... 19 PLAINTIFF PROPERLY PLEADS THAT DEFENDANTS INTENTIONALLY INTERFERED WITH A BUSINESS OPPORTUNITY BY TERMINATING HIM FOR REFUSING TO SIGN A RELEASE IN FAVOR OF THE LIBRARY 19 POINT V . . . . , .... PLAINTIFF PROPERLY PLEADS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CONCLUSION CERTIFICATE OF SERVICE 24 24
25 26

TABLE OF AUTHORITIES Abdullahi v. P£izer, Inc., 562 F.3d 163 (2d Cir. 2009) Adickes v. S. H. Kress
&

17

Co., 398 U.S. 144 (1970)

..

14
·8

Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937 (2009)

Atherton v. 21 East 92 nd Corp., 149 A.D. 2d 354, 539 N.Y.S.2d 933 ...... 25 (1 s t D e p t . 1989) Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) Carroll v. Blinken, 42 F.3d 122 (2d Cir. 1994) Ciarnbriello v. County of Nassau, 292 F.3d 307 (2d Cir. 2002)
2, 3, 8

17 16

Cioffi v. Averill Park Central School District, 444 F.3d 158 (2d Cir. 2 0 0 6 ) ................ .9 Collins v. Goord, 428 F. Supp.2d 399 (S.D.N.Y. 2006) Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957) Connell v. Signoracci, 153 F.3d 74 (2d Cir. 1998) Connick v. Myers, 461 U.S. 138 (1983) Dawes v. Walker, 239 F.3d 489 (2d Cir. 2001) Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988) 11 .2 12 13 11 11

Friedman v. Coldwater Creek, Inc., 551 F.Supp.2d 164 (S.D.N.Y. 2008) . . . . . . . . . . . . . ...... 19 Geisler v. Petrocelli, 616 F.2d 636 (2d Cir. 1980) 2

Halio v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759 (2d Dep't. 1961) . . . . . . . . . . . . . . '. 25 Hoesten ....

v.

Best, 34 A.D.3d 143, 821 N.Y.S.2d 40 (1 s t Dep't. 2006) . . . . . . . . . . . . . .. 19 24 13

Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350 (1993) . . .. Kenney v. Genesee Valley Board of Cooperative Educational Services, 2008 WL 343110, 97-CV-6442, (W.D.N.Y. Feb. 6, 2008)
ii

LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471 (2d Cir. 2 0 0 9 ) . . . . . . . . . . . . . . . . . . . . ., 3 Lawrence v. Union of Orthodox Jewish Corporations of America, 32 A.D.3d 304, 820 N.Y_S_2d 60 (l r t Dept. 2006) 22 Lobel v. Maimonides Medical Center, 39 A.D. 3d 275, 835 N.Y.S.2d 28 (2007) . . . , .... .... 22 Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292 (2d Cir. 2003) .......... .... . . .. .3 Murphy v. American Home Prods. Corp., 58 N.Y.2d 293 (1983) Rankin v. McPherson, 483 U.S. 378 (1987) 24
9

Sanchez v. Orozco, 178 A.D. 2d 391, 578 N.Y.S.2d 145 (1 s t Dept. 1991) . . . . . . . . . . . ...... 25 Shabtai v. Levande, 38 Fed. Appx. 684 (2d Cir. 2002) .2

Snyder v. Sony Music Entertainment, 252 A.D.2d 294, 684 N.Y.S.2d 235 (l s t Dep' t 1999 ) 22 Snyder v. Sony Music Entertainment, Inc., 252 A.D.2d 294, 684 N.Y.S.2d 235 (1 f t Dep't 1999)
Sousa v. Roque, 2009 WL 2568949 (2d Cir. 2009)

19 13 12

Swierkiewicz v. Soremna N.A., 534 U.S. 506 (2002)

Sybalski v. Independent Group Home Living ~rogram, Inc., 546 F.3d 255 (2dCir. 2008) . . . . . . .. 14 Taylor v. New York University Medical Center, 7 A.D.3d 401, 776 N.Y.S.2d 4 7 4 ( 2 0 0 4 ) . . . . . . . . . . . . . . . . . . . 22 Taylor v. New York University, 7 A.D.3d 401, 776 N.Y.S.2d 474 (lst D e p ' t . 2 0 0 4 ) .................. United Euram Corp. v. Occidental Petroleum Corp., 123 Misc.2d 574, 474 N.Y.S.2d 372 (Sup. Ct. 1984) United States v. Price, 383 U.S. 787, 86 S.Ct. 1152 (1966)
White Plains Towing Corp.
V.

19 23 14,
17

Patterson, 991 F.2d 1049 (2d Cir. 1993)

13

iii

Williams & Co. v. Collins, Tuttle & Co., 6 A.D.2d 302, 176 N.Y.S.2d 99 (pt Dep't. 1958) .... . . . .. Williams v. Town of Greenburgh, 535 F.3d 71 (2d Cir. 2008)

21 10

Wolff v. Town of Mount Pleasant, 2009 WL 1468691, 06 Civ. 3864 (CS) (LMS) ( S . D . N . Y . Apr 27, 2009) .......... 10

iv

STATEMENT OF FACTS
The facts are set forth in the Complaint and the Brinn Declaration, submitted herewith. In addition, plaintiff is

withdrawing his second cause of action alleging a violation of due process and his fifth cause of action alleging breach of covenants of good faith and fair dealing.

1

ARGUMENT POINT I PLAINTIFF'S CLAIM SETS FORTH PLAUSIBLE CLAIMS OF RELIEF UNDER RULE 8 OF THE FEDERAL RULES OF CIVIL PROCEDURE Rule 8(a) (2) of the Federal Rules of Civil Procedure requires a pleading to state "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. Rule 8,

This pleading "statement must be concise 'because

unnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage.'" Shabtai v. Levande, 38 Fed. Appx. 684 (2d Cir. 2002) (internal citation omitted). As set forth in Geisler v.

Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980) (emphasis added): The office of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof. As formulated in Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99 (1957), a complaint should not be dismissed for inSUfficiency unless it appears to a certainty that glaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), the United States Supreme Court held that a plaintiff must "state a claim for relief that is plausible on its face." Further,

"[o]n a motion to dismiss or for jUdgment on the pleadings we

2

'must accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor.'" LaFaro v. New

Xork Cardiothoracic Group. PLLC, 570 F.3d 471, 475 (2d Cir. 2009), citing, Miller v. Wolpoff & Abramson. L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). As set forth in Bell Atlantic Corp. V.

Twombly, 550 U.S. 544 (2007), "a complaint attacked by a Rule 12(b) (6) motion to dismiss does not need detailed factual allegations . .

"

Plaintiff's complaint is a short and plain

statement which, drawing all inferences in favor of plaintiff, establishes a plausible claim for relief. Defendant Utica claims that there is only a single allegation against Utica, and that the complaint "completely fails to assert any allegation to support his conclusion that Utica was at any time acting under color of law; took any action to terminate plaintiff from his employment at Morris Duffy; deprived Plaintiff of due process under the Fourteenth Amendment; intentionally interfered with Plaintiff's business opportunity; intentionally inflicted emotional distress; or owed any duty to the plaintiff much less breached any duty" (Utica brief, p. 6). As set forth herein, the complaint establishes a plausible claim for ,relief under Rule 8. The complaint pleads, in relevant part, as follows: 10. At all times herein, defendant SYOSSET PUBLIC LIBRARY was acting under color of law and defendants MORRIS DUFFY ALONSO & FALEY

3

and UTICA NATIONAL INSURANCE COMPANY were acting under color of law by participating and/or conspiring in joint activity with the SYOSSET PUBLIC LIBRARY and its agents. 11. At all times herein, defendants are jointly and severally liable under 42 U.S.C. Section 19B3 due to the fact that the Director of the SYOSSET PUBLIC LIBRARY, Judith Lockman, and a Trustee of the SYOSSET PUBLIC LIBRARY, Robert Glick, acted as policymakers, and had authority to set policy for the Library, in coercing defendants UTICA . NATIONAL INSURANCE COMPANY and MORRIS DUFFY ALONSO & FALEY to terminate plaintiff. 12. At all times herein defendants are jointly and severally liable under 42 U.S.C. Section 1983 due to the fact that the all defendants acted maliciously, or displayed a reckless or deliberate indifference, to the exercise of plaintiff's constitutional rights and/or acquiesced, ratified, or condoned the malice or reckless indifference displayed by the other defendants. Consequently, the complaint alleges that all defendants conspired in a joint activity, and that the State actor, Syosset Public Library, coerced Utica (and Morris Duffy) to terminate plaintiff, and that all defendants violated plaintiff's constitutional rights. The complaint further pleads as follows: 23. Upon information and belief, after receiving the First Notice of Claim, Judith Lockman, Director of the Syosset Public Library, directed Robert Glick, Esq., a Member of the Board of Trustees of the Syosset Public Library, to call plaintiff at

4

his place of work. 24. On or about January 10, 2008, Glick phoned plaintiff and advised him to drop the First Notice of Claim and also stated that Glick knew the attorneys at MORRIS DUFFY ALONSO & FALEY and that it would be very bad for plaintiff to pursue the Notice of Claim 25. On or about January 11, 2008, Glick mad unsolicited phone calls to plaintiff at his workplace, further demanding that plaintiff discontinue the Notice of Claim. 26. Upon information and belief, Glick contacted Kevin Mahon, Esq., a partner at MORRIS DUFFY ALONSO & FALEY to further interfere with plaintiff's employment and demand that the First Notice of Claim be withdrawn. 27. During these conversations, Mr. Glick also disclosed information to a third party about plaintiff's confidential library records. 28. Betty Winkler is a Claims Examiner employed by defendant UTICA NATIONAL INSURANCE COMPANY. 29. On March 19, 2008, at the direction of defendant SYOSSET PUBLIC LIBRARY, and at the direction of her supervisor at UTICA MUTUAL INSURANCE COMPANY, Robin Nelson, Betty Winkler, also contacted partners of defendant MORRIS DUFFY ALONSO & FALEY to exert pressure on plaintiff to withdraw his First Notice of Claim. 30. At various times from March 19, 2008 through April 16, 2008, Faley, Alsono, and DeGennaro, partners of MORRIS DUFFY ALONSO & FALEY, demanded that plaintiff withdraw his

5

Notice of Claim against defendant SYOSSET PUBLIC LIBRARY or he would be terminated. 31. UltimatelY, plaintiff withdrew his First Notice of Claim, due to the threats regarding his employment. 32. On April 16, 2008, Andrea Alonso, Esq. directed plaintiff to sign a partial document ,which was apparently the signature page of a general release which would waive his claims against the defendant SYOSSET PUBLIC LIBRARY. 33. Plaintiff refused to sign this document. 34. Defendant MORRIS DUFFY ALONSO & FALEY terminated plaintiff because he refused to sign the general release. 35. Subsequently, plaintiff filed the Second Notice of Claim. 36. Defendants, all acting under color of law, terminated plaintiff for the exercise of his First Amendment Rights, in violation of the First and Fourteenth Amendments to the United States Constitution, and are all liable under 42 U.S.C. Section 1983. This caused plaintiff to suffer economic and none c o n o m i c damages. Consequently, the complaint alleges that agents of the Library phoned plaintiff and threatened that it would be "very bad" for him to pursue his Notice of Claim. Thereafter, Glick ("Morris

contacted a partner at MORRIS DUFFY ALONSO & FALEY,

Duffy") to further interfere with plaintiff's employment, disclosed confidential library records of plaintiff, and also

6

contacted defendant Utica Mutual Ins. Co., a client of Morris Duffy, to maliciously interfered with and exert economic pressure upon plaintiff. An agent of Utica (which funneled legal services

to plaintiff's employer) also contacted partners at Morris Duffy, and attempted to use its leverage over Morris Duffy to "exert pressure" and coerce Morris Duffy to have the notice of claim
withdrawn(~

29) and to terminate plaintiff

(~

11).

Plaintiff

details the communications between Glick and plaintiff, Morris Duffy, and Utica, gives dates where available, and details the undue coercive pressure that The Library Defendants exerted upon Utica and Morris DUffy to terminate plaintiff because he sought to redress his library suspension in the form of a Notice of Claim. Since defendants urge this Court to consider evidence outside, but referred to, in the pleadings, the Court should also consider the fax cover page sent from the Library's counsel (Spellman Rice) to Defendant Utica National Ins. Co. ("Utica"),

to Defendant Morris Duffy, requesting that Morris Duffy "have Mr. Brinn sign the General Release" (Exhibit 1 to Brinn Declaration). In violation of New York Penal Law, the space for plaintiff's signature was pre-notarized, and plaintiff was never shown the complete content of what appeared to be a release (Brinn Declaration). This type of deceit, fraud, and misrepresentation

demonstrates that all three defendants conspired to terminate plaintiff because he refused to sign a release in favor of the

7

Library.

Therefore, the pleading plausibly establishes the

underlying causes of action. Plaintiff's pleading, supplemented by the fax cover page and pre-notarized signature page of the Release, details the conversations between Glick and plaintiff, Morris Duffy, and Utica, gives dates where available, and demonstrates the undue coercive pressure and unlawful tactics that Defendants exerted upon plaintiff simply because plaintiff sought to redress his suspension from the Library, and because he would not execute a release in favor of the Library regarding this grievance. These

factual and legal allegations are more than speculative; they establish "more than a sheer possibility that a defendant has acted unlawfully," Ashcroft v. Iqbal, U.S. ,129 S.Ct. 1937,

1949 (2009), citing, Twombly 550 U.S. at 556, and are sufficient to satisfy the Rule 6 pleading requirement.

8

POINT II THE PLEADING ALLEGES A PLAUSIBLE VIOLATION OF THE FIRST AMENDMENT
~

Plaintiff's Grievance Need not Raise a "Matter of Public Concern" The First Amendment to the United States Constitution

prohibits laws abridging freedom of speech and abridging the right to petition the Government for redress of grievances. Utica blithely assumes that plaintiff's First Amendment claim must relate to a "matter of public concern," and cites numerous cases arguing that plaintiff'·s Notice of Claim does not raise such a matter. At best, Utica misapprehends the law.

Since public employees may express opinions on a variety of matters in the workplace, the First Amendment protects only those matters which are a "matter of public concern." This Pickering

test evolved because "a public employer has a distinct interest in regulating the speech of its employees in order to ensure and promote the 'efficiency of the public services it performs.'" Cioffi v. Averill Park Central School District, 444 F.3d 158 (2d Cir. 2006), citing, Rankin v. McPherson, 483 u.S. 378, 384 (1987). However, in the instant case, plaintiff was not a public employeeiplaintiff did not work for the LibrarYi he was an associate attorney at Morris Duffy. Consequently, the expression

of opinions by an employee in the public workplace, and the efficiency and potential disruption of a public employer's

9

services are not implicated - t h e Pickering test does not apply. Where plaintiff is ilQt a public employee at the time of his First Amendment speech, the Second Circuit has ruled that, "[b]ecause [plaintiff] was not a public employee when he criticized (defendant] Bland, his speech need not have been on a matter of public concern for it to fall within the protection of the First Amendment for the purposes of this action." Williams v. Town of Greenburgh, 535 F.3d 71 (2d Cir. 2008). Similarly, as set forth

in Wolff v. Town of Mount Pleasant, 2009 WL 1468691 at *6, 06 Civ. 3864 (CS) (LMS) (S.D.N.Y. Apr 27, 2009) (internal citations

omitted) (emphases added), the court held that: [i]n order to maintain a First Amendment retaliation claim, a private citizen complainant must allege that the defendant took some action in response to his or her First Amendment activity that 'effectively chilled the exercise of his [or her] First Amendment right . . . . Differing from this test, a public employee plaintiff who claims that he or she was retaliated against for exercising his or her First Amendment rights 'must show that he defendant implemented an 'adverse employment action' against the plaintiff because of his or her engagement in First Amendment activity touching upon a matter of public concern. Utica fails to apprehend that the "matter of pUblic concern" requirement - u p o n which it rests its motion to dismiss the First Amendment claim - s i m p l y does not apply to a First Amendment retaliation claim brought by a private citizen. As a result,

plaintiff's First Amendment retaliation claim should not be

10

dismissed.
~

Plaintiff Pleads a Valid First Amendment Retaliation Claim because he was Terminated for Petitioning the Government Plaintiff alleges a First Amendment retaliation claim

because, as a private citizen, he exercised his First Amendment right to petition the Library by filing a Notice of Claim. As

set forth in Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988): The Supreme Court has described the right to petition government for redress of grievances as 'among the most precious of the liberties safeguarded by the Bill of Rights.' See United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222, 88 S.Ct. 353, 356, 19 L.Ed.2d 426 (1967). Moreover, the right of petition applies with equal force to a person's right to seek redress from all branches of government. There is no doubt that the Notice of Claim constitutes a petitio to the government for redress of plaintiff's library privileges, which were suspended. Plaintiff's First Amendment retaliation

claim, outside the context of employment, must therefore be analyzed as follows: To survive dismissal, 'a plaintiff asserting First Amendment retaliation claims must advance non-conclusory allegations establishing: (1) that the speech or conduct ~t issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.' Collins v. Goard, 428 F. Supp.2d 399, 419 (S.D.N.Y. 2006),

citing, Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001),

11

FOINT III

THE COMPLAINT ALLEGES SUFFICIENT FACTS TO APPLY 42 U.S.C. § 1983 TO UTICA
In the wake of the Civil War, Congress passed the Civil Rights Act of 1871 to provide a civil remedy for constitutional injuries. While this applies to public entities,
~[p)rivate

persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law for purposes of the statute. To act 'under color' of law does not require that the

accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents,'" Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970), guoting, -United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157 (1966).
Hom~

As set forth in Sybalski v. Independent Group

Living Program, Inc., 546 F.3d 255 (2d Cir. 2008), the actions of a nominally private entity are attributable to the state when: (1) the entity acts pursuant to the 'coercive power' of the state or is 'controlled' by the state ('the compulsion test'); (2) when the state provides 'significant encouragement' to the entity, the entity is a 'willful participation in joint activity with the [s]tate' or the entity's functions are 'entwined' with state policies ('the joint action test' or 'close nexus test'); or (3) when the entity 'has been delegated a public function by the [s]tate,' ('the public function test').

In this case, plaintiff has pled plausible facts for Utica to be

14

liable under 42 U.S.C. § 1983 under the compulsion test and the joint action test. In the present matter, plaintiff has pled that the Library defendants "coerc[ed] defendants UTICA NATIONAL INSURANCE COMPANY and MORRIS DUFFY ALONSO & FALEY to terminate plaintiff" (Compl.,
~

11).

More specifically, the Library phoned Utica, a company

that hires Morris Duffy, and Utica also pressured plaintiff's employer to have the Notice of Claim withdrawn (CampI.,
~29).

In

addition, the parties conspired to have plaintiff terminated when plaintiff would not sign a release in favor of the Library (Complaint,
~~

32-36).

The Library requested Utica, who had

leverage over plaintiff's employer, to coerce Morris Duffy to cause plaintiff to withdraw his First Notice of Claim and terminate plaintiff if he would not sign a general release releasing his claims against the Library. Utica faxed a general

release, in favor of the Library, to Morris DUffy for plaintiff to execute (Brinn Declaration).4 When plaintiff refused to yield

to this demand to sign a general release received from Utica, in favor of the Library, he was terminated (Brinn Declaration). Consequently, the pleading establishes that Utica acted on behalf of, and pursuant to, the Library. This is sufficient to plead

4 The cover letter of the fax from Betty Winkler, an employee of Utica, to Morris Duffy, plaintiff's employer, states, in part, as follows: "Attached please find a copy of the General Release we discuss. Please have Mr. Brinn sign the General Release and have his signature notarized" (Brinn Declaration).

15

liability under 42 U.S.C. § 1983 pursuant to the compulsion test. The Library also provided "significant encouragement H to Utica by directing Utica to contact and coerce plaintiff's employer to direct him to withdraw his First Notice of Claim and, ultimately, to terminate plaintiff when he did not sign a general release releasing his claims against the Library. Utica became a

"willful participant in joint activity with the StateH by jointly conspiring to terminate plaintiff when, at the behest of the Library, it contacted plaintiff's employer and conspired to terminate plaintiff if he would not sign a general release. pleads §1983 liability under the "joint action H test. Further, on a motion to dismiss, plaintiff's burden is even lighter. To "survive amotion to dismiss on [a)
§

This

1983

conspiracy claim,

[plaintiff) must allege (1) an agreement (2) to act in concert

between a state actor and a private party;

to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). Here,

plaintiff has pled that the Library and Utica acted in conflict to coerce plaintiff's employer to terminate him, and Utica took an overt act to further this by phoning plaintiff's employer to cause his termination if he did not withdraw his First Notice of Claim and' sign a general release. plaintiff's termination. Damages were caused by

Consequently, plaintiff pleads a

16

plausible cause of action, which should not be dismissed. Similar circumstances involving private and public entities conspiring to deprive an individual of constitutional rights arose in United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157 (1966). In that case, the United States Supreme Court
§

reversed a grant of summary judgment and permitted a 42 U.S.C. 1983 claim against a restaurant for deprivation of civil rights because the restaurant was alleged to be acting according to a state-enforced custom of segregating races in public eating places. In the present case, Utica and Morris Duffy acted

pursuant to the Library's state-enforced attempt to punish plaintiff because he petitioned the Library for redress of his grievance. In Carroll v. Blinken, 42 F.3d 122 (2d Cir. 1994), the Second Circuit held that where a public institution and NYPIRG, a private institution, unconstitutionally agreed that NYPIRG would receive a portion of a public institution's mandatory student activity fee, both were both liable under
~were

§

1983 because both Similarly,

joint participants in the unlawful conduct."

the Library, Utica, and Morris Duffy conspired to punish plaintiff for exercising his First Amendment rights.
See,~,

Abdullahi"v. Pfizer, Inc., 562 F.3d 163, 188-89 (2d Cir. 2009) (where the Second Circuit permitted a
§

1983 claim against

Pfizer and the Nigerian government because the complaint,

17

"adequately allege[d] that the violations occurred as the result of concerted action between Pfizer and the Nigerian government H under the Alien Tort Statute, which used the same "state action H test as
§

'1983) .

18

POINT IV PLAINTIFF PROPERLY PLEADS THAT DEFENDANTS INTENTIONALLY INTERFERED WITH A BUSINESS OPPORTUNITY BY TERMINATING HIM FOR REFUSING TO SIGN A RELEASE IN FAVOR OF THE LIBRARY To plead tortuous interference with a business opportunity: a plaintiff must demonstrate that the defendant's interference with its prospective business relations was accomplished by 'wrongful means' or that defendant acted for the sole purpose of harming the plaintiff. 'Wrongful means' includes physical violence, fraud, misrepresentation, civil suits, criminal prosecutions and some degree of economic pressure, but more than simple persuasion is required. Snyder v. Sony Music Entertainment. Inc., 252 A.D.2d 294, 300-01, 684 N.Y.S.2d 235 (1 s t Dep't. 1999). This is true, even where

plaintiff is an employee at will. Hoesten v. Best, 34 A.D.3d 143, 159, 821 N.Y.S.2d 40
(lat

Dep't. 2006) ("As an at-will employee

with no written contract, plaintiff could only succeed on his tortious interference claim if he established that Best acted solely to harm him or used wrongful means to achieve the interference H ) ; Taylor v. New York University, 7 A.D.3d 401, 402, 776 N.Y.S.2d 474
(1~

Dep't. 2004).

As set forth in Friedman v. Coldwater Creek. Inc., 551 F.Supp.2d'164, 170 (S.D.N.Y. 200B): for Defendants' interference to constitute the kind of 'wrongful means' that will support Plaintiff's claim for tortious interference, one of the following must be 'true: (1) that conduct must amount to an independent crime or torti (2) that conduct
19

must have been taken solely out of malice; or (3) that conduct must amount to 'extreme and unfair' economic pressure. In the present matter, the pleading establishes that the defendants committed crimes, acted out of malice, and exerted undue economic pressure by having plaintiff terminated from his employment at Morris Duffy because he would not release the Library. First, the Library Defendants disclosed confidential library records to the other defendants
(~

27 of Complaint), including

plaintiff's employer and an insurance company who were not involved in the Library's suspension of plaintiff's privileges. This violates CPLR 4509, which requires that "Library records . . shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute. " Second, all defendants conspired to procure a release by misrepresentation, deceit, fraud, and criminal notary fraud. As

set forth in the Brinn Declaration, plaintiff was shown only the signature page of what purported to be a release, which was unlawfully pre-notarized.
§

l35-a(2) of the Executive Law

provides that "[a) notary public or commissioner of deeds, who in the exercise of the powers, or in the performance of the duties

20

of such office shall practice any fraud or deceit, the punishment for which is not otherwise provided for by this act, shall be guilty of,a misdemeanor." By offering a pre-notarized partial

release to plaintiff, and secreting the fact that the document was a release, defendants engaged in misrepresentation, deceit, fraud, and criminal conduct. This is sufficient to establish

tortious interference with plaintiff's business opportunity as an associate attorney at Morris Duffy. See, Williams & Co. v. Collins. Tuttle & Co., 6 A.D.2d 302, 176 N.Y.S.2d 99 (1 s t Dep't. 1958) (sustaining a complaint for tortious interference with business opportunity where defendants conspired to deprive plaintiff of a real estate commission). Further, Utica engaged in "interference" because it had no legitimate business interest in plaintiff's employment as an associate attorney with Morris Duffy. Utica's interference in

Brinn's employment with Morris DUffy had no relationship to its mission of insuring public employers, and the method of Utica's interference, as set forth above, was tortuous. In the cases relied upon by defendants, the defendant had a legitimate interest to "interfere" with the plaintiff's employment relationship. In this case, plaintiff's grievance

against the Library for his suspension had no relationship to his employment and an insurance company that referred business to plaintiff's employer. Therefore, defendants acted maliciously

21

and used "unlawful means" to intimidate and coerce Morris Duffy to terminate plaintiff because he would not sign a release in favor of the Library. For instance, in Lawrence v. Onion of Orthodox Jewish Corporations of America, 32 A.D.3d 304, 820 N.Y.S.2d 60 (1 s t Dept. 2006), plaintiff employee (employed by a kosher slaughterhouse) sued the Orthodox Union (OU), a kosher certifying organization, alleging that the OU threatened to boycott the slaughterhouse if plaintiff were not terminated from the slaughterhouse. Defendant had a legitimate business reason to

intervene and ensure that all the requirements of kosher food preparation were complied with at the slaughterhouse. In Snyder

v. Sony Music Entertainment, 252 A.D.2d 294, 684 N.Y.S.2d 235 (1 s t Dep't 1999) (where opposing counsel informed plaintiff's law firm that plaintiff was acting outside the scope of his employment with his law firm) and Taylor v. New York University Medical Center, 7 A.D.3d 401, 776 N.Y.S.2d 474 (2004) (where
plaintiff~s

former employer brought a "conflict of interest" to

the attention of plaintiff's current employer), the defendants had legitimate reasons, and used legitimate means, to inform plaintiffs' former employers about plaintiff. Also, in Lobel y.

MaimonideS Medical Center, 39 A.D. 3d 275, 835 N.Y.S.2d 28 (2007), a co-employee was alleged to have interfered in plaintiffis contract with his employer. The court found that the

22

co-employee was motivated by his own self interest, stating, "it is clear that any motivation on {the defendant's] part was based on economic self-interest and not for the sale purpose of harming plaintiff. H rd. at 277. These cases are inapposite to the present matter, in which Utica had no legitimate economic self-interest to meddle in plaintiff's employment. Further, the interference was

accomplished by criminal means, misrepresentation, and deceit. Utica's interest in obtaining a release from Brinn's constitutional claims (on behalf of the is not "economic self interest H " within the purview of governing caselaw.
"justific~tion"

And any

proffered by defendants for its interference

raises a jury question, which should not be resolved on a pleading. United Euram Corp. v. Occidental Petroleum Corp., 123 Misc.2d 574, 577-78, 474 N.Y.S.2d 372, 375 (Sup. Ct. 1984). Since all defendants conspired to dismiss plaintiff because of his constitutional claims, and did so by disseminating confidential records, fraudulently attempting to procure a release, criminally pre-notarizing plaintiff's signature, and having plaintiff terminated when he refused to sign the release, these facts sustain a plausible pleading of intentional interference with a business opportunity.

23

POINT V PLAINTIFF PROPERLY PLEADS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS To plead a claim of intentional infliction of emotional distress,; plaintiff must demonstrate that (i) the defendant engaged in extreme and outrageous conduct;
(ii)

defendant

intended to cause or disregarded a substantial probability of causing severe emotional distress; (iii) a causal connection

between the conduct and injury; and (iv) severe emotional distress. Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350, 353 (1993). Liability is found "only where the

conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.It'Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303 (1983). In the present matter, plaintiff pleads that, because of his suspension from a Library, the Library defendants, Utica Mutual Insurance Company, and Morris Duffy conspired to terminate him because he would not sign a document releasing the Library from liability. Plaintiff's dispute with the Library had no relation

to his employment as an associate attor~ey with Morris Duffy. Yet the Library defendants enlisted plaintiff's employer, and Utica, which funnels work to plaintiff's employer, to maliciously exert undue economic pressure upon plaintiff.
24

Further the

defendants proffered a signature page of a release, without permitting plaintiff to examine the full document, pre-notarized his signature (which constitutes a misdemeanor), disclosed confidential library records in violation of law, and terminated plaintiff when he would not execute Library.
a

release in favor of the

This is sufficient to plead intentional infliction of

emotional distress. Halio v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759 (2d Dep't. 1961); Sanchez v. Orozco, 178 A.D. 2d 391, 578 N.Y.S.2d 145 (1 s t Dept. 1991}; Atherton v. 21 East 92 nd Corp., 149 A.D. 2d 354, 539 N.Y.S.2d 933 (1 s t Dept. 1989}.

CONCLUSION For the foregoing reasons, plaintiff requests that this Court deny defendant's motion to dismiss, and grant such other and further relief as the Court deems just and equitable. Dated: October 12, 2009 Mineola, NY Respectfully submitted, RAYMOND NARDO (RN 4773) Attorney for Plaintiff 129 Third Street Mineola, NY 11501 [phone]

25

1001 Franklin Avenup.

CERTIFICATE OF SERVICE

r certify that on f n Ils.-I r?I , I, Raymond Nardo, served by ~ and ~
XXX mail"',

first class

return receipt requested faxed

overnite mailed
=

served via ECF

><:: electronically

mailed

the enclosed: Brief on Behalf of Plaintiff in Opposition to Defendant's Motion to Dismiss to Counsel for the plaintiff located at: Thomas A. Catalano, Esq. Lester Schwab Katz & Dwyer 120 Broadway New York, NY 10271 Sherri N: Pavloff, Esq. FARBER BROCKS & ZANE L.L.P. 51 Charles Street, Second Floor Mineola, NY 11501 Peter Contini, Esq. L'Abbate, Balkan, Colavita & Contini, L.L.P. 1001 Franklin Avenue Garden City, NY 11530