Thompson v. Yohalem et al
Filing
48
OPINION re: 22 MOTION for Summary Judgment. filed by Sanford E. Ehrenkranz, Mark Bosswick, Peter Lambert. Based on the conclusions set forth above, the Defendants' motion for summary judgment is granted with respect to all counts, except the defamation count, where the Defendants' motion is granted in part and denied in part. (Signed by Judge Robert W. Sweet on 2/23/2012) (pl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- -x
MICHAEL THOMPSON,
10 Civ.
6647
Plaintiff,
OPINION
-against-
MARK BOSSWICK and SANFORD E. EHRENKRANZ
(in their capacity as Trustees of the
Riverside Trust) and PETER LAMBERT
(individually and in his capacity as
Manager of the Riverside Trust) ,
Defendants.
-- ------ -- -- --- -- -- -- -- X
A P PEA RAN C E S:
Att
for Plaintiff
CHARNEY AND ASSOCIATES
9 West Market Street, Suite B
Rhinebeck, NY 12572
By: Nathaniel K. Charny, Esq.
Thomas Edward Feeney, Esq.
At
for Defendants
ELLENOFF GROSSMAN & SCHOLE LLP
150 East 42 nd
Street , 11th Floor
New York, NY 10017
By: Ted Poretz, Esq.
Christopher Matthew Pisacane, Esq.
Sweet, D.J.
The Defendants Mark Bosswick ("Bosswick") and Sanford
E.
Ehrenkranz ("Ehrenkranz")
(named solely in their capacity as
Trustees of the Riverside Trust, hereinafter the "Trust") and
Peter Lambert (named individually and in his capacity as Manager
of the Trust)
("Lambert" and, along with Bosswick and
Ehrenkranz, the "Defendants") have filed a motion for summary
judgment, pursuant to Fed. R. Civ. P. 56, to dismiss the
complaint filed by the plaintiff Michael Thompson ("Thompson" or
the "Plaintiff").
Upon the facts and conclusions set forth
below, the Defendants' motion
summary judgment is granted in
part and denied in part.
Prior Proceedings
On September 8, 2010, the Plaintiff filed an initial
complaint against Ehrenkranz, Lambert and Ira Yohalem, seeking
damages and other relief arising out of the defendants' alleged
interference with the Plaintiff's employment opportunities,
defamation, negligent misrepresentation and breach of contract.
On October 26, 2010, the Plaintiff filed his First Amended
Complaint, dropping Ira Yohalem as a defendant and adding
Bosswick.
The First Amended Complaint described how Thompson
served for two years as the estate manager of the Trust's
property in New Paltz, New York and alleged that Lambert,
Thompson's supervisor, defamed him by telling four employment
agencies as well as the Trust's principals, Robert and Grace
DeNiro, that Thompson had received a kickback in the form of
free lawn care services for his personal property from the
Trust's landscape contractors.
The First Amended Complaint
alleged that these comments cost him his job with the Trust as
well as the assistance of the four named employment agencies and
sought to recover under eight causes of action:
(1) defamation,
(2) tortious interference with prospective business and
contractual relations with respect to Thompson's relationships
with the employment agencies,
(3) tortious interference with
prospective business and contractual relations with respect to a
potential business opportunity with the Soros Family,
(4) breach
of the covenant of good faith and fair dealing with respect to
Thompson's employment contract with the Trust,
(5) breach of
contract with respect to Lambert's confidentiality agreement
with the Trust,
(6) breach of contract with respect to
Thompson's severance agreement,
(7) negligent misrepresentation,
and (8) tortious interference with employment relations against
Lambert.
2
On September 7, 2011, the Defendants moved for summary
judgment
I
seeking to dismiss the First Amended Complaint.
Subsequent to the Defendants
I
motion for summary judgment, the
aintiff filed a Second Amended Complaint dated November 23 1
which dismissed the third cause of action
l
eliminated all
references to one of the four employment agencies, dropped an
allegation that Thompson moved his family east in reliance on a
promise from one of the Defendants and identifies the parties to
whom the alleged defamatory statements were made.
The
Defendants' consented to the filing of this Second Amended
Complaint, and filed reply papers in further support of their
motion to dismiss the Second Amended Complaint on December
2011.
The Defendants
December
71
I
51
motion was marked fully submitted on
2011.
The Facts
The facts
l
as set forth in both the Defendants
I
and
Plaintiff/s Local Rule 56.1 Statements of Undisputed Material
Facts as well as the affidavits the parties have submitted
not in dispute except as noted below.
3
l
are
Thompson, who currently resides in Maine, is a former
employee of the Trust.
The Trust is the owner of an estate in
Ulster County, New York owned by Robert DeNiro and Grace
Hightower DeNiro.
Bosswick and Ehrenkranz are trustees of the
Trust, and Lambert, at all times relevant to the Plaintiff's
complaint, was Thompson's supervisor during the time he was
employed with the Trust.
According to the Plaintiff, Thompson's
chosen field of employment is domestic estate management for
high wealth individuals and families, and, prior to the conduct
alleged in this lawsuit, Thompson had an untarnished work record
in this field.
Thompson began working for the Trust in September 2007
and signed a confidentiality agreement regarding his employment.
This agreement states that his "employment with the Trust was an
at-will employment relationship, terminable by either Employer
or Employee, with or without cause, at any time."
the
According to
aintiff, Lambert called Thompson in mid-October 2007 and
fered him a position with the Trust, and the Plaintiff
officially started on November I, 2007.
The Plaintiff contends
that when he first started, he understood from Lambert that
ske, who Plaintiff was succeeding, would remain employed in a
diminished role under the Plaintiff's supervision.
4
According to
the Plaintiff, some time passed before Jelske tendered his
resignation, and he was paid a severance package equal to 90
days of his regular salary.
The Plaintiff contends that Lambert
requested that Thompson assist him in investigating Jelske, who
Lambert determined may have been involved in criminal acts.
The
aintiff states that his investigation confirmed that Jelske
had been demanding kickbacks from vendors, paying ghost
employees including his family members and demanding at least
one vendor to overbill and sharing the difference with the
vendor.
According to the Defendants, for part of 2008 and all
of 2009, Thompson received free lawn mowing services at his
personal residence from Lynn Warren Landscaping, the Trust's
outside landscape contractor.
The Defendants also contend that,
in 2009, Thompson received free snowplowing services from the
Trust's snowplow vendor, who the Defendants identify as Jim
Watkins but the Plaintiff identifies as Jim Watson.
plaintiff
The
sputes these allegations and states that, with
respect to the snow removal services, he instructed the vendor
to bill him for all services provided, that invoices were
received and that he paid each invoice promptly.
According to
the Defendants, there is no admissible evidence in the record
5
that Lambert ever told Robert or Grace DeNiro that Thompson
received free lawn mowing services prior to Thompson's
termination from the Trust.
The Defendants also contend that
Thompson never heard Lambert tell the DeNiros or anyone else
that he received free lawn mowing services.
The Plaintiff
disputes these contentions.
The Defendants state that, on or about September 23,
2009, the Plaintiff was told that his employment with the Trust
was be
terminated.
According to the Plaintiff, on September
24, 2009, Lambert advised Thompson that he was being
transitioned out of the position of Estate Manager and that
Thompson's employment with the Trust and the DeNiro family would
be terminated.
According to the Defendants, the Plaintiff's
last day as an employee of the Trust was October 15, 2009.
The
Plaintiff disputes this contention, stating that the record is
unclear as to the
aintiff's last day because he was employed
in a "transitional phase" as of October 1, 2009.
According to
Plaintiff, at the time of
s
termination, he was expressly asked by Lambert if he would
commit to staying on for a transitional period of 90 days.
The
Plaintiff contends that he was told by Lambert that the DeNiros'
6
attorney was consulted prior to the conversation and that if the
Plaintiff agreed to stay on for the transition period, the
Plaintiff would
his wages.
paid a severance payment equal to 90 days of
According to the Plaintiff, on October 1, 2009,
Lambert met with Thompson in Thompson's office to discuss the
transition arrangements, and Lambert stated that finding the
Plaintiff's replacement would take considerable time and that
Thompson's continued employment would
three to four months.
informed him that
needed for at least
The Plaintiff contends that Lambert
ter his services were no longer needed,
Thompson would be guaranteed a 90 day severance payment.
The
aintiff continued his employment during this transition
period, and, although the Plaintiff contends that he requested a
written separation agreement, no such agreement was executed.
According to the Plaintiff, Lambert was consoling about the
nature of Thompson's termination and promised Thompson that he
would write a reference letter, assist
finding a new job,
forward along job contacts and help the Plaintiff in any way he
could.
The Plaintiff states that, in reliance on Lambert's
statements, he put Lambert's name down as a reference in
submissions to employment agencies.
7
In early October 2009, Thompson began looking for a
new job, several days after being told that his employment with
the Trust was terminated.
While looking for a new job, Thompson
sent resumes to four employment agencies: the Pavillion Agency
("Pavillion"), the Calendar Group ("Calendar"), Mahler Private
Staffing ("Mahler") and Vincent Minuto of Hampton Domestics
("Minuto"), as well as several others.
Plaintiff, these four agenc
agenc
According to the
s are the dominant employment
s capable of placing individuals in estate management
positions.
Pavillion sent Thompson on an interview with the
family of Robert and Melissa Soros, who ultimately elected not
to hire Thompson.
Although the Defendants contend that there is
no evidence that Lambert gave a bad reference to either
Pavillion or the Soros Fami
,the Plaintiff states that, prior
to a follow-up interview, he was told by a Pavillion agent that
Pavillion would be securing a reference from Lambert and was
later informed by Pavillion that no progress was being made
related to the position.
According to the Plaintiff, Thompson
has had similar promising leads through Calendar Group and
Mahler Private Staffing also fail to materialize after the
8
employment agenc
s informed Thompson that they would be
conducting a reference check.
The Plaintiff contends that on or about November 30,
2009, Mahler designated the Plaintiff "dnp," meaning "do not
place," because of Lambert's bad reference.
The Plaintiff also
contends that on December 1, 2009, Thompson had a telephone
conversation with Vincent Minuto during which Minuto informed
him that his employment agency would be unable to help the
Plaintiff because he had heard about the Plaintiff taking
kickbacks during his employment with the Trust.
On or about February 1, 2011, Thompson began working
as an estate manager for Fox Estates in Maine with a salary
$5,000 higher than his last salary with the Trust.
The
Plaintiff does not dispute this fact, but notes that he was
subsequently demoted eight months later to a caretaker position
earning $80,000.
The Summary Judgment Standard
Summary judgment should be rendered if the pleadings,
the discovery and disclosure materials on file, and any
9
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.
Fed. R. Civ. P. 56(c).
The courts do not try
issues of fact on a motion for summary judgment, but, rather,
determine "whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct.
2 5 0 5, 91 L. Ed . 2 d 2 02
( 19 8 6) .
"The party seeking summary judgment bears the burden
of establishing that no genuine issue of material fact exists
and that the undisputed facts establish [its] right to judgment
as a matter of law."
1060 61 (2d Cir. 1995).
of N.Y., 72 F.3d 1051,
Summary judgment is appropriate where
the moving party has shown that "little or no evidence may be
found in support of the nonmoving party's case.
When no
rational jury could find in favor of the nonmoving party because
the evidence to support its case is so slight, there is no
genuine issue of material fact and a grant of summary judgment
is proper."
Gallo v. Prudential Residential Servs., L.P., 22
F.3d 1219, 1223 24 (2d
. 1994)
(citations omitted).
In
considering a summary judgment motion, the Court must "view the
10
evidence in the light most favorable to the non-moving party and
draw all reasonable inference in its favor,
and may grant
summary judgment only when no reasonable trier of fact could
find in favor of the nonmoving party./I
F.3d 77, 79 (2d Cir. 1995)
marks omitted)
Radio
i
in, 64
------------~,-----
(internal citations and quotation
see also Matsushita Elec. Indus. Co. v. zenith
., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538
------~"--
(1986)
However,
"[t]he non moving party may not rely on mere
conclusory allegations nor speculation, but instead must offer
some hard evidence showing that its version of the events is not
wholly fanciful."
_--'-__--'-____-'-----"-"'~"___. ._N_'_._Y__, 132 F. 3 d 14 5, 14 9
.
(2d Cir. 1998).
When deciding a motion for summary judgment, a court
must remain mindful of t
fact that summary judgment is "an
extreme remedy, cutting off the rights of the non-moving party
to present a case to the jury."
Skanska USA
H & M Hennes & Mauritz LP v.
Inc., 617 F. Supp. 2d 152, 155 (E.D.N.Y.
---------~,~~----
2008) .
The Defendants Motion For Summary Judgment Is Granted In Part
And Denied In Part
11
The Plaintiff's Second Amended Complaint alleges seven
causes of action:
(1) defamation;
(2) tortious interference with
prospective business and contractual relations with respect to
Thompson's relationships with the Calendar Group, Mahler Private
Staffing and Vincent Minuto;
(3) breach of the covenant of good
faith and fair dealing with respect to Thompson's alleged
agreements with the Trust;
(4) breach of contract with respect
to Lambert's confidentiality agreement;
(5) breach of contract
with respect to Thompson's alleged agreement with the Trust to
remain employed to train his successor and receive severance in
the form of three months' wages;
(6) negligent
misrepresentation; and (7) tortious interference with employment
relations against Lambert, on the basis that Lambert
intentionally procured the cessation of the employment
relationship between Thompson and the Trust.
Based on the
conclusions set forth below, the Defendants' motion for summary
judgment is granted with respect to all counts, except the
defamation count, where the Defendants' motion is granted in
part and denied in part.
A. The Defendants' Motion For Summary Judgment Is Granted In
Part And Denied In Part With Respect To The First Cause Of
Action For Defamation
12
"New York law allows a p
intiff to recover for
defamation by proving that the defendant published to a third
party a defamatory statement of fact that was
Ise, was made
with the applicable level of fault, and either was defamatory
per se or caused the plaintiff special harm, so long as the
statement was not protected by privilege."
Kless
632 F.3d 803, 814
(2d Cir. 2011)
See Chandok v.
(citing Albert v.
Loksen, 239 F.3d 256, 265-66 (2d Cir. 2001)); Peters v. Baldwin
Union Free Sch.Dist., 320 F.3d 164, 169 (2d Cir. 2003).
deciding whet
the jury should be allowed to
"In
ss upon
statements alleged to be defamatory, the court need only
termine that the contested statements 'are reasonably
susceptible of defamatory connotation.'
If any defamatory
construction is possible, it is a question of
whether
statements were understood as
239 F.3d at 267
ct
r the jury
famatory."
Albert,
(quoting Purgess v. Charrock, 33 F.3d 134, 140
(2d Cir. 1994).
Under New York law, "only statements alleging facts
can properly be the subject of a defamation action."
115th St
825, 603 N.E.2d 930 (1992).
600 West
80 N.Y.2d 130, 139, 589 N.Y.S.2d
In addition, a plaintiff must
allege the time, place and manner
13
the f
se statement and
identify to whom the
Pure Power
Ise statement was made.
Inc. v. Warrior Fitness Boot
Boot
No. 08 Civ.
4810(THK), 2011 WL 4035751, at *51 (S.D.N.Y. Sept. 12, 2011).
Special harm means economic or pecuniary loss.
Gelste
See Liberman v.
, 80 N.Y.2d 429, 434-35, 590 N.Y.S.2d 857, 605 N.E.2d
344 (1992).
Special harm "must flow
rectly from the injury to
reputation cause by the defamation[,] not from the effects of
defamation."
N.Y.S.2d 998
Matherson v. Marchello, 100 A.O.2d 233, 235, 473
(2d Oep't 1984).
In order to constitute
famation
per se, the statement must (i) cha
an individual with a
serious crime,
his or her trade,
(ii) injure another
business, or pro
ssion,
loathsome disease or (
Power Boot
----------------~
(iii) c
im an individual has a
impute unchastity to a woman.
Pure
, 2011 WL 4035751, at *51 (citing Liberman, 80
N.Y.2d at 435).
To find
to
a statement qualifies as one that tends
ure another in his or her trade, business or profession,
the statement "must be made with re
rence to a matter of
significance and importance for [the operation of the business],
rather than a more general reflection upon the pIa
character or qual
ies."
Pure Power Boot
at *51 (quoting Liberman, 80 N.Y.2d at 436).
14
iff's
2011 WL 4035751,
The statement must
be targeted at the specific standards of performance relevant to
the plaintiff's business and must impute conduct that is "of a
kind incompatible with the proper conduct of the business,
trade, profession or office itself."
2011
Pure Power Boot
WL 4035751, at *51 (citing Aronson v. Wiersma,
65 N.Y.2d 592,
593, 493 N.Y.S.2d 1006, 483 N.E.2d 1138 (1985)).
The Plaintiff has identified five statements that are
alleged to be defamatory.
First, on December 16, 2009, Lambert
allegedly made the following statement regarding Thompson to
Claudia Pache, an employee at a pro
ssional reference checking
company: "I would go for impromptu inspections.
what someone tells me as the truth; but
things didn't come out accurately."
Normally I take
performing audits
Second, on December 16,
2009, Lambert allegedly made the following response to a
question from Ms. Pache: "Q. Based on this information, would
you say that he was not always honest?
October 28, 2009,
~ambert
A.
Yes."
Third, on
stated to Vincent Minuto, the
principal at one of the employment agencies, that it had been
con
rmed that Thompson had been taking kickbacks,
report to work and working from home.
iling to
Fourth, on or about mid-
October 2009, Lambert stated to Scott Gerow, a colleague of the
PIa
iff, that he had found out that Thompson was "stealing . .
15
· that there were actual physical things that had been taken
"
from the property
Fi
, on or about October 13, 2009,
provider of lawn services to
to Lynn Warren,
Lambert st
the DeNiro estate: "Michael wasn't there.
He was trying to
manage the place from [another state]" and "we think he's doing
the same things as Joe [Jelske]," a reference to the criminal
conduct of Thompson's predecessor.
1. Lambert's Statements To Claudia Pache
The PIa
iff has alleged
t two statements Lambert
allegedly made to Claudia Pache constitute de
ion.
Ms.
Pache is emplo
ker
r a
company cal
as a professional reference
www.checkmyreference.com. a se
former employers and obta
references.
ce that contacts
"There are, generally
speaking, four elements necessary to establish a prima
case of slander:
rding the
an oral defamatory statement of fact,
(1)
aintiff,
defendant, and (4) inju
61
(2d Cir. 1993).
(2)
(3) published to a third party by the
to the p
intiff.
The fourth element
defamatory statement takes the form of
is presumed when
slander per se."
ie
WeI
v. Piedmont Airlines
Inc.,
985 F.2d 57,
The Plaintiff asserts that Lambert defamed
him when he told Pache that he would "go for impromptu
16
inspections" and that "in performing audits things didn't come
out accurately."
The Plaintiff, however, has failed to present
any evidence suggesting this comment to be false.
The second
statement the Plaintiff asserts to be defamatory is that Lambert
replied in the af
rmative to Pache's question, "Based on this
information, would you s
that he is not always honest?"
Rather than constitute a statement of fact,
this remark
represents Lambert's opinion and is not actionable.
v. Fil
2000).
See CelIe
209 F.3d 163, 178
(2d Cir.
Accordingly, there is insufficient evidence of
defamation to support the Plaintiff's allegations concerning
Lambert's statements to Pache, and the Defendants' motion for
summary judgment is granted with respect to these statements.
2. Lambert's Statements To Vincent Minuto
Another instance of defamation alleged by the
Plaintiff involves an October 28, 2009 telephone conversation in
which Lambert allegedly told Vincent Minuto, the p
Hampton Domestics, that Thompson had been taking
ipal of
ckbac
,not
reporting to work, working from home and engaging in other
misconduct.
To support his allegations, the Plaintiff cites
testimony from Lambert's deposition and contends that the
17
dentia
record establishes that the October 28, 2009
conversation took place and that during the conversation Lambert
"discuss [ed] the reasons why Michael Thompson was terminated
from employment."
However, the reasons for Thompson's
termination, according to Lambert's deposition testimony,
involved "mold and mud that was found on the property" rather
than the defamatory statements the Plaintiff has alleged.
The
Plaintiff questions the credibility of this testimony,
contending that a December 1, 2009 email exchange between
Thompson and Minuto proves that Lambert made defamatory remarks
during the October 28 conversation.
The email exchange the
Plaintiff highlights involves one email from Thompson to Minuto
in which Thompson states, in relevant part:
rst, 1 want to thank you for your phone call this
afternoon.
What 1 heard was very unsettling, but it did
help
me some insight into the way things transpired
concerning my departure from Riverside Trust.
Thank you
for being so open and candid with me.
1 can only hope that
you will have the confidence and
ith in me to recommend
me to your clients and that, in time, the negative things
you have heard will be proven unfounded.
Minuto responded to this email a few moments later, saying "1
will do my best".
Although this email exchange of
rs no
evidence concerning the content of the October 28 conversation
18
aintiff highlights this
between Minuto and Lambert, the
exchange as evidence of Lambert's defamatory statements.
The Defendants have presented evidence suggesting that
Lambert made no defamatory statements to Minuto during the
October 28 conversation.
In an email dated January 26, 2011,
Minuto wrote to Thompson, in relevant part, "I have no idea what
you are referring to in your last email regarding your last
position of employment."
Additionally, in an affidavit sworn on
February 25, Minuto stated, in relevant part:
I also understand that the Compla
alleges that Lambert
told me, on or about November 4, 2009 that "Thompson had
been ta ng kickbacks from vendors and Thompson had
routinely failed to report to work." This allegation is
not true.
. To be clear, Lambert has never to my memory
told me, in words or substance, that Thompson had been
taking kickbacks, that he routinely (or ever) failed to
report to work, or that Thompson had engaged in any kind of
"venal and criminal activity." Ne her has anyone else
affiliated with
rside Trust made any such statements to
me.
I am also advised that the Complaint states that I called
Thompson on or about December 1, 2009 to tell Thompson that
Riverside Trust made these allegations to me, or that as a
result, Hampton domestics could no longer represent
Thompson in his job search.
I never told Thompson any such
thing and, as above, Riverside Trust never made any such
allegations to me.
19
The Plaintiff contends that this evidence and testimony is
unreliable because Minuto grossed at least $85,000 per year in
revenue placing domest
help with the DeNiros.
The
aintiff
also contends that the January 26 email from Minuto to Thompson
is suspicious because of email traffic on January 25
establishing that Minuto forwarded to Lambert a January 12 email
he rece
from Thompson, and Lambert subsequently forwarded
this email to the Trust's attorney Tom Harvey.
Although the
evidentiary record does not include the text of the January 12
email from Thompson to Minuto, the Plaintiff contends that this
email reiterates the purported defamatory remarks Lambert made
to Minuto in the October 28 conversation.
The Plaintiff also
questions Minuto's credibility by highlighting various points in
his deposition testimony where
did not deny that the
defamatory remarks were said, but rather stated that he could
not recall.
It is well-established that credibility issues, which
are questions of fact for resolution by a jury, are
inappropriately decided by a court on motion for summary
judgment.
1996).
Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.
Addit
lly, there is a factual di
e as to the truth
of the cowments Lambert allegedly made to Minuto, as the
20
Defendants assert that Thompson did receive kickbacks, whi
the
Because a genuine issue of
Plaintiff denies this allegat
material fact has arisen, the Defendants' motion for summary
judgment with re
ct to t
defamato
comments Lambert
allegedly made to Minuto is
3. Lambert's Statements To Scott Gerow
The Plaintiff alleges that on or about mid-October
2009, Lambert stated to Scott Gerow, a colleague at the Trust,
he had found out that Thompson was "stealing .
there were actual physical things
property .
constitute
lands
"
taken from the
The Defendants contend that this does not
famation
ing se
had
that
cause Thompson admittedly
ces the
ed free
making Gerow's statement true,
Thompson was not damaged by the statement and the statement is
pr
leged as the statement of a co-worker relating to the
common business
Gerow, Thompson
Lambert, all of who were
loyed at the Trust.
As not
above, there are material
whether the Plaintiff did or
se
ces that are the alleged"
stions regarding
d not pay for the lawn mow
ckback."
21
While the Defendants
h
Thompson stated that
light deposition testimony in whi
iff contends that he never
received services for free, the Pla
on being billed for
asked for any services for free,
insist
all services performed at his
vate residence and paid for
every invoice he was given by Warren.
Notwithstanding the
on was not harmed by Gerow's
Defendants' contention
s case are presumed since Gerow's
statement, damages
r in his or her trade, bus
statement "tend to injure
ss,
or profession" and, as such, constitute defamation per se.
The Defendants also contend that the alleged
statements from Thompson to Gerow are not defamation
they are protected by qualified privilege.
recognized that t
"Courts
1
lic interest is served by shiel
ng
certain communications, though possibly defamatory,
from
litigation, rat
r."
r
risk stifling them altoget
Liberman, 80 N.Y.2d at 437.
qualified, pri
1
"One such conditional, or
extends to a communication made by one
person to another upon a subject in which both have an interest.
This 'common interest' privilege has been applied
employees of an
0
i zat ion. "
Id.
(citations
example to
tted) .
The
rationale for applying the privilege is that the flow of
information
persons sharing a common interest should not
22
be impeded.
rd.
Thompson and Gerow shared a common interest,
in that both were employees of the Trust, and the deposition
testimony reveals that the conversations between Thompson and
Gerow centered around care of the DeNiro estate.
However, qualified privilege can be dissolved if a
plaintiff can demonstrate that the defendant spoke with
"malice. H
See Park Knoll Assoc. v. Schmidt, 59 N.Y.2d 205, 211,
464 N.Y.S.2d 424, 451 N.E.2d 182 (1983).
the Supreme Court's decision in New York
In the aftermath of
Times~o.
v. Sullivan,
376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), New York
courts have applied "malice H to have both its common law meaning
as well as its constitutional meaning.
at 438
See Liberman, 80 N.Y.2d
("[M]alice now has assumed a dual meaning, and we have
recognized that the constitutional as well as the common-law
standard will suffice to defeat a conditional privilege H
).
Under the New York Times standard for malice, a plaintiff must
establish that the "statements were made with a high degree of
awareness of their probable falsity."
Louisiana, 379 U.S.
(1964)).
rd.
(citing Garrison v.
64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125
"Under common law, malice meant spite or ill will."
Liberman, 80 N.Y.2d at 437
(citing Stillman v. Ford, 22 N.Y.2d
48, 53, 290 N.Y.S.2d 893, 238 N.E.2d 304
23
(1968);
Health Ins. Plan, 7 N.Y.2d 56, 61, 194 N.Y.S.2d 509, 163 N.E.2d
333 (1959)).
Here, because the Plaintiff has failed to establish
Lambert's malice, ill-will or any degree of awareness that his
statements to Gerow were false, Lambert's statements to Gerow
are shielded by the qualified
ivilege of common interest and
cannot be considered defamatory.
Accordingly, the Defendants'
motion for summary judgment is granted with respect to Lambert's
remarks to Gerow.
4. Lambert's Statements To Lynn Warren
The Plaintiff alleges that on or about October 13,
2009, Lambert stated to Lynn Warren, the vendor who provided
lawn services to the Trust, that "Michael wasn't there.
He was
trying to manage the place from [another state]U and "we th
he's doing the same things as Joe [Jelske]
U
The re
k
rence
to Jelske refers to Thompson's predecessor at the Trust who
engaged in various acts of illegal conduct,
luding stealing,
demanding kickbacks and complicity in overbilling the DeNiros.
The Defendants contend that Lambert's remark to Warren is not
specific enough to constitute defamation.
24
The Defendants also
contend that the phrase "we think" classi
es Lambert's
statement as an opinion rather than a statement of
Under New York law, it is for t
whet
the statements compl
court to
cide
ned of are "reasonably susceptible
of a defamatory connotation, thus warranting submission of the
issue to t
trier of fact."
Silsdorf v. Levine, 59 N.Y.2d 8,
12-13, 462 N.Y.S.2d 822, 449 N.E.2d 716 (1983)
omitted).
(citations
The statements alleged here imply that Thompson had
been engaged in criminal conduct and also could be interpreted
as injuring Thompson in his trade of estate management.
Because
Lambert's statements to Warren are reasonably susceptible of a
defamatory connotation, the Defendants motion for summary
judgment concerning these statements is denied.
5. Lambert's Statements To The Calendar Group And
Mahler Private Staffing
In addition to the defamatory statements described
above, the Plaintiff's Second Amended Complaint suggests that
the Plaintiff was defamed by a Trust employee when the Calendar
Group and Mahler Private Staffing called the Trust for a
reference check.
Second Am. Compl.
25
~~
37, 38.
The Plaintiff
has withdrawn any allegation that Lambert defamed Thompson to
the Pavillion Agency.
With respect to the Calendar Group, the PIa
provided no evidence of defamation.
iff has
The Defendants have
submitted an affidavit from the Calendar Group's owner
establishing that he sent Thompson's name to at least one
possible employer and would not have done so had Thompson
received a negative reference.
Although the Court granted the
Plaintiff's request to depose a Calendar Group employee named
Wolvovsky, the Plaintiff has not conducted this deposition and
has represented to the Court that "Wolvovsky will claim a
failure of memory regarding the content and result of [his]
conversation [with Lambert].n
The Plaintiff's opposition contends that Mahler
Private Staf
ng was given "such a bad re
rence that Plaintiff
was designated 'dnp,' the acronym for the blackballed permanent
status of 'do not process.,n
The Plaintiff bases these
allegations on a November 30, 2009 email sent internally within
Mahler Private Staffing in which a Mahler principal states:
"make a
bad re
Ie and file away /
rence from
will be a dnp / he received a
r thomas, his former supervisor at the
26
DeNiro home",
The evidentiary record contains no other
references to "Peter Thomas," and it is unclear whe
author of the email in re
r the
ring to "Peter Thomas" truly meant
to refer to "Peter Lambert."
The only evidence present
concerning the substance of the "bad reference" is an aff
from Mahler's Support Services Manager, Shain Alexander.
In
that affidavit, Mr. Alexander states, "I sought to determine
whether there was any record at Mahler as to the nature of the
'bad reference' or if any Mahler employee remembered its
substance.
I have concluded, as a result of t
Mahler has no reco
s effort, that
of which I am aware specifying t
nature
of the 'bad reference' set forth on Ms. Lown's November 30, 2009
email, nor have I located any Mahler employee who has any
recol
ction of the substance of t
'bad reference.'"
Without
further evidence supporting the Plaintiff's allegations, any
defamation claim conce
ng any Defendant's defamatory
statements to the Calendar Group or Mahler Private Staffing is
di
s
B. The Defendants' Motion For Summary Judgment Is Granted With
Respect To The Second Cause Of Action For Tortious
Interference With Prospective Business And Contractual
Relations
27
Plaintiff's second cause of action alleges that
Lambert's defamatory statements tortiously interfered with
Calendar
Thompson's ability to find new employment through t
Group, Mahler Private Staffing and Minuto's employment agency,
Hampton Domestics.
iff has withdrawn his allegation
The Pia
of tortious interference insofar as the claims relate to the
Pavillion Agency.
Under New York law, the elements of a cia
for tortious interference with prospective business relations
are:
(1) business relat ions with a third part y;
fendant's inter
(2)
rence with those business relations;
(3)
the
defendant acted with the sole purpose of harming the plaintiff
or used dishonest, unfair, or improper means; and (4)
the business relationship.
Novelties,
See _ _ _ _ _ _ _v. _ _ _
Nadel _ _ Pia
Inc., 208 F.3d 368,
rrock,
---~~---------------
injury to
&
~L-~~~~~~~~
382
(2d Cir. 2000)
33 F.3d 134, 141
(citing
(2d Cir. 1994)).
Under
New York law, the second element requires the plaintiff to
demonstrate "direct interference with a third party,
that is,
the defendant must direct some activities towards the third
party and convince the third party not to enter into a business
relationship with the plaintiff."
Ca
648 F. Supp. 2d 507,
(citations omitted).
A tortious interference with contractual
relations
523
(S.D.N.Y. 2009)
im under New York law requires a plaintiff to
28
prove:
a third
existence of a valid contract between itself and
(1)
rtYi
(2) the defendant's knowledge of the contract;
third-party's
(3) the defendant's intentional procurement of t
brea
of the contract; and (4) damages.
See Mina 1nv. HoI
Ltd. v. Lefkowitz, 16 F. Supp. 2d 355, 359 (S.D.N.Y. 1998)
tat ions omitted).
The Plaintiff has provided no ev
erference claim w
Calendar Group.
of a tortious
h respect to his relations with the
Thompson did not take the deposition of any
loyee of the Calendar Group, and t
affi
t of Calendar
Group employee Steven Laitmon expressly states, "I have
Calendar's files in rega
and it contains no indicat
re
to Thompson's employment
ication,
that Thompson was given a bad
rence by Lambert or anyone else."
evidence establis
cked
Because
re is no
ng either the direct interference of the
Defendants with Thompson's relationsh
with the Calendar Group
or the Defendants' intentional procurement of any breach of a
contract between Thompson and the Calendar Group, the
Plaintiff's second cause action is dismissed with respect to any
all
ions concerning the Calendar Group_
29
Plaintiff's
im of tortious interference
concerning Thompson's business relationship with Mahler Private
Staffing is also
Plaintiff
smiss
As noted above, although the
s presented an internal Mahler email dat
November
30, 2009 stating that Thompson "received a bad reference from
peter thomas, his former supervisor at the DeNiro home" and that
Th
on "will be a dnp," there is no evidence descr
ing the
nature of this "bad reference" or any indication that it was
famat
The affidavit provided by Mahler employee Shain
Alexander states: "In Mahler's usage, a
include the fact that t
'bad re
renee' can
applicant had been te
former employer without reference to any
nated by the
fic act or conduct
leading to the termination."
though t
Plaintiff contends that a pr
version of Mr. Alexander's affidavit supports
that Thompson was given a negat
Defendants, this
factors can 1
ous af
ous
conclusion
reference by one of the
davit states t
to a candidate recei
ng a
"[s]everal
'DNP'
status"
including "[n]ot legally able to work in the United States; Dur
conviction or signi
require driving);
ous employer;
cant
[p]rior te
[m]is
ng
olations (for j
that
tion or bad reference from a
sentations on a resume,
30
application, or during an interview; or [l]ack of significant
domestic experience or experience with high net worth
employers."
establish t
thomas".
The Plaintiff has presented nothing else to
substance of the "bad re
rence" from "peter
In opposing a motion for summary judgment,
~the
non
moving party may not rely on mere conclusory allegations nor
speculation, but instead must offer some hard evidence showing
that its version of the events is not wholly fanciful."
D'Amico, 132 F.3d at 149.
Because there has been no evidence
presented that any Defendant acted with the sole purpose of
harming the plaintiff or used dishonest, unfair, or improper
means, or that any Defendant intentionally procured the breach
of an agreement between Thompson and Mahler Private Staffing,
the Plaintiff's claim of tortious interference with respect to
Mahler Private Staffing is dismissed.
As noted above, there is a genuine issue of fact
concerning whether Lambert made de
ory remarks concerning
the Plaintiff to Minuto, the owner of Hampton Domestics.
However, even if
is assumed that Lambert indeed made
defamatory comments to Minuto, the Pla
interference must be
to establish any harm.
iff's claim of tortious
smissed because the Plaintiff has failed
In order to establish a claim of
31
tortious interference with business relations, the Plaintiff
must demonstrate "direct interference with a third party, that
is, the defendant must direct some activities towards the third
party and convince the third party not to enter into a business
relationship with the plaintiff."
Supp. 2d at 523.
Randolph Equities,
648 F.
To prove a claim of tortious interference with
contractual relations, the Plaintiff must establish,
that he suffered damages.
See Lefkowitz,
inter alia,
16 F. Supp. 2d at 359.
The evidentiary record establishes that Minuto, upon allegedly
hearing Lambert's defamatory remarks on October 28 and receiving
an email from the Plaintiff on December 1,
my best."
responded "I will do
Minuto interpreted that response during his
deposition testimony:
Q.
And what does "I will do my best" mean when you write-
A.
If a job comes up, I will definitely call you, you
know, your name, your resume is in front of me on my desk,
and you know, it's priority.
Q.
Fair to say if you respond, "I will do my best" that
means I've read it, I acknowledge it, I'm going to do the
best I can?
A.
I'm doing the best I can.
Michael wanted to work in
Maine, that's basically what I was trying to do, but that's
not my area of expertise.
Q.
I'm not speaking about Mr. Thompson.
A.
Anyone that calls, like anyone that e-mails me, like I
got two e-mails.Ithink.this morning, maybe it might have
32
been a driver or another estate manager or something, I
said, "I will do my best." I can't say anything else, I
don't have a job right now, if something comes up, I'll do
the best that I can.
Given Minuto's deposition testimony, there is no evidence that
Lambert's allegedly defamatory remarks convinced Minuto not to
enter into a business relationship with Thompson or that
Thompson suffered any damages.
Accordingly, the Plaintiff's
claim of tortious interference with respect to his relationship
with Minuto is dismissed.
C. The Defendants' Motion For Summary Judgment Is Granted With
Respect To The Third Cause Of Action For Breach Of The
Covenant Of Good Faith And Fair Dealing 1
The Plaintiff has asserted a claim for breach of the
covenant of good faith and fair dealing.
However, the
confidentiality agreement Thompson signed on May 11, 2009
included the following clause:
1
The Plaintiff's cause of action alleging breach of the
covenant of good faith and fair dealing is the third cause of
action in the Second Amended Complaint and the fourth cause of
action in the First Amended Complaint.
The Plaintiff has
withdrawn the First Amended Complaint's original third cause of
action.
For purposes of this opinion, the causes of action are
numbered in accordance with the Second Amended Complaint.
33
The part s hereto acknowledge and agree that Employee's
employment with Employer was an at-will employment
relationship, terminable by either Employee or Employer,
with or
thout cause, at any time, and that any such
termination will not constitute a breach of any express or
implied contract or covenant, will not be deemed to be
tortious, wrongful, or g
rise to any claim aga st or
liabil y of Employer whatsoever.
In the event Employee
terminates this agreement, Employee acknowledges and agrees
Employee's covenants and agreements concerning the
Confidential Information survive any such termination.
"As the courts within this dist
ct have repeatedly recognized,
well settled New York law holds that no impli
covenant of good
ith and fair dealing attaches to at-will employment
contracts."
Nunez v. A-T Fin. Info. Inc., 957 F. Supp. 438, 443
(S.D.N.Y. 1997); see also
z v. Fin. Info. Servo
94 Civ. 5059 (JSM), 1995 WL 464955, at *4
1995); Tischmann v. ITT Sheraton Co
(S.D.N.Y. 1995).
"
(S.D.N.Y. Aug. 4,
882 F. Supp. 1358, 1367
"The basis for this rule is that an obligation
to abide by an implied covenant of good fa
h and fair dealing
would be inconsistent with the employer's unfettered
terminate an at-will emp
(c
ing
No.
"
Nunez,
~S~a~b~e~t~.~L-v~.~S~t_e.~r~l~l~'~~~~!~I~n~c~.,
ght to
957 F. Supp. at 443
69 N.Y.2d 329, 335-36,
514 N.Y.S.2d 209, 506 N.E.2d 919 (1987); --~~~-----------Mu
V. Am. Home
Prods. Corp., 58 N.Y.2d 293, 304-05, 461 N.Y.S.2d 232,
N.E.2d 86 (1983)).
448
Because Thompson is an at-will employee, he
34
cannot maintain a breach of the implied covenant of good
ith
and fair dealing.
D. The Defendants' Motion For Summary Judgment Is Granted With
Respect To The Fourth Cause Of Action For Breach Of
Contract
The
aintiff's fourth cause of action alleges that he
is a third-party
ficiary of a confi
between Lambert and
ial
y agreement
Trust and that the Defendants breached
confidentiality agreement by giving the Plaintiff a
defamatory reference.
benefi
A
rty asserting rights as a third-party
ary must demonstrate "(1)
binding contract between other
was
cifically intended
that the benefit to h
incidental, to i
part
existence of a val
rties,
(2) that the contract
r his individual benefit a
(3 )
is sufficiently immediate, rather than
cate the assumption by the contracting
s of a duty to compensate h
v. Count
and
if
benefit is lost."
357 Fed. Appx. 339, 343 (2d Cir. 2009)
(quoting State of Cal. Pub.
es Ret. S
. v. Shearman &
95 N.Y.2d 427, 434-35, 718 N.Y.S.2d 256, 741 N.E.2d
101 (2000)).
a t
"It is ancient law in New York that to suc
rd party bene
ciary theory, a non-party must be the
intended beneficiary of the contract, not an incidential
35
on
beneficiary to whom no duty is owed."
Madeira v.
fordable
--------------------------
Housing Foundation, Inc., 469 F.3d 219, 251 (2d Cir. 2006)
(collect
cases) .
The Plaintiff al
s that Thompson was an int
beneficiary of the conf
iality agreement between the Trust
and Lambert.
s contention, t
To support t
email exchange between
Plaintiff cites an
son and Lambert in October 2009.
October 22, 2009, Thompson wrote to Lambert, in relevant
On
rt:
What I wanted to ask you about is my need to ta
you up on
your earlier offer of assistance to write a letter
verifying my employment at Riversi
Trust. Would you be
Ie to write one that documents the dates of employment,
job title, and reason for leaving. As I recall, t
official reason we discussed was
the estate manager
position was restructured to a two person job, one
rson
as major domo
another as caretaker. This
d be
ficient.
I am in the process of filling out
ication
and, as you know, this letter is very important
the
process of finding new empl
On October 23, 2009, Lambert responded to Thompson's email:
It is the policy for empl
verification at Riverside
Trust as well as throughout the industry, t
being, I can
verify the
te of hire, date of termination at will.
Confirmation of your start
and ending salary, as well as
confirm that the Social Security number t
you present to
any per
employers is the same as the one we have on
file.
I am bound by the language conta
within the
36
confidentiality agreement all employees sign to work at
Riverside Trust.
The PIa
iff contends that this email establishes that a
neutral reference was obligatory under the confidentiality
agreement.
Additionally, the Plaintiff relies upon various
portions of the confidentiality agreement.
The confidentiality
agreement reads, in relevant part:
Employee acknowledges and agrees that during the term of
her employment, Employee either has learned, obtained,
acqui
or become aware of (
may in the future learn,
obtain, acquire or become aware of) information and items,
relating to or concerning Employer [the Trust] and Robert
DeNiro and Grace Hightower, their
ly, fends,
associates and other employees of Employer (collectively,
"Rela
Parties"); (b) pr
and
identi
matters
concerning Employer or any Relat
Parties; (c) financial,
business, medical, legal, personal and contractual matters
of, or
ining to, Employer or any Related Parties; (d)
letters, memoranda, contracts, e-mail transmissions or
other documents or
tings (whether through customa
print media, electronic media or other media) pertaining in
any way to Employer or any Related Part s; and (e)
photographs of Employer or Rela
Part s, and any film,
video tape, audio tape or other means of
icat
or
duplicating the images or likeness of any Related Party.
Employee further acknowledges and agrees that all of the
information and items
scribed in the foregoi
sentence
that Employee acquired during the term of her employment or
might acquire in the future as a result of her employment
is private and confidential and that it is exclus
ly
owned and controlled by Employer (herein such information
37
and items collectively referred
Information") .
The PIa
iff contends that this
as "Confidential
reement protects Thompson
because Lambert agreed that "during the term of []
loyment
[with the DeNiros] Employee has learned, obtained acquired or
become aware of [] information and items relating or concerning
[] employees of the Employer."
the
However, t
is no language in
identiality agreement naming Thompson as a benefic
to any of its terms.
The only parties mentioned in the
agreement are Lambert and the Trust.
evidence that the contractual
with re
Because there is no
it was specifically intended
for Thompson or that the benefit is
rather than
ry
ficiently
aI, the Plaintiff's b
to Lambert's con
diate,
of contract claim
iality agreement is
smissed.
E. The Defendants' Motion For Summary Judgment Is Granted With
Respect To The Fifth Cause Of Action For Breach Of Contract
The Second Amended Complaint's fi
alleges
cause of action
the Trust entered into an oral agreement with
Thompson whereby he would a
to stay to train his successor
and in exchange would receive pa
38
during the transition
period and would receive a severance payment of at least
months'
The Plaintiff all
s.
because he was fired be
of this agreement
s br
re he cou
train his successor and, as
id during the transition period, nor did
a result, was not
receive the three months' severance pay.
T
Plaintiff contends
that, under New York law, if an employer is engaged in a
yments to employees on the
practice of making severance
termination of employment and if an employee relies on
ing or continuing
practice in
S
is
or her employment, that
employee has a cause of action against the defendant.
v. Buffalo
re Works Co., 3 F. Supp. 2d 366, 373-74
------------------------------
See Clark
(W.O.N.Y.
1998).
In support of the contention that a "standard
transition pac
aintiff
"exist
management employees, the
s Lambert's depos
ion testimony, which, according
to the Plaintiff, confirmed that
such an arrangement.
affidavit, which all
The
OeNiros' attorney
roved
intiff also cites his own
s that Lambert told the Plaintiff that he
had consulted the OeNiros' attorney and arranged for a severance
package
r the
aintiff.
deposition transcr
the topic of
However, a review of
cited by the PIa
ssages from
iff indicates that
scussion was not Thompson's severance agreement
39
or a
ral policy of the Trust or the DeNiros, but rather t
severance agreement ente
into by t
Thompson, Lambert's deposition
ng a severance package
Rega
testimony included the
Plaintiff's predecessor.
llowing testimony:
Q.
And did you estimate for Mr. Thompson at that t
how
long you thought that [the training peri
] would be, that
would take?
A.
Yes.
Q.
What did you tell him?
A.
90 days.
Q.
What was Mr. Thompson's response to that, to that
particular component to the discussion; in other words,
staying on 90
for the transition pe od?
A.
He s
d whatever - - whatever was needed.
Q.
During
course of
conversation with Mr.
Thompson, did you make reference to any kind of a severance
payment?
A.
I sa
to him that I
thought severance would be in
order.
Q.
Did you articulate to
Riverside Trust practice was
package?
A.
what you thought the
rding t
severance
Define "practice."
Q.
Did you tell him that the expectation would be three
months of severance pay?
A.
I sa
to him that I was going to go back to Bob and
Grace and
scuss that fact, that, you know, it would take
long to train, and that 90 days, I
It at my
40
assessment, would be what
- the time period if a
transition was going to take place.
Notwithstanding the Plaintiff's content
deposition testimony does not est
s, Lambert's
ish a practice of
ing
severance payments to terminated employees, nor does it prove
the existence of a severance agreement for Thompson.
On January 19, 2010, having received no severance
proposal, Thompson wrote directly to Mr. DeNiro to
obtaining a severance
ckage.
The letter, in pert
scuss
part,
reads:
On
r 1, Peter met with me at Riverside and discussed
the impending transition, including my severance package
anti
ed scheduling.
Throughout our
scussions
Peter and I were focus
on a transition peri
of three to
four months and a respectable financial severance package.
At the
of our meeting, Peter confirmed that
would
need me to stay on until my successor was chosen by him and
trained by me.
I was told that after the training was
completed, I would Ii ly receive three months' severance
pay (that was the minimum Peter sa
Tom Harvey advised),
and
sibly continue on the company medical plan
r an
additional 90
(This t
frame would facilitate an
orderly transition at Rivers
Trust
also co
ide
with the end of my daughter's second year at New Paltz High
School.)
While this was not a promise, Peter felt this was
reasonable
r the circumstances and he would work toward
an arrangement along these lines.
Peter said he was going
to have the transition and severance package details
drafted for your
ew and that Tom Harvey would
in
contact to let me know the final arrangements.
41
The Plaintiff's letter to Mr. DeNiro corroborates
rt's
, while the possibility of severance was
testimony
this was not a promise, Peter felt
phrase, "Whi
includes
this was reasonable under t
would work
circumstances and
toward an arrangement along these lines."
establish t
letter
been adopt
suggested, no formal agreement
letter goes on to
no arrangement concerning severance was reached.
Because there is insufficient
establishing
either a severance agreement between Thompson and the Trust or a
practice on the part of t
to t
ted employees, the Defendants' motion for summary
judgment is granted on
claim
Trust of making severance payments
s cause of action, and the Plaintiff's
breach of contract with respect to an agreement
concerning Thompson's severance pay is
ssed.
F. The Defendants' Motion For Summary Judgment Is Granted With
Respect To The Sixth Cause Of Action For Negligent
Misrepresentation
The Second Amended Complaint's sixth cause of action
al
s negligent
De
s' false
srepresentation, contending that the
ses and assurances caused the Plaintiff
42
r being given notice that
to stay in the employ of the Trust a
stall his job search and allow
he was being terminat
Trust as a reference.
potential employers to call
elements for a negligent
aim are that "(1)
srepresentation
the defendant had a duty, as a result of a spec
correct information;
to g
The
1 relationship,
(2) the defendant made a false
representation that he or she should have known was incorrect;
(3) the
formation supplied in the representation was known by
the defendant to
purpose;
(5) the
desi
by the plaintiff for a serious
plaintiff intended to rely and act upon it; and
(4)
aintiff reasonably relied on it to his or her
detriment."
Investors
Inc. v. Trafal
Power Inc.
227
F.3d 8, 20 (2d Cir. 2000).
Here,
Plaintiff's claim for negligent
misrepresentation must be
of a spec
Defendants.
a
I re
smiss
because
ionship between
re is no
dence
Plaintiff and the
An "employer/employee relationship does not import
duciary duty under New York law."
ix v. Laborator
s
Esthederm U N o . 98 Civ. 4465(LMM), 2000 WL 1528212, at
*8 (S.D.N.Y. Oct. 16, 2000)
(citing Serow v. Xerox
A.D.2d 917, 917, 560 N.Y.S.2d 575 (4th
' t 1990)); see also
Kwon v. Yun, 606 F. Supp. 2d 344, 356 (S.D.N.Y. 2009)
43
166
("As
employer-employee
courts have routinely held that t
relationship does not constitute a special relationsh
sufficient to support a
aim for negligent mis
plaintiff's negligent misrepresentation claim
matter of law.")
90 (2d
1S
sentation,
not viable as a
(citing Stewart v. Jackson & Nash, 976 F.2d 86,
r. 1992) i Cannon v.
las Elliman
LLC, No. 06 Civ.
7092(NRB), 2007 WL 4358456, at *10-11 (S.D.N.Y. Dec. 10, 2007)
v. Pfizer
Inc.
No. 03 Civ. 5405(CM), 2003 WL 22670842,
at *3 (S.D.N.Y. Nov. 7, 2003) i Metzler v. Harris
Civ. 5847(HB), 2001 WL 194911, at *2
Accordingly, t
i
No. 00
(S.D.N.Y. Feb. 26, 2001)).
Defendants' motion for summary judgment is
ed with respect to the sixth count of the Second Amended
Complaint.
G. The Defendants' Motion For Summary Judgment Is Granted With
Respect To The Seventh Cause Of Action For Tortious
Interference
The Second Amended Complaint's seventh cause of action
alleges that Lambert's misstatements to Mr. and Mrs. DeNiro
about his discove
caus
of
Plaintiff's receipt of kickbacks
the DeNiros to terminate the
of the agreed-upon transition
riod.
aintiff in contravention
"A plaintiff cla
tortious interference under New York law must est
44
ng
lish four
elements: 1) a valid contract, 2)
knowledge by a third
rty of
the contract, 3) conduct by the third party to intentionally and
procure the breach of the contract, and 4) damage to
improper
plaintiff as a resu
of the breach.u
American Airlines, No. 08-CV-3898
(E.D.N.Y. Jul. 30, 2010)
Jean-Louis v.
(FB), 2010 WL 3023943, at *2
(citing Albert, 239 F.3d at 274).
"[AJn at-will employee may establish a
for tortious
inter
d in fraud or
rence but only if the defendant eng
srepresentation, made threats, or acted with malice."
Jean-
Louis, 2010 WL 3023943, at *2.
"[OJnlya stranger to a contract, such as a third
party, can
cont
II
held liable
r tortious interference with the
Minetos v. Cit
Univ. of N.Y.,
--------------~~--------------
(S.D.N.Y. 1996) i see also Fin
(2d
r. 1996).
as well."
925 F. Supp. 177, 187
v. Giacobbe
79 F.3d 1285, 1295
"This principle holds in the employment context
Finle
79 F.3d at 1295 (citing Mansour v. Abrams,
120 A.D.2d 933, 934, 502 N.Y.S.2d 877 (4th Dep't 1986)).
"In
order to show that a defendant-employee is a 'third party,' a
plaintiff must show t
the
fendant-employee has exce
bounds of his or her authority.u
(cit
Kosson v. Al
(1st Dep't 1994)
i
the
, 79 F.3d at 1295
203 A.D.2d 112, 113, 610 N.Y.S.2d 227
see also Minetos,
45
5 F.
. at 187 ("[AJn
agent cannot be held liable
1 to breach a
inducing a pr
contract with a third person, at least where he [or she] is
lf of his pr
acting on
authority.
fl)
(quoting
scope of his
1 and within t
Constr. Co
. of Educ., 204
A.D.2d 106, 107, 611 N.Y.S.2d 529 (1st Dep't 1994).
alleged tort, both Lambert and
At the time of
Thompson were employees of
fl ).
See G. DeNiro Dep. at 8-9 ("Q.
rvisory relationship regarding
have a s
Yes.
Although the Pla
to suggest
his scope of
, in doing so,
tortious interference with contract cla
to demonstrate supervisor act
employment in effectuat
Acco
ingly, the De
chael Thompson?
A.
rt was act
See
79
judgment dismissing
where at-will
loyee
outside the scope of
plaintiff's termination).
s' motion
summary j
ed with respect to the seventh cause of action.
Conc1usion
46
rmed
rieties, there is no
oyment with the Trust.
F.3d at 1295 (affirming grant of summa
fail
Did [
iff alleges that Lambert misin
Ms. DeNiro about Thompson's alleged
outs
The evidentiary re
as Thompson's supervisor at the
establishes that Lambert
DeNiro estate.
Trust.
is
Based on the conclusions set forth above,
with respect
Defendants' motion for summary judgment is grant
to all counts, except the defamation count, where the
Defendants' motion is granted in part and deni
in part.
It is so ordered.
New York, NY
February ~ , 2012
U.S.D.J.
47
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