Lally v. Klick USA, Inc. et al

Filing 39

OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION TO DISMISS re: 33 MOTION to Dismiss Plaintiff's Cause of Action for Infliction of Emotional Distress. filed by Catherine MacInnis, Alexander Leavitt, Meghan Jones, Ari Schaefer, Klick USA, Inc. d/b/a Klick Health. For the reasons stated above, Defendants' motion to dismiss is GRANTED with respect to Plaintiff's intentional and negligent infliction of emotional distress clai ms (Count Six) and DENIED with respect to Plaintiff's defamation claim (Count Seven). Plaintiff's claims for intentional and negligent infliction of emotional distress (Count Six) are dismissed with prejudice. The Clerk of Court is respectfully requested to terminate the motion pending at docket entry 33. SO ORDERED. (Signed by Judge Mary Kay Vyskocil on 3/11/2025) (tg)

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 3/11/2025

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KAITLIN LALLY,
Plaintiff,

1:23-cv-10293-MKV

-against-

OPINION AND ORDER
DENYING IN PART AND
GRANTING IN PART
DEFENDANTS’ MOTION
TO DISMISS

KLICK USA, INC. d/b/a KLICK HEALTH,
ARI SCHAEFER, ALEXANDER LEAVITT,
MEGHAN JONES, CATHERINE
MACINNIS, and JOHN/JANE DOE NOS.1-2,
Defendants.
MARY KAY VYSKOCIL, United States District Judge:

Plaintiff Kaitlin Lally brought this action against Defendants Klick USA, Inc. (“Klick”),
Ari Schaefer, Alexander Leavitt, Meghan Jones, Catherine MacInnis, and two John/Jane Doe
Defendants (collectively, “Defendants”) asserting claims for: (1) discrimination, retaliation, and
failure to accommodate in violation of the Americans with Disabilities Act (“ADA”) against
Defendant Klick, (2) discrimination, retaliation, failure to accommodate, and aiding and abetting
in violation of the New York State Human Rights Law (“NYSHRL”) against all Defendants, (3)
discrimination, retaliation, failure to accommodate, and aiding and abetting in violation of the New
York City Human Rights Law (“NYCHRL”) against all Defendants, (4) interference,
discrimination, retaliation in violation of the Family and Medical Leave Act (“FMLA”) against
Defendant Klick, (5) violation of New York Labor Law (“NYLL”) Section 215 against Defendant
Klick, (6) intentional and negligent infliction of emotional distress against all Defendants, and (7)
defamation against Defendant Klick and two John/Jane Doe Defendants.
Complaint (“FAC.”), [ECF No. 25]).

1

(First Amended

Now before the Court is a motion on behalf of Defendants Klick, Shaefer, Leavitt, Jones,
and MacInnis to dismiss only Plaintiff’s intentional and negligent infliction of emotional distress
and defamation claims (Counts Six and Seven). [ECF No. 33]. In support of their motion to
dismiss, Defendants submitted a memorandum of law, (“Defs. Mem.,” [ECF No. 35]) and a
declaration of Defendant MacInnis and two exhibits. (“MacInnis Decl.,” [ECF No. 34]). Plaintiff
opposed. (“Pl. Opp.,” [ECF No. 36]). Defendants replied. (“Defs. Reply,” [ECF No. 38]). For
the reasons discussed below, Defendants’ motion is DENIED in part and GRANTED in part.
BACKGROUND1
I.

Factual Background
Ms. Lally was a former employee at Klick.

FAC ¶ 1.

Ms. Lally suffers from

panhypopituitarism, a disability affecting her endocrine system which prevents her brain from
producing essential hormones. FAC ¶¶ 2, 25. Her disease allegedly is exacerbated by extreme
stress and without medical intervention can lead to adrenal crisis, seizures, shock, coma, and even
death. FAC ¶¶ 2, 26–27.
Defendant Klick is a global service provider of business consulting and marketing services
for the commercialization of healthcare and life sciences. FAC ¶ 18. Defendant Schaefer was a
co-president of Klick. FAC ¶ 19. Defendant Leavitt is a Group Account Director at Klick. FAC
¶ 20. Defendant Jones is a Senior Vice President, Group Account Director at Klick. FAC ¶ 21.
Defendant MacInnis is the General Counsel at Klick. FAC ¶ 22. Defendants John/Jane Doe Nos.
1–2 allegedly are two senior Klick officials. FAC ¶ 23.
Ms. Lally interviewed for a Senior Account Director position at Klick and, during this job
interview, she allegedly fully disclosed the details of her disability and explained that she

The facts are taken from the FAC and are accepted as true for purposes of this motion. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
1

2

occasionally required leave time to manage her disability. FAC ¶¶ 34–35. After accepting this
position and joining Klick, Ms. Lally allegedly discussed her disability, vulnerability to stress, and
her need for accommodations with Klick personnel, including Defendants Schaefer and Leavitt.
FAC ¶¶ 39, 42, 48.
On December 8, 2022, Ms. Lally informed Defendant Leavitt by Slack message that she
would require Friday, December 9, 2022 and Monday, December 12, 2022 as “mental health
day[s]” to attend to her disability. FAC ¶ 49. Defendant Leavitt allegedly approved the request.
FAC ¶ 50. Then on Monday December 12, 2022, Ms. Lally informed Defendant Leavitt by email
that she would need to take an additional leave day, on December 13, 2022, to tend to her disability.
FAC ¶¶ 51–52. Again, Defendant Leavitt allegedly approved the request. FAC ¶ 52.
Defendant Jones placed a meeting on Ms. Lally’s calendar for one of the days she had
informed Defendant Leavitt that she would need off to tend to her disability. FAC ¶ 53. Ms. Lally
allegedly emailed Defendant Jones to inform her that she was home on a leave day tending to her
disability-related illness. FAC ¶¶ 53, 113. Defendant Jones allegedly never responded. FAC ¶ 53.
Then on December 13, 2022, Defendant Jones terminated Ms. Lally on a Zoom call. FAC ¶ 54.
Ms. Lally alleges that Defendant Jones scheduled this Zoom call and terminated her employment
knowing about Ms. Lally’s disability, including that extreme stress could cause her to suffer
adrenal crisis, and that she was out that day to tend to her disability. FAC ¶ 54. Plaintiff alleges
that Defendants Scheafer, Leavitt, and Jones all actively participated in the decision to terminate
Ms. Lally while she was on a mental health day, notwithstanding their knowledge of her particular
susceptibility to emotional distress. FAC ¶ 114. Ms. Lally alleges that on the Zoom call she
became “severely emotionally distressed.” FAC ¶ 55.

3

The next day, Ms. Lally received an email, with an attached letter from Defendant
MacInnis that allegedly was “intended to bully and intimidate her into silence” and instructed
Plaintiff not to disparage Klick. FAC ¶¶ 60, 115. Plaintiff alleges that Defendant MacInnis knew,
or should have known, that due to Ms. Lally’s disability she might experience severe
consequences, including adrenal crisis, because of Defendant MacInnis’ decision to send this
letter. FAC ¶ 60.
Plaintiff alleges that the following day, John Hastings, Vice President and Group Creative
Director at Klick, told Gah-Jon Won, a Senior Copywriter at Klick, that Ms. Lally was on a
Performance Improvement Plan and that she was terminated when she did not improve. FAC
¶¶ 61–62. Ms. Lally alleges that this is false and she was not on a Performance Improvement Plan
when she was terminated by Klick. FAC ¶ 61. Further, Ms. Lally alleges that Mr. Hastings had
been told this false information by one or more senior Klick officials before he repeated it to Mr.
Won. FAC ¶ 61. Ms. Lally alleges that this false statement injured her professional reputation
and caused her mental anguish, emotional distress, and humiliation. FAC ¶¶ 62, 64, 120.
Ms. Lally alleges that the “outrageous way” that her termination was conducted, Defendant
MacInnis’ reckless conduct afterward, and Klick’s defamatory statements caused her to experience
serious symptoms of adrenal crisis and required her to take additional medications to address these
symptoms. FAC ¶¶ 64, 66. Ms. Lally alleges that she has experienced numerous other indicia of
extreme emotional distress including, depression, anxiety, and a documented physical
manifestation as a direct result from Defendants’ conduct. FAC ¶ 67.

4

II.

Procedural Background
Ms. Lally filed a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”). FAC ¶ 14. The EEOC issued a notice of her right to sue under the ADA,
FAC ¶ 14, and thereafter Plaintiff initiated this action. [ECF No. 1].
LEGAL STANDARDS
To survive a motion to dismiss pursuant to Federal Rule of Procedure 12(b)(6), a complaint
“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). More specifically, a plaintiff must allege sufficient facts to show “more
than a sheer possibility that a defendant has acted unlawfully.” Id. The Court must “ ‘accept[ ] all
of the complaint’s factual allegations as true and draw[ ] all reasonable inferences in the plaintiff’s
favor.’ ” Siegel v. HSBC North America Holdings, Inc., 933 F.3d 217, 222 (2d Cir. 2019)
(quoting Giunta v. Dingman, 893 F.3d 73, 78–79 (2d Cir. 2018)). In considering a Rule 12(b)(6)
motion, the Court “must limit itself to the facts stated in the complaint, documents attached to the
complaint as exhibits, and documents incorporated by reference in the complaint.” Coyle v. Coyle,
153 F. App’x 10, 11 (2d Cir. 2005) (quoting Hayden v. Cnty. of Nassau, 180 F.3d 42, 54 (2d Cir.
1999)).
DISCUSSION
I.

Documents Properly Considered On This Motion
As a threshold matter, there is a dispute among the parties over which documents the Court

may properly consider at this stage. As previously noted, “[i]n considering a motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in
the complaint, documents attached to the complaint as exhibits, and documents incorporated by

5

reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010);
see also Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (on a motion to dismiss
courts can also consider a document that the complaint “relies heavily on its terms and effect”
which renders it “integral to the complaint”). “A district court therefore ‘errs when it consider[s]
affidavits and exhibits submitted by defendants, or relies on factual allegations contained in legal
briefs or memoranda in ruling on a 12(b)(6) motion to dismiss.’ ” See United States ex rel.
Foreman v. AECOM, 19 F.4th 85 (2d Cir. 2021) (quoting Friedl v. City of New York, 210 F.3d 79,
8344) (2d Cir. 2000) (alterations in original).
Defendants have submitted with their motion to dismiss a Declaration of Defendant
MacInnis asserting facts and attaching (1) a copy of the December 14, 2022 letter sent from
Defendant MacInnis to Ms. Lally and (2) a copy of Ms. Lally’s response to the December 14, 2022
letter. See MacInnis Decl., Exs. 1–2. Plaintiff argues that the Court cannot consider the facts
alleged by Defendants or Ms. Lally’s response to Defendant MacInnis’ December 14, 2022 letter
(second exhibit), but concedes that the Court may consider the December 14, 2022 letter Defendant
MacInnis sent to Ms. Lally (first exhibit), because it was incorporated by reference in the First
Amended Complaint. Pl. Opp. at 9, 13. Defendants argue that the Court can consider the facts
alleged in the MacInnis Declaration, and the documents attached, because the Court can sua sponte
convert Defendants’ motion to dismiss into a partial motion for summary judgment. Defs. Reply
at 2.
It is true that Rule 12(d) of the Federal Rules of Civil Procedure provides that if, on a Rule
12(b)(6) motion, the defendants present “matters outside the pleadings” and the court proceeds to
consider those matters, the defendants’ “motion must be treated as one for summary judgment
under Rule 56.” Fed. R. Civ. P. 12(d). However, that decision is discretionary. See Mitchell v.

6

Drew, 154 F. App’x 235, 237 (2d Cir. 2005) (summary order) (a district court’s refusal to convert
a motion to dismiss into a motion for summary judgment is “substantially discretionary”); see also
Shafir v. Continuum Health Partners, Inc., 57 F. Supp. 3d 325, 327 (S.D.N.Y. 2014) (citing Sellers
v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988) (“It is left to my discretion whether
or not to consider ‘matters outside the pleadings.’ ”); see also Kouakou v. Fideliscare N.Y., 920 F.
Supp. 2d 391, 396 (S.D.N.Y. 2012) (observing that a district court has “complete discretion” in
determining whether to convert a motion to dismiss into a motion for summary judgment). The
Court declines to do so here.
When a district court decides to convert a motion to dismiss into one for summary
judgment, “[a]ll parties must be given a reasonable opportunity to present all the material that is
pertinent to the motion.” Fed. R. Civ. P. 12(d). “Ordinarily, this means that a district court ‘must
give notice to the parties before converting a motion to dismiss pursuant to Rule 12(b)(6) into one
for summary judgment and considering matters outside the pleading.’ ” Sahu v. Union Carbide
Corp., 548 F.3d 59, 67 (2d Cir. 2008) (quoting Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir.
1999) (emphasis in original). Here, the Court is not satisfied that there was reasonable notice to
Plaintiff and the opportunity to present materials to justify converting this motion to dismiss into
a motion for summary judgment. See Sahu, 548 F.3d at 67–68 (holding that while a defendant’s
submission including facts and evidence outside of the complaint may have given “plaintiffs notice
that the defendants wanted the motion changed . . . plaintiffs could not have known whether the
court would in fact consider them, or would convert the motion into one for summary judgment in
order to do so”); see also Isayeva v. Diamond Braces, No. 22-CV-4575, 2024 WL 1053349, at *12
(S.D.N.Y. Mar. 11, 2024) (denying defendants request to convert their motion to dismiss to one
for summary judgment because “[a]t best, Defendants made passing reference to their desire that

7

the Court consider materials outside the pleadings in ruling on their motion to dismiss, but never
formally expressed their intention to move for summary judgment” and thus proper notice was not
provided to the plaintiffs by the Court).
Therefore, the Court will not consider the factual allegations in Defendants’ declaration, or
the second exhibit submitted by Defendants which was not incorporated by reference or integral
to the First Amended Complaint.2 The Court may consider the letter sent by Defendant MacInnis
to Ms. Lally (first exhibit), because, as Plaintiff conceded, it was incorporated by reference in the
First Amended Complaint.
II.

The First Amended Complaint Fails to Allege Facts to Support
a Claim of Intentional or Negligent Infliction of Emotional Distress
The First Amended Complaint alleges that “despite knowing the nature of Ms. Lally’s

disability and her peculiar sensitivity to extreme stress” Defendants terminated her employment
while she was home on “an approved ‘mental health day’ tending to her disability.” FAC ¶¶ 4,
112. Specifically, Plaintiff alleges that she informed Defendant Leavitt that she would need a few
days off to tend to her disability, which he approved. FAC ¶¶ 49–52. Plaintiff alleges that
subsequent to receiving approval, Defendant Jones placed a meeting on her calendar for one of the
days she was going to be out. FAC ¶ 53. Plaintiff alleges that she emailed Defendant Jones
informing her that she was on out tending to her disability-related illness, but Defendant Jones
allegedly never responded. FAC ¶¶ 53, 113. At that meeting, Defendant Jones terminated Ms.
Lally. FAC ¶ 54. Plaintiff alleges that amounted to extreme and outrageous conduct and that the

The Court notes that considering the initial email, which Plaintiff concedes was incorporated by reference in the
First Amended Complaint, and not considering the response to the email raises questions of completeness. See Fed.
R. Evid. 106 (“[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may
require the introduction at that time of any other part or any other writing or recorded statement which ought in
fairness to be considered contemporaneously with it”). In any event, the Court need not even consider these
documents to resolve the motion.
2

8

conduct continued when Defendant MacInnis sent a letter “intended to bully and intimidate her
into silence” and Defendant Klick shared false information about her termination. FAC ¶¶ 60–61,
115. Plaintiff alleges that Defendants’ conduct caused her severe emotional distress and physical
damages including “several serious episodes of adrenal crisis” requiring medical intervention and
hospitalization. FAC ¶ 118.
A. Plaintiff Fails to Plead Extreme and Outrageous Conduct to
Support a Claim of Intentional Infliction of Emotional Distress
To plead a claim for intentional infliction of emotional distress under New York law, a
plaintiff must allege “(1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard
of a substantial probability of causing, severe emotional distress; (3) a causal connection between
the conduct and the injury; and (4) severe emotional distress.” Conboy v. AT & T Corp., 241 F.3d
242, 258 (2d Cir. 2001) (quoting Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999)); accord
Howell v. N.Y. Post Co., 81 N.Y.2d 115, 122, 612 N.E.2d 699, 702, 596 N.Y.S.2d 350, 354 (1993).
Intentional infliction of emotional distress is a “highly disfavored [tort] under New York
law,” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 158 (2d Cir. 2014), and therefore, the
requirements, especially that of extreme and outrageous conduct, “are rigorous and difficult to
satisfy.” Howell, 612 N.E.2d at 702; see also Rich v. Fox News Network, LLC, 939 F.3d 112, 122
(2d Cir. 2019) (internal quotation omitted) (“the standard of outrageous conduct is strict, rigorous
and difficult to satisfy”). The bar is so high that the “cause of action is almost never successful”
and claims are “routinely dismissed on pre-answer motion.” Guan N. v. NYC Dep’t of Educ., No.
11-CV-4299, 2013 WL 67604, at *25 (S.D.N.Y. Jan. 7, 2013).
“Whether the conduct alleged may reasonably be regarded as so extreme and outrageous
as to permit recovery is a matter for the court to determine in the first instance.” Zanfardino v.
City of New York, 230 F. Supp. 3d 325, 335 (S.D.N.Y. 2017) (quoting Stuto, 164 F.3d at 827).

9

“Liability has been 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 community.” Chanko v. American Broadcasting Cos., 27
N.Y.3d 46, 56, 49 N.E.3d 1171, 1179, 29 N.Y.S.3d 879 (2016) (quoting Howell, 612 N.E.2d at
702); see also Coggins v. County of Nassau, 254 F. Supp. 3d 500, 523 (E.D.N.Y. 2017). However,
“knowledge of a plaintiff’s susceptibility to emotional distress can, under New York law,
transform non-actionable acts into outrageous conduct.” Rich, 939 F.3d at 123.
As an initial matter the Court acknowledges that “New York [c]ourts are reluctant to allow
intentional infliction of emotional distress claims in employment discrimination cases” and “wary
of allowing plaintiffs to recharacterize claims for wrongful or abusive discharge . . . as claims for
intentional infliction of emotional distress.” Stevens v. New York, 691 F. Supp. 2d 392, 399
(S.D.N.Y. 2009) (collecting cases); see also Chidume v. Greenburgh-North Castle Union Free
Sch. Dist., No. 18-cv-01790, 2020 WL 2131771, at *15 (S.D.N.Y. May 4, 2020) (“New York
courts are particularly reluctant to find that such conduct is sufficiently extreme or outrageous”
when intentional infliction of emotion distress claims are based “on discrimination, harassment, or
retaliation in the employment context”). However, New York courts have also held that “[i]n the
course of discharging the employee, [] an employer’s deliberate reprehensible conduct
intentionally or recklessly causing severe emotional distress . . . may support a claim for
intentional infliction of emotional distress.” Howell, 612 N.E.2d at 705. Therefore, the Court will
not summarily dismiss Plaintiff’s intentional infliction of emotional distress claim simply because
it is raised in the employment context.
Nevertheless, Plaintiff’s intentional infliction of emotional distress claim fails because the
First Amended Complaint does not allege facts amounting to extreme and outrageous conduct.

10

Terminating Plaintiff while she was out on a mental health day and subsequently sending her a
post-termination letter may demonstrate a level of “callousness and insensitivity to human foibles,”
Moleon v. Alston, No. 21-CV-1398, 2021 WL 5772439, at *13 (S.D.N.Y. Dec. 3, 2021), but it
does amount to extreme and outrageous conduct to support a claim of intentional infliction of
emotional distress. These allegations do not meet the “rigorous” standard of conduct required for
an intentional infliction of emotional distress claim that goes “beyond all possible bounds of
decency.” Howell, 612 N.E.2d at 702.
Additionally, Plaintiff’s argument that the alleged post-termination slander by Defendants
amounts to extreme and outrageous conduct fails. New York’s courts have routinely “rejected
claims of intentional infliction of emotional distress ‘where the conduct complained of falls well
within the ambit of other traditional tort liability.’ ” Levin v. McPhee, 917 F. Supp. 230, 242
(S.D.N.Y. 1996), aff’d, 119 F.3d 189 (2d Cir. 1997) (quoting Fischer v. Maloney, 43 N.Y.2d 553,
558 402 N.Y.S.2d 991, 993, 373 N.E.2d 1215, 1217 (1978)). To the extent that Plaintiff’s claim
for intentional infliction of emotional distress is based on the allegations that Defendant Klick told
employees that she was on a Performance Improvement Plan when she was terminated that is
duplicative of her defamation claim. New York courts have repeatedly held that allegations like
that are “more properly addressed within the context of a [defamation] suit.” Id.
Finally, Plaintiff attempts to save her intentional infliction of emotional distress claim by
arguing that in light of Defendants’ knowledge of her peculiar susceptibility to stress and the fact
that they decided to fire her when she out on a mental health day could amount to extreme and
outrageous conduct. However, the courts that have found that a defendant’s knowledge of a
plaintiff’s particular susceptibility converts potentially non-actionable conduct into actionable
conduct have done so in the context of much more substantial and egregious conduct than what

11

has been alleged here. See, e.g., Rich, 939 F.3d at 122–24 (finding defendants proceeding with a
six-month long “deliberate and malicious campaign” of “emotional torture” with knowledge of the
plaintiff’s susceptibility to emotional distress could amount to extreme and outrageous conduct);
see also Moraes v. White, 571 F. Supp. 3d 77 (S.D.N.Y. 2021) (defendants’ “multi-pronged
campaign to harass” involving threatening to have her arrested, sending agents to her apartment to
threaten her with deportation, sending baseless cease-and-desist letters threatening to file
complaints against her with the district attorney and the police, and creating evocative posts on
Facebook with the goal of destroying her future job prospects in the community, in combination
with defendants’ knowledge of her “emotionally vulnerable state” could amount to extreme and
outrageous conduct). The facts alleged here are easily distinguishable from those alleged in Rich
and Moraes. There are no allegations here that even come close to a “multi-pronged” or
“deliberate and malicious campaign” done with knowledge of Plaintiff’s particular sensitivities
sufficient to find extreme and outrageous conduct. See McGrath v. White, 82 Misc. 3d 1236(A),
at *14, 208 N.Y.S.3d 805 (N.Y. Sup. Ct. 2023) (“even if it can be said that [defendant] knew
of [plaintiff’s] susceptibility, the actions attributed to him by [defendant] do not state a claim under
this tort” and reasoning that the cases which have employed that rule “have only found defendant’s
conduct to be actionable when it meets a much higher standard” involving facts amounting to a
“deliberate and malicious campaign”).
Accordingly, Plaintiff’s intentional infliction of emotional distress claim must be dismissed
for failure to allege facts constituting extreme and outrageous conduct.
B. Plaintiff Fails to Plead a Claim of Negligent Infliction of
Emotional Distress
“To plead a negligent infliction of emotional distress claim under New York law, a plaintiff
must allege (1) a breach of a duty owed to the plaintiff; (2) emotional harm; (3) a direct causal

12

connection between the breach and the emotional harm; and (4) circumstances providing some
guarantee of genuineness of the harm.” Francis v. Kings Park Manor, Inc., 992 F.3d 67, 81 (2d
Cir. 2021); see also Lea v. McNulty, 227 A.D.3d 971, 973, 212 N.Y.S.3d 152, 156 (2d Dep’t 2024)
(“A cause of action to recover damages for negligent infliction of emotional distress generally
must be premised upon the breach of a duty owed to [the] plaintiff which either unreasonably
endangers the plaintiff’s physical safety, or causes the plaintiff to fear for his or her own safety”)
(internal citations omitted).
The First Amended Complaint falters on the first element. Plaintiff does not allege a duty
owed to her by Defendants or any breach of that duty. See Corley v. Vance, 365 F. Supp. 3d 407,
454 (S.D.N.Y. 2019), aff’d sub nom. Corley v. Wittner, 811 F. App’x 62 (2d Cir. 2020) (plaintiff
failed to “allege any special duty owed to him by any of the defendants, as required under New
York law.”); see also Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996) (“The duty in
such cases must be specific to the plaintiff, and not some amorphous, free-floating duty to
society.”). In an attempt to support the viability of Plaintiff’s negligent infliction of emotional
distress claim, she asserts that Defendants “make no effective argument challenging her claim for
NIED, which does not require extreme and outrageous conduct.” Pl. Opp. at 14. And while
Plaintiff is correct that extreme and outrageous conduct is not an element of a negligent infliction
of emotional distress claim, “any claim sounding in negligence under New York law must be based
in the breach of a legally cognizable duty of care.” Abdulaziz v. McKinsey & Co., Inc., No. 21CV-2921, 2022 WL 2444925, at *2 (2d Cir. July 5, 2022) (summary order) (affirming dismissal
of negligent infliction of emotional distress claim because plaintiff failed to plead a duty owed by
defendant); see Sacino v. Warwick Valley Cent. Sch. Dist., 138 A.D.3d 717, 719, 29 N.Y.S.3d 57,
60 (2d Dep’t 2016) (“A cause of action to recover damages for negligent infliction of emotional

13

distress generally requires a plaintiff to show a breach of a duty owed to him which unreasonably
endangered his physical safety, or caused him to fear for his own safety.”) (citations omitted). The
First Amended Complaint fails to allege that Defendants breached a duty of care that is cognizable
under New York law to support a claim of negligent infliction of emotional distress.
Furthermore, Plaintiff pleads her negligent infliction of emotional distress claim as an
alternative to her intentional infliction of emotional distress claim.

See FAC ¶¶ 114, 116

(“Defendants engaged in extreme and outrageous conduct which intentionally and/or negligently
caused, or disregarded a substantial probability of causing, severe emotional distress to Ms.
Lally.”) (emphasis added).

While Plaintiff is permitted to plead causes of action in the

alternative, see Fed. R. Civ. P. 8(d)(2), “New York Courts have rejected uniformly such attempts
to transmogrify intentional torts into negligence.” Wahlstrom v. Metro-N. Commuter R. Co., 89
F.Supp.2d 506, 532 (S.D.N.Y. 2000) (internal citations and quotations omitted). Here Plaintiff
only alleges intentional conduct and then abruptly includes “or negligently” in an attempt to
transform its intentional tort allegations into negligence. FAC ¶ 118 (“Defendants’ extreme and
outrageous conduct was knowing, malicious, willful, wanton”). As such, Plaintiff’s negligent
infliction of emotional distress claim (Count Six) must be dismissed. See Chai v. New York Univ.,
No. 1:23-CV-09192-MKV, 2024 WL 4042468, at *11–12 (S.D.N.Y. Sept. 4, 2024); see also
Dineen ex rel. Dineen v. Stramka, 228 F.Supp.2d 447, 454 (S.D.N.Y. 2002) (“Since plaintiff’s
claims against defendant are premised on intentional conduct, [the] claim for negligence must be
dismissed.”).

Accordingly, Plaintiff’s claim against Defendants for negligent infliction of

emotional distress is dismissed.

14

III.

The First Amended Complaint Alleges Sufficient
Facts to Support a Claim for Defamation.
Defamation is the “making of a false statement which tends to expose the plaintiff to public

contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of rightthinking persons, and to deprive him of their friendly intercourse in society.” Foster v. Churchill,
87 N.Y.2d 744, 751, 665 N.E.2d 153, 157, 642 N.Y.S.2d 583, 587 (1996) (citations and quotations
omitted). Under New York law, to state a claim for defamation, a plaintiff must allege (1) a written
or spoken defamatory statement of and concerning the plaintiff, (2) publication to a third party, (3)
fault, (4) falsity of the defamatory statement, and (5) special damages or per se actionability. See
Davis v. Boeheim, 24 N.Y.3d 262, 268–69, 22 N.E.3d 999, 1003–04, 998 N.Y.S.2d 131, 135–36
(2014); see also Palin v. N. Y. Times Co., 940 F.3d 804, 809 (2d Cir. 2019).
The First Amended Complaint alleges that Mr. Hastings, a Klick Vice President, told Mr.
Won, another Klick employee, that Plaintiff was on a Performance Improvement Plan at the time
she was terminated and she had not improved. FAC ¶ 61. Plaintiff also alleges that the statement
that she was on a Performance Improvement Plan at the time of her termination and she did not
improve was false.3 FAC ¶ 61. These facts sufficiently allege a false statement of fact published
to a third party that was about Plaintiff. Finally, because the false statement alleged plausibly
tends to injure Plaintiff’s profession or professional reputation it is considered defamation per se
and she need not allege special damages. See Liberman v. Gelstein, 80 N.Y.2d 429, 435, 605
N.E.2d 344, 344, 590 N.Y.S.2d 857, 860 (1992) (explaining one of the categories of slander per
se is a statement “that tend[s] to injure another in his or her trade, business or profession”); see

Defendants concede in their memorandum of law that Plaintiff was not on a Performance Improvement Plan when
she was terminated. See Defs. Mem. at 7.
3

15

also Biro v. Conde Nast, 883 F. Supp. 2d 441, 456 (S.D.N.Y. 2012) (citation omitted) (statements
that “tend[] to injure another in his or her trade, business or profession [are] defamatory per se”);
Defendants argue that Plaintiff’s defamation claim is defective and must be dismissed
because it relies on conclusory statements and does not identify the alleged speaker of the
statements. Defs. Mem. at 6–8. Plaintiff argues that the First Amended Complaint satisfies the
pleading requirements since it identifies “the speaker, recipient and time of the statement.” Pl.
Opp. at 16.
In federal court, a plaintiff asserting a defamation claim “must ‘identify (1) the allegedly
defamatory statements; (2) the person who made the statements; (3) the time when the statements
were made; and (4) the third parties to whom the statements were published.’ ” Nouinou v. Smith,
No. 20-CV-8682, 2021 WL 4340952, at *5 (S.D.N.Y. Sept. 22, 2021) (New York’s higher
pleading standards are procedural rules and thus “do not apply to federal courts sitting in diversity”
and instead federal courts “apply the pleading standards set forth in Rule 8.”). Here, the First
Amended Complaint alleges facts identifying the particular words complained of (that Ms. Lally
was on a Performance Improvement Plan at the time of her termination and did not improve), the
person who made the statements (Mr. Hastings), the approximate time they were made (a few days
after Plaintiff was terminated on a Zoom meeting), and the third party to whom the statements
were published (Mr. Won). FAC ¶ 61. These facts are sufficient for Plaintiff’s defamation claim
to survive a motion to dismiss. See Ghost in the Mach. Inc. v. Planned Parenthood Fed’n of
America, Inc., No. 22-CV-9270, 2025 WL 252913, at *10 (S.D.N.Y. Jan. 21, 2025) (allegations
that “identify to whom, when, and where” the allegedly false statement was “made are specific
enough to survive a motion to dismiss”).

16

The Court acknowledges that there are also more conclusory and non-specific allegations
in the First Amended Complaint claiming that Defendant Klick and Defendants Jane/John Doe
No. 1–2, broadcasted defamatory statements to former colleagues, FAC ¶¶ 61, 120–125, which
alone would be insufficient to support a defamation claim. See Rodgers-King v. Candy Digital
Inc., No. 23-CV-2591, 2024 WL 382092, at *7 (S.D.N.Y. Feb. 1, 2024) (dismissing defamation
claim because complaint failed to allege who at the defendant company “made the alleged
statements”); Neal v. Asta Funding, Inc., No. 13-CV-2176, 2014 WL 3887760, at *3 (S.D.N.Y.
June 17, 2014) (“plaintiff’s failure to identify the anonymous employee or agent of ASTA
responsible for making the statement is fatal to his claim”). However, the additional facts
discussed above, including that Mr. Hastings shared this allegedly false statement with Mr. Won
on a Zoom meeting a few days after Plaintiff’s termination, are “specific enough to afford [the]
defendant sufficient notice of the communications complained of to enable [it] to defend
[itself].” Biro, 883 F. Supp. 2d at 456 (cleaned up).
Defendants next argue that even if Plaintiff’s defamation claim is plead with sufficient
particularly, it must nonetheless be dismissed because statements made between Mr. Hastings and
Mr. Won are protected by a qualified privilege. Defs. Mem. at 7. Plaintiff argues that there is
nothing on the face of the First Amended Complaint suggesting the basis for the qualified privilege
and therefore qualified privilege is an inappropriate basis for dismissal at this stage. Pl. Opp. at 18.
Defendants are correct that New York law grants a qualified “common interest” privilege
to “defamatory communications made by one person to another upon a subject in which both have
an interest.” Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 146 (2d Cir. 2001). However, the Second
Circuit has cautioned district courts against the use of a qualified privilege in deciding a motion to
dismiss, and therefore the Court declines to do so here. See Conti v. Doe, No. 17-CV-9268, 2019

17

WL 952281, at *9 (S.D.N.Y. Feb. 27, 2019) (“the Second Circuit has cautioned district courts
against dismissing defamation claims based on the common interest privilege when deciding a
Rule 12(b)(6) motion, holding that a privilege is better considered on a motion for summary
judgement.”) (citing Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 410–11 (2d Cir. 2000)); see
also Unlimited Cellular, Inc. v. Red Points Sols. SL, 677 F. Supp. 3d 186, 198–99 (S.D.N.Y. 2023)
(declining to dismiss based on a qualified privilege at the motion to dismiss stage “[b]ecause the
Second Circuit Court of Appeals cautions against the use of a qualified privilege in deciding a
motion to dismiss, and New York courts are split”). Therefore, the qualified privilege defense
raised by Defendants in their opposition does not, at this stage, warrant dismissal of Plaintiff’s
defamation claim.
IV.

Leave to Amend
Under Federal Rule of Civil Procedure 15, “[t]he court should freely give leave [to amend]

when justice so requires.” Fed. R. Civ. P. 15(a)(2). “When a motion to dismiss is granted, the
usual practice is to grant leave to amend the complaint.” Hayden v. County of Nassau, 180 F.3d
42, 53 (2d Cir. 1999) (citing Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990)). However,
here, Plaintiff was on notice of the potential deficiencies in her First Amended Complaint by way
of Defendants’ pre-motion letter, [ECF No. 27], the Court provided Plaintiff with an opportunity
to amend the First Amended Complaint to address those potential deficiencies, [ECF No. 30], and
Plaintiff waived the opportunity to amend [ECF No. 31], and therefore the Court finds that
leave to amend here would be futile. Chunn v. Amtrak, 916 F.3d 204, 208 (2d Cir. 2019)
(citing Tocker v. Philip Morris Cos., Inc., 470 F.3d 481, 491 (2d Cir. 2006)).

18

CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss is GRANTED with respect to
Plaintiff’s intentional and negligent infliction of emotional distress claims (Count Six) and
DENIED with respect to Plaintiff’s defamation claim (Count Seven). Plaintiff’s claims for
intentional and negligent infliction of emotional distress (Count Six) are dismissed with prejudice.
The Clerk of Court is respectfully requested to terminate the motion pending at docket entry 33.
SO ORDERED.
_________________________________
MARY KAY VYSKOCIL
United States District Judge

Date: March 11, 2025
New York, NY

19