Thompson v. Yohalem et al, No. 1:2010cv06647 - Document 48 (S.D.N.Y. 2012)
Court Description: 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)
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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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