Kupersmith v Winged Foot Golf Club, Inc.

[*1] Kupersmith v Winged Foot Golf Club, Inc. 2005 NY Slip Op 51760(U) [9 Misc 3d 1123(A)] Decided on September 27, 2005 Supreme Court, Westchester County Rudolph, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 27, 2005
Supreme Court, Westchester County

Corey A. Kupersmith, Plaintiff,

against

Winged Foot Golf Club, Inc., RICHARD T. CLIGGOT, JAMES W. FITZGERALD, JAMES D. GRAHAM, CLARKE B.R. HOOD, DAVID MARCATO, PATRICK McDONALD,JOHN P. O'HARA, W. DOYLE QUEALLY, FRANCIS X. QUEALLY, JR., and JACQUES WULLSCHLEGER, Defendants.



20312/04



Richard B. Herman, L.L.C.

Attorney for Plaintiff

300 Park Avenue, Suite 1700

New York, New York 10022

Debevoise & Plimpton LLP

Attorneys for Defendants

919 Third Avenue

New York, New York 10022

Kenneth W. Rudolph, J.

Upon the foregoing papers, it is ORDERED that this motion by defendants, Winged Foot Golf Club, Inc., ("Winged Foot"/"the club") Richard T. Cliggot, ("Cliggot") James W. Fitzgerald, ("Fitzgerald") James D. Graham, ("Graham") Clarke B.R. Hood, ("Hood"), David Marcato, ("Marcato") Patrick McDonald ("McDonald"), John P. O'Hara, ("O'Hara"), W. Doyle Queally ("Queally"), Francis X. Queally, Jr. ("Queally, Jr.") and Jacques Wullschleger ("Wullschleger"), for an order, pursuant to CPLR 3211(a) 1. and 7. dismissing plaintiff's complaint with prejudice in its entirety, is decided as follows.

PLAINTIFF'S COMPLAINT

Plaintiff brings this action against Winged Foot and the individual defendants seeking money damages, alleging essentially that defendants formed a cabal to humiliate plaintiff for plaintiff's having failed to secure valuable business benefits for some of the defendants. Plaintiff asserts his application for admission to Winged Foot was used in the course of a lengthy application process as leverage for business goals of the individual defendants, who thereafter collectively prevailed upon the chairman of the admission's committee, inter alia, by a barrage of scurrilous letters accusing plaintiff of misconduct, to scuttle plaintiff's admission application.

Plaintiff's complaint alleges separate causes of action against the defendants for Breach of Contract and The Implied Covenant of Good Faith and Fair Dealing; Fraud; Tortious Interference with Contractual Relations; Intentional and Negligent Infliction of Emotional Distress; and Defamation.

Plaintiff urges that accepting the factual allegations of his complaint as true, defendants' instant dismissal motion must be denied, or in the alternative plaintiff be should granted a stay of any final adjudication pending discovery, including responses to plaintiff's requests for discovery and inspection and noticed depositions of defendants.

By way of introductory allegations common to all causes of action, plaintiff's complaint alleges the following: that Winged Foot lobbied plaintiff to confer business opportunities upon certain of its members by making plaintiff a special house member in [*2]1998; that plaintiff arranged introductions and business opportunities for Winged Foot members in exchange for their aid in plaintiff's becoming a regular member of Winged Foot; that the individual defendants herein, as agents of Winged Foot, solicited plaintiff's formal admissions application; that in April 2003, Winged Foot member, Arthur Thomas Plant ("Plant") sponsored plaintiff for regular membership in Winged Foot; that in March, 2004 plaintiff's name was placed on a public final application list; that when plaintiff was unable to deliver a business advantage to one of the defendants, all of the individual defendants embarked upon a campaign of defamation and humiliation against the plaintiff, inter alia, by circulating a series of defamatory letters to the membership committee in opposition to plaintiff's application for regular membership; that the individual defendants persuaded the chairman of Winged Foot's admission committee to pressure Plant to withdraw his nomination of plaintiff; that Plant acquiesced and requested that the chairman withdraw Plant's sponsorship of plaintiff's application, which the chairman did; that the foregoing was concealed from plaintiff with the intention of humiliating plaintiff; that the ripple effect of defendants' slanders began to chill plaintiff's business opportunities and social life, minimally costing plaintiff an opportunity to make $1,000,000. on a deal plaintiff planned with a non-party Winged Foot member, as well as plaintiff's being shunned by other Winged Foot members.

FIRST CAUSE OF ACTION AGAINST WINGED FOOT

As a first cause of action, plaintiff alleges that defendant, Winged Foot's by-laws, applicable to plaintiff as a special house member, include as a benefit to plaintiff complete confidentiality and strict confidence of deliberations on membership applications. Winged Foot breached its by-laws and its contractual obligation to plaintiff by disclosing the defamatory letters composed by the individual defendants and submitted against plaintiff to the admissions committee, thereby causing plaintiff humiliation, loss of social intercourse with Winged Foot members and discouraging business associates from cooperating with plaintiff in joint business ventures.

SECOND CAUSE OF ACTION AGAINST WINGED FOOT

Plaintiff's second cause of action alleges defendant, Winged Foot breached its implied covenant of good faith and fair dealing, inter alia, by misusing the admissions process to entice plaintiff to give business opportunities to Winged Foot members and punishing plaintiff for not delivering such business opportunities; orchestrating the false letter campaign against plaintiff and publishing defamatory slurs against plaintiff's character and business ethics to Winged Foot's members including plaintiff's business associates; in the midst of the foregoing encouraging plaintiff to continue his admission process; allowing the club admissions chairman to pressure plaintiff's sponsor to [*3]withdraw his sponsorship and failing to investigate the false allegations contained in co-defendants' defamatory letters.

THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS

The third cause of action alleges the fraud of all defendants. Initially, the individual defendants, on behalf of Winged Foot advised plaintiff in March, 2004 that his application was in good standing, knowing such advisement was false. Too, in the course of a single day the club's admissions chairman called plaintiff to congratulate him and later called plaintiff to advise him to withdraw his application, as plaintiff was not likely to gain admission to the club. The foregoing evinces a conspiracy to

derail plaintiff's application and humiliate him by misrepresenting the status of plaintiff's application and was relied upon by plaintiff, who would not have continued to participate in the admission process had he known the truth. Upon information and belief, plaintiff alleges the defendants habitually mislead applicants, affecting the country club community at large causing plaintiff humiliation and alienation of social intercourse with Winged Foot members and discouraging business associates from cooperating with plaintiff in joint business ventures.

FOURTH CAUSE OF ACTION AGAINST ALL DEFENDANTS

The fourth cause of action alleges that all defendants have tortiously interfered with plaintiff's contractual relation with Winged Foot: plaintiff's contractual rights as a longstanding special house member and a prospective contractual relationship with Winged Foot as a regular member, as well as plaintiff's prospective contractual relationship with club member, Robert C. Bantle ("Bantle") and investors Bantle represented. In particular, defendants orchestrated a secret campaign of defamatory letter-writing, prevailed upon the admissions chairman to pressure plaintiff's sponsor to withdraw his support for plaintiff and deceived plaintiff into believing that his application was proceeding fairly. Winged Foot's members allowed the individual defendants to corrupt the admissions process failing to exercise any critical judgment with respect to defendants' obviously contrived letters, disclosing the negative letter campaign to the club's general members, failing to enforce the club's by-laws by preventing the individual defendants from disseminating defamatory scuttlebutt about plaintiff and pressing plaintiff's sponsor, Plant, to request withdrawal of plaintiff's application.

The foregoing conduct damaged plaintiff's personal and business reputation. In particular, Bantle has stated his principals can no longer pursue business with plaintiff. [*4]Too, such conduct was habitual by defendants, affecting the entire country club community at large.

FIFTH CAUSE OF ACTION AGAINST ALL DEFENDANTS

The fifth cause of action, intentional infliction of emotional distress alleges that the conduct of the individual defendants and the tacit approval of the club did and was intended to cause plaintiff devastating emotional distress and stress related physical symptoms as punishment for plaintiff's failure to provide

the individual defendants with business opportunities. Defendants habitually engaged in covert character assassination affecting the entire country club community at large, undermining decent and tolerable standards of commerce.

SIXTH CAUSE OF ACTION AGAINST ALL DEFENDANTS

The sixth cause of action, negligent infliction of emotional distress, alleges that all defendants recklessly disregarded the probability that their behavior would cause plaintiff devastating emotional distress; that defendants habitually engaged in such behavior to the detriment of the country club community at large; that as a result plaintiff suffered extraordinary emotional distress accompanied by physical symptoms diagnosed as stress-related.

SEVENTH CAUSE OF ACTION AGAINST WINGED FOOT

The seventh cause of action against defendant, Winged Foot, alleges the individual defendants were acting under the control of and as agents of Winged Foot in their negative letter campaign and the squelching of plaintiff's application by the admissions chairman. The individual defendants and the admissions chairman were acting under the control of Winged Foot and within the scope of their authority; that Winged Foot is liable under the doctrine of respondeat superior for all the acts of the aforesaid defendants.

EIGHTH CAUSE OF ACTION AGAINST ALL DEFENDANTS

The eighth cause of action alleges all defendants' defamation of plaintiff; defendants' false letter campaign was published to the club's general members. In particular, plaintiff cites defendant, Cliggot's June 24, 2003 letter declaring plaintiff's "disregard for business ethics" and stating that plaintiff has "no integrity". Several other [*5]letters falsely attack plaintiff's character and conduct on the golf course, impugning plaintiff's

character as well as his golf etiquette. Defendant, Fitzgerald's letter avers plaintiff's supposed "disrespect" and "disregard" falsely impugning plaintiff's reputation; the same being true of letters by individual defendants, Graham, Hood and Queally, Jr. Defendants published these statement maliciously to each other, the club management and general members unrelated to any legitimate function of the admission process and vitiating any qualified privilege defendants may claim.

CIVIL CONSPIRACY

Finally, the complaint makes general allegations of civil conspiracy, not pleaded as a separate and distinct cause of action. Essentially, plaintiff alleges that Winged Foot's management conspired with each of the individual defendants and with its admission committee chairman to debase and humiliate plaintiff;

to violate and breach Winged Foot's contractual obligations to plaintiff; to breach Winged Foot's implied obligation of good faith and fair dealing with plaintiff; to defraud plaintiff; to cause plaintiff to suffer the emotional distress and related physical symptoms described in the complaint; to interfere with plaintiff's contractual relations with Winged Foot and with plaintiff's prospective business relations with Bantle and his investors; and to defame plaintiff to the general members of Winged Foot causing plaintiff emotional distress and attendant physical symptoms, for which plaintiff seeks compensatory and punitive damages.

CPLR 3211

On a motion to dismiss pursuant to CPLR 3211, a court must accept as true the facts as alleged within the four corners of the complaint and accord the plaintiff the benefit of every possible favorable inference to determine whether the allegations fit within any cognizable legal theory, Morone v. Morone, 50 NY2d 481, 484; Rovello v. Orofino Realty Co., 40 NY2d 633, 634. "However, bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on such a motion"

see, Palazzolo v. Herrick, 298 AD2d 372. "Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see, e.g., Heaney v. Purdy, 29 NY2d 157. In assessing a motion under CPLR 3211 (a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint Rovello v. Orofino Realty Co., supra, at 635 and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one Guggenheimer v. [*6]Ginzburg, 43 NY2d 268, 275; Rovello v. Orofino Realty Co., supra at 636". (see, Leon v. Martinez, 84 NY2d 83, 87, 88)

BREACH OF CONTRACT AND IMPLIED COVENANT

OF GOOD FAITH AND FAIR DEALING

In determining the motion before the Court, it is important at the outset to review all documentary evidence presented by the parties.

In particular, the By-Laws, Rules and Regulations and Procedure on Admissions, as hereinafter set forth are relevant to the issues presented; Article I Section 1.1 The Club is a corporation organized under the laws of the State of New York with the name "Winged Foot Golf Club, Inc."Article IIISection 3.1 The Club shall be managed by a Board of Governors ("the "Board"), consisting of fifteen Members of the Club.....Section 3.2(a) Without limiting its general powers, the Board shall have authority: (a) To elect Members of the Club as specified in Article VI hereof, subject to such terms and conditions not inconsistent with these By-Laws, as it may from time to time adopt......

Article V Section 5.2 ..... The Admissions Committee shall investigate the desirability and fitness of every candidate for membership or privileges and report to the Board its findings, with its approval or disapproval of each such candidate. .....

Article VI [*7]

Section 6.1, provides in part, The Club shall have two classifications of membership... Regular Members and Regular Senior Members...

Section 6.2, provides in part, If the Board so determines, Club privileges may be granted to individuals... Persons to whom the privileges of the Club are so granted shall not in any respect be deemed Members and, accordingly, shall have no vote or right of participation in the control or management of the Club.

Section 6.3, provides in part, All proceedings of the Admissions Committee and the Board relating to invitations to membership or privileges shall be completely confidential, all communications to such Committee or the Board in relation to such matters shall be held in strictest confidence. .....

Upon the foregoing documentary evidence, the Court finds that plaintiff, Corey A. Kupersmith ("Kupersmith") is not now nor has he ever been a member of Winged Foot Country Club, Inc. Privileges of the club granted to Kupersmith does not create membership status (Article VI §6.2 supra). There exists, therefore, no contractual relationship between Kupersmith and Winged Foot as may exist between the club and its members. Further, there is no predicate contract giving rise to a breach of an implied covenant of good faith and fair dealing see, American-European Art Associates, Inc. V. Trend Galleries, Inc., 227 AD2d 170, 171. Plaintiff's first cause of action and second cause of action against Winged Foot be and the same are hereby dismissed as a matter of law.

FRAUD

The elements of a fraud claim are a material misrepresentation of fact made with knowledge of its falsity with intent to deceive justifiably relied upon by plaintiff and damages, which shall be pleaded in detail. CPLR 3016(b). Plaintiff's allegations are not specific as to which defendants made what particular statements which were actually misrepresentations upon which plaintiff relied justifiably. Further, plaintiff has not specified actual pecuniary loss, i.e. out of pocket loss, and consequential damages (prospective loss of future profits of joint ventures with non-party club member, Bantle, are not compensable as a matter of law). see, Barrett v. Huff, 6 AD3 1164, 1167; Delcor Laboratories, Inc. v. Cosmair,Inc., 169 AD2d 639, 640. [*8]

"Damages are to be calculated to compensate plaintiffs for what they lost because of the fraud, not to compensate them for what they might have gained..... Under the out-of-pocket rule, there can be no recovery of profits which would have been realized in the absence of fraud....." see, Lama Holding Co. v. Smith Barney, Inc., 88 NY2d 413, 421.

Plaintiff's third cause of action is dismissed.

TORTIOUS INTERFERENCE WITH CONTRACTUAL

RELATIONS AND PROSPECTIVE ADVANTAGE

The elements of the tort of interference with contractual relations are the existence of a valid contract, defendants' knowledge of that contract, defendants' intentional procuring of the breach, actual breach of the contract and damages. See, Lama Holding Co. v. Smith Barney, Inc., 88 NY2d 413, 424. The Court has found that no contractual relationship exists between Kupersmith and Winged Foot, supra, a necessary predicate to the tort of interference with contractual relations. Assuming arguendo that this cause of action is based upon Kupersmith's relations with Bantle, the Court finds on the evidence presented no contractual relationship, the necessary predicate, existed between Kupersmith and Bantle. Within the same cause of action, however, the Court gleans allegations of the tort of interference with prospective advantage by the individual defendants with respect to plaintiff's prospective contractual relationship with the club and with its member, non-party Bantle. The elements of the tort of interference with prospective advantage are (1) defendants

knew of a proposed contract between plaintiff and another,

(2) defendants acted intentionally to interfere with plaintiff's prospective contractual relation, and but for defendants' inter-ference a contract would have been entered into and (3) defendants' conduct involved wrongful means, significantly higher culpable conduct than necessary for interference with existing contracts, damaging plaintiff. See, NBT Bancorp, Inc. v. Fleet/Norstar Finance Group, 87 NY2d 614; Guard-Life Corp. v.

S. Parker Hardware Manufacturing Corp., 50 NY2d 183. Upon consideration of the evidentiary submissions before it, the Court finds that none of the elements of the tort of interference with prospective advantage have been established.

Plaintiff's fourth cause of action is dismissed.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The elements of the tort of intentional infliction of emotional distress are: [*9]extreme and outrageous conduct: intent to cause or disregard of a substantial probability of causing severe emotional distress; a causal connection between the conduct and injury; and severe emotional distress. See, Howell v. New York Post Co., Inc., 81 NY2d 115. Defendants' conduct must be extreme and outrageous, measured by the bounds of decency tolerated by a civilized society. Intent exists where defendants' purpose is to cause emotional distress and the injury to plaintiff must be severe. Friehofer v. Hearst Corporation, 65 NY2d 135. Such extreme and outrageous conduct must be clearly alleged in order for the complaint to survive a motion to dismiss. See, Dillon v. City of New York, 261 AD2d 34, 41. Upon consideration of the evidentiary submission before it, the Court finds that the actions of the defendants as alleged in the complaint do not constitute "extreme and outrageous conduct", a necessary predicate to sustain an action for intentional infliction of emotional distress.

Plaintiff's fifth cause of action is dismissed.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

A cause of action for negligent infliction of emotional distress, which no longer requires physical injury as a necessary element, generally must be premised upon a breach of duty owed to plaintiff which either unreasonably endangers the plaintiff's

physical safety or causes the plaintiff to fear for his or her own safety. See, E.B. v. Liberation Publications, Inc., 7AD 3d 566.

Additionally, such a cause of action must be supported by allegations of conduct by defendants "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." Murphy v. American Home Products Corporation., 58 NY2d 293, 303. Plaintiff's pleading has failed to recite a duty owed by defendants to plaintiff which was breached endangering or causing plaintiff to fear for his safety, as well as failing to clearly allege outrageous conduct by defendants. Dillon, supra.

Plaintiff's sixth cause of action is dismissed.

DEFAMATION

This is a cause of action to recover damages for libel. A written statement is defamatory if it tends to expose a person to public hatred, contempt or aversion, as to induce an evil or unsavory opinion of the plaintiff in the minds of a substantial number of the community. See, Golub v. Enquirer/Star Group, Inc., 89 NY2d 1074, 1076. [*10]

Plaintiff's eighth cause of action against all defendants cites defendants' false letter campaign striking at plaintiff's reputation. The subject letters have been annexed as exhibits to defendants' opposition herein but not annexed to the complaint as an exhibit, and are pleaded in haec verba only in the following quoted paragraphs of the complaint: ..."127. For example, Cliggot's June 24 , 2003 letter falsely attacks each of Kupersmith's essential human and business characteristics, declaring Kupersmith's "disregard for business ethics," stating that he has "no integrity." "128. Several of the defendants' written communications falsely attack Kupersmith's character and conduct on the golf course, principally written by individual defendants who had never been on the course with Kupersmith and whose purpose was to falsely impugn Kupersmith's character as well as his golf etiquette." "129. Fitzgerald's letter attacking Kupersmith's supposed "disrespect" and "disregard" were intended falsely to impugn Kupersmith's reputability, and were written by a person who could not have had the slightest opportunity to observe Kupersmith's golf game, far less his overall character. The same is true of Graham's undated March 2004 letter and Hood's March 29, 2004 letter. Queally, Jr. submitted a letter referring to Kupersmith's behavior and conduct while playing golf, despite the fact that Queally, Jr. and Kupersmith had never played golf together."...

A review of the subject letters of the individual defendants for putative- actionable language reveals the following:

Cliggot's letter is dated June 24, 2003 and opposes plaintiff's membership in the club averring that plaintiff's

character, business ethics and integrity do not measure up to the standards of Winged Foot. Assuming arguendo, that Cliggot's remarks about plaintiff's business ethics and integrity, prima facie, impugn plaintiff in his trade or business, the remarks are not actionable as barred by the one year statute of limitations for libel or slander CPLR 215. [*11]Cliggot's letter was published April 24, 2003; plaintiff commenced this action on December 24, 2004.

The remaining nine letters sent to the Admissions Committee in March, 2004, aver in pertinent part as follows:

Fitzgerald writes that plaintiff has a reputation being ill mannered, self-centered, overbearing and obnoxious, little

regard for the rules of golf....., and not in the category of a gentleman of honor, integrity and good character.

Marcato writes that plaintiff's rude and overbearing behavior at Jupiter Hills Golf Club in Florida.... the behavior of Mr. Kupersmith is totally inconsistent with that of a Winged Foot member.

Wullschleger writes that plaintiff's aggressive and self-centered behavior does not qualify him for membership in Winged Foot.

Graham's letter recites plaintiff's brash behavior, total lack of respect for rules of golf, self absorption, lack of respect for others, no qualities of integrity, character and respect for the game of golf.

Queally's letter describes plaintiff as abrasive and self-serving bordering on boorish, selfish, and lacking social grace, concluding that admitting plaintiff to the club would do a disservice to the membership.

McDonald writes that his significant personal experiences with plaintiff were all bad and revealed plaintiff's divisive attitude, condescending tone, and arrogant, often pompous attitude; plaintiff's membership in the club would be a disservice.

Queally, Jr. writes that plaintiff has blatant disregard for the etiquette of the game and of his playing companions describing plaintiff as the single rudest person he ever played golf with, noting plaintiff's enormous pre-occupation with his business success and the arrogant, boorish, self absorbed behavior he continuously displays.

Hood writes about plaintiff's arrogance when talking to the staff at Fishers Island on a day they played golf, describing plaintiff as a poor candidate for membership at Winged Foot.

O'Hara writes that he knows plaintiff for seven years and has played golf [*12]with him several times. O'Hara characterizes plaintiff's behavior and utter disrespect for others on the golf course as out of control; plaintiff is outright obnoxious and the only people who will play with him on a regular basis are people he has brought or got business from. Plaintiff is selfish and consumed with the amount of money he has.

"Whether particular words are defamatory presents a legal question to be resolved by the Court in the first instance (citations omitted) see Aronson v. Wiersma, 65 NY2d 592, 593." In this case, however, the Court must first consider the issue of "qualified privilege". The letter writers, supra, are members of Winged Foot, and each of their communications were directed to the Admissions Committee in response to the posting of Kupersmith's name for membership. A common interest, therefore, existed between the individual defendants and the Admissions Committee.

"A communication made by one person to another upon a subject in which both have an interest is protected by a qualified privilege (citations omitted).... Whether or not, in the final analysis the accusations were true or false is hardly relevant .... In the final analysis, ... as long as the statements were motivated... by desire to protect the institution, they are not actionable" see Stillman v. Ford, 22 NY2d 48, 53.

The essence of each and every letter to the Admissions Committee is that Kupersmith's membership would be detrimental to Winged Foot. The Court finds that the communications of the remaining individual defendants are non-actionable privileged opinions of members of a private club as to why a proposed member should not be admitted to the club protected by a "qualified privilege".

Further, plaintiff's conclusory and conjectural allegations are lacking evidentiary facts of malice of any type or that defendants' sole purpose in writing the letters was to inflict harm on plaintiff or that the letters exposed plaintiff to hatred, contempt, or aversion... in the minds of a substantial number of the community, Golub, infra.

Plaintiff's eighth cause of action is dismissed.

RESPONDEAT SUPERIOR/CIVIL CONSPIRACY

Plaintiff's seventh cause of action[FN1] against Winged Foot alleges that Winged Foot is liable under the doctrine of respondeat superior for all separate causes of action pleaded against the individual defendants. Generally, the doctrine of respondeat superior arises in an employer-employee situation. The employer's liability rests under the doctrine of respondeat superior, Irwin v. Klein, 271 NY 477; the employer, is not liable if the employee is not liable, Pangburn v. Buick Motor Co., 211 NY 228. However, liability "is not dependent upon the strict relationship of master and servant, but upon relationship of similar nature, where one acts for another, at his request, express or implied, for his benefit, and under his direction Nalli v. Peters, 241 NY 177. The individual defendants are not employees of Winged Foot. Further, the Court having previously dismissed all causes of action pleaded against the individual defendants need not consider the issue of agency.

With the underpinnings of the substantive alleged tortious conduct herein having been dismissed, the unpleaded charge of civil conspiracy to effectuate said torts adds nothing and must also fall. See, Black v. Chassin, 36 AD2d 703.

Submit judgment on notice.

The foregoing constitutes the Decision and Order of this Court.

Dated: September 27, 2005

White Plains, New York

HON. KENNETH W. RUDOLPH

Justice of the Supreme Court Footnotes

Footnote 1:The Court considered the seventh cause of action to include the eighth cause of action (defamation). Therefore this determination follows the Court's decision on the eighth cause of action, supra.