DiCosomo v Getzoff

[*1] DiCosomo v Getzoff 2005 NY Slip Op 52279(U) Decided on September 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2005
Supreme Court, Westchester County

Michael DiCosomo, Plaintiff,

against

Roger Getzoff, Defendant.



13219/03



Spellman Rice Schure

Gibbons Mcdonough & Polizzi, LLP

Attorneys for Defendant

229 Seventh Street, Suite 100

Post Office Box 7775

Garden City, NY 11530-7775

Kraus & Zuchlewski LLP

Attorneys for Plaintiff

500 Fifth Avenue

Suite 5100

New York, NY 10110

Law Offices of Nicholas P. Barone

Co-Counsel for Plaintiff

44 Church Street

White Plains, NY 10601

Kenneth W. Rudolph, J.

Upon the foregoing papers, it is ORDERED that this motion is granted and this cross-motion is granted.

Plaintiff commenced this action alleging that defendant's wrongful conduct in providing certain documents and letters to plaintiff's employer, Dolby Laboratories, Inc. ("Dolby"), resulted in the termination of plaintiff's employment. Plaintiff's complaint asserted six causes of action: tortious interference with contract; interference with prospective contractual relations; tortious interference with employment; prima facie tort; intentional infliction of emotional distress; and injurious falsehood. In a pre-answer motion, defendant moved to dismiss the complaint pursuant to CPLR 2311(a)(2) and (7). By decision and order dated March 24, 2004, this Court granted that motion as to the first and fifth causes of action for tortious interference with contract and intentional infliction of emotional distress, respectively, and those two claims were dismissed. Defendant now moves for summary judgment dismissing the remaining four causes of action. Plaintiff cross-moves for summary judgment dismissing defendant's counterclaims.

Plaintiff and defendant were each 50% shareholders of RMS Service and Electronics, Inc. ("RMS") from July 1980 until RMS was judicially dissolved on March 25, 2002. RMS was in the business of renting, installing and servicing video and audio equipment for theaters, movie production and distribution companies. From 1984 through Spring 2001, plaintiff was responsible for managing RMS, while defendant primarily performed the engineering and other field services. Throughout this time, plaintiff was employed by Dolby as manager of its New York office and, commencing in 1992 or 1993, as Vice President in charge of Dolby's East Coast Division. According to plaintiff, defendant began to express dissatisfaction with the division of labor and profits at RMS, and, beginning in the late 1990s, certain RMS employees and clients told plaintiff that defendant was making disparaging and misleading statements about him. In March 2001, when a sale could not be worked out, plaintiff filed an action seeking the judicial dissolution of RMS.

In May 2001, certain legal documents from the RMS dissolution proceeding were delivered anonymously to Dolby ("Dissolution Documents"). At a meeting in Seattle in June 2001, the CEO of Dolby approached plaintiff with an anonymous letter ("Seattle Letter") which stated that plaintiff intimidates everyone, including with a handgun, and that plaintiff was using his position with Dolby to further his own interests. Also in June 2001, Dolby received additional anonymous communications ("June 2001 Communications") which accused plaintiff of misappropriating Dolby equipment and using it wrongfully. At plaintiff's suggestion, defendant sent Dolby a letter rejecting the substance of the allegations, but later claimed that he signed the letter under duress from plaintiff. Two anonymous e-mails were sent to Dolby in January 2002. One alleged that plaintiff was in the Mafia, and the other again alleged that the New York office was being used wrongfully. In May 2002, Dolby received an anonymous letter ("May 2002 Letter") stating that plaintiff was misusing his Dolby position and office by diverting Dolby business and by discrediting companies and individuals deemed to be in the way. After the May 2002 Letter, Mr. Jasper, President of Dolby, informed plaintiff that Dolby was going to conduct its own investigation, which included interviewing defendant and the five people named [*2]in the letter. During the investigation, defendant supplied some RMS invoices to Dolby and told Dolby that RMS used Dolby equipment and employees for RMS work. Dolby terminated plaintiff's employment on August 23, 2002.

In the complaint, plaintiff alleges that defendant interfered with his prospective contractual relations and with his employment without justification and by wrongful means, including the making of false and misleading statements and by conducting an anonymous and malicious smear campaign solely out of spite and ill-will. Plaintiff also alleges that without defendant's wrongful actions, there would not have been a loss of plaintiff's continued employment and the resulting repurchase and cancellation of his stock options.

Plaintiff's second cause of action alleges tortious interference with prospective contractual relations or with prospective economic advantage. To establish such a claim, a plaintiff must demonstrate that the defendant's interference with the plaintiff's prospective business relations was accomplished by wrongful means or that the defendant acted for the sole purpose of harming the plaintiff (Glen Cove Assocs. v. North Shore Univ. Hosp., 240 AD2d 701; Nassau Diagnostic Imaging and Radiation Oncology Assocs. v. Winthrop-Univ. Hosp., 197 AD2d 563). "Wrongful means" includes physical violence, fraud, misrepresentation, civil suits, criminal prosecutions and some degree of economic pressure, but more than simple persuasion is required (NBT Bancorp v. Fleet/Norstar Fin. Group, 87 NY2d 614; Guard-Life Corp. v. Parker Hardware Mfg. Corp., supra).

Plaintiff's third cause of action alleges tortious interference with employment and relies on the same allegations as those made in regard to the second cause of action. Generally, interference with an agreement that is terminable at will is actionable provided that the interference involves fraud, threats or other wrongful conduct (see, Guard-Life Corp. v. Parker Hardware Mfg. Corp., supra; Murry v. Sysco Corp., 273 AD2d 760).

In support of the instant motion for summary judgment, defendant contends that plaintiff cannot show that defendant committed the wrongful acts intended to interfere with plaintiff's contractual relations and employment. Defendant submits his own affidavit wherein he states that he never sent, or caused to be sent, any documents to Dolby with respect to the actions or conduct of plaintiff as asserted in the complaint. Defendant further asserts that plaintiff's own sworn testimony establishes that plaintiff has no evidence to support his claim that defendant sent, or caused to be sent, the documents purportedly delivered anonymously to Dolby. Defendant refers to plaintiff's deposition testimony to show that plaintiff admitted numerous times that no one at Dolby or any other person ever told him that they knew that defendant had sent the documents. Those documents include the Dissolution Documents, the Seattle Letter, the June 2001 Communications, the two e-mails, and the May 2002 Letter. Defendant asserts that plaintiff merely speculates that it was defendant who sent the anonymous documents, and that speculation is not sufficient to defeat a summary judgment motion. Moreover, despite plaintiff's contention that defendant had a motive to conduct the anonymous "smear campaign" because he was angry with plaintiff over RMS and envious of plaintiff's success at Dolby, defendant [*3]contends that plaintiff has nonetheless submitted no proof that defendant sent or caused to be sent the anonymous communications to Dolby, and any former RMS employee client or competitor could have sent them. Additionally, plaintiff admits in his deposition testimony that his termination from Dolby on August 23, 2002 resulted from Dolby conducting its own investigation after receiving the anonymous communications and independently concluding that the information in the communications was correct. Based on the above, defendant has established his entitlement to judgment as a matter of law as to the claims for tortious interference with prospective contractual relations and with employment.

Once the proponent of a summary judgment motion has made a prima facie showing of entitlement to judgment as a matter of law, the party opposing the motion must demonstrate by admissible evidence the existence of a triable issue of fact (CPLR 3212; Alvarez v. Prospect Hosp., 68 NY2d 320; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat a motion for summary judgment (Zuckerman v. City of New York, 49 NY2d 557; Fijal v. American Exp. Isbrandtsen Lines, 127 AD2d 167).

In opposition, plaintiff contends that he has offered significant circumstantial evidence of defendant's wrongful interference with plaintiff's employment. Plaintiff claims that defendant was the only one who could have disseminated the false and disparaging information about plaintiff, and that defendant had the motive to do so as shown by his ill-will toward plaintiff. In support thereof, plaintiff states that defendant and his counsel were the only individuals who could have immediately obtained and forwarded the Dissolution Documents to Dolby, and that they were sent in an effort to interfere with plaintiff's employment relationship with Dolby. Plaintiff concludes, "There is no other plausible explanation other than the documents were sent by Getzoff at his direction." (Plaintiff's Affid. ¶17) Plaintiff also contends that only defendant knew that plaintiff had a handgun permit, and that the allegations in the communications were similar to those that plaintiff had previously heard from defendant that plaintiff was improperly working for Dolby while at the same time owning a part of RMS, and that plaintiff was misappropriating Dolby equipment. According to plaintiff, the "common thread" among the five business representatives listed in the May 2002 Letter was defendant. Plaintiff further claims that defendant had the motive to harm plaintiff inasmuch as defendant was having an ongoing dispute with plaintiff at the same time that the anonymous communications were sent. Defendant admitted at his deposition that, beginning in 1996, he became bothered by the division of RMS' profits because he believed that he did more work than plaintiff, who was working full-time at Dolby. Based on the above, plaintiff asserts that he has offered sufficient evidence for a jury to infer that defendant sent communications to Dolby for the purpose of harming plaintiff, and that Dolby terminated plaintiff's employment as a direct result of defendant's ill-willed interference.

Plaintiff, however, has failed to raise a triable issue of fact to defeat summary judgment. Plaintiff surmises that it must have been defendant who committed the alleged acts because he was the only one who, plaintiff believes, had the motive to do so. This assertion is mere [*4]speculation and is based on plaintiff's conclusory opinions. Plaintiff has failed to present probative evidence in support of his claims. He admitted at his deposition that no one had ever told him that they knew that defendant had either sent or caused to be sent the anonymous communications. Nor does he submit any affidavits, other than his own self-serving one, of anyone who had reason to believe that the communications were sent by defendant, or any explanation why none could have been provided. Additionally, despite his hearsay statements that certain employees and clients of RMS told him that they had heard defendant making disparaging statements, plaintiff provides no affidavits from any of the individuals named therein or any documentary evidence to support these hearsay statements. Moreover, even if true, there is no evidence that any such remarks (that defendant was angry with plaintiff and had cursed him) were made for the purpose of inducing Dolby to terminate plaintiff's employment. Further, plaintiff has confirmed that the anonymous communications were not the cause of his dismissal. Plaintiff stated that, upon receipt of the May 2002 Letter, Dolby, rather than relying on the communications, conducted its own investigation and determined based on its own findings that the allegations in the letter were correct and that plaintiff's employment should be terminated. Plaintiff's conclusory assertions, which are devoid of evidentiary facts and rely on surmise, conjecture or speculation, are insufficient to raise a triable issue of fact (see Zuckerman v. City of New York, supra; Mayo, Lynch and Assocs. v. Fine, 148 AD2d 424).

Plaintiff's fourth cause of action alleges prima facie tort.[FN1] A prima facie tort consists of four elements: (1) intentional infliction of harm, (2) causing special damages, (3) without excuse or justification, (4) by an act or series of acts that would otherwise be lawful (Curiano v. Suozzi, 63 NY2d 113). The defendant's conduct must have been motivated entirely by "disinterested malevolence" (Bassim v. Hassett, 184 AD2d 908), that is, where the sole motivation for the damaging acts was a malicious intent to injure the plaintiff (SRW Assocs. v. Bellport Beach Prop. Owners, 129 AD2d 328). Here, to the extent that plaintiff's claim refers to the documents and letters anonymously sent to Dolby, as stated above, plaintiff's mere speculation and unsubstantiated allegations that it was defendant who committed the act or series of acts are insufficient to defeat the instant motion for summary judgment. The claim also encompasses misleading, disparaging and false statements allegedly made by defendant to RMS employees and clients. However, regardless of whether these were made and what the motivating factor may have been, the purported negative statements have not been shown to be related to and have a substantial causal connection to the termination of plaintiff's employment by Dolby. Accordingly, the fourth cause of action should be dismissed.

Plaintiff's sixth claim is for injurious falsehood. Injurious falsehood is based on allegations that materially false statements were made and that there is a causation between the [*5]falsehood and the injury to plaintiff (see SRW Assocs. v. Bellport Beach Prop. Owners, supra). To recover damages for injurious falsehood, special damages must be proved to be the direct and natural result of the falsehood, and when the matter is one of pure speculation or conjecture, a cause of action to recover damages for injurious falsehood does not lie (id.). In the instant case, plaintiff's injury arose from Dolby's decision to terminate his employment which, as plaintiff admits, was the result of Dolby's independent investigation into the matter and conclusion that the information in the last anonymous letter was correct. Plaintiff's speculation and conclusory allegations that defendant made false statements that were the direct cause of his injury are insufficient to raise a triable issue of fact in this regard. Nor are plaintiff's general allegations as to damage to his reputation (see L.W.C. Agency v. St. Paul Fire and Marine Ins. Co., 125 AD2d 371).

Plaintiff cross-moves for summary judgment dismissing defendant's counterclaims for abuse of process, malicious prosecution, and breach of fiduciary duty. Defendant has submitted no opposition to the cross-motion. Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective (Curiano v. Suozzi, supra). A claim for abuse of process may not be premised merely upon the commencement of a civil action, even if such action was commenced with malicious intent (id.; Walentas v. Johnes, 257 AD2d 352). Therefore, defendant's counterclaim for abuse of process is dismissed.

A necessary component of a malicious prosecution claim is proof of special injury, that is, that the defendant must abide some concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit

(Engel v. CBS, Inc., 93 NY2d 195). Although not argued by plaintiff herein, the counterclaim for malicious prosecution must be dismissed inasmuch as defendant has failed to allege or prove any special injury.

The third counterclaim asserts a breach of fiduciary duty and is based on the same allegations as the two previous claims. Plaintiff correctly asserts that this counterclaim must be dismissed because it is barred by a Stipulation and Consent Order signed by the parties and so-ordered on July 25, 2003. The order contains a release as to additional issues or claims concerning RMS, the parties' operation of RMS, and the winding up of affairs of RMS.

Accordingly, defendant's motion for summary judgment dismissing the complaint is granted in its entirety, and the complaint is dismissed. Plaintiff's cross-motion for summary judgment dismissing defendant's counterclaims is also granted, and the counterclaims are dismissed as well.

The foregoing constitutes the Decision and Order of this Court.

Dated: White Plains, New York [*6]

September 20, 2005

E N T E R,

HON. KENNETH W. RUDOLPH

Justice of the Supreme Court

TO: Footnotes

Footnote 1:To the extent that defendant moves to dismiss the fourth and sixth causes of action based on the statute of limitations, that issue was already decided in this Court's prior decision which denied dismissal based on those grounds.