Greenberg & Reicher, LLP v Hyman

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Greenberg & Reicher, LLP v Hyman 2005 NY Slip Op 30501(U) July 8, 2005 Sup Ct, NY County Docket Number: 117703/2004 Judge: Rosalyn H. Richter Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK PART ROSALYN RICHTER PRESENT: COUNTY 24 Justice Greenberg & Reicher LLP 117703/2004 INDEX NO. MOTION DATE - v 1 MOTION SEQ. NO. Hyman, Julie MOTION CAL. The following papers, numbered 1 t o NO. were read on this motlon tolfor PAPERS NUMBERED Notice of Motion/ Order to Show Cause Answering Affidavits - Affldavits - Exhiblta ... - Exhibits Replying Affidavits .. n Cross-Motion: u Yes No Upon the foregoing papers, it is ordered that this motion MOTION IS DECIDED IN ACCORDANCE * WITH THE ATTACHED MEMORANDUM DECISIONl Y PARTIES SHALL APPEAR I PART 24, ROOM 41 8 at 60 CENTRE ST. FOR A N PRELTMINARY CONFERENCE ON AUGUST 10,2005. 7'') F i t .1 E. 2. 5 4 \J%L af 2 z n , 7rn 1' Dated: 7/8/05 Check one: n FINAL DISPOSITION Check if appropriate: fi u DO NOT POST NON-FINAL DISPOSITION ,,ON" ROSALYN RICHTER [* 2] SUPREME COURT OF THE STATE OF NEW Y O N COUNTY OF NEW YORK: IAS PART 24 x ----__________I_-------------------------------------------------- GREENBElIG & REICHER, LLP and EDWARD GREENBERG Plaintiffs, DECISION & ORDER Tiidex No. 1 17703/2004 -against- JULIE HYMAN. Defkndant. X I----____________I------------------------------------------------ RICHTER,J.: llefeiidant Julie H y i i m ( Hyman ) iiioves to dismiss the coniplaitit for failure to stale a c a l m o r action pursuant to 32 I 1(a)(7). Plaintifs Greenbcrg & Rcichcr, LLP ( G&R ) and Edward Grccnberg ( Grecnberg ) opposc this motion arguing h a t tlic complaint alleges sLifficicrit facts for the claiiiis of breach of loyalty and actionable defmation. D c h d i m l Hymaii was employcd al G&R as an associate attorney from Seplernbcr 2002 until Noveiiiber 3, 2004 as an at will employee. Plaintiffs complaint alleges two causes of action. The first cause of action consists of the following allegations. On November 3, 2004, dcfciidant terminated her employment from G&R without notice causing plaintiffs to incur grcat expense in reviewing film, making photocopies, drafting opposition papers, and making court appearances on deIendant s behall: Plaintiffs also allege that defcndant removcd personalty, specifically computcr discs, froni G6ZR s officcs, solicited G&li s clicnts prior to hcr withdrawal froiii the firm, and that defciidaiit advised a i oiiixr client of G&R to dispiite fccs owed by the clieril to C&R. Plainliffs second causc of action rdlcges Ihat subsequent to defcndant s withdrawal, defcndant inadc coi~iments a G&R employee, Mark Foniiosa, that were fdlse, to 1 [* 3] dcfamatory, constitutc slander, slander per .ye... Specifically, the complaint alleges tliat dcfciidaiit said that Crccnberg was difficult to work with and <wasabusive and nasty, [hat anothcr cniployee of G & R, Barbara Grcenberg, was abusive and nasty, that opposing attomcys offered her jobs and statcd that Greenberg was djlficull to work with and a person with whom you could riot settle cascs, and tlial she informed clients that shc was leaving, and that slic was owed money by G&R and bad not bccii paid. Plaintiffs also argue that defendant s statements lo Mr. Formosa constitute actionable defamation. TkIeiidant argucs that plaintirfs pleadings l i i l to state a cause of action. Wlicii dctcnniihg a motioii niade piirsuant to 321 1 (a)(7), a court may lreely considcr affidavits submitted by thc plaintill to remedy any defects in the complaint. Leon v. Miirfiizcz, 84 N.Y .2d 83, 88 ( l w 4 ) . Also, ...any facts in thc coiiiplaiiit and subniissions in opposition to the motion to disriiiss arc acccpted as true, and the bciiefit of every possible favorahlc inlerence is afforded to the plaintiff. Gihrdter Steel Corpovntioii v. Gibrnltev M e l d Proccssing, 2005 WL 1378364 (4 Dept. 2005). See gerieriilly 51 I W. 232 Owners Corp. v. Jenizfir lieufly Co., 98 N.Y .2d 144 (2002). Thc standard is whcthcr the proponent of tlie pleadiiig has a cause of action, iiot whetlicr hc has stated one. Leon v. Martinez, 84 N.Y.2d at 88.. Plaintilk first causc of actioii is disiiiisscd as lo the allcgatims that defendant, who was an at will employee, provided no notice to plaintillG&R prior to leaving and that because of dcfendaiit s withdrawal, plaintiffs incurred costs. In New York, [all will cmploynenl permits either party to tcriiiiiiate the employmelit relation without advance noticc, and neither party has aiiy cause of action against tlie other for terminating the employment. Koiick v. Destii, 123 A.D.2d 744, 745 (2 ldDept. 1986). Thus, 110 causc o l action exists based nierely on dcfenclant s 2 [* 4] lack of noticc. Howcver, the allegations raised in plaintiffs pleadings and submissions in opposition are sufficictit to constilute a causc of action for breach of duty of loyalty - as to whelhcr defeiidaiit was promotins her own busincss while still employcd by p1aii:itiff G&R, whether she was using G&R s time and resources, Wdlnck Freight Lines, hic. v. Next Dciy E,xprcss, h c . , 273 A.D.2d 462 (2 ldDept. ZOOO), and whether defendant reriiovcd coiiiputer discs from G&R, which contain inCoi-mation on o m of C&R s cascs. It is well established that an employee is prohibited from acting in any manner inconsistent with his or hcr eniployiiient and iiiiist excrcisc good fiiitli and 1oyalt.yin pcrfiorrniiig his or dutics ...aiicl niay not use his or tier principal s timc, hcilities, or propiietary sccrets to build a coriipetiiig busincss. Megci Groiip h c . 1). Hdton, 290 R.D.2d 673, 675 (3r Dcpt. 2002). Dcfendaiit dciiies that she told ariy of G&R s clicnts of her iiitcntion to leave while employed at the firm. She also denies that shc removed thc coniputcr discs. She argues that it would have been impossible for her to advise cliciits o1her withdrawal because she 1mde the dccisioii based on a convcrsation that took place with plaiiiliff Greenbei-g oii November 2, 2004. Defciidaiit also submits an affidavit from a former clicnt of G&R, who is currently ciigaged in a malpractice suit against G&R, stating that the client was not advised of dcfendant s withdrawal prior to November 3, 2004 and that the client asked to retain dde endaiit s services on Noveinbcr 4,2004. These factual affidavits go to the merits of the claims, but do not establish that plaintiffs havc failcd to plead a cause of action at all. Plainti t-fs also claim that defendant made defaming statciiients lo a G&R employee after dckndant teiminated her employment. In pleading defamation, plaintiffs must meet the specificity requirenieiits of CPLR 301 G which requires plaintiffs to descnbc the nature of ariy [* 5] allegcd defamatory stalemerit and provide thc time, place, and manner oE thc puyortcd defaination, Ili!folino v. Long /slmid Snv.Budc, FSB, 126 A.D.2d 508 (2 ld Dept. 1987) and to whom thc publication was made. Seltzer v. Fields, 20 A.D.2d 60, 64 ( I Dept. 1963). Although plaintils meet the first rcquircinent as the particular words complaincd of are sct forth in the complainl, Kuliri v. Frierllmder, 90 A.D.2d 868 (3rdDcpt. I9S2); see ulso C;ec/d~.s Princcss v. Prop-ties hztem., L i d , 88 A.D.2d 835 (1 Dept. 19821, plaintifrs Fdil to describe the time, place, and manner of thc defamatory statemcnts. Plaintiffs iiidicatc to whom the statenictits were made lo, but fail to inention when, where, and llic maimer in which tlie statemcnts were iiiadc to Mr. Foiiiiosa. Furthcn-nore, a legitimatc arguiiient can be made that the alleged statemcnts werc a11 expression o r opinion, which is not actionable. Schwlrrtz v. Nordstronr, h c . , 160 A.D.2d 240 (1 Dept. 1990). An action for defiimation cannot be sustaiiied unlcss it is prcmiscd on publishcd assertions of [act. B r i m v. Hic.harcfso/~, N.Y.2d 46, 5 1 (1 995). The allegcd statemcnls that 87 defciidarit made such as that plaintiff Greciiberg was abusive and nasty and difficult to work with do iiot liavc a precise mcaniag, but rather are mcrely an indication of the defcndant s owti views o P Grcenbcrg s tern perament . Accordingly, it is ORDERED that tlie motion to dismiss is granted in part and the second cause of action of thc coinplaint is dismissed; and it is ORDERED tlial defendant shall answer the complaint within 20 days of the date bclow. The parties shall appcar in Part 24, Room 4 18, GO Centre St. [or a prclimiriary coiifpenq$, -,A on August I O , 2005. JUIY8,2005 Justice Rosalyn Richter 4 G#? $2

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