Nigro v Pickett

[*1] Nigro v Pickett 2006 NY Slip Op 50599(U) [11 Misc 3d 1077(A)] Decided on March 17, 2006 Supreme Court, Westchester County Smith, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2006
Supreme Court, Westchester County

August M. Nigro and COLUMBUS CONSTRUCTION CORP., Plaintiffs,

against

Sophie Pickett, Defendant.



9435/05



Greene & Zinner, P.C.

Attys. For Pltfs.

202 Mamaroneck Avenue

White Plains, New York 10601

Sapir & Frumkin, LLP

Attys. For Deft.

399 Knollwood Road, Suite 310

White Plains, New York 10603

Mary H. Smith, J.

While the parties disagree on almost all of the key facts, the undisputed facts establish that they both were employed at plaintiff Columbus Construction Corp. ("CCC"), plaintiff Nigro as president thereof, and defendant as its Project Manager from January 19, 1998 to February 11, 2005. According to plaintiff Nigro, defendant Pickett had begun flirting with him in 2002, and sending him [*2]sexually oriented written materials, trying to seduce him into an amorous relationship notwithstanding that Nigro is married with children. After years of resisting her advances, Nigro contends that on July 13, 2004, the parties had a "consensual intimate relationship" at Pickett's New York apartment and that thereafter Pickett never made any complaint to Nigro that he had acted inappropriately towards her and, indeed, she thereafter had continued to attend numerous social events and business meetings with him, although he admits that no further intimacies were shared. In or about February, 2005, Pickett left her job at CCC.

Nigro claims that it was not until three months after that time that Pickett, for the first time, alerted Nigro through an attorney's letter dated May 12, 2005, that she felt that, commencing in December, 2000, she had been subjected to a hostile work environment and sexual discrimination while working at CCC and that Nigro had sexually assaulted her on July 13, 2004, all of which violated Title VII and New York State and New York City Human Rights Laws, as well as constituting tortious battery and intentional infliction of emotional distress. Pickett's attorney informed Nigro therein that Pickett had requested that the letter be written "before any public proceeding is commenced ... to determine if Columbus is interested in resolving this dispute amicably."

In response to this letter and his stated belief that Pickett, who as CCC's project manager was then imminently to be a key witness in unrelated litigation involving CCC in a claim of breach of construction contract, was attempting to extort money from Nigro for her favorable testimony in that action and so as to prevent her from "disclos[ing] her false and untrue allegations against [him] and CCC," Nigro filed the instant action on June 10, 2005, alleging causes of action for "attempted extortion and duress" and for intentional infliction of emotional distress.[FN1]

Subsequently, Pickett, a resident of New York County, commenced an action in New York County under Index No. 116511/05. Therein, she asserts causes of action for discrimination under the New York State Human Rights Law for creating a hostile work environment, discrimination under the New York City Human Rights Law for creating a hostile work environment, discrimination under the New York State Human Rights Law for constructive discharge, discrimination under the New York City Human Rights Law for constructive discharge, unlawful retaliation under the New York State Human Rights Law and unlawful retaliation under the New York City Human Rights Law, all for which she seeks compensatory and punitive damages.

Plaintiff Nigro is presently moving to consolidate the New York action with this Westchester County action, arguing that the two actions involve common questions of law and/or fact, that consolidation will avoid unnecessary cost, delay and inconsistent verdicts, and that Pickett properly should have interposed her claims as counterclaims in the Westchester action rather than having gone forum shopping.

Defendant Pickett is cross-moving for an Order pursuant to CPLR 3211, subdivision (a), paragraph 7 dismissing the Westchester County action, arguing that Nigro has failed to state a viable cause of action. In the event this Court denies defendant Pickett's motion for dismissal, she alternatively seeks an Order pursuant to CPLR 602 consolidating this action with the New York County action and transferring venue to New York County since that is the county where Pickett resides, the assault occurred, witnesses reside and evidence is located. [*3]

Addressing the cross-motion to dismiss first, it is well settled that on a motion to dismiss for failure to state a cause of action, the Court initially must accept the facts alleged in the complaint as true and then determine whether those facts fit within any cognizable legal theory, irrespective of whether the plaintiff will likely prevail on the merits. See Campaign for Fiscal Equity, Inc. v. State, 86 NY2d 307, 318 (1995); Leon v. Martinez, 84 NY2d 83, 87-88 (1994); People v. New York City Transit Authority, 59 NY2d 343, 348 (1983); Morone v. Morone, 50 NY2d 481 (1980); Guggenheimer v. Ginzburg, 43 NY2d 268, 274-275 (1977); Cavanaugh v. Doherty, 243 AD2d 92, 98 (3rd Dept. 1989): Klondike Gold, Inc. v. Richmond Associates, 103 AD2d 821 (2nd Dept. 1984). The complaint must be given a liberal construction and will be deemed to allege whatever cause of action can be implied by fair and reasonable intendment. See Shields v. School of Law of Hofstra University, 77 AD2d 867, 868 (2nd Dept. 1980); Penato v. George, 52 AD2d 939 (2nd Dept. 1976). The test is whether the pleading gives notice of the transactions relied upon by the plaintiff and whether sufficient material elements of the cause of action have been asserted. It does not matter that the plaintiff may have mislabeled his cause of action. See CPLR 3027, CPLR 3016. Where the very allegations set forth in the complaint fail to support any cause of action, the complaint should be dismissed. See Robinson v. Robinson, 303 AD2d 234 (1st Dept. 2003).

Plaintiff Nigro's first cause of action is labeled one for "attempted extortion and duress," and he alleges that Pickett's actions "were illegal and unlawful and designed to cause plaintiffs to pay over excessive sums of money to her without due cause or justification." The Court finds that Pickett correctly argues that no civil cause of action for attempted extortion and/or duress exists in New York. See Niagara Mohawk Power Corp. v. Testone, 272 AD2d 910 (4th Dept. 2000).[FN2]

In any event, it also is clear that "[a] threat to do what one has a legal right to do is not actionable." See Wehringer v. Standard Security Life Insurance Company of New York, 57 NY2d 757 (1982). Plainly, New York State and City Human Rights Laws afford Pickett the right to commence an action against her employer for acts of discrimination and there is no viable cause of action sounding in coercion for Pickett's merely advising Nigro through her attorney that she intended to proceed with litigation unless the matter could be resolved amicably. See Penn Warranty [*4]Corp. v. DiGiovanni, 10 Misc 3d 998 (NY Sup. Ct. 2005).

Nor does this Court find that Nigro states a cognizable claim for intentional infliction of emotional distress. In order to prevail on a claim for intentional infliction of emotional distress, a plaintiff must plead and prove that a defendant " engaged in extreme and outrageous conduct and that such conduct intentionally or recklessly caused severe emotional distress.' (Citations omitted). Said conduct must transcend the bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community." (Citations omitted)." Klinge v. Ithaca College, 235 AD2d 724, 727 (3rd Dept. 1997). The conduct alleged "must consist of more than mere insults, indignities and annoyances." Liebowitz v. Bank Leumi Trust Company of New York, 152 AD2d 169, 182 (2nd Dept. 1989). Moreover, "[c]ourts are reluctant to allow recovery under the banner of intentional infliction of emotional distress absent a deliberate and malicious campaign of harassment or intimidation.' (Citations omitted)." Cohn-Frankel v. United Synagogue of Conservative Judaism, 246 AD2d 332 (1st Dept. 1998).

Even accepting plaintiff Nigro's version of the facts as true, this Court necessarily finds that his allegation that Pickett's attorney's letter advising him of potential legal action based upon what Nigro contends was a consensual relationship utterly fails to rise to the extremely high threshold required to support a cause of action for intentional infliction of emotional distress. Nor is there any allegation or support in the record to find that Pickett had engaged in a conducted a planned program of harassment or threats; nor is there evidence of Pickett's vindictiveness, taunting or derision. See Burlew v. American Mut. Ins. Co., 99 AD2d 11, 16 (4th Dept. 1984), affd. 63 NY2d 412 (1984); Nestlerode v. Federal Ins., 66 AD2d 504 (4th Dept. 1979), app. den. 48 N.Y. 2 d 604 (1979).

Plaintiff's reliance upon Levine v. Gurney, 149 AD2d 473 (2nd Dept. 1989) to argue that the intentional infliction of emotional distress claim is properly stated based upon "Pickett's false allegations to the police department ... of sexual assault" is misplaced. Levine holds that a cause of action for intentional infliction of emotional distress may be stated where a defendant is guilty of falsely accusing the plaintiff of an act carrying the possible threat of imprisonment. See Vasarhelyi v. New School for Social Research, 230 AD2d 658 (1st Dept. 1996). While under some circumstances threats of unjustified criminal charges or an employer's abuse of power may rise to the level of outrageousness to sustain a cause of action for intentional infliction of emotional distress, see La Duke v. Lyons, 250 AD2d 969 (3rd Dept. 1998), the threatened charges must be completely unfounded and baseless. See Chinese Consol. Benevolent Ass'n v. Tsang, 254 AD2d 222 (1st Dept. 1998); Mondello v. Mondello, 161 AD2d 690 (2nd Dept. 1990). Here, the parties both admit that sexual relations between them had in fact occurred and the record establishes that the morning thereafter defendant went to a hospital emergency room for examination. While an issue as to the consensual nature of those relations has been raised, it cannot be found that defendant's filing of a police complaint regarding the alleged sexual assault is completely unfounded, and thus this Court finds that no viable cause of action for intentional infliction of emotional distress is stated.

Accordingly, the Court grants defendant's cross-motion dismissing plaintiff's complaint in its entirety, rendering the remainder of defendant's alternative request for relief moot. Concomitantly, plaintiff's motion also is denied as moot.



Dated: March 17, 2006

White Plains, New York________________ [*5]

MARY H. SMITH

J.S.C. Footnotes

Footnote 1:Defendants Nigro and CCC are Westchester County residents.

Footnote 2:Specifically, the Niagra Mohawk Court stated: Under the three-prong test set forth in Sheehy v. Big Flats Community Day (73 NY2d 629, 633-634), a penal statute may give rise to an implied private right of action where (1) plaintiff is a member of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose; and (3) creation of such a right of action would be consistent with the legislative scheme. Even assuming, arguendo, that the first two prongs of the Sheehy test are met here, we discern no legislative intent to create a civil remedy for an attempt to commit any crime, and plaintiff cites no statute or case law providing for such a cause of action. Notably, there is no independent tort in New York for civil conspiracy (see, Baker v Vanderbilt Co., 260 AD2d 750, 752-753; Danahy v Meese, 84 AD2d 670, 672), and an attempt to commit a crime or tort is analogous to a conspiracy to undertake such conduct. In our view, neither the legislative scheme nor common-law precedent supports an inference that the Legislature intended to create a statutory right of action for an attempt to commit a crime, including extortion.