Ashby v Alm Media, LLC

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Ashby v Alm Media, LLC 2012 NY Slip Op 33275(U) May 17, 2012 Supreme Court, New York County Docket Number: 111893/2011 Judge: Ellen M. Coin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 05/18/2012 1] INDEX NO. 111893/2011 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/18/2012 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. ELLEN M. COIN PRESENT: PART£3 Justice Index Number : 111893/2011 ASHBY, DUGLAS H INDEX N O . - - - - MOTION DATE _ _ __ vs MOTION SEQ. NO. - - - ALM MEDIA, LLC. Sequence Number : 001 DISMISS The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - I No(s). _ _ _ _ __ Notice of Motion/Order to Show Cause -Affidavits - Exhibits Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). - - - - - 1No(s). - - - - - - Upon the foregoing papers, it is ordered that this motion Is !lCTi::N rs DECIDED 1N ACCORDANCE 'JrJCT1111'HE ANNEXED DECISION ,AlliO DRDER. w u t= ::::> "' .., 0 I- C w 0:: 0:: w u.. w 0:: >-.:..:.. ...I~ ...I z ::::> 0 u < w w 0:: u.. I- "' ~ 3; z w 0:: ;: ~ 0 w ...I < ...I 0 u u.. ~ 0 I"' z t= 0:: 0 0 :::E! u.. ~ _ _ _ _ _ _ _ _ _ __,J.S.C. Dated:------ A 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ i-lON. ELLEN M. COlN 0 CASE DISPOSED 0 GRANTED 0 LJ SETTLE ORDER 0DONOTPOST DENIED 0 NON-FINAL DISPOSITION :.J ~RANTED IN PART C OTHER C SUBMIT ORDER FIDUCI .\RY APPOINTMENT C REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL TERM: PART 63 ------------------------------------------------------------------- )( DOUGLAS H. ASHBY, Plaintiff, Index Number 111893/2011 Submission Date May 16. 2012 Mot. Seq. No. 001 DECISION and ORDER -against- ALM MEDIA, LLC and JEFFREY WHITTLE, individually and on behalf of ALM MEDIA, LLC, Defendants. --------------------------------------------------------------------)( For Plaintiff: The Law Offices of Stewart Karlin, P.C. By Stewart Karlin, Esq. 9 Murray Street, Suite 4 W New York, New York I 0007 (212) 792-9670 For Defendants: Clarick Gueron Reisbaum, LLP By Gregory A. Clarick, Esq. 40 West 25'h Street New York, New York 10010 (212) 633-4310 Papers considered in review of this motion to dismiss: Papers Numbered Notice of Motion and Affidavits Annexed ............................................................. _I_ Memo of Law in Supp ............................................................................................ _2_ Memo. of Law in Opp ............................................................................................. _3_ Memo in Reply ........................................................................................................ _4_ ELLEN M. COIN, J.: Defendants move pursuant to CPLR 3211 (a)(7)to dismiss the complaint, as amended, 1 for failure to state a claim. The amended complaint alleges three causes of action: (I) against both defendants for slander; (2) against individual defendant Whittle for tortious interference with plaintiffs contract with defendant ALM Media, LLC (ALM); and (3) against individual defendant Whittle for tortious interference with plaintiffs prospective economic advantage. 1 Plaintiff amended the complaint as ofright during the pendency of this motion. Defendants contend that even as amended, the complaint fails to state a claim. 1 [* 3] Plaintiff Ashby alleges that defendant Whittle is the senior Vice President, Chief Technology & Digital Products Officer for ALM (Amended Verified Complaint, para. 2), and that he was acting on his own and on ALM's behalf. Plaintiffs claim of slander is based on two allegations: that Whittle "approached Jill W~ndwer" (VP of Digital Media at ALM) "with the accusation that [plaintiff] was deliberately sa~otaging projects .... " (Amended Verified Complaint, para. 29); and that ' this statement "was published orally" to Windwer, to seven other named individuals (all of whom ., are alleged to work at defendant ALM), and "others in the ALM business community." (Amended Verified Complaint, para. 30). Plaintiff alleges that the statement was false, maliciously made, and slander per se; and that it was foreseeable that the allegations "would become common knowledge at ALM." Defendants move to dismiss the claim of slander on three grounds: (1) that the alleged statement is protected opinion; (2) that the common interest privilege bars the claim; and (3) that plaintiff fails to allege special damages. Since the Court finds that the common interest privilege requires dismissal of the slander cause of action, it need not consider the other grounds offered for its dismissal. "Even though a statement is defamatory, there exists a qualified privilege where the communication is made to persons who have some common interest in the subject matter" (Foster v Churchill, 87 NY2d 744, 751 [1996]; O'Neill v New York Univ., 2012 NY Slip Op. 03570 [1 51 Dept. 2012]. The plaintiff may overcome this qualified privilege with allegations that the defendant made the defamatory statement with malice or reckless disregard for its truth or falsity. Loughry v I Lincoln First Bank, 67 NY2d·369, 376 [1986]; O'Neill v New York Univ., 2012 NY Slip Op. 03750. This principle applies to communications reviewing an employee's performance, competence or 2 [* 4] fitness. (McNaughton v City of New York, 234 AD2d 83, 84 [l51 Dept. 1996]; Kasachkoffv City of New York, 107 AD2d 130, 134-136 [1 51 Dept 1985]). Plaintiff attempts to evade the common interest doctrine by alleging that the individuals to whom the statement was published were not in plaintiffs "chain of command." (Amended Verified complaint, para. 30). "Chain of command" is not the test for this privilege. The requirement, instead, is that there be "some common interest in the subject matter." (Foster v Churchill, 87 NY2d at 751). In a further attempt to evade the ambit of the common interest qualified privilege, plaintiff has amended his complaint to add: "[N]or were the statements made concerning a subject both individuals had an interest in." (Amended Verified complaint, para. 30). This contention is belied by earlier allegations in the very same pleading. Plaintiff alleges that his duties at ALM included managing the Web Development, Enterprise Systems and Database Administration groups within the IT department (Amended Verified Complaint, para. 8). In addition, he claims to have been responsible for a large number of projects including "SmartLitigator" and the Lexis Nexis project (Amended Verified Complaint, paras. 11, 12). Plaintiff alleges that he was concerned about the lack of connection/collaboration between Learning Mate consultants and the developers ofSmartLitigator (Amended Verified Complaint, para. 13) The subject of Whittle's allegedly defamatory statement was plaintiffs "deliberate[] sabotag[ e] [of] projects (emphasis added)(Amended Verified complaint, para. 29). Whittle allegedly published the statement to ALM's Vice President of Digital Media (Jill Windwer), ALM's CEO (William Pollak), ALM's Project Managers (Catherine Keeter, Bill Fuson), ALM's VP Substantive 3 [* 5] Law Group (Tim Kennelty), ALM's project director (Patrick Slaven), and ALM's Learning Mate consultants (Manish Jain, Amit Soman)(Amended Verified Complaint, para. 30). It is evident from the foregoing allegations that all of the parties named as recipients ofWhittle's alleged statement had a common interest in the proje~ts, as well as plaintiffs fitness to manage them (Shamley v ITT Corp., 869 F2d 167, 173 [2d Cir. 1989] [applying New York Law]; McDowell v Dart, 201 AD2d 895 [4 1h Dept. 1994]; Levine v Board of Educ. of City of New York, 186 AD2d 743, 745 [2d Dept. 1992]; Kasachkoffv City ofN Y, 107 AD2d 130, 134-5 [!51 Dept. 1985]). While plaintiff alleges that Whittle's statement was made "maliciously", he does so in a conclusory fashion, without pleading any facts to support such conclusion. Thus, plaintiffs claim of slander must be dismissed (Shamley v ITT Corp, 869 F2d at 173; McDowell v Dart, 201 AD2d at 895-6). Similarly, plaintiffs claim for tortious interference by Whittle with his contract with ALM fails to state a cause of action. Defendant Whittle, as an employee of ALM, was not a stranger to the contract. (McNaughton v City ofNew York, 234 AD2d at 83-84; Koret, Inc. v Christian Dior, S.A., 161AD2d156, 157 [I51 Dept. 1990]). Finally, plaintiffs claim for tortious interference with prospective economic advantage must be dismissed, as it fails to allege that the alleged slander caused injury to his relationship with a third party. In essence, he alleges that Whittle's words, uttered in the course of his employment at ALM (and, according to his First Cause of Action, on behalf of ALM), interfered with his prospective economic relationship with ALM. So, in effect, plaintiff alleges that defendant ALM interfered with his prospective relationship with ALM. Moreover, as defendants note, "an at-will employee ... can have no cause of action based on a co-employee's alleged tortious interference with his employment. 4 [* 6] (Baker v Guardian Life Ins. Co., 12 AD3d 285, 285-86 [1st Dept. 2004]). For the foregoing reasons, it is ORDERED that the motion of defendants to dismiss this action is granted, and the clerk is directed to enter judgment in favor of defendants dismissing this action, together with costs and disbursements to defendants, as taxed by the Clerk upon presentation of a bill of costs. This constitutes the decision, order and judgment of the Court. ENTER: Ellen M. Coin, A.J.S.C. 5

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