Kornsweig v Urban Athletics Madison LLC
Annotate this CaseDecided on August 8, 2006
Supreme Court, New York County
Howard Kornsweig, Plaintiff(s),
against
Urban Athletics Madison LLC, and GERALD MACARI, Defendant(s).
Index No.: 100776/06
Marcy S. Friedman, J.
In this defamation action, defendants Urban Athletics Madison, LLC ("Urban") and Gerald Macari, a principal of Urban, move to dismiss the complaint, pursuant to CPLR 3016(a) and CPLR 3211(a)(1) and (a)(7).
It is undisputed that plaintiff is a former employee of defendant Urban, and was terminated in November 2005. The complaint alleges that defendants defamed plaintiff by accusing him of theft of merchandise, in statements made by defendants to the New York Department of Labor in response to plaintiff's application for unemployment benefits, and to plaintiff's former co-workers at Urban.
Defendants move to dismiss the complaint on the grounds that any statements to the Labor Department are privileged; that the alleged statements to plaintiff's former co-workers are not actionable because of qualified privilege; and that plaintiff's claims are not pleaded with sufficient particularity pursuant to CPLR 3016(a).
Plaintiff does not oppose defendants' motion seeking dismissal of his defamation claims to the extent they are based on the allegedly defamatory statements made to the Labor Department. (See Cohen Aff. In Opp., ¶ 2.) It is undisputed that the statements are privileged, having been made in connection with a quasi-judicial proceeding. (See Singletary v All Metro Aids, Inc., 247 AD2d 252 [1st Dept 1998], lv denied 92 NY2d 804; Seymour v New York State Elec. & Gas, 215 AD2d 971 [3d Dept 1995].)
As to the alleged statements to plaintiff's former co-workers, defendants contend that they are not actionable because of the "common interest" privilege. It is well settled that "[e]ven 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]; Liberman v Gelstein, 80 NY2d 429 [1992].) "The shield provided by a [*2]qualified privilege may be dissolved if plaintiff can demonstrate that defendant spoke with
" malice.' " (Foster, 87 NY2d at 751-752 [quoting Liberman, 80 NY2d at 437].) "Moreover, the conditional or qualified privilege is inapplicable where the motivation for making such statements was spite or ill will (common-law malice) or where the " statements [were] made with [a] high degree of awareness of their probable falsity' " (constitutional malice)." (Id. at 752 [quoting Liberman, 80 NY2d at 438].)
Contrary to defendants' contention, the complaint should not be dismissed on the ground that the alleged statements to their employees are subject to the qualified privilege. Here, even assuming arguendo that defendants' alleged statements accusing plaintiff of theft are privileged (see Stewart v Florence Nightingale Health Ctr./Carnegie Partners, Inc., 1999 WL 179373 [SDNY 1999] [applying New York law]; Ramnarine v Ariola, 262 AD2d 296 [2d Dept 1999]), the complaint pleads allegations of malice sufficient to overcome the privilege.
It is well settled that mere conclusory allegations or allegations resting on mere suspicion or surmise are insufficient to warrant an inference of malice and thereby to sustain a complaint for defamation. (See Hanlin v Sternlicht, 6 AD3d 334 [1st Dept 2004]; Sborgi v Green, 281 AD2d 230 [1st Dept 2001]; Serratore v American Port Servs., Inc., 293 AD2d 464 [2d Dept 2002].)
Plaintiff's complaint, in contrast, alleges facts sufficient to support an inference of malice. The complaint asserts that defendants' accusations of theft "were maliciously made, and were known by the defendants to be false when made, and were published by defendants to various entities and individuals in order to impute to plaintiff criminal conduct amounting to larceny." (Complaint, ¶ 27.) In support of this assertion, the complaint states that prior to plaintiff's termination, he was demoted from sales manager to salesperson due to his leaving work early on one occasion, and that hours later, defendant Marcari told plaintiff that his partners "disapproved of the plaintiff's continued employment but he was not sure what they wanted to do" (id. at ¶ 13), and that plaintiff was terminated two days later. (See id. at ¶¶ 10-15.) Finally, the complaint alleges that defendants, "intent upon finding a legitimate reason for terminating plaintiff's employment and denying his application for Unemployment Insurance benefits, concocted an alleged act or acts of criminal misconduct by plaintiff to provide a false and contrived basis" for terminating him and contesting his application for benefits. (Id. at ¶ 16.)
These allegations, taken together, include facts from which it may be inferred that the defendants' accusation of theft against plaintiff was made with actual knowledge of its falsity, and that criminal conduct was imputed to plaintiff solely to injure him and provide a false basis for termination.
Lastly, the court rejects defendant's claim the complaint must be dismissed because the allegations of malice were not pleaded with the particularity required by CPLR 3016. In opposition to defendants' motion, plaintiff submits an affidavit in which he identifies defendant Marcari as the speaker of the defamatory statements, and also specifies the time, date, and location of the statements allegedly made to plaintiff's former co-workers. (See P.'s Aff. In Opp., ¶¶ 10-12.) This affidavit remedies the defects of the complaint and is properly considered by the court in opposition to the motion to dismiss. (See Leon v Martinez, 84 NY2d 83 [1994]; Rovello v Orofino Realty Co., 40 NY2d 633 [1976].)
It is accordingly hereby ORDERED that defendants' motion to dismiss the complaint is [*3]denied in its entirety; and it is further
ORDERED that plaintiff is granted leave to serve an amended complaint setting forth the statements in paragraphs 10-12 of plaintiff's affidavit in opposition to the instant motion, provided that such amended complaint is served within 10 days after service of a copy of this order with notice of entry; and it is further
ORDERED that the parties are directed to appear in Part 57 (Room 328, 80 Centre Street) for a preliminary conference on Thursday, September 21, 2006, at 11:00 a.m.
This constitutes the decision and order of the court.
Dated:New York, New York
August 8, 2006
___________________________
MARCY FRIEDMAN, J.S.C.
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