Ferraro v Seamen's Church Inst. of N.Y. & N.J.

[*1] Ferraro v Seamen's Church Inst. of N.Y. & N.J. 2007 NY Slip Op 52470(U) [18 Misc 3d 1108(A)] Decided on December 3, 2007 Supreme Court, New York County Diamond, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 4, 2008; it will not be published in the printed Official Reports.

Decided on December 3, 2007
Supreme Court, New York County

Dominick Ferraro, Plaintiff,

against

The Seamen's Church Institute of New York And New Jersey and Bill Breen, Defendants.



109443/07

Marylin G. Diamond, J.

The plaintiff was a maintenance worker employed by the defendant The Seaman's Church Institute of New York and New Jersey. His supervisor was defendant Bill Breen. The complaint alleges that in September, 2001, Breen began verbally humiliating plaintiff in front of co-workers by calling him names such as "stupid," "blind" and "senile" and criticizing his job performance. The complaint also alleges that Breen, in 2004 and 2005, wrongly accused plaintiff of having stolen property from the Institute and, in 2007, assigned plaintiff harder tasks than those assigned to plaintiff's co-workers and made him work longer hours. Finally, the complaint alleges that in June, 2007, Breen falsely reported to the Institute's human resources department that plaintiff possessed marijuana at work. According to the complaint, the plaintiff resigned from his position after this accusation was made because the job had become intolerable.

The complaint asserts three causes of action. The first is for constructive discharge, the second is for defamation and the third is for intentional infliction of emotional distress. The defendants have moved to dismiss the complaint, pursuant to CPLR 3211(a)(7), for failure to state a cause of action. The plaintiff has cross-moved for leave to amend the complaint.

Discussion

On their motion to dismiss, defendants argue that plaintiff's first cause of action for constructive discharge is barred by New York's employment-at-will doctrine. The court agrees. It is well settled in this State that "absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party." Sabetay v Sterling Drug, Inc., 69 NY2d 329, 333 (1987). Since there was no agreement between the parties fixing the duration of the plaintiff's employment, the defendant had the right to terminate plaintiff at any time and for any reason or for no reason. See O'Connor v Eastman Kodak Co., 65 NY2d 724 (1985). Constructive discharge occurs when an employer intentionally creates a work environment that is so difficult or intolerable that a reasonable person would feel forced to resign. See Fisher v KPMG Peat Marwick, 195 AD2d 222, 225 (1st Dept. 1994); Chertkova v. Connecticut General Life Insurance, 92 F3d 81, 87 (2nd Cir. 1996). Clearly, if the defendant had the right to terminate the plaintiff for any reason, it also had the right to [*2]constructively discharge him. Although there are statutes which prohibit an employer from constructively discharging an employee by creating intolerable work conditions because of the employee's race, religion, gender, nationality, age or sexual preference, see, e.g., Labor Law § 740(2) and Executive Law § 296, the plaintiff has not alleged, either in his original complaint or in his proposed amended complaint, that any of these statutes are applicable or that he was otherwise a victim of illegal employment discrimination. The first cause of action must therefore be dismissed.

As to the second cause of action, in moving to amend his complaint, the plaintiff has acknowledged that under the one-year statute of limitations for defamation, his only timely claim against Breen concerns the accusation Breen made to the Institute's human resources department in 2007 that plaintiff possessed marijuana while at work. As the defendants correctly point out, Breen's statement is subject to the qualified common interest privilege. Under this privilege, otherwise libelous statements made to persons having a common interest in the subject matter are immune from defamation claims unless made with actual malice. See Dillon v. City of New York, 261 AD2d 34, 40 (1st Dept. 1999). Malice may be found where the statements were made with a high degree of awareness of their probable falsity or a reckless disregard for the truth. See Foster v. Churchill, 87 NY2d 744, 751 (1996). Here, Breen's statement to the Institute's human resources department about plaintiff's possession of marijuana at work was clearly made to a person who had a common interest in the issue. Thus, it is incumbent upon plaintiff to allege that the statement was made with actual malice. In this respect, neither the original complaint nor the proposed amended complaint specifically alleges that Breen knew his statement about plaintiff's possession of marijuana was false when he made it. The fact that Breen had made two prior false accusations against plaintiff and had repeatedly disparaged him is not enough to support an inference of malice. See Weitz v. Bruderman, 14AD3d 354 (1st Dept 2005). Indeed, the court notes that with regard to the two accusations of theft which Breen allegedly made against the plaintiff in 2003 and 2004, the original complaint and proposed amended complaint strongly suggest that because he was willing to think the worst of plaintiff, Breen genuinely believed that plaintiff had stolen someone else's property. In view of the fact that Breen was thus alleged to have mistakenly made at least two prior accusations against the plaintiff, it is necessary for plaintiff to expressly plead malice, as opposed to negligent mistake, as to the accusation about marijuana possession. The plaintiff's failure to do so is a fatal defect.

In any event, as the plaintiff has conceded, it is also incumbent upon him to plead special damages. Although the original complaint did not plead special damages, the proposed amended complaint does so by alleging that plaintiff suffered economic losses by reason of his resignation and subsequent unemployment. The problem with this allegation is that, on a defamation claim, special damages " must flow directly from the injury to reputation caused by the defamation, not from the effects of defamation.'" Matherson v. Marchello, 100 AD2d 233, 235 (2nd Dept 1984) (quoting Sack, Libel, Slander and Related Problems, VII 2.2, 345-346). See also Ruderman v. Stern, 2004 WL 3153217 * 13 (Sup Ct Kings Co). Since the plaintiff's voluntary resignation did not flow directly from any injury to his reputation caused by Breen's accusation, he has failed to adequately allege special damages. The second cause of action must therefore be dismissed.

Finally, as to the third cause of action, a claim for intentional infliction of emotional distress must involve conduct which is so extreme and outrageous in degree and character as to [*3]go beyond all possible bounds of decency and which can only be regarded as atrocious and utterly intolerable in a civilized society. See Vasarhelyi v. The New School for Social Research, 230 AD2d 658 (1st Dept. 1996). The facts alleged in the original complaint and in the proposed amended complaint do not rise to this exacting standard. The third cause of action must therefore also be dismissed.

Accordingly, the defendants' motion to dismiss is granted and the complaint is hereby dismissed. The plaintiff's cross-motion to amend the complaint is denied.

The Clerk Shall Enter Judgment Herein

Dated: 12/3/07MARYLIN G. DIAMOND, J.S.C.

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