Jiminez v Bavaro Carting Corp.

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Jiminez v Bavaro Carting Corp. 2022 NY Slip Op 33140(U) September 12, 2022 Supreme Court, Kings County Docket Number: Index No. 518528/2019 Judge: Richard Velasquez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 518528/2019 FILED: KINGS COUNTY CLERK 09/13/2022 03:06 PM NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 09/13/2022 At an lAS IAS Term, Term, Part Part 66 of of the the Supreme Supreme Court Court of of the State State of of New New York, York, held held in and and for the County County of of Kings, Kings, at the Courthouse, Courthouse, at Civic Civic Center, Center, th Brooklyn, day of September, Brooklyn, New New York, York, on the the 12th of September, 2022. 2022. PRE SENT: PRES ENT: HaN. RICHARD RICHARD VELASQUEZ, VELASQUEZ, HON. Justice. Justice. -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- - -- -- -- -- -- -- -- -x -X GEORGE JIMINEZ, GEORGE JIMINEZ, Plaintiff, Plaintiff, Index Index No. 518528/2019 518528/2019 against- - against BAVAROCARTING CARTINGCORP., CORP.,VOLMARCONSTRUCTION, BAVARO VOLMAR CONSTRUCTION, INC.,and JOHNDOE, INDIVIDUALLY, INC., and JOHN DOE, INDIVIDUALL y' Defendants. Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X NYSCEF NYSCEF Doc Doc Nos. Nos. following e-filed e-filed papers read herein: The following papers read herein: Notice of Motion/Order Motion/Order to Show Show Cause/ Notice of Cause/ Petition/Cross Motion and Petition/Cross Motion and Affidavits (Affirmations) (Affirmations) _ _ _ _ _ _ __ Affidavits 21-31 32-39 32-39 Opposing Affidavits (Affirmations) _ _ __ Opposing Affidavits (Affirmations) 79-91 93-105 93-105 Reply Affidavits Affidavits (Affirmations) (Affirmations) _ _ _ __ _ Reply 116-1177 116-11 118 Upon the Upon the foregoing foregoing papers papers in this this defamation defamation action, action, defendant defendant Bavaro Bavaro Carting Carting Corp. moves (in motion sequence sequence [mot. seq.] one) one) for for an an order, order, pursuant pursuant to to CPLR CPLR Corp. (Bavaro) (Bavaro) moves (in motion [mot. seq.] 3211 and/or and/or CPLR CPLR 3212, 3212, dismissing 3211 dismissing plaintiff plaintiff George George Jiminez's Jiminez's (plaintiff) (plaintiff) claims claims and and all all cross claims claims asserted asserted against against it. Defendant cross Defendant Volmar Volmar Construction, Construction, Inc. Inc. (Volmar) (Volmar) moves moves (in (in mot. seq. seq. two) two) for for an an order, order, pursuant pursuant to mot. to CPLR CPLR 3211(a) 321 l(a) (7), (7), dismissing dismissing plaintiffs plaintiff's amended amended complaint. complaint. [* 1] 1 of 12 FILED: KINGS COUNTY CLERK 09/13/2022 03:06 PM NYSCEF DOC. NO. 182 INDEX NO. 518528/2019 RECEIVED NYSCEF: 09/13/2022 History Facts Procedural History Facts and Procedural York the City of worked for the Plaintiff alleges in his amended amended complaint complaint that ofNNew ew York that he worked Plaintiff alleges Apprentice and Sewer DOT) Apprentice (NYC DOT) as a New Sewer Transportatio°: (NYC of Transportati0Il: Department of City Department York City New York Volmar Bavaro and Volmar Inspector (NYSCEF Doc amended complaint complaint at ,i ~ 8). Bavaro Jiminez amended No. 27, Jiminez Doc No. Inspector (NYSCEF between· Avenue between Harway Avenue near Harway at/or near were place at/or taking place work taking involved in work contractors involved both contractors were both workas an inspector, 26thth Avenue Street, in Brooklyn. course of of his workas inspector, Brooklyn. In the course Bay 43rdrd Street, Avenue and Bay month of a month span of within the span dates within various dates plaintiff Bavaro on various summonses to Bavaro nine summonses issued nine plaintiff issued nine 2018) (id. at ,i,i March 28, 2018) (beginning on February ending on March ~~ 6-8). All nine 2018 and ending February 26, 2018 (beginning commercial under a commercial protection under summonses street protection proper street have proper failure to have issued for the failure were issued summonses were violation, in the last violation, months after that months refuse container ((id. ~ 6). Plaintiff alleges that after issuing issuing the Plaintiff alleges id. at ,i refuse container driving, he while driving, when, while not on duty when, June clothing and not civilian clothing was in civilian of 2018, he was June or July of2018, the subject been the had been that had reversed same refuse container that subject refuse container bumped into the same which bumped vehicle which reversed his vehicle container plaintiff, the container According to plaintiff, of ~~ 10-11 10-11).). According Bavaro (id. at ,i,i issued to Bavaro violations he issued of the violations After blocks (id. at ,i~ 10). After wooden blocks had just emptied so it was light and shifted shifted off off its wooden was light been emptied just been vehicle, exited his vehicle, that he stopped, bumping stopped, exited claims that plaintiff claims vehicle, plaintiff with his vehicle, container with bumping the container named Volmar named on-sight contractor, contractor, who alleges was an employee employee of of Volmar who he alleges the on-sight and spoke to the that claims that Plaintiff claims Doe. Plaintiff John Doe. action as John this action "Tim (id. at ,i,i ~~ 4, 10-11) 10-11) .. .. " Tim is named named in this "Tim container (id. at ,i refuse container the refuse when ~ 10). offered to fix the (plaintiff) offered Doe, he (plaintiff) John Doe, spoke to John when he spoke took Doe took John Doe blocks, John As plaintiff wooden blocks, onto the wooden back onto container back place the container attempted to place plaintiff attempted photographs (id.). him (id.). of him photographs of 2 [* 2] 2 of 12 FILED: KINGS COUNTY CLERK 09/13/2022 03:06 PM NYSCEF DOC. NO. 182 INDEX NO. 518528/2019 RECEIVED NYSCEF: 09/13/2022 September 6, 2018, 2018, a hearing hearing related related to the the nine nine summonses summonses issued issued to Bavaro Bavaro On September before a Hearing Hearing Officer Officer at the Office Office of of Administrative Administrative Trials Trials and was held before Hearings/Environmental Control Control Board Board (OATH), (OATH), which which plaintiff plaintiff alleges alleges was was attended attended by Hearings/Environmental Bavaro, Volmar, Volmar, and and John John Doe Doe (id. at ,r,r ~~ 12 and 21). Plaintiff Plaintiff states states that, that, upon upon information information Bavaro, belief, it was was customary customary at OATH OATH that that when when matters matters are contested, contested, the the inspector inspector who who and belief, issued the summonses summonses is contacted contacted or is asked asked to be present present to testify testify (id. at ,r ~ 13). issued According to plaintiff, plaintiff, he was neither neither asked asked to testify testify n~r nor was was he contacted contacted by any According representative of of the City City of of New York appearing appearing at such such hearing hearing (id.). (id.). Plaintiff Plaintiff alleges alleges New York representative upon information information and belief, belief, during during the hearing, hearing, Bavaro, Bavaro, and and Volmar Volmar ''jointly "jointly and/or and/or that, upon severally through through John John Doe Doe and others" others" submitted submitted photographs, photographs, which which were were undated undated and severally without photographs were without proper proper foundation foundation or chain chain of of custody, custody, and claimed claimed that that the the photographs were taken the same same date date ofBavaro's of Bavaro's violations violations (id. at ,r ~ 14). Plaintiff Plaintiff alleges, alleges, upon upon information information taken belief, that that the defendants defendants told told the Hearing Hearing Officer Officer that that he knocked knocked the container container off off and belief, of the blocks blocks and then then proceeded issue the nine nine summonses summonses (id.). (id.). He further further alleges alleges that that of proceeded to issue these statements statements were were knowingly knowingly false when when they were were made made (id.). (id.). Plaintiff Plaintiff also alleges alleges these Doe also also submitted submitted to the Hearing Hearing Officer Officer a false, "perjured" "perjured" affidavit affidavit with with the that John Doe statements (id. at ,r ~ 15). According According to plaintiff, Hearing Officer Officer issued issued a plaintiff, the Hearing same false statements decision decision based based on the false testimony testimony of of John John Doe, Doe, Bavaro, Bavaro, and and Volmar, Volmar, as well well as the "perjured" affidavit affidavit and and the photographs, photographs, and determined determined that that plaintiff had tampered tampered with with "perjured" plaintiff had the container container on the the date date he issued issued the summonses summonses (id. at ,r ~ 16). Plaintiff Plaintiff alleges alleges that that as a result of of the defendants' defendants' "obvious "obvious and egregious egregious defamation" defamation" and their their "false "false statements statements result 3 [* 3] 3 of 12 INDEX NO. 518528/2019 FILED: KINGS COUNTY CLERK 09/13/2022 03:06 PM NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 09/13/2022 and willful terminated for cause with the NYC NYC willful misconduct," misconduct," he was was terminated cause from his employment employment with DOT (id. at ,i,i ~~ 18 and 47). He further alleges that statements of"John of "John Doe Doe and others" others" DOT further alleges that the statements were "intentional, malicious, malicious, knowingly made, and/or and/or grossly grossly negligent when were "intentional, knowingly false when when made, negligent when made", and were were made made with with the intent to injure Lastly, plaintiff alleges made", the intent injure him (id. at ,i~ 19). Lastly, plaintiff alleges of the defendants' defendants' actions, actions, he has endured endured loss of of professional professional standing, standing, that because because of "suffered irreparable, irreparable, continuing harm" to his reputation, "suffered continuing harm" reputation, well-being, well-being, and to his personal personal and marital marital life (id. at ,i,i ~~ 26 and 35). August 21, 2019, 2019, plaintiff action with Summons of a Summons On August plaintiff commenced commenced this action with the the filing filing of With Notice naming Bavaro, Bavaro, Volmar, Volmar, and John John Doe Doe individually, defendants. On Notice naming individually, as defendants. November 2019, Volmar Volmar responded responded with Appearance and Demand For November 12, 2019, with a Notice Notice of of Appearance Demand For Complaint. On November 2019, Bavaro Bavaro also responded responded with of Appearance Complaint. November 21, 2019, with a Notice Notice of Appearance Demand For For Complaint. Complaint. On May verified complaint complaint alleging alleging and Demand May 28, 2020, 2020, plaintiff plaintiff filed a verified three causes of of action action against against all three three defendants: defendants: (1) libel; (2) slander; slander; and (3) negligent negligent three causes infliction of of emotional emotional distress, distress, and subsequently subsequently amended amended the complaint complaint to add a fourth infliction of action action for ((4) tortious interference interference with with employment employment relationship. relationship. 4) tortious cause of August 17, 2020, 2020, Volmar amended answer answer to the amended amended complaint complaint in On August Volmar filed an amended which it denied denied the material material allegations allegations therein, numerous affirmative affirmative defenses defenses which therein, asserted asserted numerous including, failure failure to state state a claim, claim, and asserted asserted cross claims claims against September including, against Bavaro. Bavaro. On September Bavaro filed an amended amended answer answer to the amended amended complaint complaint in which which it denied denied 21, 2020, Bavaro material allegations allegations therein, therein, and asserted asserted numerous numerous affirmative affirmative defenses, defenses, including including that that the material 4 [* 4] 4 of 12 FILED: KINGS COUNTY CLERK 09/13/2022 03:06 PM NYSCEF DOC. NO. 182 INDEX NO. 518528/2019 RECEIVED NYSCEF: 09/13/2022 Volmar plaintiff state a viable cause of of action, action, and asserted asserted cross cross claims claims against against Volmar viable cause plaintiff fails to state and John Doe, individually .11 Doe, individually. Dismiss and Volmar's Motions to Dismiss Bavaro and pursuant to claims, pursuant plaintiffs claims, dismiss plaintiffs Bavaro and Volmar Volmar both separately, to dismiss move, separately, both move, Bavaro and that the notes that CPLR 3211, 3211, for failure failure to state state a cause cause of of action. action. At the outset, outset, the court notes the court CPLR distress. As such, plaintiff claim for negligent of emotional emotional distress. such, inflectional of negligent inflectional withdrawn his claim plaintiff has withdrawn interference with the court court will only only address address plaintiff tortious interference with slander and tortious plaintiffss libel, slander Bavaro and respective motions, their respective employment relationship support of motions, Bavaro of their claims. In support relationship claims. employment the words in the Volmar argue that specifically allege allege any defamatory defamatory words plaintiff fails to specifically that plaintiff both argue Volmar both Volmar also complaint as is required claim for defamation defamation (libel (libel or slander). slander). Volmar required to state a claim complaint malicious in were malicious alleged statements asserts that plaintiff fails to show show that that any of of the alleged statements were that plaintiff asserts attributed to any addition, Bavaro Bavaro asserts asserts that that none none of statements are attributed of the false statements nature. In addition, principal, employee, or agent agent of of Bavaro Bavaro as plaintiff identifies John John Doe, Doe, the on-sight on-sight plaintiff only identifies principal, employee, contractor of of defendant defendant Volmar, source of of the alleged alleged false statements statements and individual source Volmar, as an individual contractor plaintiffs claim According to Bavaro, individual source source from Bavaro. Bavaro. According Bavaro, plaintiffs claim name any individual does not name of his burden not relieve defendants acted acted "jointly "jointly and/or severally" does not relieve plaintiff plaintiff of burden to and/or severally" that defendants plead made defamatory defamatory statements. statements. Bavaro made person from Bavaro which person plead which argues that Bavaro that Bavaro argues therefore Doe, and John Doe, written by John plaintiffs claim is based solely on the affidavit affidavit written and therefore based solely plaintiffs libel claim Bavaro. against Bavaro. the libel claim must fail as against claim must 11 [* 5] Defendant "John Doe" appeared in this action. this action. not appeared has not Doe" has Defendant "John 5 5 of 12 INDEX NO. 518528/2019 FILED: KINGS COUNTY CLERK 09/13/2022 03:06 PM NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 09/13/2022 respect to plaintiffs claim for tortious tortious interference interference with with employment employment With respect plaintiffs claim relationship, Bavaro Bavaro argues argues that that this claim claim is derivative derivative of of plaintiffs slander relationship, plaintiffs libel and slander claims, and therefore therefore must must be dismissed. dismissed. Bavaro Bavaro further further argues argues that that the litigation litigation privilege privilege claims, should be applied applied to the tortious tortious interference interference with with employment employment relationship relationship claim claim because should because considerations that that shield shield the alleged alleged false statements statements from claims claims of of the same policy policy considerations defamation should should apply. apply. defamation Volmar argues argues that that plaintiff, at-will employee employee with with the NYC DOT, fails to Volmar plaintiff, as an at-will NYC DOT, meet the elements elements required required to state a claim claim for tortious tortious interference interference with with employment employment , meet I relationship because how Volmar Volmar interfered interfered with with his employment. employment. In this relationship because he fails to state how regard, Volmar Volmar argues argues that that the plaintiff indication as to the specific specific nature nature regard, plaintiff does not give any indication of Vol mar's alleged alleged statements statements and conduct. conduct. Volmar Volmar therefore therefore argues argues that that plaintiffs "bare ofVolmar's plaintiffs "bare conclusions" and the conclusory conclusory nature nature of of his allegations allegations that that Volmar Volmar made made "false "false legal conclusions" statements" and engaged engaged in "willful "willful misconduct" misconduct" are insufficient insufficient to state state a claim claim for statements" tortious interference interference with with employment employment relationship. relationship. tortious Plaintiffs Opposition to Bavaro and Volmar's Volmar's Motions Plaintiffs Opposition Bavaro and Motions opposition to Bavaro Bavaro and Volmar's Volmar's respective respective motions, motions, plaintiff argues that that his In opposition plaintiff argues pleadings "are sufficient sufficient to put notice of of what what the claimed claimed defamatory defamatory pleadings "are put all parties parties on notice language is, along along with with the requirement requirement of of providing, time, place, manner and to whom whom the language providing, time, place, manner statements were made." Plaintiff Plaintiff asserts asserts that that Bavaro Bavaro would would clearly clearly know know what what the statements were made." defamatory statement statement is since since it was present present at the hearing hearing and the statements statements were were made made defamatory further argues argues that that the litigation litigation privilege, specifically absolute absolute privilege, on its behalf. behalf. He further privilege, specifically privilege, [* 6] 6 of 12 6 FILED: KINGS COUNTY CLERK 09/13/2022 03:06 PM NYSCEF DOC. NO. 182 INDEX NO. 518528/2019 RECEIVED NYSCEF: 09/13/2022 that the statements applies only to John statements from the OATH OATH Bavaro, and that not to Bavaro, but not Doe but John Doe applies Doe is the only John Doe since John Bavaro since against Bavaro proceeding proceeding against another proceeding used in another proceeding may be used that John plaintiff contends affidavit. Thus, Thus, plaintiff contends that John Doe, Doe, who who proffered an affidavit. testified and proffered one who testified privilege.2 2 Since was not employed employed by Bavaro, only one protected the litigation litigation privilege. Since protected by the the only Bavaro, is the plaintiff contends. hearing, plaintiff the hearing, Bavaro sworn affidavit affidavit for the contends. provided a sworn nor provided testified nor neither testified Bavaro neither OATH that the OATH out that points out Plaintiff points assert. Plaintiff that the litigation Bavaro' s to assert. not Bavaro's privilege is not litigation privilege that the statements nine summonses hearing occurred because received nine summonses and that statements of of Bavaro received because Bavaro hearing only occurred statements made on Bavaro's defense, and and therefore therefore such such statements behalf, and in its defense, Bavaro's behalf, were made John Doe were Volmar did not appear that since attributed to Bavaro. addition, plaintiff asserts that since Volmar appear plaintiff asserts Bavaro. In addition, can be attributed under the immunity under have immunity not have does not at the OATH thereto, it does party thereto, witness or a party hearing as a witness OATH hearing absolute litigation privilege. litigation privilege. absolute plaintiff As to his claim claim for tortious tortious interference interference with employment relationship, relationship, plaintiff with employment this cause that this argues that derivative of of his claims claims for libel and slander. slander. He asserts asserts that cause not derivative that it is not provided Doe provided of action action is sufficiently sufficiently pleaded statements of of John John Doe that the statements broadly, and that pleaded broadly, of Volmar. and Volmar. Bavaro and during the OATH OATH hearing used to prove prove his case case against against Bavaro hearing can be used during which he argues clearly coordinating," Plaintiff contends contends that that Bavaro Bavaro and Volmar, Volmar, "are "are clearly coordinating," which argues is Plaintiff rights. evidence of of a plot interfere tortiously employment rights. plaintiffs employment with plaintiffs tortiously with them to interfere between them plot between evidence before the Volmar before Bavaro and Volmar between Bavaro Plaintiff conversations between were conversations there were that there posits that Plaintiff posits able to been able and been OATH Doe and John Doe of John known of have known not have would not Bavaro would otherwise Bavaro hearing, otherwise OATH hearing, withdraws any Plaintiff concedes that John Doe's statements and affidavit affidavit are privileged and withdraws privileged and Doe's statements that John Plaintiff concedes request from John Doe. John Doe. relief from request for relief 7 22 [* 7] 7 of 12 FILED: KINGS COUNTY CLERK 09/13/2022 03:06 PM NYSCEF DOC. NO. 182 INDEX NO. 518528/2019 RECEIVED NYSCEF: 09/13/2022 procure affidavit which which was prepared hearing. Lastly, Lastly, plaintiff argues that that procure the affidavit prepared before before the hearing. plaintiff argues case is in its early early stages, stages, he should should be permitted discovery and to undertake undertake permitted discovery since this case depositions of of all the individuals individuals involved. involved. depositions Discussion Discussion move for an order, order, pursuant CPLR 3211 (a) (7), dismissing dismissing a cause cause A party party may move pursuant to CPLR of action action against against itit on the ground ground that that the pleading state a cause cause of of action. action. In of pleading fails to state considering a dismissal dismissal motion motion for failure failure to state a cause cause of of action, action, "the "the pleadings must be pleadings must considering liberally construed construed and '[t]he '[t]he sole criterion criterion is whether whether from [the complaint's] complaint's] four comers comers liberally allegations are discerned discerned which which taken taken together together manifest manifest any cause cause of of action action factual allegations cognizable at law" law" (Gershon (Gershon v Goldberg, Goldberg, 30 AD3d AD3d 372, 373 [2d Dept Dept 2006], 2006], quoting quoting cognizable Guggenheimer v Ginzburg, Ginzburg, 43 NY2d 268,275 [1977]; see also also Dinerman of NY2d 268, 275 [1977]; Dinerman v Jewish Jewish Bd. of Guggenheimer Family Children's Servs., Inc., AD3d 530, 531 [2d Dept Dept 2008]; 2008]; Morone Family & Children's Inc., 55 AD3d Marone v Morone, Marone, 481,484 [1980]; 219 219 Broadway 50 NY2d NY2d 481, 484 [1980]; Broadway Corp. v Alexander's, Alexander's, Inc., Inc., 46 NY2d NY2d 506, 509 [1979]). The court court may may consider consider affidavits affidavits and other other evidentiary evidentiary material material submitted submitted by the movant to establish establish conclusively conclusively that that no viable viable causes causes of of action action exist exist (see Simmons Simmons v movant Edelstein, AD3d 464,465 464,465 [2d Dept Dept 2006]; 2006]; Rovello Orofino Realty Co., 40 NY2d Edelstein, 32 AD3d Rove/lo v Orofino Realty-Co., NY2d 633, [1976]). A court court considering considering a motion motion to dismiss dismiss must must both accept as true true the 636 [1976]). both accept allegations in the complaint complaint and afford afford the plaintiff of every every possible favorable possible favorable allegations plaintiff the benefit benefit of inference (Leon (Leon v Martinez, [1994]; see also also Great Great Eagle NY2d 83, 87-88 [1994]; Eagle IntI. Intl. Trade, inference Martinez, 84 NY2d Ltd. v Corporate Corporate Funding AD3d 731 [2d Dept Dept 2013 2013]). essence, the ]). In essence, Funding Partners, Partners, LLC, LLC, 104 AD3d 8 [* 8] 8 of 12 INDEX NO. 518528/2019 FILED: KINGS COUNTY CLERK 09/13/2022 03:06 PM NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 09/13/2022 sustainable "upon action are sustainable of action court must "upon any causes of alleged causes whether the alleged determine whether must determine court Dept 454 [2d Dept 454, 454 AD2d 454, 296 AD2d reasonable stated" (Schneider (Schneider v Hand, 296 the facts as stated" of the view of reasonable view Dept 2004]). [2d Dept 662,663 AD3d 662, 11 AD3d 663 [2d 2004]). McGivney, 11 Manfra v McGivney, 2002]; see also Manfro Defamation Defamation public person to public expose a person tends to expose that tends A defamatory statement is "a "a false statement statement that defamatory statement NY3d 580, Paul B., 18 NY3d contempt, hatred, aversion, or disgrace disgrace ... ... " (Thomas (Thomas H v Paul ridicule, aversion, hatred, ridicule, contempt, statement of action 584 [2012]). [2012]). "The "The elements elements of ofaa cause cause of action for defamation defamation are (a) a false statement amounting to fault (c) amounting party, (c) a third party, ... (b) published published without without privilege privilege or authorization authorization to athird ... harm or causing special as judged standard, and (d) either either causing special harm negligence standard, minimum, a negligence judged by, at a minimum, Dept 2017]). 41 [2d Dept AD3 d 27, Spitzer, 15 constituting defamation defamation per 1555 AD3d 27,41 2017]). (Greenberg v Spitzer, per se" (Greenberg constituting that false statements specific false Here, amended complaint complaint does statements that does not set forth the specific plaintiff's amended Here, the plaintiffs that provides that 3016 (a) provides defamatory. "CPLR Bavaro "CPLR 3016 alleged to be defamatory. that are alleged made that Volmar made Bavaro or Volmar action for libel libel or slander, slander, the particular complained of of shall shall be set forth in words complained particular words [i]n an action The plaintiff may be stated the complaint, complaint, but their application application to the plaintiff stated generally. generally. The but their verbatim is strictly quoted verbatim requirement that the defamatory words strictly enforced" enforced" (Erlitz (Erlitz ni.ust be quoted words must the defamatory requirement that internal and internal Dept 1988] [citations v Segal, Liling [citations and AD2d 710, 712 [2d Dept Erlitz, 142 AD2d Liling & Erlitz, AD3d Hunters, Inc., 38 AD3d Space Hunters, Rooms, Inc. v Space quotations omitted]; omitted]; see CPLR Abe's Rooms, 3016; Abe's CPLR 3016; quotations 494, 494 [2d AD2d 494,494 Empls. Ins. Co., 196 AD2d 690,693 Dept 2007]; 2007]; Skinner Skinner v Government Government Empls. 693 [2d Dept 690, of in complained of words complained particular words Dept ["Since the failed to set forth the particular plaintiff failed the plaintiff Dept 1993] ["Since been dismissed"]). have been his complaint, complaint, his ... ... cause cause of of action action for defamation defamation should should have dismissed"]). 9 [* 9] 9 of 12 FILED: KINGS COUNTY CLERK 09/13/2022 03:06 PM NYSCEF DOC. NO. 182 INDEX NO. 518528/2019 RECEIVED NYSCEF: 09/13/2022 In his amended amended complaint, complaint, plaintiff plaintiff alleges alleges that that Bavaro, Bavaro, Volmar, Volmar, and and John John Doe, together taken together that taken made statements hearing made acting jointly severally during during the ·oATH OATH hearing statements that jointly or severally acting support their their false contention contention that that plaintiff plaintiff issued issued the summonses summonses to Bavaro Bavaro after after he support that knocked container off off the served as its foundation,. foundation, and that that served blocks that wooden blocks the wooden refuse container knocked the refuse submitted photographs photographs falsely falsely representing representing they they were were taken taken on the the same same date date as they submitted the defendants. Bavaro's There are no specific specific words attributed to any of of the defendants. Indeed, Indeed, words attributed violation. There Bavaro's violation. plaintiff does not not quote quote a single single word word alleged alleged to have have been been spoken spoken or written written by Bavaro Bavaro or plaintiff made "false they made that they vaguely alleges Volmar amended ·complaint complaint and only vaguely alleges that "false Volmar in the amended statements" to the OATH OATH hearing hearing officer. officer. Even Even with with the most most liberal liberal reading reading of of plaintiffs plaintiff s statements" amended complaint, complaint, the court can can find no defamatory defamatory statement statement alleged alleged against against Bavaro Bavaro or the court . amended Volmar. By failing failing to quote quote the alleged alleged defamatory defamatory words words verbatim verbatim as required required under under Volmar. CPLR 3016, 3016, plaintiff state a claim claim against against Bavaro Bavaro or Volmar Volmar for libel libel or slander slander plaintiff fails to state CPLR Simpson v Cook Cook Pony Pony Farm Farm Real Real Estate, Estate, Inc., 12 AD3d AD3d 496, 496, 497 [2d Dept Dept (see Simpson 2004]; Varela v Investors AD2d 309 309 [2d Dept Dept 1992]). 1992]). In light light of of Holding Corp., 185 AD2d Investors Ins. Holding determination, the the court court sees sees no need need to address address the the question question of of whether whether the unspecified unspecified this determination, plaintiffs statements complained complained of of were were subject subject to an absolute absolute privilege. Accordingly, plaintiff's privilege. Accordingly, statements matter of as. a matter defamation claims claims are dismissed dismissed as of law. . defamation Relationship Tortious Interference Employment Relationship Interference With Employment Tortious interference tortious interference Plaintiff's amended complaint complaint also fails to state state a claim claim for tortious Plaintiffs amended with employment employment relations relations against against Bavaro Bavaro and Volmar. Volmar. with term of "An employee employee who does not agreement for a definite definite term of under an agreement work under not work who does "An or with time any at discharged be may employment is an at-will employee who may discharged time with who employee at-will employment 10 [* 10] 10 of 12 FILED: KINGS COUNTY CLERK 09/13/2022 03:06 PM NYSCEF DOC. NO. 182 INDEX NO. 518528/2019 RECEIVED NYSCEF: 09/13/2022 without cause cause (see Murphy without Murphy v American American Home Home Prods. Prods. Corp., 58 NY2d NY2d 293 [1983]). New York does does not recognize recognize a cause cause of of action action for the tort tort of of abusive abusive or [1983]). New York wrongful discharge discharge of of an at-will at~will employee, employee, and this rule cannot cannot be circumvented circumvented by wrongful casting the cause cause of of action action in terms terms of of tortious tortious interference interference with with employment employment casting (McHenry v Lawrence, AD3d 650, 651 [2d Dept Dept 2009], 2009], citing citing Smalley Smalley v Dreyfus (McHenry Lawrence, 66 AD3d Dreyfus 10 NY3d [2008]; see Horn [2003]; Ingle NY3d 55 [2008]; Horn v New New York Times, 100 NY2d NY2d 85 [2003]; Ingle Corp., IO Glamore Motor [1989]; Barcellos AD3d 934, v Glamore Motor Sales, 73 NY2d NY2d 183 [1989]; Barcellos v Robbins, Robbins, 50 AD3d [2008]). 935 [2008]). However, " 'an 'an at-will at-will employee employee may assert assert a cause cause of of action action alleging alleging tortious tortious However, interference with with employment employment where where he or she can demonstrate demonstrate that that the defendant defendant utilized interference utilized wrongful means means to effect effect his or her termination' " (McHenry, (McHenry, 66 AD3d AD3d at 651, quoting quoting wrongful her termination' Schorr v Guardian Guardian Life of Am., 44 AD3d AD3d 319,323 319,323 [Pt [1st Dept Dept 2007]). 2007]). To plead Schorr Life Ins. Co. of plead a tortious interference interference with with employment, employment, plaintiff must allege allege "(I) "( 1) the existence existence of of claim for tortious plaintiff must relationship between third party; defendants' a business business relationship between the plaintiff plaintiff and a third party; (2) the defendants' interference with with that that business relationship; (3) that that the defendants defendants acted acted with with the sole interference business relationship; purpose of harming harming plaintiff used dishonest, dishonest, unfair, unfair, improper improper or illegal illegal means means that plaintiff or used purpose of amounted to a crime crime or an independent independent tort; and (4) that that such such acts resulted resulted in the injury injury to amounted relationship with with the third third party" AD3d at 651; Schorr, Schorr, McHenry, 66 AD3d the plaintiffs plaintiffs relationship party" (id.; see McHenry, AD3d at 323). 44 AD3d Here, although although plaintiff alleged that that he had an at-will at-will employment employment relationship relationship Here, plaintiff has alleged DOT that that was was terminated terminated for cause, cause, he has failed failed to set forth a factual factual basis basis with the NYC NYC DOT conclusory claims claims that that the defendants defendants intentionally intentionally interfered interfered with with this employment employment for his conclusory relationship. Plaintiffs Plaintiff s complaint complaint consists consists entirely entirely of of bare conclusory allegations allegations that that bare conclusory relationship. defendants, through through John Doe, made made unspecified statements about about plaintifftampering defendants, John Doe, unspecified false statements plaintiff tampering refuse container container on the dates dates on which which he issued issued the summons summons to Bavaro, Bavaro, and that with the refuse 11 11 [* 11] 11 of 12 INDEX NO. 518528/2019 FILED: KINGS COUNTY CLERK 09/13/2022 03:06 PM NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 09/13/2022 their "willful "willful misconduct misconduct did in fact cause cause plaintiffs plaintiff s employment employment. ... .. to be terminated" terminated" their . (NYSCEF Doc Doc No. Jiminez amended amended complaint complaint at ,r ~4 47). Plaintiff, however, however, fails to (NYSCEF No. 27, Jiminez 7). Plaintiff, specify what what false statements statements Bavaro Bavaro and/or and/or Volmar Volmar allegedly allegedly communicated communicated to his specify employer or how how same same resulted resulted in injury injury to his employment employment r~lationship r~lationship (see McHenry, McHenry, 66 employer AD3d at 652). 652). Furthermore, Furthermore, the the plaintiff failed to allege allege that that Bavaro Bavaro and and Volmar Volmar "acted "acted AD3d plaintiff has failed ', \ "1 purpose of of harming harming plaintiff' that they they used used any "unfair, "unfair, improper, improper, or\ or \ with the sole purpose plaintiff' or that illegal means means that that amounted amounted to a crime crime or an independent independent tort" tort" ((id. 651).). Thus, Thus, plaintiffs plaintiffs illegal id. at 651 complaint fails factual allegations allegations against against Bavaro Bavaro or Volmar Volmar which, which, taken· taken complaint fails to set forth factual together, manifest manifest a claim claim for tortious tortious interference_ interference with with employment employment relationship. relationship. together, Accordingly, said said claim claim is hereby hereby dismissed dismissed as against against Bavaro Bavaro and and Volmar. Volmar. Accordingly, Conclusion Conclusion Accordingly, it is hereby hereby ORDERED ORDERED that that Bavaro's Bavaro's motion motion (mot. (mot. seq. one), one), Accordingly, pursuant CPLR 3211, 3211, for dismissal dismissal of ofplaintiffs claims and and all cross cross claims claims against against it is pursuant to CPLR plaintiffs claims granted; and it is further further ORDERED ORDERED that that Volmar's Volmar's motion motion (mot. (mot. seq. two), two), pursuant granted; pursuant to CPLR 321 3211(a) dismiss plaintiffs plaintiffs amended amended compl_aint complaint and all cross cross claims claims against against it l(a) (7), to dismiss CPLR granted. This This constitutes constitutes the decision, decision, order order and judgment of the court. court. is granted. judgment of ERlFV/ ER[F\}f HON. RICHARD HON.IDCHARD SEP 12 12 SEP [* 12] 12 of 12 12 LASQUEZ. LASQUEZ ·,//

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