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July 14, 1980

Joseph J. SADOWY, Plaintiff,

The opinion of the court was delivered by: DUFFY

This is an action based on diversity of citizenship in which plaintiff Joseph J. Sadowy, defendant's former General Manager for the Eastern Region of the United States, seeks several million dollars in damages from defendant Sony Corporation of America (hereinafter referred to as "Sonam") for alleged harm to plaintiff's business reputation caused by Sonam after it terminated plaintiff's employment. Sonam has also brought four counterclaims against Sadowy. The matter comes before the court on plaintiff's motion under Fed.R.Civ.P. 12(b)(6) to dismiss Sonam's second, third, and fourth counterclaims, and defendant's cross motion to dismiss the Amended Complaint under Fed.R.Civ.P. 12(b), or, in the alternative, for summary judgment under Fed.R.Civ.P. 56.

The Amended Complaint

 Defendant makes several arguments against each of the five counts in the Amended Complaint. Each will be addressed in turn.

 Count One

 Count one pleads a prima facie tort in that defendant, its employees and agents "have maliciously engaged in an intentional campaign to inflict injury upon the plaintiff in order to destroy his reputation in the consumer electronics business community, and to insure that plaintiff would never be employed in the same or similar capacity in which he had been previously employed." Amended Complaint P 23.

 The elements of a claim for prima facie tort are (i) the infliction of intentional harm; (ii) resulting in damages; (iii) without excuse or justification; (iv) by an act or series of acts that would otherwise be lawful. Avigliano v. Sumitomo, 473 F. Supp. 506, 515 (S.D.N.Y.1979); Sommer v. Kaufman, 59 A.D.2d 843, 844, 399 N.Y.S.2d 7, 8 (1st Dep't 1977).

 Defendant attacks this count as insufficiently pled in that (i) it fails to allege that defendant's motivation was limited solely to a desire to harm plaintiff; (ii) it fails to plead special damages; and (iii) it actually pleads the traditional tort of defamation. Alternatively, defendant argues that uncontrovertible facts entitle defendant to summary judgment in its favor.

 Defendant argues that count one fails to state a claim and must be dismissed under Korry v. ITT, 444 F. Supp. 193, 195 (S.D.N.Y.1978) (". . . it is well settled that a claim of prima facie tort does not lie where the defendants' action has any motive other than a desire to injure plaintiff"). Apparently, relying on certain statements in Sadowy's affidavits, defendant argues that Sadowy has not met this pleading requirement because of his belief that the alleged slanderous statements made about him were initially part of a Sonam cover-up of its own illegal activities.

 Sadowy does state that Sonam's co-operative advertising program was merely a hidden discount to certain dealers in that these dealers received credit for fictitious advertising expenditures. Sadowy's affidavit also states that Sonam "apparently" engineered his dismissal in order to disassociate itself from questionable practices, particularly the co-operative advertising program, that were then coming under legal scrutiny.

 I have serious doubts that a complaint sounding in prima facie tort must be dismissed where the "other" motive is illegal or covering up illegality, but that question need not be faced here. It is the allegations of the complaint which must survive a motion to dismiss for failure to state a claim. Sadowy's Amended Complaint survives this attack on the adequacy of its pleadings since it alleges that the harmful acts and statements complained of were done "solely to maliciously and wantonly injure plaintiff." Amended Complaint P 26. Sadowy further alleges that the attempt to involve him in a criminal investigation "was engendered solely to injure plaintiff and subject him to further harassment" (Amended Complaint P 32), and that "(t)he sole motive of Sonam, its employees and agents as to the acts complained of hereinabove, was deliberately to injure plaintiff by destroying his good name and reputation and ensure that plaintiff would be unable to obtain employment in the same capacity as he had been previously employed by Sonam." (Amended Complaint P 41).

 Thus, a fair reading of the Amended Complaint shows that count one clearly and repeatedly pleads that Sonam's sole motivation for the course of its allegedly harmful acts against plaintiff was to cause injury. There is not one word in count one alluding to any further motive on the part of Sonam. Accordingly, this argument of Sonam fails. See the discussion of count five and alternative pleading, infra.

 Sonam next argues that this count must be dismissed for Sadowy's failure to plead special damages. The damages sought under count one consist of $ 1,000,000 for the loss of plaintiff's good name and reputation, $ 500,000 for loss of income (equalling plaintiff's approximately $ 50,000 a year salary for the number of years he could work before reaching Sonam's retirement age), $ 500,000 for pain and suffering, $ 1,000,000 punitive damages. Defendant contends that these are "damages of the most general sort, estimated in turns of round numbers, without a pretense of exact mathematical computation or factual substantiation."

 Defendant is correct that special damages, specifically itemized, are an element of a claim for prima facie tort. Penn-Ohio Steel Corp. v. Allis-Chalmers Mfg. Co., 7 A.D.2d 441, 184 N.Y.S.2d 58, modified on other grounds, 8 A.D.2d 808, 187 N.Y.S.2d 476 (1st Dep't 1959). In the case at hand, the claim for $ 500,000 for lost income originally pleads special damages. Korry v. ITT, supra, 444 F. Supp. at 197. Defendant concedes that lost income can constitute special damages, but argues that count one does not state a claim for wrongful termination, and therefore, these special damages do not flow from this count.

 The problem with this argument is that the entire thrust of count one is that defendant's actions and statements prevented plaintiff from obtaining subsequent employment in the electronics industry. Plaintiff alleges that he has sought such employment and, despite a successful professional record, was unable to find any. Plaintiff's calculation of his lost income was reasonably based on his previous salary while at Sonam, i. e., $ 50,000 a year for the ten years he could have worked before reaching Sonam's mandatory retirement age. In the context of the first count, this claim for $ 500,000 lost income is "a statement of reasonably identifiable losses sustained by the plaintiff." Bohm v. Holzberg, 47 A.D.2d 764, 365 N.Y.S.2d 262, 264 (2d Dep't 1975), and as such is "sufficiently alleged to put the defendant on notice as to the precise nature of the damages in order that the defendant might be prepared to defend the action." McCullough v. Certain Teed Products Corp., 70 A.D.2d 771, 417 N.Y.S.2d 353, 354 (4th Dep't 1979).

 The claim for lost income preserves plaintiff's first count. The remaining monetary claims in count one are stricken unless plaintiff can replead within 20 days to state a claim for any further actual losses attributable to the allegations of count one. Diehl & Sons, Inc. v. International Harvester, 445 F. Supp. 282, 292 (E.D.N.Y.1978); Korry v. ITT, supra, 444 F. Supp. at 197; Groat v. Town Board of Glenville, 100 Misc.2d 326, 329, 418 N.Y.S.2d 842, 845 (Sup.Ct.1979).

 Defendant's next argument (that count one actually pleads the tort of defamation and therefore must be dismissed as a claim for prima facie tort) is easily disposed of. It is correct that an action for prima facie tort will not lie where the allegations fall within the scope of a traditional tort theory, such as defamation. Belsky v. Lowenthal, 62 A.D.2d 319, 405 N.Y.S.2d 62 (1st Dep't 1978), aff'd on opinion below, 47 N.Y.2d 820, 392 N.E.2d 560, 418 N.Y.S.2d 573 (1979).

 Defendant, however, misreads count one, which is not premised solely on defamatory statements, as the second, third, and fourth counts are, but rather on an entire course of conduct consisting of defamatory statements and publications, innuendo, contacting the Manhattan District Attorney's Office to institute a criminal investigation, and failing to cooperate with that investigation once begun. The fact that some of the specific facts alleged in this count can also sound in defamation does not mean that this is merely a defamation count dressed in other garb. A claim for prima facie tort may be pled ...

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