was made with malice. Instead, plaintiff offers the purely
conclusory assertions from plaintiff's counsel, a statement
from her deposition that the only act of malice was the fact
that her name was stated, (dep., p. 52), and statements in her
affidavit to the effect that she suffered from ". . . malicious
and vile accusations. . . ." (Sabatowski, ¶ 29).
New York courts have consistently emphasized that conclusory
allegations of malice, such as those presented in this case,
are insufficient to defeat a qualified privilege. See, Shapiro
v. Health Insurance Plan of Greater New York, 7 N.Y.2d 56, 194
N YS.2d 509, 163 N.E.2d 333 (1959); Kasachkoff.
Because this Court finds that the alleged defamatory
statement was qualifiedly privileged and that plaintiff has
produced no credible evidence of actual malice to overcome the
privilege, this Court need not address the truth defense.
Therefore, since this Court finds the alleged defamatory
statement protected by a qualified privilege and that plaintiff
has failed to create an issue of fact as to defendant's actual
malice, this Court grants defendant's motion for summary
judgment with respect to plaintiff's defamation claim, Count
Two of the Complaint.
Intentional Infliction Of Emotional Distress
The substance of plaintiff's emotional distress claim is
contained in paragraphs twelve through fifteen of Count Three
of the Complaint. Plaintiff alleges that as a result of being
". . . forced and coerced into admitting a crime which [she]
did not commit" and hearing ". . . that she was to be made a
`scape goat' for missing merchandise" and to be made ". . . an
example of," she suffered harassment and emotional distress.
Defendant moves for summary judgment on plaintiff's emotional
distress claim, arguing that plaintiff's own deposition
testimony establishes that she suffered no emotional distress
as a result of her discharge.
To recover on her claim of intentional infliction of
emotional distress under New York law, plaintiff must prove:
"(1) an extreme and outrageous act by the defendant, (2) an
intent to cause severe emotional distress, (3) resulting severe
emotional distress, (4) caused by defendant's conduct."
Burba v. Rochester Gas and Electric Corp., 90 A.D.2d 984, 456
N YS.2d 578, 579 (4th Dept. 1982).
Initially, this Court concludes that the conduct plaintiff
alleges here is not so ". . . extreme or outrageous . . . which
so transcends the bounds of decency as to be regarded as
atrocious and intolerable in a civilized society."
Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d
735, 741, 480 N.E.2d 349, 355 (1985) (citations omitted).
Nonetheless, as discussed immediately below, plaintiff's
evidence falls far short of creating an issue of fact with
respect to her emotional distress claim for at least two
critical reasons. First, plaintiff offers no evidence that she
has even suffered emotional distress. In fact, plaintiff's own
deposition testimony contradicts her assertion that she has
suffered emotional distress. Second, other than the most
conclusory of assertions, plaintiff produces absolutely no
evidence with respect to defendant's intent to cause severe
Plaintiff offers the totality of the following evidence in
support of her emotional distress cause of action. In her
affidavit plaintiff swears that ". . . because of the
maliciousness and cruelty and the utter disregard for decency
in the way I was fired[,] I suffered great and grievous
emotional distress inflicted by [defendant]." (Sabatowski,
¶ 27). Plaintiff also swears that she has ". . . suffered from
the malicious and vile false accusations of [defendant] until
this very day, and will undoubtedly suffer from these
accusations for the rest of my life." (Sabatowski, ¶ 29).
Plaintiff further offers the affidavit of her husband, John
Sabatowski, where Mr. Sabatowski
swears that ". . . on October 24, 1988, my wife came home from
work in an extremely grievous and distressed emotional state
because she had been fired . . ." and that ". . . ever since my
wife's dismissal from [defendant] she has been extremely
emotionally upset and has had low self-esteem because of the
wrongful accusations made against her by [defendant's]
employees." (John Sabatowski, ¶¶ 7-8).
However, aside from these conclusory statements, plaintiff
offers not even a modicum of credible evidence that she
suffered emotional distress as a result of any of defendant's
Again once subject to cross-examination at her deposition,
plaintiff gave testimony which seriously undercut her claim to
have suffered emotional distress. In fact, at her deposition,
plaintiff admitted not only that at the October 24, 1988
meeting she was neither "forced or coerced" nor harassed,
(dep., pp. 60-61), but that she was never the object of an
intentional infliction of emotional distress by defendant
(dep., p. 62). Even if, as plaintiff's counsel argues, such
statement does not constitute a probative admission because it
is a "legal conclusion," a characterization which this Court
emphatically rejects, other portions of plaintiff's deposition
testimony, alone, undermine her claim of having suffered
emotional distress. At her deposition, plaintiff further
testified that since her discharge, she claimed no mental
injuries for which she sought medical, including psychiatric,
attention, that since her discharge she had sought no medical
or psychiatric treatment at all, that since her discharge she
had not sought non-medical counseling and that she was taking
no medication as a result of her claimed emotional injuries.
(dep., pp. 62-63).
Therefore, since this Court finds that plaintiff has failed
to create an issue of fact as to defendant's intentional
infliction of emotional distress, this Court grants defendant's
motion for summary judgment with respect to plaintiff's
emotional distress claim, Count Three of the Complaint.
For the reasons set forth above, this Court holds that there
exists no genuine issue of material fact with respect to
defendant's liability for breach of contract, defamation or
intentional infliction of emotional distress, Counts One
through Three of the Complaint, respectively. Therefore, this
Court grants defendant's motion for summary judgment in its
IT HEREBY IS ORDERED, that this Court GRANTS defendant's
motion for summary judgment in its entirety and summarily
DENIES defendant's motion for sanctions pursuant to
FURTHER, that this Court directs the Clerk of the United
States District Court for the Western District of New York to
enter final judgment for defendant and to dismiss plaintiff's
action in accordance with this decision.