Plaintiff's intentional infliction of emotional distress claim also fails to withstand defendants' motion for summary judgment. To satisfy the standard for intentional infliction of emotional distress, a plaintiff must describe conduct "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Murphy v. American Home Prod. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86 (Ct. App. 1983) (quoting Rest. Second Torts § 46(1), comment d. The plaintiff in Murphy alleged that he was fired because of his age and because he had reported management improprieties. "When he returned the next day for his belongings, he was placed under guard, barred from saying goodbye to his colleagues, told that his belongings had been taken from his desk (allegedly by breaking the lock) and publicly escorted out of the building; two weeks later, when he came as directed, to collect his possessions, he was summarily ordered out of the building, and his possessions dumped on the street beside him." 112 Misc. 2d 507, 447 N.Y.S.2d 218, 219 (N.Y. Sup. Ct.) (opinion below). Despite these facts, the Court of Appeals held that the plaintiff did not state a claim for intentional infliction of emotional distress.
In the case before us, plaintiff's allegations of outrageous behavior amount to the following: 1) she was fired soon after having a child; 2) that an article about her intention to sue OTB appeared in a newspaper; and 3) that she was fired for retaliatory and discriminatory reasons in violation of various state and federal laws. Even assuming all of that these allegations are true, they do not begin to approach the strict standard of outrageous behavior that is needed to prove an intentional infliction of emotional distress claim under New York law. See Murphy, supra; Hoheb v. Pathology Associates, 146 A.D.2d 919, 536 N.Y.S.2d 894, 896 (N.Y. App. Div. 3d Dept. 1989); Martin v. Citibank, 762 F.2d 212, 220 (2d Cir. 1985). Accordingly, defendants' motion for summary judgment on plaintiff's intentional infliction of emotional distress claim is granted.
Plaintiff has indicated that she does not oppose defendants' motion for summary judgment on her defamation claim. See Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss at 2. Accordingly, defendants' motion for summary judgment on this claim is granted.
VII. Ultra Vires Claim
In her twelfth claim for relief, plaintiff asserts that defendants acted ultra vires when they terminated plaintiff's employment without official board of directors' action. Plaintiff claims that by firing plaintiff without Board action, defendants violated "the statutes of the State of New York relating to corporations."
In her brief in opposition to defendants' motion for partial summary judgment, plaintiff denominates her twelfth claim as one for promissory estoppel. Whether plaintiff's twelfth cause of action is making an ultra vires claim or a promissory estoppel claim, defendants' motion for summary judgment on plaintiff's twelfth claim for relief must be granted.
Plaintiff has not stated in her complaint or in her briefs the New York Statutes upon which she is relying for her ultra vires claim. The most relevant New York statute seems to be N.Y. Bus. Corp. Law § 203 (McKinney 1986). However, any reliance on this statute by plaintiff must fail because the statute only permits a right of action by a shareholder of a corporation, "by or in the right of the corporation to procure a judgment in its favor against an incumbent or former officer director of the corporation for loss or damage due to his unauthorized act," and by the attorney-general. Id.14 Because plaintiff is not a shareholder of OTB, is not suing on behalf of OTB, and is not the attorney-general, plaintiff's ultra vires claim must fail. See Jaffe Plumbing & Heating Co. v. Brooklyn Union Gas Co., 51 Misc. 2d 1083, 275 N.Y.S.2d 24, 28 (N.Y. Sup. Ct. 1966), aff'd, 29 A.D.2d 1051, 290 N.Y.S.2d 1022, 29 A.D.2d 1052 (N.Y. App. Div. 2d Dept. 1968), aff'd, 26 N.Y.2d 851, 309 N.Y.S.2d 597, 258 N.E.2d 93 (Ct. App. 1970); 711 Kings Highway Corp. v. F.I.M.'s Marine Repair Service, Inc., 51 Misc. 2d 373, 273 N.Y.S.2d 299, 300-01 (N.Y. Sup. Ct. 1966).
Plaintiff asserts that she left her previous job and joined OTB in reliance upon Sarah Jo Hamilton's promise that plaintiff could only be fired by the OTB Board of Directors.
Plaintiff therefore contends that OTB is promisorily estopped from firing plaintiff in a manner that violates Sarah Jo Hamilton's promise. We disagree.
First of all, plaintiff never raised a promissory estoppel claim in her complaint. For this reason alone, defendants' motion for summary judgment on this claim should be granted.
Moreover, under New York law, "the doctrine of promissory estoppel is properly reserved for that limited class of cases where 'the circumstances are such as to render it unconscionable to deny' the promise upon which the plaintiff has relied." Philo Smith & Co. v. Uslife Corp., 554 F.2d 34, 36 (2d Cir. 1977) (quoting 3 Williston on Contracts § 533A, at 801 (3d ed. 1960) (emphasis added in the Philo opinion). "It has been consistently held that a change of job or residence, by itself, is not sufficient to trigger invocation of the promissory estoppel doctrine." Cunnison v. Richardson Greenshields Securities, Inc., 107 A.D.2d 50, 485 N.Y.S.2d 272, 275 (N.Y. App. Div. 1st Dept. 1985); accord Ginsberg v. Fairfield-Noble Corp., 81 A.D.2d 318, 440 N.Y.S.2d 222, 225 (N.Y. App. Div. 1st Dept. 1981). Moreover, "the choice to forego current employment because of rosy promises" does not render the circumstances so unconscionable that the plaintiff may assert promissory estoppel. Ginsberg, 440 N.Y.S.2d at 225. Therefore, plaintiff's mere assertion that she left her previous job in reliance on Sarah Jo Hamilton's promise that plaintiff could only be fired by the Board of Director's, is insufficient to allow plaintiff to utilize promissory estoppel. Accordingly, defendants' motion for summary judgment on plaintiff's promissory estoppel claim is granted.
Defendants' motion for summary judgment on plaintiff's contract claim, due process claim, privacy claim, defamation claim, intentional and negligent infliction of emotional distress claims, ultra vires claim, and promissory estoppel claim is granted. Defendants' motion for summary judgment on plaintiff's Whistleblower Statute Claim is denied. Plaintiff's cross motion for partial summary judgment is denied in its entirety.
Dated: New York, New York
April 15, 1993
KENNETH CONBOY, U.S.D.J.