have already determined that Cardone's surviving benefit does not constitute a "plan" covered by ERISA, Cardone has no federal rights left that Section 1983 could vindicate. Accordingly, Claim 11 must be dismissed.
III. THE TORT CLAIMS
A. The Complaint's Allegations Regarding the Tort Claims
Claims 8, 9, and 10 concern allegations of defamation arising from the media coverage of Empire's difficulties generally, and specifically regarding the discrepancies between Empire's internal and external financial reports. Cardone alleges that various statements, "as intended by Vogt and/or other" persons connected with Empire, "were understood by those to whom they were spoken to charge plaintiff with having committed improper, unlawful and criminal acts." Compl. P 78. He adds that they "were known by [the speaker] to be false and defamatory or were spoken with reckless disregard for the truth thereof, and with the intent to wrongfully and maliciously injure and damage plaintiff in his good name, reputation and profession." Compl. P 78. Cardone asserts that he "has been injured in his profession and . . . reputation and has suffered great pain and mental anguish and has incurred damages including medical and related expenses." Compl. P 79. Cardone's false light and prima facie tort claims repeat the factual basis of the defamation claim. Compl. PP 80, 83.
B. The Defamation Claim
Under New York law a complaint sounding in libel must allege: a false and defamatory statement of and concerning plaintiff; publication to a third party; fault, depending on the status of the libeled party; and special harm or per se actionability. Church of Scientology Int'l v. Eli Lilly & Co., 778 F. Supp. 661, 666 (S.D.N.Y. 1991).
Cardone's defamation claim fails on several grounds, first and foremost insufficient proof that the statements were "of and concerning" him. In order to state a libel claim, plaintiffs must allege facts showing that the alleged defamatory statement was published "of or concerning" them. Allen v. Gordon, 86 A.D.2d 514, 446 N.Y.S.2d 48, 49 (1st Dep't), aff'd, 56 N.Y.2d 780, 452 N.Y.S.2d 25, 437 N.E.2d 284 (N.Y. 1982); Julian v. American Business Consultants, Inc., 2 N.Y.2d 1, 155 N.Y.S.2d 1, 15-16, 137 N.E.2d 1 (N.Y. 1956). Whether the complaint alleges facts sufficient to demonstrate a reasonable connection between the plaintiff and the alleged libel is a question for the court. Springer v. Viking Press, 60 N.Y.2d 916, 470 N.Y.S.2d 579, 580, 458 N.E.2d 1256 (N.Y. 1983); Carlucci v. Poughkeepsie Newspapers, Inc., 57 N.Y.2d 883, 456 N.Y.S.2d 44, 45, 442 N.E.2d 442 (N.Y. 1982). Where the alleged statements are incapable of supporting a finding that such statements refer to plaintiff, the court should dismiss the claim. See Church of Scientology Int'l v. Time Warner, Inc., 806 F. Supp. 1157, 1160 (S.D.N.Y. 1992). After examining the articles, press releases and affidavits, I find that no reasonable person could conclude that the statements here referred to Cardone. The pleadings amply demonstrate that Empire and Vogt never mentioned Cardone's name in any of the press releases. This absence is conspicuous because the press releases do mention Empire's former CFO by name, and refer to other auditors as potentially involved in filing the misleading statements.
Cardone argues that he has a libel claim if those who know him would, upon reading the allegedly libelous statement, understand that he was the target of the statement. Fetler v. Houghton Mifflin Co., 364 F.2d 650, 651 (2d Cir. 1966); Time Warner, 806 F. Supp. at 1160. These statements can be found to concern Cardone only if those who know Cardone could conclude that as CEO and Chairman he was directly responsible for all defalcations of his subordinates. It may be that as captain of Empire he had ultimate responsibility, but that does not mean he was libeled when the acts of other Empire employees were impugned. Indeed, Empire's statements to the media expressly stated that it would not speculate on the extent of any individual's involvement in the alleged misconduct. Because I cannot find that these statements were "of and concerning" Cardone, the defamation claim must be dismissed.
C. The "False Light" Claim
New York does not have a common law tort protecting privacy against publicity that unreasonably places a person in a "false light." Howell v. New York Post, 81 N.Y.2d 115, 596 N.Y.S.2d 350, 354, 612 N.E.2d 699 (N.Y. 1993). Consequently, claim 9 alleging "false light" must be dismissed as a matter of law.
D. The Prima Facie Tort Claim
Claim 10 alleges that Vogt and other representatives of Empire made statements "maliciously, wantonly, recklessly and without legal justification and without regard to the rights of the plaintiff." Compl. P 84. Again, plaintiff pleads damages in the nature of pain and mental anguish, professional and reputational harm, and medical expenses. Compl. P 82, 85. New York law recognizes the "general principle that harm intentionally inflicted is prima facie actionable unless justified." Curiano v. Suozzi, 63 N.Y.2d 113, 480 N.Y.S.2d 466, 469, 469 N.E.2d 1324 (N.Y. 1984). This principle permits recovery for prima facie tort where four elements are shown: i) the intentional infliction of harm, ii) causing special damages, iii) without excuse or justification, iv) by an act or series of acts that would otherwise be lawful. Id.
In order to recover for prima facie tort, the plaintiff must allege that the only motivation for the alleged conduct was to harm the plaintiff. Curiano, 480 N.Y.S.2d at 469. Cardone's affidavits have not raised a genuine issue of material fact that the statements here were solely motivated by a desire to harm him. The record amply demonstrates that Vogt and Empire were trying to diffuse bad publicity. Even if it were assumed that Vogt and other Empire officers harbored ill will toward Cardone, Cardone has made no showing that they were motivated solely by that ill will. Quite to the contrary, the record is clear that Vogt and others went out of their way to avoid mentioning Cardone by name. The absence of any evidence that the defendants intended to harm Cardone suffices to defeat his prima facie tort claim.
The defendants' motions for summary judgment are granted in part and denied in part. Cardone's Benefits, Tort and Civil Rights Claims shall be dismissed with prejudice except for his contractual claim for the Lump Sum Payment. Cardone's summary judgment motion is denied in its entirety.
Dated: New York, New York
April 20, 1995
Harold Baer, Jr.
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