Accordingly, defendants' motion should be granted to the extent
that it seeks dismissal of plaintiff's FMLA claim.
Finally, defendants move to dismiss plaintiff's defamation
claim. In order to state a claim for defamation under New York
law, plaintiff must allege that defendants made (1) a defamatory
statement of fact (2) regarding the plaintiff (3) that was
published to a third party (4) causing injury to plaintiff.
Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 61 (2d Cir.
1993); Murphy v. Cadillac Rubber & Plastics, Inc., 946 F. Supp. 1108,
1122 (W.D.N.Y. 1996). In addition, N.Y.C.P.L.R. § 3016(a)
requires that, "[i]n an action for libel or slander, the
particular words complained of shall be set forth in the
complaint. . . ." Courts applying New York law regularly dismiss
defamation claims which do not comply strictly with this rule at
the pleading stage. See, e.g., Kissner v. Inter-Continental
Hotels, Corp., 1998 WL 337067, at *2 (S.D.N.Y. June 25, 1998)
(citing Monsanto v. Electronic Data Sys. Corp., 141 A.D.2d 514,
516, 529 N.Y.S.2d 512, 515 (2nd Dep't 1988); Belvision, Inc. v.
M & G Elecs., Inc., 134 A.D.2d 313, 313-14, 520 N.Y.S.2d 790,
790-91 (2nd Dep't 1987)).
In this case, plaintiff alleges on information and belief that
defendants Wach and Jackson "made untrue statements to other
persons in the Plaintiff's profession that [she] had been fired
for poor performance" (Item 1, ¶ 81). She alleges that defendants
caused these statements to be published (id., ¶ 80), and that
she suffered damages as a result (id., ¶ 84). These allegations
are insufficient to meet the strict pleading requirements for
defamation under New York law, as set forth in the caselaw and
C.P.L.R. § 3016(a). See Curti v. Girocredit Bank, 1994 WL
48835, at *3 (S.D.N.Y. February 14, 1994) (complaint containing
"conclusory, naked" allegations regarding who made defamatory
remarks, when they were made, and to whom failed to state a claim
for defamation under New York law); Reeves v. Continental
Equities Corp., 767 F. Supp. 469, 473 (S.D.N.Y. 1991) (complaint
adequately set forth defamatory statements made, but inadequately
identified when, by whom or to whom the statements were made).
Accordingly, defendants' motion to dismiss the defamation claim
should be granted.
For the foregoing reasons, it is recommended that defendants'
motion to dismiss (Item 6) and defendants' supplemental motion
to dismiss (Item 16) be granted to the extent that the motions
seek dismissal of plaintiff's sixth, seventh, eighth and ninth
causes of action, and denied in all other respects.
At oral argument before the undersigned, plaintiff's counsel
requested an opportunity to amend the complaint as a matter of
course under Fed.R.Civ.P. 15(a), in an effort to cure the
pleading defects outlined herein and to reflect the voluntary
withdrawal of plaintiff's Title VII and ADA claims against the
individual defendants, her claims under the New York Workers'
Compensation Law, and her claims for punitive damages under New
York law. Plaintiff's amended complaint shall be filed on or
before January 10, 2000, and defendants shall plead in response
as set forth in the federal rules. This schedule is subject to
adjustments, if any, ordered by the district court.
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