The opinion of the court was delivered by: VICTOR MARRERO, District Judge
Pro se plaintiff Michael Melnitzky ("Melnitzky") initiated the present
action by filing a four-count complaint in New York State Supreme Court
against defendant Robert Rose ("Rose") alleging fraud and breach of
contract; defamation; civil conspiracy; and prima facie tort. Rose timely
removed the action to federal court pursuant to 28 U.S.C. § 1446 (b)
and properly invoked this Court's jurisdiction on diversity of
citizenship grounds under 28 U.S.C. § 1332. In lieu of an answer,
Rose filed a motion pursuant to Federal Rule of Civil Procedure 12(b)(6)
seeking dismissal of all four counts in Melnitzky's complaint for failure
to state a claim upon which relief can be granted. Melnitzky opposes the
motion. For the reasons described below, Rose's motion to dismiss the
four causes of action in the complaint is granted.
I. FACTUAL BACKGROUND*fn1
Rose contacted Melnitzky in May of 2002 for the purpose of possibly
retaining Melnitzky's professional services in the evaluation of certain
personal property in the Estate of James Gordon (the "Estate"). James
Gordon ("Gordon") is the recently-deceased uncle of Rose who left certain
personal property located in a Manhattan apartment, including artwork and
other items. Rose represented to Melnitzky that he was acting on behalf
of his mother, Hazel Kaufman ("Mrs. Kaufman"), who along with her
husband, Bruce Kaufman ("Mr. Kaufman"), are the Executors of Gordon's
Melnitzky and Rose met at Gordon's apartment in order to enable
Melnitzky to begin his assessment of the property. During this meeting,
Melnitzky provided his professional opinion to Rose as to certain artwork
in the Estate. Melnitzky also informed Rose that considerable more time
and effort, including several additional visits to the apartment, would
be required in order to complete the assessment of all the property.
Accordingly, the fee for Melnitzky's services was not agreed upon during
this initial visit in light of the
complexity of the services that would be required. Melnitzky and Rose had
prior professional dealings in which Rose had retained Melnitzky's
services through a connection with Sotheby's in New York, where Melnitzky
was engaged as a painting conservator.
Rose made additional arrangements with Melnitzky by telephone,
including introducing Melnitzky to Mrs. Kaufman via telephone. During
Mrs. Kaufman's phone conversations with Melnitzky, she expressed an
interest in retaining his services and made additional arrangements with
the building management so Melnitzky could gain access to the apartment.
In total, Melnitzky made approximately eight visits to the apartment to
continue his evaluation of the property in the Estate.*fn3
Before Melnitzky completed his examination of the property, Mrs.
Kaufman informed him that her husband was traveling to New York to
arrange for the shipment of the property to Arizona, and therefore,
Melnitzky should expedite his work. Upon his arrival in New York, Mr.
Kaufman informed Melnitzky that his services would no longer be required.
Mr. Kaufman dismissed Melnitzky without explanation or any reference to
the prior instructions of Rose or Mrs. Kaufman. Melnitzky subsequently
wrote to Mr. Kaufman to inform him that the value of the work he had
already performed was a debt of
the Estate. Mr. Kaufman responded with a letter in which he rejected
Melnitzky's claim for payment, stated that Melnitzky entered Gordon's
apartment without authorization, and called into question Melnitzky's
reputation for honesty and integrity. Melnitzky claims that Mr. Kaufman's
letter was circulated among members of Mr. Kaufman's family.
The Complaint sets forth four causes of action. The first cause of
action seeks damages for breach of contract and fraud stemming from the
termination of Melnitzky's services. (See Complaint, Melnitzky v. Rose,
N.Y.Sup.Ct. Index No. 03/113116, dated July 17, 2003 (the "Complaint"),
at ¶ 16.) The second cause of action seeks damages for defamation of
Melnitzky's professional reputation resulting from Mr. Kaufman's letter.
(See id. at ¶ 17.) The third cause of action asserts a claim for
civil conspiracy to obtain Melnitzky's services and avoid payment. (See
id. at ¶ 18.) Finally, the fourth cause of action asserts a claim of
prima facie tort in the alternative or in addition to the first three
causes of action. (See id. at ¶ 19.)
As the United States Supreme Court has explained, "[a] court may
dismiss a complaint only if it is clear that no relief could be granted
under any set of facts that could be
proved consistent with the allegations." Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 514 (2002) (citation omitted). When, as in this case, the
plaintiff is not represented by counsel, the Second Circuit has instructed
courts to "construe [the complaint] broadly and interpret [it] to raise
the strongest arguments that [it] suggests." Weixel v. Board. of Educ. of
N.Y., 287 F.3d 138 145-46 (2d Cir. 2002) (citations omitted); see also
Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000).
For purposes of a motion to dismiss, a court must accept as true all
well-pleaded factual allegations in the complaint and draw all reasonable
inferences in favor of the plaintiff. See Levy v. Southbrook Int'l Invs.
Ltd., 263 F.3d 10, 14 (2d Cir. 2001). In so doing, a court must not
assess the strength of the plaintiff's allegations, but instead simply
"assess the legal feasibility of the complaint." Sims, 230 F.3d at 20
(citations omitted). On the other hand, "conclusory allegations need not
be credited . . . when they are belied by more specific allegations of
the complaint." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092
(2d Cir. 1995). Thus, in ruling on Rose's motion to dismiss, the Court is
mindful that Melnitzky appears pro se, and will grant him broad latitude
in interpreting the factual allegations in the Complaint.
B. APPLICATION OF THE STANDARD
Against this legal standard, the Court considers each of the causes ...