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MELNITZKY v. ROSE

January 13, 2004.

MICHAEL MELNITZKY, Plaintiff, -against- ROBERT ROSE, Defendant


The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

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. Page 2

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 Estate.*fn2

  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 Page 3 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 Page 4 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.)

  II. DISCUSSION

 A. LEGAL STANDARD

  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 Page 5 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. Page 6

 B. APPLICATION OF THE STANDARD

  Against this legal standard, the Court considers each of the causes ...


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