United States District Court, E.D. New York
March 12, 2004.
WILLIAM DANIELS, Plaintiff ALFREDO ALVARADO; SCOTT HAWORTH; LESTER SCHWAB KATZ & DWYER, LLP; GREGORY I. RASIN; AND JACKSON LEWIS, LLP, Defendants
The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
JUDGMENT AND ORDER
Plaintiff, pro se, brings twenty-one claims arising out of the alleged
discriminatory conditions of his employment as a paralegal with Lester,
Schwab, Katz & Dwyer, LLP ("LSK&D"). He also sues Gregory I.
Rasin and Jackson Lewis, LLP, the attorney and law firm that represent
LSK&D and two of its employees, Alfredo Alvarado and Scott Haworth,
in this matter.
Defendants move for dismissal of fifteen of the twenty-one claims. The
partial motion to dismiss is based on failure to state a claim upon which
relief can be granted and failure to plead with specificity. Not included
in the motion to dismiss are claims against LSK&D, Alvarado, and
Haworth for negligence in hiring, discriminatory discharge and
retaliatory discharge. For the reasons stated below, defendants' motion
to dismiss is granted except for the fraudulent misrepresentation claims.
Plaintiff is granted leave to amend any claim within twenty days.
Defendants have ten days after receipt of the amended complaint to
Plaintiff moves to disqualify Gregory I. Rasin and Jackson Lewis, LLP,
counsel for the defendants. This motion to disqualify is denied.
II. Summary of Claims and Disposition
The nature of plaintiff's claims and this court's disposition with
respect to each claim moved against are summarized as follows (bearing in
mind that the somewhat confused nature of the complaint by the plaintiff
himself makes deconstruction into specific charges difficult):
Claim Title Type Status of motion
1 Libel per se against LSK&D, Alvarado, Haworth, Jackson Lewis and Rasin State Granted
2 Slander per se against LSK&D, Alvarado, Haworth, Jackson Lewis and Rasin State Granted
3 Tortious interference with business relations against Alvarado State Granted
4 Emotional distress against LSK&D, Alvarado, and Haworth State Granted
5 Negligence in hiring, supervision and retention against LSK&D State Not moved
6 Negligence in hiring, supervision and retention against LSK&D State Not moved
7 Fraudulent misrepresentation against LSK&D and Alvarado State Denied
8 Emotional distress LSK&D, Alvarado, Haworth, Jackson Lewis, Rasin State Granted
9 Emotional distress against Haworth State Granted
10 Discriminatory discharge against LSK&D, Alvarado and Haworth Federal, Title VII Granted as to Alvarado and Haworth
11 Retaliatory discharge against LSK&D, Alvarado, and Haworth Federal, Title VII Granted as to Alvarado and Haworth
12 Discriminatory employment practices against LSK&D, Alvarado and Haworth Federal, Title VII Granted
13 Discriminatory discharge against LSK&D, Alvarado and Haworth State Not moved
14 Retaliatory discharge against LSK&D, Alvarado and Haworth State Not moved
15 Discriminatory employment practices against LSK&D, Alvarado and Haworth State Granted
16 Discriminatory discharge against LSK&D, Alvarado and Haworth State Not moved
17 Retaliatory discharge against LSK&D, Alvarado and Haworth N.Y.C. Not moved
18 Discriminatory employment practices against LSK&D, Alvarado and Haworth N.Y.C. Granted
19 Discriminatory harassment against LSK&D, Alvarado and Haworth N.Y.C Granted
20 Racketeering Influence and Corrupt Organization Act (RICO) claims against
LSK&D, Alvarado and Haworth Federal Granted
21 Attorney misconduct against Gregory Rasin and Jackson Lewis State Granted
In November 2001, plaintiff was hired by LSK&D as a paralegal. He
was involuntarily discharged in January 2003. Defendant Alfredo Alvarado,
a partner at LSK&D, was plaintiffs direct supervisor. The unit for
which plaintiff worked included defendant Scott Haworth, also a partner
at the firm.
Plaintiff claims that a confrontation occurred in early January 2003
between himself and
defendant Alvarado regarding a romantic relationship Alvarado was
allegedly had engaged in with another paralegal. Plaintiff initiated a
conversation on behalf of his co-worker to inform Alvarado she no longer
wished to continue their relationship.
Plaintiff alleges that later that same month he received a call from a
law firm to schedule a deposition for defendant Haworth. He contends that
he told the inquiring firm that Haworth was unavailable and left a
voicemail for defendant informing him of the call. The following day,
Haworth called plaintiff into his office to discuss the scheduling
incident and allegedly proceeded to tell him, "Don't tell people my
personal business, you stupid nigger." Following this exchange, plaintiff
contends that he reported the comment to Alvarado, his supervisor.
Plaintiff was discharged on January 24, 2003.
Defendants contend that plaintiff was fired because of his poor work
performance and problems with alleged absences and low billable hours. In
an email dated February 22, 2002 from Alvarado to Haworth, he expressed
concern with plaintiffs performance. The email stated, in part, "This new
para, possesses none of the nuts & bolts we thought he would."
See Complaint, Exhibit 5. In another email from Alvarado to
LSK&D's personnel director, dated January 10, 2003, Alvarado
summarized complaints received regarding defendant's work: "Since Mr.
Daniels started with the firm, I have received nothing but complaints
about his work, including his work product, his billable hours, and his
`absences' from his desk without explanation." See Complaint,
Plaintiff filed a complaint with the State Division of Human Rights and
the Equal Employment Opportunity Commission ("EEOC") in February 2003
alleging employment discrimination based on race in violation of Article
15 of the Executive Law of the State of New
York (Human Rights Law). Mr. Rasin responded to plaintiffs
complaint in a letter to the State Division on Human Rights dated April
9, 2003. It stated, "[Mr. Daniels] was counseled on several occasions by
Mr. Alvarado with respect to this low billable hours and unsatisfactory
work product. . . . Mr. Daniels' unsatisfactory performance and low
billable hours continued throughout 2002. In 2002, Mr. Daniels billed a
total of 712 hours, below the firm's minimum requirement of 800 hours per
year for paralegals." See Complaint, Exhibit 4. The Attorney
& Paralegal Office Manual supplied to plaintiff by LSK&D at the
commencement of his employment states, "The firm has no minimum billable
hours per year per lawyer or paralegal." See Affidavit of
Williams Daniels, Pro Se, Exhibit 1, Daniels v. Alvarado
(E.D.N.Y. Feb. 9, 2004) (No. 03-5832).
Plaintiffs complaint and EEOC charge were closed in September 2003 at
plaintiffs request. A right to sue letter was issued by the EEOC on
September 17, 2003.
Plaintiff brought this action in November 2003 against Alvarado,
Haworth and LSK&D, as well as the firm and attorney retained by
LSK&D in this matter before this court and the EEOC, Jackson Lewis
LLP and Gregory Raisin. Defendants now move for partial dismissal of the
complaint under Federal Rules of Civil Procedure 8(a)(2), 9(b), and
12(b)(6) for failure to plead causes of action with requisite specificity
and for failure to state a claim for which relief may be granted.
IV. Motion to Dismiss
A. Rule 12(b)(6) Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may
move to dismiss "for failure to state a claim upon which relief may be
granted." Defendant has the burden of
proving "beyond doubt that the plaintiff can prove not set of facts
in support of the claim [that] would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957). "The issue is not
whether the plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims." Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974).
When a case involves a pro se litigant, the standards for dismissal are
the same. A court, however, "should give the pro se litigant special
latitude in responding to a motion to dismiss." Adams v.
Galletta, 966 F. Supp. 210, 211 (S.D.N.Y 1997).
B. Fraudulent Misrepresentation
To state a cause of action for fraudulent misrepresentation, a
plaintiff must allege (1) defendant made a representation; (2) as to a
material fact; (3) which was false; (4) and known to be false by the
defendant; (5) the representation was made for the purpose of inducing
the other party to rely upon it; (6) the other party rightfully did rely;
(7) in ignorance of its falsity; and (8) to his injury. Annecy v.
Viscardi, 672 N.Y.S.2d 816 (N.Y. App. Div. 1998).
An at-will employment relationship accords an employer "an unfettered
right to terminate the employment at any time." Murphy v. Am. Home
Prods. Corp., 448 N.E.2d 86, 90 (N.Y. 1983). In the context of such
an employment relationship, an employee can sustain a cause of action for
fraudulent misrepresentation only if it is based on misrepresented facts
that induced him to enter employment with the defendant. Navaraetta
v. Group Health Inc., N.Y.S.2d 839, 840 (N.Y. App. Div. 1993). The
defendant must allege a misstatement of present facts as opposed to
expressions of future expectations. Channel Master Corp. V. Aluminum
151 N.E.2d 833, 835 (N.Y. 1958).
To state a claim for fraudulent misrepresentation a plaintiff must
allege the time, place, speaker and "sometimes even the content of the
alleged misrepresentation" in order to comport with the heightened
pleading requirements for fraud set forth in Rule 9(b) of the Federal
Rules of Civil Procedure. Ouoknine v. MacFarlane, 897 F.2d 75,
78-90 (2d Cir. 1990). While Rule 8(a) only requires a "short and plan
statement" of claims for relief, allegations of fraud must be pleaded
with sufficient specificity such that they give rise to a "strong
inference of fraudulent intent." Id. at 90.
2. Application of Law to Facts
Although Rule 9(b) sets out a heightened pleading standard for causes
of action involving fraud, this rule must be considered in light of
plaintiff's pro se status. Plaintiff sufficiently alleges a misstatement
of existing fact regarding LSK&D's minimum billable hours policy.
Statements contained within the firm's employee manual, received by
plaintiff at the start of his employment, as well as assurances allegedly
made to him by Alvarado during the interview process, refer to a policy
of no minimum billable hours at the firm. Nevertheless, plaintiff was
allegedly discharged, at least in part, for failure to meet an annual
requirement of at least 800 billable hours.
The specificity required in a compliant was achieved in plaintiffs oral
statement at the hearing in this court on the motion to dismiss. He said
in effect that he was informed orally and in the manual given to him at
the time of hiring that no minimum billable hours were required and, in
reliance on those statements, he accepted the job. These allegations
sufficiently provide defendants with notice of the claim and give rise to
an inference of fraudulent intent. Defendant's
motion to dismiss plaintiffs seventh claim of fraudulent
misrepresentation is therefore denied.
C. Employment Discrimination Claims
Title VII prohibits an employer from discharging or discriminating
against an individual with respect to "employment, because of such
individual's . . . race. . . ." 42 U.S.C. § 2000e-2(a). In
order to survive a Rule 12(b)(6) motion in such an employment
discrimination proceeding, a complaint need only include a "simple
statement" showing plaintiff is entitled to relief and giving the
defendant fair notice of the claim. Swierkiewicz v. Sorema
534 U.S. 506, 512-13, 152 L.Ed.2d 1, 122 S. Ct, 992 (2002). A court
may dismiss the claim if "it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations." Id. at 514.
The substance of plaintiff's claims for discriminatory discharge,
discriminatory employment practices, and retaliatory discharge under
federal, state, and local law are all largely analyzed within a Title VII
framework. See Mandell v. County of Suffolk, 316 F.3d 368, 377
(2d Cir. 2003) (holding that state and federal discrimination claims in
the employment context should be decided together); Thomas v.
Westchester County Health: Care Corp., 232 F. Supp.2d 273, 281
(S.D.N.Y. 2002) (claims under Title VII and New York State Human Rights
law require the same analysis); Cruz v. Coach Stores. Inc.,
202 F.3d 560, 565 n.1 (2d Cir. 2000) (applying Title VII framework to claims
brought under New York City Human Rights Law).
Individuals are not liable in their individual capacities in Title VII
cases. Tomka v. Seiler, 66 F.3d 1295, 1313-17 (2d Cir. 1995).
Furthermore, a Title VII action cannot be maintained against an
individual in his official capacity. Id. at 1313. Under the New
York Human Rights
Law ("NYHRL"), however, an individual may be liable for aiding and
abetting an employer's discriminatory conduct. The United States Court of
Appeals for the Second Circuit has held that "a defendant who actually
participates in the conduct giving rise to a discrimination claim may be
held personally liable under the NYHRL." Id. at 1317. Although New York
state courts have not uniformly adopted this interpretation, the majority
of federal district courts have followed Tomka and suggest that
"actual participation" can give rise to individual liability under NYHLR.
See, e.g., King v. Wallkill, 2004 U.S. Dist. LEXIS 2487, at
*40-44 (S.D.N.Y. 2004); Perks v. Town of Huntington,
251 F. Supp.2d 1143, 1160-61 (E.D.N.Y. 2003); Lewis v. Triborough Bridge
& Tunnel Auth., 77 F. Supp.2d 376, 379 (S.D.N.Y 1999);
Petrosky v. N.Y. State Dep't of Motor Vehicles, 72 F. Supp.2d 39,
64-65 (N.D.N.Y. 1999).
Under New York City Human Rights Law (NYCHRL), federal standards are
used to determine hosfile environment and harassment claims. Walsh
v. Covenant House, 664 N.Y.S.2d 282, 282 (N.Y. App. Div. 1997). To
prevail on a claim of a hosfile work environment, a plaintiff must prove
that the workplace is permeated with discriminatory intimidation,
ridicule, and insult that is "sufficiently severe or pervasive to alter
the conditions of employment." Alfano_v. Costello,
294 F.3d 365, 373 (2d Cir. 2002). In determining whether an environment is
sufficiently hosfile, courts consider: (1) the frequency of the
discriminatory conduct; (2) its severity; (3) whether the conduct was
physically threatening; (4) whether the conduct reasonably interfered
with plaintiffs work; and (5) what psychological harm resulted,
Richardson v. New York State Dep't of Correctional Serv.,
180 F.3d 426, 437. Isolated remarks and epithets are insufficient to
establish a hosfile work environment. Schwapp v. Avon,
118 F.3d 106, 110 (2d Cir. 1997).
2. Application of Law to Facts
Plaintiff argues that defendants took impermissible consideration of
his race into account in the conduct of their employment practices. Under
Title VII, the individual defendants, Alvarado and Haworth, are not
liable for the charges of discriminatory discharge, retaliatory
discharge, and discriminatory employment practices. Plaintiffs tenth,
eleventh, and twelfth federal claims against Alvarado and Haworth
therefore fail as a matter of law and are dismissed. His state claims of
discriminatory and retaliatory discharge against Haworth and Alvarado,
Plaintiff argues that defendants' treatment constituted discriminatory
harassment creating a hosfile work environment. The conduct plaintiff
alleges does not rise to the level sufficient to sustain a claim for
discriminatory harassment. His nineteenth claim against LSK&D,
Haworth, and Alvarado is therefore dismissed.
Plaintiffs federal, state, and city claims against LSK&D for
discriminatory employment practices are, based on the allegations he has
set forth, redundant claims that have been subsumed by his claim of
discriminatory discharge. He alleges no other practice by LSK&D,
other than discharge based on an impermissible consideration of race,
that could be construed as a discriminatory employment practice in
violation of Title VII and its analogous state and local statutes.
Plaintiffs twelfth, fifteenth, and eighteenth claims are therefore
dismissed against all defendents as surplusage, redundant, and confusing.
Nothing is gained by this repetition in the required simple pleading.
D. Intentional Infliction of Emotional Distress
A plaintiff must satisfy four elements in order to sustain a claim for
intentional infliction of emotional distress under New York law: (1)
extreme and outrageous conduct; (2) intent to cause, or disregard of a
substantial probability of, causing severe emotional distress; (3) a
causal connection between the conduct and the injury; and (4) severe
emotional distress. Howell v. New York Post Co.,
612 N.E.2d 699, 702 (N.Y. 1993).
Extreme and outrageous conduct must be "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 to a civilized
community." Murphy v. Am. Home Prods. Corp., 448 N.E.2d 86, 90
(N.Y. 1983). Conduct may be so characterized "a recitation of the facts
to an average member of the community would arouse his resentment against
the actor, and lead him to exclaim, `Outrageous!'" Restatement of the
Law, Second, Torts, § 46, comment'd (1979).
False statements in and of themselves do not meet this threshold.
Neilson v. D'Angelis, 2002 U.S. Dist. LEXIS 25195, at *41
(E.D.N.Y. Dec. 20, 2002). Additionally, evaluations of employees' conduct
and performance do not rise to the level of intentional infliction of
emotional distress, even in the context of wrongful termination, as this
would, in effect, create a tort claim for wrongful discharge. See,
e.g. Rodriguez v. American Friends of the Hebrew Univ., 1998 U.S.
Dist. LEXIS 3701, at *30-31 (S.D.N.Y. Mar. 23, 1998) (stating that to
accept criticism of plaintiffs performance and termination as stating a
claim for intentional infliction of emotional distress "would be to
establish a tort for alleged wrongful discharge of an at-will employee
which the New York Court of Appeals has explicitly rejected").
Racial slurs on their own do not constitute conduct so "extreme and
outrageous" in nature as to sustain a claim for intentional infliction of
emotional distress. See e.g., Graham v.
Guilderland Central School Dist, 681 N.Y.S.2d 831 (N.Y.
A.D. 1998) (a teacher's description of her student as a "nigger" during a
classroom discussion on discrimination did not create a claim for
intentional infliction of emotional distress); Herlihy v.
Metropolitan Museum of Art, 633 N.Y.S.2d 106 (N.Y. App. Div. 1995)
(a cause of action for intentional infliction of emotional distress
could not be sustained against volunteers who falsely accused a
supervisor of using anti-Semitic slurs); Leihowitz v. Bank Leiumi
Trust Co., 548 N.Y.S.2d 513 (N.Y. App. Div. 1989) (use of the terms
"Hebe" and "Kike" were strongly disapproved and condemned but were not
found to be so extreme or outrageous as to meet the threshold
requirement for intentional infliction of emotional distress).
2. Application of Law to Facts
Plaintiffs claim against Rasin and Jackson Lewis stems from statements
submitted to the New York Division of Human Rights, These statements
allegedly accusing plaintiff of incompetence, fraud, and unjustified
billing practices do not constitute behavior so extreme and outrageous as
to support a claim of intentional infliction of emotional distress. Claim
eight against Rasin and Jackson Lewis is therefore dismissed.
LSK&D's and Alvarado's accusations of incompetency and fraud do
not, on their own, support a claim for intentional infliction of
emotional distress. Their actions in this case do not go beyond the
bounds of decency and do not rise to the level of extreme and outrageous
conduct. The statements made were criticism of plaintiff's work
performance and conduct. These allegations cannot be accepted as stating
a claim for intentional infliction of emotional distress because this
would, in effect, create a tort for wrongful discharge of an at-will
employee, a cause of action not recognized under New York law. Claims
four and eight against Alvarado and
LSK&D for emotional distress are therefore dismissed.
Plaintiffs claim against Haworth is based on his alleged
characterization of the plaintiff as a "stupid nigger." Haworth's alleged
comment, while offensive, deplorable and condemnable, does not constitute
behavior sufficiently egregious to sustain a claim for intentional
infliction of emotional distress. Even if this comment is considered in
the context of other animosity plaintiff alleges defendant exhibited
towards him, these incidents, even broadly construed, do not rise to the
level requisite to sustain this cause of action. Claims four, eight, and
nine against Haworth for emotional distress are therefore dismissed.
E. Remaining Claims
1. Libel Per Se and Slander Per
In order to establish a prima facie case for slander or libel under
New York law, a claimant must allege (1) an oral or written defamatory
statement or act; (2) regarding the plaintiff; (3) published to a third
party by the defendant; and (4) injury to the plaintiff. Town of
Massena v. Healthcare Underwrites Mut. Ins. Co., 779 N.E.2d 167, 171
(N.Y. 2002). The fourth element is presumed when the statement takes the
form of slander or libel per se. Priviteria v. Phelps,
435 N.Y.S.2d 402, 404 (N.Y. App. Div. 1981).
A slanderous statement is actionable per se if it imputes: (1) the
commission of a crime; (2) a loathsome disease; (3) unchaste behavior in
a woman; (4) homosexual behavior; or (5) affects plaintiff in his trade,
occupation, or business. Id. All other slander is only
actionable upon allegation and proof of special damages. Id. Special
damages include the loss of something of economic value which must flow
directly from the injury to reputation caused by the defamation
and not from the general effects of the slander. Matherson v,
Marchello, 473 N.Y.S.2d 998, 1001 (N.Y. App. Div. 1984). They must
be pleaded with specificity to identify actual losses. "Round numbers"
and general allegations of dollar amounts are insufficient as special
New York Civil Practice Law requires that in an action for slander,
"the particular words complained of shall be set forth in the complaint,
but their application to the plaintiff may be stated generally." N.Y.
C.P.L.R. § 3016(a). Although plaintiff is not required to plead a
defamation action "in these words" or with specificity, a lack of
reference to any allegedly defamatory statements fails to comport with
even the liberal pleading requirements of Federal Rule of Civil Procedure
To be actionable in libel, a statement must be false, defamatory, and
injurious to a person's reputation and thereby expose him to public shame
or contempt. Christopher Lisa Matthew Poliano Inc. v. North American
Precis Syndicate. Inc., 514 N.Y.S.2d 239, 241 (N.Y. App. Div. 1987).
Under New York law, a liable action must be commenced within one year of
the publication of the alleged defamatory statement. N.Y. C.P.L.R. §
Statements by attorneys "are absolutely privileged if, by any view or
under any circumstances, they are pertinent to the litigation."
Grasso v, Matthew, 564 N.Y.S.2d 576 (N.Y. App. Div. 1990).
Statements by employers evaluating the work performance of their
employees are protected statements of opinion and not actionable in a
defamation suit. Williams v. Varig Brazilian Airlines,
564 N.Y.S.2d 328 (N.Y. App. Div. 1991).
b. Application of Law to Facts
Plaintiff claims defendants committed libel per se against him as a
result of the January
10, 2003 email sent from Alvarado to the personal director at
LSK&D. He further alleges defendants LSK&D, Haworth, Alvarado,
Rasin and Jackson Lewis have slandered him through false accusations of
misconduct and defendant Haworth slandered him by calling him a "stupid
Plaintiffs libel claim against defendant Haworth, based on an email
dated February 22, 2002, is untimely. In any event, the statements were
protected statements of opinion. Claim one against Haworth is therefore
Plaintiffs libel claim against defendants Rasin and Jackson Lewis for
statements submitted on behalf of LSK&D to the New York State
Division of Human Rights are protected by absolute privilege. Claim one
against Rasin and Jackson Lewis fails as a matter of law and is
Plaintiffs libel claim against Alvarado and LSK&D for statements
made in an email sent to LSK&D's personnel director, dated January
10, 2003, are protected statements of opinion and, as such, are not
actionable as defamation. Claim one against Alvarado and LSK&D is
Plaintiff has not alleged words spoken by defendants Rasin, LSK&D,
Jackson Lewis and Alvarado that could be construed as an oral defamation.
These claims fail as a matter of law. Claim two against LSK&D,
Alvarado, Rasin, and Jackson Lewis is dismissed.
Plaintiffs slander claim against defendant Haworth does not meet the
standard for slander per se because it does not encompass one of the five
categories of statements that is per se actionable. As plaintiff has not
pled special damages, Claim two against Haworth is dismissed.
3. Tortious Interference with Plaintiffs Business Relations
To establish a claim for tortious interference with a business
relationship, a plaintiff must assert: (1) there exists an employment
relationship with the employee and a third party; (2) defendant, with
knowledge of that relationship, intentionally interferes with the
employment relationship; (3) defendant acts with the sole purpose of
harming plaintiff, or failing that level of malice, uses dishonest,
unfair, or improper means; and (4) the relationship is injured.
Burba v. Rochester Gas & Elec. Corp., 528 N.Y.S.2d 241
(N.Y. App. Div. 1998). Plaintiff must identify a third party with whom
he would have "entered into or extended a contractual relationships with"
but for the intentional acts of the defendants. WFB Communications
v. NYNEX Corp., 590 N.Y.S.2d 460, 461 (N.Y. App. Div. 1992).
An employer cannot be held liable for tortiously interfering with the
employment contract of one of its own employees, since a party to a
contract cannot be held liable in tort for breaching its own contract.
Mihalakis v. Cabrini Med. Ctr., 542 N.Y.S, 2d 988, 990 (N.Y.
App. Div. 1989). A claim for tortious interference cannot be sustained
against agents of an employer or partners to a partnership "absent a
showing that they acted outside the scope of their authority." Ives
v. Guilford Mills Inc., 3 F. Supp.2d 191, 197 (N.D.N.Y. 1998)
(citing Kosson v. Algaze, 610 N.Y.S.2d 227, 228-9 (N.Y.
b. Application of Law to Facts
Plaintiff claims defendant Alvarado tortiously interfered with his
business relations with LSK&D by intentionally spreading false
comments about him. Plaintiff fails to allege a preexisting business
relationship or third party through which he would have done business if
for the allegedly tortious behavior. Alvarado did not act
maliciously and therefore outside the scope of his authority in his
actions. Plaintiffs allegation that defendant Alvarado tortiously
interfered with his business relations with LSK&D fails as a matter
of law. Claim Three therefore is dismissed.
4. Racketeer Influenced and Corrupt Organization Act (RICO)
In order to have standing to bring a RICO claim under 18 U.S.C 1964(c),
the plaintiff must show (1) a violation of section 1962; (2) injury to
his business or property; and (3) that the violation caused the injury.
Hecht v. Commerce Clearing House. Inc., 897 F.2d 21, 23 (2d
Dismissal of an employee for his refusal to participate in RICO
violative activities does not confer standing upon that employee to bring
those RICO claims; causation is too attenuated and the injury suffered by
the plaintiff is too indirect. Burdick v. American Express
Company, 865 F.2d 527 (2d Cir. 1989).
b. Application of Law to Facts
Plaintiff has pled mail and wire fraud as a violation of the RICO
statutes and injury in the form of intimidation and discharge from his
employment. He has not, however, met the causation requirement of this
threshold inquiry. Because plaintiff does not have standing to bring a
cause of action based on the RICO act, his twentieth claim is dismissed.
5. Violation of Judiciary Law Section 427-Attorney Misconduct
Judiciary Law section 487 provides for a cause of action against an
attorney who has
engaged in "deceit or collusion . . . with the intent to deceive
the court or any party." N.Y. Jud. L. 487(1). In establishing the
requisite intent to deceive, New York courts often look for "chronic" or
"extreme" legal delinquency. O'Connel v. Kerson, 736 N.Y.S.2d 895,
896 (N.Y. App. Div. 2002).
b. Application of Law to Facts
Plaintiff claims that the submissions of defendants Jackson Lewis and
Rasin to the New York State Division of Human Rights on behalf of their
clients constitute attorney misconduct. Defendants' alleged actions do
not meet the threshold set out in section 487. The papers filed presented
LSK&D's version of the facts and issues involved in this case; all
information submitted was reasonably related to the proceedings at hand.
No intent to deceive has been evidenced. Plaintiffs twenty-first claim is
V. Motion to Disqualify
Disqualification is generally disfavored and granted only upon a
finding that the presence of a particular counsel "will taint the trial
by affecting his or her presentation of a case." Bottaro v. Hatton
Assocs., 680 F.2d 985, 896-97 (2d Cir. 1982). A high standard of
proof must be met before a motion to disqualify is granted because
"disqualification of a law firm during litigation implicates not only the
ethics of the profession but also the substantive rights of the
litigants." S&S Hotel Ventures Ltd. Partnership v. 777 S.H.
Corp., 508 N.E.2d 647, 650 (N.Y. 1987).
Disciplinary Rule 5-102(A) in the Code of Professional Responsibility
requires a lawyer to refuse employment if he "knows or it is obvious that
the lawyer ought to be called as a witness
on a significant issue on behalf of his client." N.Y. Jud. Law DR
5-102(A), Code Prof. Resp. (McKinney 2003). A client can choose to forgo
the testimony of the lawyer because it prefers that firm's continued
representation. S&S Hotel Ventures Ltd. Partnership v. 777 S.H.
Corp., 508 N.E.2d 647, 651 (N.Y. 1987)
Disciplinary Rule 5-102(b) in the Code of Professional Responsibility
requires a lawyer to refuse employment if he "knows or it is obvious that
the lawyer ought to be called as a witness on a significant issue other
than on behalf of the client and it appears that the testimony would be
prejudicial to the client." N.Y. Jud. Law DR 5-102(A), Code Prof. Resp.
B. Application of Law to Facts
Plaintiff does not meet the high standard required for disqualification
of defendants' counsel. Defendants have no intentional of calling Rasin
or any other representative of Jackson Lewis on their behalf, thus
rendering Disciplinary Rule 5-102(A) inapplicable to this case.
See Def. Mem. of Law in Opp. to Pl. Motion to Disqualify at
4-5; Daniels v. Alvarado (E.D.N.Y. Feb. 9, 2004) (No. 03-5832).
As the claims against Rasin and Jackson Lewis have been dismissed, the
prejudicial effects of counsel's possible testimony are no longer at
issue. Plaintiffs motion to disqualify Raisin and Jackson Lewis counsel
Defendants' motion to dismiss is granted with respect to all claims
except fraudulent misrepresentation. Plaintiff is granted leave to amend
any and all claims within twenty days. Defendants have ten days after
receipt of the amended complaint to respond.
Plaintiffs motion to disqualify is denied.
Discovery on the remaining claims should proceed expeditiously.
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