The opinion of the court was delivered by: I. LEO GLASSER, Senior District Judge
This motion arises out of a lawsuit brought by plaintiffs Arra
Lawson and his wife, Melissa Lawson, against defendants New York
Billiards Corporation, doing business as Chelsea Bar & Billiards,
Louis Paloubis, and Aristotle Hatzigeorgiou. The complaint
alleges breach of employment contract and wrongful discharge,
malicious prosecution, intentional infliction of emotional
distress, slander and libel, and loss of consortium. For the
reasons that follow, defendants' motion for summary judgment is
granted in part and denied in part.
From May 2000 until December 2000, Arra Lawson ("Lawson") was
employed as the executive chef of Chelsea Bar & Billiards
("Chelsea"), a pool hall and restaurant that is owned and
operated by New York Billiards Corporation. (Hatzigeorgiou Dep.)
Defendant Aristotle Hatzigeorgiou ("Hatzigeorgiou") is the
president of New York Billiards Corporation. (Id. at 5.)
Defendant Louis Paloubis ("Paloubis") is an officer of New York
Billiards Corporation and managed Chelsea's payroll during all times relevant to this
lawsuit. (Paloubis Dep. at 4-10.)
In May of 2000, upon learning of an executive chef position at
Chelsea from a recruiter, Lawson interviewed with Hatzigeorgiou.
Hatzigeorgiou later extended an offer of employment to Lawson,
which he accepted. (Def. Local Rule 56.1 Statement at 2; Pl.
Local Rule 56.1 Statement ¶¶ 1, 2.) At the time Lawson accepted
the offer of employment, he did not sign an employment contract.
(Def. Local Rule 56.1 Statement at 2.) As executive chef,
Lawson's duties included ordering food, hiring and firing staff,
and generally running the kitchen. (Id.) Lawson claims that he
was offered an annual salary of $70,000 to be paid partly in cash
and partly by check, as well as a fixed percentage of receipts
from parties held at Chelsea. Although defendants appear to have
taken a different position before other adjudicative bodies, for
purposes of this motion they concur that Lawson was offered an
annual salary of $70,000 to be paid in cash and by check.
In June of 2000, Lawson alleges that he and other Chelsea
employees were called to a meeting where they were provided with
an employee manual. (Lawson Aff. ¶ 6.) The manual listed a number
of "General Rules," including procedures for "clocking-in," a
prohibition against personal phone calls, and rules regarding
eating and drinking alcohol while on the job. In addition, the
manual contains the following provision:
Termination
We have a progressive discipline system at Chelsea
Bar and Billiards. Unless you commit any of the major
violations listed above, you will not be fired with
out [sic] warning. The first time you break a rule
you will be given a verbal warning, which may or may
not go in your employee file. The second time you
break the same rule you will be written up, and asked
to sign off on your write up. If you break the same
rule repeatedly you will be terminated. Also if you
continue to break many different rules you risk being
terminated. (Exume Aff. Ex. A.) Lawson claims that he signed a
copy of the manual which was kept in his personnel
file and retained an unsigned copy. (Lawson Aff. ¶
12.) According to Lawson, he inquired about the
termination clause at this meeting and was told that
no employee could be fired without a valid warning,
written and oral, as stated in the manual.*fn1
(Pl. Mem. at 3.)
On December 11, 2000 Hatzigeorgiou phoned Lawson and terminated
his employment at Chelsea and, according to Lawson, stated that
he believed Lawson had taken food from the kitchen. (Lawson Aff.
¶ 27; Lawson Dep. 193.) Lawson, however, believed that
Hatzigeorgiou was terminating his employment for a different
reason. According to Lawson, during his employment with Chelsea,
he asked Hatzigeorgiou several times for tax forms in order to
report his cash income to the IRS. (Lawson Dep. at 150, 197.)
Lawson alleges that Hatzigeorgiou responded by threatening to
"make trouble" for him. (Lawson Dep. at 151.) Furthermore, Lawson
claims to have overheard several conversations between
Hatzigeorgiou and the Chelsea accountant regarding a plan to hide
revenue from the IRS. Lawson alleges that he was in fact
terminated by defendants because they believed he had contacted
the IRS about these conversations and that Hatzigeorgiou admitted
as much during a conversation on December 12, 2000. (Lawson Dep.
198-99.)
On December 12, 2000, Lawson and his wife retrieved his
personal belongings from Chelsea, which included a blow torch,
kitchen tools, knives, knife sharpener, uniforms, and mixing
bowls. (Lawson Dep. at 211.) According to Lawson, he did not
leave Chelsea with a pasta machine, although he does own one. (Id. at 241.) Lawson
also stated in deposition that the knife sharpener he retrieved
from Chelsea on December 12, 2000 was his own and that during his
tenure at Chelsea, he ordered another knife sharpener for the
kitchen, which was paid for by Paloubis. (Id. at 248.)
In his deposition, Paloubis said that he "believe[s]" Lawson
took a milk shake machine and knife sharpener on December 12,
2000, because he "saw him take the knife sharpener out of the
establishment." (Paloubis Dep. at 46.) Paloubis was "not sure"
whether there was a milk shake machine in the box Lawson used to
transport the items from Chelsea to his car. (Id. at 48.) When
asked by Paloubis about the items in the box, Lawson stated that
they were his. (Id. at 49-50.) In deposition, Hatzigeorgiou
could not recall which Chelsea employee reported to him that
items were missing from the kitchen. (Hatzigeorgiou Dep. at 49.)
David Drost, the general manager of Chelsea, notified the police
that Lawson had departed Chelsea with several items that were not
his. (Id. at 51.) In a criminal complaint against Lawson dated
February 4, 2001.
Paloubis alleges that Lawson committed petit larceny:
[Deponent] observed defendant leaving the above
location with a box containing several items, which
included, but was not limited to, a "three-stone"
knife sharpener that belonged to Chelsea Bar &
Billiards and not to the defendant.
. . . [I]mmediately after defendant left the
location, deponent checked the kitchen of Chelsea Bar
& Billiards and discovered a few items were missing,
to wit: one (1) "three oil stone" knife sharpener,
one (1) pasta machine and (1) malt mixer. Deponent
states that said items were in the kitchen before
defendant entered the kitchen and then left the
kitchen carrying the above-referenced box.
(Exume Aff. Ex. J.) In a signed, unsworn affidavit submitted by
plaintiffs, a former employee of Chelsea, Brian Lai ("Lai"),
states that Lawson was a "good worker." (Exume Aff. Ex. B, Lai
Aff. ¶ 5.) He goes on to report that on December 12, 2000, Lawson
retrieved his personal belongings from Chelsea, which did not
include a milkshake machine. (Lai Aff. ¶ 20-22.) According to
Lai, several days later, defendants told him that a knife
sharpener that might have belonged to Chelsea was missing. (Id.
¶ 23-24.) Lai states that he personally used Chelsea's milkshake
machine after December 12, 2000 and does not know what was meant
by the "pasta machine." (Id. ¶ 30-31.) This affidavit is dated
January 12, 2004.
In a sworn affidavit submitted by defendants, signed on January
19, 2004, Lai makes sharply contradicting statements. (Kates
Reply Aff. Ex. D, Lai Aff. II.) Specifically, he states that he
did not believe that Lawson's culinary abilities were good
enough. (Id. ¶ 3.) Regarding the incident of December 12, 2000,
he states that after Lawson left, the kitchen personnel noticed
that the knife sharpener was missing and that he believes it was
taken by Lawson, although it might have been "an honest mistake."
(Id. ¶ 5-7.) He states that he does not know whether Lawson
stole anything from the kitchen. (Id. ¶ 9.)
On January 1, 2001, Lawson and his wife returned to Chelsea to
photograph the menu that he had created, which was still hanging
in the window. (Lawson Aff.) According to Melissa Lawson, she
received a phone call on January 2, 2001 from Hatzigeorgiou who
stated that he would have Lawson arrested for photographing the
menu, and that everyone would believe Hatzigeorgiou's accusations
because Lawson is "young and black." (Pl. Local
Rule 56.1 Statement ¶ 9.) On January 8, 2001, Lawson received a call from
Roy Ruland ("Ruland") of the New York City Police Department who
told Lawson that he was being charged with theft in connection
with items missing from Chelsea, specifically a milkshake
machine, pasta machine, and ramekins. (Id. ¶ 51.) Plaintiffs allege that defendants used their personal influence
within the New York City Police Department to have Lawson
arrested. (Id. 12.) Paloubis stated in deposition that he met
with Ruland only once to sign the criminal complaint filed
against Lawson and that he did not follow up on the complaint.
(Paloubis Dep. at 40, 54.) Hatzigeorgiou testified in deposition
that he was not personally involved in the criminal complaint and
ensuing investigation of Lawson. (Hatzigeorgiou Dep. at 54-58.)
On January 9, 2001, Lawson went to the 13th Precinct where he
claims he was questioned by the police, handcuffed,
fingerprinted, photographed, and made to wait in a holding cell
for several hours. (Id. ¶¶ 55-73.) Lawson was charged with one
count of petit larceny pursuant to New York Penal Law 155.25.
(Exume Aff. Ex. J.) Lawson's criminal court file indicates that
the charges were dismissed upon the motion of the District
Attorney. (Crisci Affirm. Ex. J.) A transcript of the proceedings
reports that the Assistant District Attorney stated to the court,
"[t]he People move to dismiss the case. We cannot prove it beyond
a reasonable doubt." (Letter from Nancy Exume of June 10, 2004.)
Following his dismissal, Lawson applied to the New York State
Department of Labor for unemployment benefits. After receiving
benefits for a period of time, his application was denied based
on a challenge brought by defendants. The denial was overturned
at a hearing, which was upheld on appeal. (Lawson Aff. ¶¶
100-118.)
Lawson alleges that he has suffered a great deal of physical
and emotional distress as a result of his termination and arrest,
including depression and an uncontrollable trembling condition.
(Lawson Aff. ¶¶ 87-99, 119-150.) Melissa Lawson claims that as a
result of defendants' actions, she has experienced a loss of
consortium. (Melissa Lawson Dep. at 8-9.) ...