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August 10, 2004.


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:
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.) ...

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