The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Tibor Spiegel brings this action against defendants Maria Esposito and Staten Island Community Television, Inc. ("CTV") (collectively referred to as "defendants") alleging violations of the New York State Executive Law § 290, et seq., Chapter I, Title 8 of the Administrative Code of the City of New York, § 8-107(1)(a), the Right to Free Speech under the First Amendment, 1 U.S.C.A. § 1 and 42 U.S.C.A. § 1983, and retaliation, intentional infliction of emotional distress, breach of contract, tortious interference, and defamation. Defendants now move pursuant to Federal Rule of Civil Procedure 12(b)(6) for a motion to dismiss plaintiff's eighth cause of action alleging a violation of plaintiff's First Amendment freedom of speech rights under § 1983. For the reasons set forth below, defendants' motion is denied.
The following facts are derived from the amended complaint and taken as true for the purposes of this motion to dismiss. Defendant CTV is a not-for-profit corporation formed pursuant to the laws of the State of New York that provides public access television service to the residents of Staten Island through its television programming on four Time Warner Cable channels on Staten Island. (Am. Compl. ¶¶ 4-5.) CTV is funded through a Community Access Organization Grant Agreement with Time Warner NY Cable LLC ("Time Warner") and Staten Island Cable LLC ("Staten Island"). (Id. ¶ 15; Def.'s Mem. at 2.) Defendant Maria Esposito, a resident of the County of Richmond, New York, is the president of CTV, having been appointed by the Staten Island Borough President. (Id. ¶ 7.) Plaintiff began working at CTV on July 28, 2000, as the interim Executive Director. (Id. ¶ 14.) Plaintiff was hired by the Board of Directors immediately after the previous Executive Director was fired. (Id.) Shortly thereafter, on September 9, 2000, plaintiff was appointed by the Board of CTV as the CEO and Executive Director. (Id.)
According to the amended complaint, starting on or around June 29, 2004, CTV's programming output became regulated by defendant Esposito in violation of CTV's grant agreement with TWC Partners d/b/a Staten Island Cable (hereinafter "Staten Island Cable") and Time Warner NY Cable, Inc. ("Time Warner"), in violation of the First Amendment right to freedom of speech. (Id. ¶ 15.) Plaintiff alleges that defendant Esposito questioned and ordered certain types of programming that she found derogatory or offensive to be either pushed into a "dead" slot, or altogether pulled off the cablecasting schedule. (Id. ¶ 16.) It is also alleged that Esposito, instead of complying with CTV's "first come, first serve" policy for programming, ordered programming that was allegedly more favorable to her friends and mentors, to be played more frequently and in more favorable time slots. (Id.)
According to the complaint, Esposito also directed specific types of programming to be produced and crewed by CTV staff, on CTV time, contrary to the provisions of the franchise agreement, CTV's by-laws, and Borough President James P. Molinaro's 2002 directive that Board members were not to produce programming for CTV. (Id. ¶ 17.) This was also allegedly in direct violation of CTV's Producer and Staff Policies Manual, which stated that staff were not to be involved with any production on CTV time, as it would constitute interference with freedom of speech, and could be perceived as taking sides on a particular issue or cause. CTV staff and its Board of Directors are precluded from exercising any form of censorship of volunteer producer submissions. The volunteer producers are solely responsible for their submitted shows, and are required to have signed Statements of Compliance on record. (Id. ¶ 17.)
Plaintiff alleges that Esposito usurped the plaintiff's authority as CEO and Executive Director during her entire term of office, and thwarted plaintiff's efforts to improve efficiency within CTV. (Id. ¶ 18.) Plaintiff informed Staten Island Cable and Time Warner on several occasions through oral and written communications of the CTV Board of Directors' and Esposito's actions. (Id. ¶ 21.) According to the complaint, Staten Island Cable and Time Warner failed to intercede, investigate or take action upon warnings by the plaintiff of the CTV Board of Directors' and Esposito's wrongful conduct. (Id. ¶ 22.)
The complaint also alleges that, when plaintiff complained about the violations of the "first come, first serve" policy, he was terminated in retaliation for such speech. (Id. ¶ 61.)
Plaintiff initiated this action by filing a complaint on October 10, 2007. On January 23, 2006, this case was re-assigned to this Court. Plaintiff filed an amended complaint on March 10, 2006. Thereafter, defendants filed a motion to dismiss the eighth cause of action in plaintiff's first amended complaint. Oral argument was held on October 11, 2006.
In reviewing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted, the court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enterprises, - F.3d -, 2006 WL 1314684, at *2 (2d Cir. May 15, 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). Dismissal is warranted only if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Weixel, 287 F.3d at 145 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The appropriate inquiry is "not whether a plaintiff will ultimately prevail, but whether the ...