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Arias-Zeballos v. Tan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


March 28, 2008

MARIA ARIAS-ZEBALLOS, PLAINTIFF,
v.
DR. ANAMAH TAN, DEFENDANT.

The opinion of the court was delivered by: Gerard E. Lynch, District Judge

OPINION AND ORDER

Plaintiff Maria Arias-Zeballos ("Zeballos") brought this action for, inter alia, breach of contract, fraud, and defamation, against her former employer, Anamah Tan. Tan counterclaimed for defamation. Tan now moves for summary judgment with respect to all of Zeballos's claims. Zeballos cross-moves for summary judgment on all of her claims, as well as on Tan's counterclaims for defamation. For the following reasons, Tan's motion is granted in part and denied in part, Zeballos's cross-motion for summary judgment on her claims is denied, and her motion for summary judgment on Tan's counterclaims is granted in part and denied in part.

BACKGROUND

The following facts are not in dispute. On or about November 2003, Tan and Zeballos entered into a written employment agreement. (Tan Decl.*fn1 ¶ 6.) At that time, Tan, a citizen of Singapore, was a board member and the president of the International Council of Women ("ICW"), a non-governmental organization ("NGO") that works in collaboration with the United Nations ("UN") to promote equal rights and responsibilities for women around the world. (Id. ¶ 7.) She was also seeking to become a member of the Committee on the Elimination of Discrimination Against Women ("CEDAW"), a UN body with a similar mission to that of ICW. (Id. ¶ 6.) Zeballos was at that time an ICW representative to the UN, a unpaid position which involved attending UN sessions whenever possible and submitting two brief annual reports to ICW. (Pl. Aff.*fn2 ¶ 7.) The employment agreement called for Zeballos to assist Tan in her campaign to become a member of CEDAW by various means, including arranging speaking engagements, writing speeches, and keeping Tan up to date on women's issues. (Tan Decl. Ex. A.) The agreement made the appointment retroactive to September 2003, and specified a salary of $2,500 per month ($30,000 per year). (Id.) This salary was to be reimbursed to Tan by a ministry of the Singapore government. (Id.) Zeballos worked for Tan pursuant to this agreement from September 2003 until July 2005. (Tan Decl. ¶¶ 6, 8.)

However, Zeballos alleges that this written employment agreement was not the only agreement between the two women. She alleges that there was a prior oral employment agreement, negotiated in March 2003, under which Zeballos was to work full-time for Tan, as an assistant to her in her position as president of the ICW. (Am. Compl. ¶ 59.) Under this alleged agreement, Tan promised to pay Zeballos $60,000 per year, plus various benefits, for a period from September 2003 to 2006, coinciding with Tan's appointment as ICW president. (Id.) According to Zeballos, in September 2003, just as her employment was beginning, Tan informed Zeballos that she did not have sufficient funds to pay her the $60,000 per year as agreed, but that she could pay her $30,000 per year now, and make up the difference at a later time. (Id. ¶ 68.) Zeballos agreed, and the written agreement executed in November, according to Zeballos, recorded only the terms of this partial payment, and not the complete terms of her employment. (Id. ¶ 69.) Following execution of this agreement, Zeballos continued to perform her duties as assistant to the president of the ICW, in addition to the duties spelled out in the written agreement, assisting Tan in her campaign for CEDAW membership. (Id. ¶ 74.) During this time Tan reassured Zeballos that the prior oral agreement was still in force. (Id. ¶ 78.)

Whatever the terms of their agreement, both parties agree that it came to an end in July 2005. According to Zeballos, the relationship started to unravel on July 2, when she overheard Tan "screaming" over the phone at a domestic servant of Tan's in Singapore. (Id. ¶ 83.) When Zeballos objected to what she perceived to be Tan's "discriminatory and inhumane" treatment of the worker (id. ¶ 84), Tan allegedly retaliated against Zeballos by threatening to fire her and by carrying out, during the following days, "a series of malicious, intentional[] actions" against Zeballos, "creating a very negative work environment" (id. ¶ 85). The tension between the parties came to a head at a CEDAW meeting on July 15, when according to Zeballos, Tan became angry and screamed at Zeballos in the middle of the session, causing Zeballos great humiliation. (Id. ¶¶ 88-89.)

After the July 15 incident, Zeballos concluded that Tan was purposefully making it impossible for Zeballos to do her job, and that Tan had no intention to pay her the additional compensation she had promised. After consulting with the office of legal counsel at the UN about the matter, she submitted a letter to the members of CEDAW, detailing Tan's mistreatment of Zeballos and other employees. (Id. ¶ 91.) Zeballos stopped performing any work for Tan, but attempted, at first with the assistance of counsel, to secure the compensation she was allegedly owed. (Id. ¶¶ 92-93.)

When her efforts failed, she filed suit, alleging breach of contract, discrimination, retaliation and defamation. Tan timely answered, and asserted counterclaims, alleging that the letter Zeballos delivered to members of CEDAW in July 2005 contained "false and severely defamatory statements" about Tan and her work. (Partial Answer ¶ 27.) In addition to her defamation claim, Tan asserted counterclaims for intentional infliction of emotional distress, prima facie tort, and "breach of contractual fiduciary duty." (Id. ¶¶ 42-65.) This Court dismissed Zeballos's claims for discrimination and retaliation, and Tan's counterclaims for intentional infliction of emotional distress and prima facie tort. Arias-Zeballos v. Tan ("Zeballos I"), 06 Civ. 1268 (GEL), 2006 WL 3075528, at *6, 12-13 (S.D.N.Y. October 26, 2006). Tan's counterclaim for breach of fiduciary duty was withdrawn. (See D. Statement Pursuant to Local Civ. R. 56.1(b) (In Opp'n to P. Mot. for Summ. J. with Respect to D. Counterclaim for Defamation) ¶ 17.)

DISCUSSION

An earlier opinion and order of the Court noted that the resolution of pending motions had "been complicated and delayed in part by both parties' inclusion of lengthy, irrelevant and redundant arguments and exhibits in their submissions to the Court." Zeballos I, 2006 WL 3075528, at *3. Unfortunately, the Court faces the same issue again, as Zeballos has continued the practice unabated with the present motions. In addition to her opposition to defendant's motion for summary judgment, Zeballos submitted a separate motion for summary judgment on defendant's counterclaims and a cross-motion for summary judgment on her fraud claim, each of which addressed largely (though not entirely) the same issues with reference to largely (though not entirely) the same alleged facts and exhibits. Moreover, these submission contained no concise statements of undisputed and disputed facts as required by Local Rule 56.1, nor indeed any clear markers of which papers contained Zeballos's allegations, which contained her sworn factual statements and which contained her legal arguments.

The magistrate judge appropriately ordered Zeballos to re-submit her motions in compliance with federal rules and the rules of this Court, but the new briefs were, unfortunately, neither in compliance with the rules nor, for that matter, truly re-submissions, as they added facts, exhibits and allegations not contained in the earlier submissions, while omitting others that were. As a result, the Court has been forced to consider these briefs in addition to, rather than in place of, Zeballos's earlier submissions. This welter of submissions has wasted the time of the defendant, who has been forced to make repeated supplemental responses, and of the Court, which has spent significant time attempting to make sense of this deluge of overlapping filings. Nevertheless, recognizing plaintiff's pro se status, the Court has considered plaintiff's arguments and evidence -- as best it can make them out -- in deciding the present motions for summary judgment.

I. Summary Judgment Standard

Summary judgment is appropriate where the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the initial burden of explaining the basis for its motion and identifying those portions of the record which it believes "demonstrate the absence of a genuine issue of material fact." Id. at 323. The burden then shifts to the non-movant to produce evidence sufficient to create a genuine issue of material fact for trial. Fed. R. Civ. P. 56(e)(2). See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

The Court's responsibility is to determine if there is a genuine issue to be tried, and not to resolve disputed issues of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must draw all "justifiable inferences" and resolve all ambiguities in the non-movant's favor, and construe the facts in the light most favorable to the non-movant. Id. at 255. However, the "mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient" to withstand a motion for summary judgment. Id. at 252.

A non-movant's unsupported denials of the movant's evidence, without more, cannot create disputes of material fact. When a summary judgment motion is "properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading" but must "by affidavits or as otherwise provided . . . set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The affidavits must be based on personal knowledge. Danzer v. Norden Systems, Inc., 151 F.3d 50, 57 n.5 (2d Cir. 1998). The evidence must be admissible. Likewise, "conclusory statements or mere allegations [are] not sufficient to defeat a summary judgment motion." Davis v. State of New York, 316 F.3d 93, 100 (2d Cir. 2002); see also id. ("The nonmoving party must go beyond the pleadings and by [his or] her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.") (alterations in original) (citation and internal quotation marks omitted).

II. Plaintiff's Claims

A. Breach of Contract

1. Defendant's Motion for Summary Judgment

Tan moves for summary judgment on Zeballos's claim for a breach of the oral contract between the two parties. She argues that this claim is barred by the statute of frauds,*fn3 which requires that an agreement be memorialized by a writing if that agreement "is not to be performed within one year from the making thereof." N.Y. Gen. Oblig. Law § 5-701a. The requirement is read narrowly such that an agreement is covered by the statute only if complete performance of the contract within one year is impossible, and not merely unlikely or improbable. Kubin v. Miller, 801 F. Supp. 1101, 1120 (S.D.N.Y. 1992), citing D & N Boening Inc. v. Kirsch Beverages Inc., 63 N.Y.2d 449, 454 (1984). With employment contracts, "the exercise of the right of termination associated with a hiring at will is a means of completion of the contract." Stucklen v. Kabro Associates, 795 N.Y.S.2d 256, 256 (2d Dep't 2005). Accordingly, where "employment [is] terminable at will . . . the statute of frauds is not a bar to enforcement of the alleged oral agreement because its performance within one year [is] possible." Id. See also Curtis v. Harry Winston, Inc. 653 F. Supp. 1504, 1510 (S.D.N.Y. 1987) (holding that statute of frauds does not prevent recovery on oral contract for an "at-will employee" who "could have been terminated . . . at any time").

Tan has not established as a matter of law that Zeballos's claim for recovery on an oral contract for employment is barred by the statute of frauds. Zeballos did say in her deposition that it was her "clear understanding" that she was "to be employed by [Tan] for a 3-year term." (Zeballos Tr.*fn4 70.) However, other evidence suggests that Zeballos understood her employment by Tan to be at will. Zeballos acknowledges that, during the three-year "term," Tan was free to "discharge me at any time," just as Zeballos "certainly was free to quit at any time." (Pl. Aff. ¶ 11.) This is consistent with Zeballos's unrefuted contention in her complaint that Tan, following the incident involving her maid in Singapore, told Zeballos that "[w]hen you work for me, Maria, it's like this, so like it or leave it." (Am. Compl. ¶ 84.) Had Zeballos understood her position to be for a guaranteed term, she would not have thereafter "felt threatened with losing her job at wanton, at any time, and thus her only means of support." (Id.) Moreover, Zeballos claims she resigned "under duress" (id. ¶ 91), and yet seeks compensation only for her employment from September 2003 to August 2005 (id. ¶ 32), the time during which she performed work for Tan, and not for the remainder of the "term," which she would have been entitled to (on the facts alleged) under a true fixed term contract.

Zeballos's description of the contract as having a "3-year term" therefore could reasonably be taken to mean nothing more than that the contract called for her to serve Tan during her three year tenure as president of the ICW, so long as they both desired that employment to continue, and not that there was a contractual guarantee of a fixed term of employment.*fn5 As Zeballos is proceeding pro se, a jury could reasonably decline to attribute a technical legal meaning to her description of the employment terms. What is important is how the parties understood the substance of their agreement, and the evidence would permit a reasonable fact-finder to conclude that, if there was any oral agreement at all, the parties understood Zeballos's employment under that agreement to be at will.*fn6 Defendant has not demonstrated that any reasonable fact-finder would have to conclude that the contract was for a definite period of guaranteed employment longer than one year, and hence she is not entitled to summary judgment that the contract is barred by the statute of frauds.

2. Plaintiff's Cross-Motion for Summary Judgment

Zeballos cross-moves for summary judgment on the breach of oral contract claim. In order for Zeballos to prevail on this motion, she must establish that any reasonable jury would be required to find all the necessary elements of a breach of contract claim. Under New York law, these elements are: "(1) the existence of a contract; (2) due performance of the contract by the plaintiff; (3) breach of contract by the defendant; and, (4) damages resulting from the breach." Marks v. New York University, 61 F. Supp. 2d 81, 88 (S.D.N.Y. 1999).

Even if there were no genuine disputes about the facts material to these elements, however, summary judgment for Zeballos would be precluded by Tan's statute of frauds defense. As already noted, even if it were established as a matter of law that Tan and Zeballos had formed some sort of oral contract for Zeballos's personal services that pre-dated the written contract, a material issue of fact exists as to the term of that contract. If, as at least some of Zeballos's own statements suggest, the contract was for a fixed three-year term, its enforcement would be precluded by the statute of frauds. A jury must resolve that question.

In any event, moreover, there is also a genuine issue as to whether there was in fact a contract between the parties. Zeballos offers substantial evidence to support the existence of such a contract. First, she offers her own recollection that "on or about March 12th, 2003, [parties] arrived to a mutually agreed employment contract, based on good faith, through deliberation and fair dealing." (Pl. Fraud Br.*fn7 6.) Second, she offers evidence of actions that she took after March 12, 2003, that are consistent with the existence of an oral agreement, most importantly, substantial work she did "under the oral agreement" after September 2003. (Id. 19.) Third, there is evidence suggesting that Tan too acted in ways consistent with the existence of the oral agreement, by requesting that Zeballos perform such work, by providing Zeballos with business cards with the title of "Assistant to ICW President," by attempting to procure office space for Zeballos, and by covering Zeballos's travel expenses, as allegedly required by the oral agreement. (Id. 20-21.) Fourth, Zeballos says that Tan reassured her that the promised remuneration under the oral contract was forthcoming. (Id. 11.)

Fifth and finally, the record contains a draft of a letter from Tan to ICW First Vice President Eleonore Hauer Rona, dated October 18, 2003, which describes a new assistant position to "help [Tan] in [her] work as ICW president." (Pl. Aff. Ex. 1.) In the letter Tan states that the work is "full time and often intense," that Tan will "pay and fund raise for this position during my term as President," and that "Maria Arias-Zeballos is the assistant I have selected for this position." (Id.) Tan notes that the letter was a draft, not signed by Tan, and that there is no evidence that it was ever sent to Rona. (D. Reply*fn8 2 n.4.) Nevertheless, as Tan concedes (D. Rule 56 Statement - Fraud Claim*fn9 ¶¶ 27-29), the letter was drafted at Tan's direction and with her approval, and so is evidence of Tan's state of mind at the time it was written.

Tan offers very little to refute this evidence. She submits a single six-page affidavit, much of which is devoted to legal argument and a recitation of plaintiff's claims rather than testimony about the facts. Her only factual assertion regarding the oral contract comes in a footnote, in which Tan avers that she and Zeballos: discussed the possibility of an arrangement pursuant to which she would be compensated for the rendition of ICW-related services.

However, the ICW board rejected the making of any such arrangement because it was not willing to depart from its tradition of having such services performed on a strictly voluntary basis; and plaintiff Zeballos was well aware of this determination by the ICW board. (Tan Decl. ¶ 7 n.2.) While this statement implies that the ICW board rejection killed any potential agreement between the parties, it falls short of actually stating that Tan and Zeballos never entered into any oral agreement, or that there was an agreement but that it was contingent upon ICW board approval. Nor does Tan expressly deny Zeballos's contention that Tan agreed to pay Zeballos out of her own funds; that she asked Zeballos to perform duties beyond those specified in the written CEDAW contract; or that she reassured Zeballos of her intention to make good on her promise to compensate Zeballos for her ICW work.

Nevertheless, on summary judgment it is not the Court's function to evaluate the credibility of the parties. Rather, the Court must credit the testimony of the non-moving party, and draw all reasonable inferences in favor of that party. A reasonable jury could credit Tan's implicit assertion that any discussion of Zeballos's employment in connection with the ICW was preliminary and contingent on approval by the ICW board, which did not in the end approve the arrangement. The jury could also find that the November 2003 agreement, which makes no mention of any prior oral contract, militates against a finding that the parties had a separate agreement that Tan would someday pay Zeballos an additional sum well beyond what was expressly provided for in the written contract.

A jury could also question the credibility of Zeballos's testimony. First, her affidavits are vague and conclusory, stating, for example, the legal conclusion that the parties "arrived [at] a mutually agreed employment contract" (Pl. Fraud Br. 6-7), without providing specific details as to what specifically Tan said or did to manifest consent to any concrete arrangement. A jury could reasonably read Zeballos's deposition testimony as consistent with a vague preliminary discussion of a possible arrangement, rather than a firm agreement. Thus, Zeballos testified:

The meeting of the minds arrived when, spending time together we began to relate to the topics [such as my] intention to fund raise for developing programs in New York so that ICW would be reenergized. And it was more or less in the context of that discussion in the ICW kind of perspective that throughout these days the meeting of the minds developed. . . .

She said that [she] wanted an assistant to help her from there to the nomination of the presidency of ICW . . . . And we spoke of salary, we spoke of the $60,000, we spoke of the health insurance. (Zeballos Tr. 56-60.) A jury could reasonably see such a generalized account of what the parties "spoke of" or what Tan "wanted" as reflecting a preliminary discussion, and find that Zeballos's conclusion that they reached a "meeting of the minds" as wishful thinking on her part.

Second, it is difficult to distinguish work done by Zeballos pursuant to her written CEDAW agreement from work done pursuant to the alleged ICW oral agreement. Her CEDAW agreement called for her, among other things, to "identify fora where Dr Tan can speak as the President of ICW," to "[d]raft speeches and statements for Dr Tan," to "[i]dentify programmes or activities where Dr Tan can be involved in so as to enable her to be profiled as an international expert on women issues," and to "[a]ssist in all areas of work to support her candidature in USA or in any other countries as assigned by Dr Tan." (Tan Decl. Ex. A at 3.) These are broad responsibilities, and seem to encompass most of what Zeballos has alleged she did for Tan. Because ICW and CEDAW have nearly identical agendas, helping Tan perform her role as ICW president would inevitably help Tan in her candidacy for CEDAW, and vice versa. On the present record, a jury would not be compelled to accept Zeballos's argument that her work after September 2003 was of such a nature and amount as to go beyond her obligations under the written contract and suggest the existence of a separate oral agreement.

Accordingly, since there are genuine issues of material fact as to the existence of the alleged oral contract, plaintiff's motion for summary judgment on her contract claim must be denied.

B. Quantum Meruit

Defendant also moves for summary judgment on plaintiff's claim in the alternative for recovery in quantum meruit. Quantum meruit, a type of "quasi contract," is "a legal obligation imposed in order to prevent a party's unjust enrichment." Landcom, Inc. v. Galen-Lyons Joint Landfill Comm'n, 687 N.Y.S.2d 841, 841 (4th Dep't 1999). Quantum meruit "only applies in the absence of an express agreement," id., and hence Zeballos's claim under quantum meruit is a claim in the alternative to her recovery under the oral contract. "To state such a cause of action, plaintiff must allege (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services." Soumayah v. Minnelli 839 N.Y.S.2d 79, 79 (1st Dep't 2007).

Defendant's motion for summary judgment is based entirely on her contention that quantum meruit recovery is "not available where, as here, a plaintiff attempts to avoid the application of the Statute of Frauds to an alleged oral agreement." (D. Reply 3.) However, defendant overstates the law. Contrary to defendant's argument, the law does not prohibit a plaintiff from seeking recovery in quantum meruit where a claim under the contract is barred by the statute of frauds. Under New York law, "the Statute of Frauds is not an automatic bar to a cause of action for unjust enrichment." RTC Properties, Inc. v. Bio Resources, Ltd., 744 N.Y.S.2d 173, 175 (1st Dep't 2002). Rather, the rule is that "a contract that is unenforceable under the Statute of Frauds is inadmissible as evidence of the reasonable value of services." Zaitsev v. Salomon Bros., Inc., 60 F.3d 1001, 1004 (2d Cir. 1995). The statute of frauds does not operate as a complete bar to a claim under quantum meruit. "[W]here an express employment contract [is] barred by the statute of frauds . . . the plaintiff [is] entitled to recover 'the reasonable value of services rendered' on a theory of quasi contract, or contract implied in law." Longo v. Shore & Reich, Ltd. 25 F.3d 94, 97 (2d Cir. 1994), quoting Isaacs v. Incentive Systems, Inc., 382 N.Y.S.2d 69, 70 (1st Dep't 1976).

Zeballos does not rely on the alleged oral contract to determine the value of the services she provided. Indeed, she contends that the true value of the services she supplied was $100,000 per year, rather than the $30,000 she was paid or the $60,000 she claims was agreed to in the oral contract. (Pl. Aff. ¶¶ 20-21.) Accordingly, defendant's motion for summary judgment on the claim must be denied.

Zeballos's cross-motion for summary judgment must also be denied. First, recovery in quantum meruit is an equitable remedy allowed only where the impossibility of recovery on the contract would work an injustice. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). Because Zeballos's contract claim is still before the Court, it is premature to consider the alternative equitable remedy. Second, as noted above, genuine factual issues exist as to whether Zeballos performed any services that were separate and distinguishable from her responsibilities under the written contract, and it is axiomatic that the existence of a contractual agreement precludes any recovery in quantum meruit beyond the agreed compensation for work performed under the contract. See Beth Israel Medical Center v. Horizon Blue Cross and Blue Shield of New Jersey, Inc., 448 F.3d 573, 587 (2d Cir. 2006). Finally, even if Zeballos did perform such additional services, the value of any such work is quintessentially a question of fact for the jury.

C. Loss of Employment Opportunities

Defendant next moves for summary judgment on Zeballos's claim for "loss of employment opportunities" arising from her decision to "stop[] looking for a full time position elsewhere" once she accepted what she believed to be full-time work with Tan. (Am. Compl. ¶¶ 33-36.) Defendant construes this claim as one for "consequential damages" flowing from defendant's alleged breach of the oral contract (Mem. of L. in Supp. of D. Mot. for Summ. J. 7), and argues that the claim should be dismissed because it is based on "sheer speculation" (id. at 8). In fact, the claim should be dismissed for the more basic reason that it states no cause of action at all. Even assuming that Zeballos passed up other job opportunities in order to accept employment with Tan, she would have lost such income whether Tan had breached her contract with her or not. Hence, such losses are not attributable to Tan's breach, and summary judgment for defendant must be granted with respect to this claim.*fn10

D. Fraud

Defendant next moves for summary judgment on plaintiff's claim for fraud. Zeballos's fraud allegations are centered on her contention that Tan's decision not to pay Zeballos was made "knowingly, intentionally, and maliciously" (Am. Compl. ¶ 42), since Tan had "more than sufficient funds to compensate" Zeballos according to the terms of the oral contract (id. ¶ 38), and yet failed to do so (id. ¶ 39). Tan is correct that this contention does not state a cause of action for fraud because it merely re-states Zeballos's claim for breach of contract. Alleging that Tan made "false statements by . . . indicating . . . intent to perform under the contract . . . is not sufficient to support a claim of fraud under New York law." Bridgestone/Firestone, Inc. v. Recovery Credit Services, Inc., 98 F.3d 13, 19-20 (2d Cir. 1996), citing McKernin v. Fanny Farmer Candy Shops, Inc., 574 N.Y.S.2d 58, 59 (2d Dep't 1991); Metropolitan Transp. Auth. v. Triumph Advertising Productions, 497 N.Y.S.2d 673, 675 (1st Dep't 1986); Papa's-June Music, Inc. v. McLean, 921 F. Supp. 1154, 1162 (S.D.N.Y. 1996).

To state a claim for fraud separate from a claim in contract, a plaintiff must "(i) demonstrate a legal duty separate from the duty to perform under the contract; or (ii) demonstrate a fraudulent misrepresentation collateral or extraneous to the contract; or (iii) seek special damages that are caused by the misrepresentation and unrecoverable as contract damages." Bridgestone/Firestone, 98 F.3d at 20 (citations omitted). Zeballos has failed to allege any of these circumstances. Zeballos has presented no evidence of any identifiable legal duty other than those arising under their alleged oral contract, and alleges no misrepresentation other than that Tan agreed to pay Zeballos a certain sum and then did not. Zeballos does claim a "loss of employment opportunities" arising from her decision to enter into the contract with Tan. But any damages flowing from that decision are already recoverable on the contract. Zeballos has produced no evidence that she lost any employment opportunity more advantageous than what she claims she contracted for with Tan. Indeed, by her own admission, Zeballos's previous job paid exactly what she claims she was owed under the oral contract. (Pl. Aff. ¶ 14.) Thus, on the present record, the opportunities she gave up in accepting that offer of employment are fully accounted for by her compensation under the alleged contract, and are not "special damages" unrecoverable as contract damages. Defendant is thus entitled to summary judgment on plaintiff's fraud claim.

E. Defamation

1. Defendant's Motion for Summary Judgment

Defendant moves for summary judgment on plaintiff's claims of defamation. Plaintiff's claims are based on four allegedly defamatory statements. First, Tan said to Zeballos herself, "I am very annoyed with you, Maria," at the July 15 CEDAW meeting. (Zeballos Tr. 249-50.) Second, Tan told Kay Fusano, a Japanese representative to the United Nations, that Tan "was cheated by Maria, that Maria was a dangerous person and that the purpose of Maria was 'money.'" (Pl. Aff. Ex. 5.) Third, in a letter to ICW board members seeking their support in replacing Zeballos as an ICW representative to the United Nations, Tan asked the board members to "pray that I will be protected from all evil." (Pl. Aff. Ex. 8.) Finally, in a letter to the chairperson of CEDAW, Tan maintained that a third person, Marlene Ee, had "called Maria a liar." (Pl. Aff. Ex. 11 at 2.)

Defamation -- whether spoken (slander) or written (libel) -- has five elements under New York law: (1) defamatory statement of fact concerning the plaintiff; (2) falsity; (3) publication to a third party; (4) fault of the defendant; (5) special damages or per se actionability. See Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 176 (2d Cir. 2000) (defining elements of libel); Albert v. Loksen, 239 F.3d 256, 265-66 (2d Cir. 2001) (defining elements of slander); see also Dillon v. City of New York, 704 N.Y.S.2d 1, 5 (1st Dep't 1999).

Tan's motion for summary judgment focuses only on the first element. She does not deny that she made the statements at issue, but argues that all of the statements are statements of opinion, rather than "defamatory statements of fact." Only statements purporting to express objective fact are actionable, because statements of "pure" opinion are absolutely protected under the New York Constitution. Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 256 (1991). Whether a statement is one of fact or opinion is a question of law for the Court. Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 381 (1977).

Distinguishing fact from opinion is not simple, as opinions often suggest underlying facts and statements of fact are often overlaid with opinion. Whether a statement is one of fact or opinion is not discernible based only on the words used, and requires careful consideration of the "context of the entire communication and of the circumstances in which they were spoken or written," and a determination of "what the average person hearing or reading the communication would take it to mean." Steinhilber v. Alphonse, 68 N.Y.2d 283, 290 (1986). The New York Court of Appeals has suggested four factors for distinguishing statements of protected opinion from those of actionable fact:

(1) an assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous, (2) a determination of whether the statement is capable of being objectively characterized as true or false, (3) an examination of the full context of the communication in which the statement appears, and (4) a consideration of the broader social context or setting surrounding the communication.

Id. at 292.

Many statements cannot be neatly categorized as either purely opinion or purely fact. A statement is one of mixed opinion and fact when it "may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion." Id. at 290. By contrast, a statement of "pure opinion" is one that is either "accompanied by a recitation of the facts upon which it is based," or one that "does not imply that it is based upon undisclosed facts." Id. at 289. Moreover, even statements that literally assert a factual claim may nevertheless be opinion, when the context suggests that they are meant to be understood figuratively, or as an exaggeration, or as a figure of speech. "Loose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not actionable." Dillon, 704 N.Y.S.2d at 5.

Against this standard, Tan's statement, "I am very annoyed with you, Maria," is a statement of non-actionable opinion. The language itself does not suggest a defamatory fact about Zeballos that is "precise" or "readily understood." Indeed, the literal import of the statement addresses Tan's own state of mind, and attributes no action or characteristic to Zeballos. At most, it suggests that Tan believed she had some reason to be angry at Zeballos, but even that implied assertion refers only to Tan's subjective belief and is not "capable of being objectively characterized as true or false."*fn11 Nothing about the context in which the statement was uttered suggests a more definite meaning.*fn12

Similarly, Tan's use of the word "evil" in an email to ICW board members is not actionable. The email asks the board for its support in replacing Zeballos as one of the ICW's representatives to the UN, and Tan ends the email by saying, "So please respond ASAP and pray that I will be protected from evil." (Pl. Aff. Ex. 8.) Neither the literal meaning nor the context clearly refers to Zeballos or suggests any "precise" or "readily understood" statement of fact about her. Assuming arguendo that a jury could find that the statement was anything other than a ritual sign-off requesting favorable prayers, the context suggests at most a hyperbolic statement that would be readily understood as an expression of Tan's subjective displeasure with Zeballos. Hence, this email does not support a defamation claim.

By contrast, Tan's other two statements are actionable as defamatory factual statements. Tan's statements to Fasano -- that Zeballos "cheated" Tan and is "dangerous" -- are capable of being characterized as true or false. To the extent it could be argued that calling someone "dangerous" expresses an opinion, the statement is still actionable: stated alone and without any justification, it implies the existence of undisclosed facts warranting the conclusion that Zeballos is a dangerous person. Fasano also apparently took the warning seriously enough that she recommended to her friend, Etsuko Sekiguchi, that she avoid contacting Zeballos during her visit to New York. (Pl. Aff. Ex. 4.) While the statement that "the purpose of Maria was 'money'" is not entirely clear, a jury could find that it would be reasonably understood as an accusation that Zeballos was greedy. The record regarding the context of the statement is sparse, but there is no evidence that any factual basis for the characterization was provided. Thus, even though at least two of these statements were arguably expressions of opinion, a reasonable listener could easily have understood them to refer to specific undisclosed facts about Zeballos.

Finally, Tan's statement in her letter to Rosario Manalo, the chairperson of CEDAW, that a third person, Marlene Ee, "called Maria a liar," is a statement of fact, not an opinion. Even though the statement literally makes a factual assertion only about what Ee allegedly said, its obvious implication is a statement of fact about Zeballos, that she is in fact a liar. In the context of this letter, moreover, the statement is readily understood as an assertion of a specific fact. In her own prior letter to CEDAW, Zeballos had made representations about what Ee had told her. (See Tan Decl. Ex. B at 3.) Tan's statement, in context, reports that Ee contradicted Zeballos, and that Zeballos's statements to the committee were intentional falsehoods. Accordingly, Tan's statement is not a statement of protected opinion, and Zeballos's claim survives.*fn13

Accordingly, Tan's motion for summary judgment is granted with regard to Tan's expression of annoyance and request for prayers, but denied with respect to her statements (1) that Zeballos cheated her, was dangerous, and was "about money," and (2) that Ee had called Zeballos a liar.

2. Plaintiff's Cross-Motion for Summary Judgment

Plaintiff's cross-motion for summary judgment is without merit. The truth or falsity of the allegedly defamatory statements, and whether they caused plaintiff any injury, are plainly questions of fact that must be decided by a jury at trial.

III. Defendant's Counterclaims

Plaintiff moves for summary judgment on defendant's counterclaims for defamation. The counterclaims assert that Zeballos made four allegedly defamatory statements in a letter to the members of CEDAW, and repeated some of the same statements in a letter to an ambassador from Singapore. Zeballos stated (1) that Tan engaged in a "pattern" of "violent outbursts of anger and abusive behavior" with respect to Zeballos and others, including members of the board of ICW; (2) that Tan and her husband "prohibit their maids to leave the house," "prohibit them to speak on the phone," and that the maids are made to "work 7 days a week without a single day off"; (3) that Tan and her husband have "depriv[ed] [their employees] from their well deserved and promised compensation"; and (4) that Tan has engaged in "immoral and almost illegal actions" and behavior that translated into "domestic violence." (Tan Decl. ¶¶ 11-12; Ex. B; Ex. C.)

Zeballos argues that she is entitled to summary judgment on defendant's claims, because the statements were true, because they were privileged, because they are statement of opinion, and because Tan is a public figure who is unable to prove constitutional malice. The motion will be granted with respect to statement (4), which is a general statement of opinion, and denied with respect to the other allegedly defamatory statements.

Zeballos's argument that the statements are true simply presents a factual question for the jury. Tan has flatly denied, under oath, the truth of the statements. (Tan Decl. ¶ 13.) The credibility of the parties' contradictory assertions is for the jury to decide at trial. Kelly v. State, 482 N.Y.S.2d 70, 72 (3d Dep't 1984).

Zeballos's claims of common-law privilege are no more persuasive. Absolute privilege applies only in narrow circumstances not present here. See Rosenberg v. MetLife, Inc., 8 N.Y.3d 359, 365 (2007) ("The absolute privilege generally is reserved for communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings.") The qualified "common interest" privilege "arises when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest." Demas v. Levitsky, 738 N.Y.S.2d 402, 410 (3d Dep't 2002). Assuming arguendo that, as Zeballos argues, CEDAW and the Ambassador had a legitimate interest in the behavior that Zeballos alleged Tan engaged in, there are disputed issues of fact with respect to whether Zeballos's allegations were made in good faith. Tan has asserted not only that Zeballos's charges were false, but also that the false statements were made knowingly or recklessly. (Tan Decl. ¶ 13.) With respect to the claims of abusive behavior and denial of compensation as to Zeballos herself, the statements refer to relations between Tan and Zeballos; if Zeballos's allegations are false, as Tan swears they are, Zeballos must have known them to be false. With respect to the allegations of mistreatment of Tan's domestic employees, Tan provides evidentiary support for her assertion that Zeballos fabricated the charges, alleging that the conversations Zeballos claims to have overheard between Tan and one of her employees were conducted in an Indonesian language that Zeballos does not speak. (Id.) That is sufficient to raise a factual issue with respect to Zeballos's good faith.

For similar reasons, Zeballos's claims of constitutional privilege also present issues of fact for resolution at trial. Zeballos argues that Tan is a public figure, and that her criticisms of Tan are therefore privileged under the First Amendment. A "public figure" is one who has "voluntarily sought and attained influence or prominence in matters of social concern." Celle, 209 F.3d at 176 (finding "well known radio commentator within the Metropolitan Filipino-American community" to be a public figure). A person may be an "all purpose public figure" -- a person of such "general fame or notoriety" that he should be "deemed a public personality for all aspects of his life" -- or a "limited purpose public figure" -- a person who has voluntarily sought influence or prominence on specific "topics of continued and general public interest." Lerman v. Flynt Distributing Co., Inc., 745 F.2d 123, 137 (2d Cir. 1984) (finding well known author of erotic books a public figure for "limited purpose" of commenting on sex and nudity in film). Tan is the president of a prominent international NGO, a member of a select United Nations body, and a frequent speaker at international conferences on topics relating to women's rights. Moreover, Tan was elected to those positions, meaning that she voluntarily placed herself in the public eye with regard to the causes those organizations support. Thus, it is reasonable to conclude that Tan is a public figure, at least with respect to issues relating to women's rights.

But defamatory statements are not absolutely immunized simply because they are made regarding a public figure. A public figure may succeed in a defamation claim by proving "actual malice," in the sense of "subjective awareness of probable falsity." Lerman, 745 F.2d at 139. Zeballos's statements regarding Tan's treatment of her maids relate to a topic of public concern concerning the rights of women, the very subject on which Tan is a limited purpose public figure. See, e.g., Human Rights Watch, Maid to Order: Ending Abuses Against Migrant Domestic Workers in Singapore (December 2005), available at http://www.hrw.org/reports/ 2005/singapore1205/. Zeballos has presented evidence for the basis of her belief in Tan's treatment of her maids -- in particular, the fact that Zeballos overheard the dispute between Tan and one of her domestic servants, and that Zeballos was told by another employee that Tan treated her domestic servants in the ways Zeballos contends in the CEDAW letter. (Zeballos Tr. 325-27.) However, Tan has challenged the factual accuracy of at least a part of that alleged good faith basis (Tan Decl. ¶ 13), raising an issue of fact as to whether Zeballos's statements were made with reckless disregard for the truth. Thus, the matter is one for resolution at trial.

Finally, Zeballos argues that the allegedly defamatory statements are mere matters of opinion, based on factual statements alleged by Zeballos and not denied by Tan. As to the first three statements, that is not the case. The statements regarding mistreatment of domestic employees are specific factual statements, which are flatly denied by Tan. (Tan Decl. ¶¶ 11(b), 13.) It is arguable that the generalized statements regarding a "pattern" of "violent behavior" and denial of "well deserved and promised compensation" are statements of opinion characterizing specific allegations set forth in detail by Zeballos. However, Tan's denials are reasonably understood as extending not merely to the characterization but to the underlying facts: Tan specifically denies screaming at Zeballos or raising her voice to her (id. ¶ 10); she denies the specific allegations of mistreatment of domestic employees (id. ¶¶ 11(b), 13); and she denies Zeballos's claim that she promised Zeballos additional compensation (id. ¶ 7 n.2). The parties thus vigorously dispute whether Tan mistreated or denied compensation to Zeballos, as well as whether she abused her domestic employees. These are matters for trial.

The one exception to this conclusion is Zeballos's charge that Tan engaged in conduct that is "immoral and almost illegal" and that her behavior amounted to "domestic violence." These are plainly hyperbolic statements of opinion that, to the extent they have any substantive content at all, simply summarize the other charges. They have no independent significance and standing alone cannot be the basis of a defamation claim.

CONCLUSION

For the foregoing reasons, defendant's motion for summary judgment is denied with respect to plaintiff's claims for breach of contract, quantum meruit and defamation, insofar as the defamation claims are based on charges that defendant accused plaintiff of being a cheat, dangerous, greedy and a liar, and granted with respect to plaintiff's claims for loss of employment opportunities and fraud, and all other claims of defamation. Plaintiff's cross-motion for summary judgment on her claims is denied in its entirety, and her motion for summary judgment on defendant's counterclaims is granted with respect to a claim of defamation based on a charge that defendant engaged in "immoral and almost illegal" conduct summary judgment on defendant's counterclaims is granted with respect to a claim of defamation based on a charge that defendant engaged in "immoral and almost illegal" conduct and "domestic violence," and denied in all other respects. Defendant's motion for leave to amend her answer is granted.

SO ORDERED.


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