APPEAL by the defendant in an action, inter alia, to recover damages for fraudulent inducement, fraudulent misrepresentation, negligent misrepresentation, intentional infliction of emotional distress, prima facie tort, retaliatory discharge in violation of Labor Law § 215, wrongful wage deductions in violation of Labor Law § 191, late payment of wages in violation of Labor Law § 193, and defamation, from an order of the Supreme Court (Martin M. Solomon, J.), dated May 8, 2008, and entered in Kings County, which denied those branches of her motion which were pursuant to CPLR 3211(a)(7) to dismiss the first through fifth causes of action, and the eighth cause of action, and so much of the seventh cause of action as alleged a violation of Labor Law § 193, pursuant to CPLR 3211(a)(1) and (7) to dismiss the sixth cause of action, and pursuant to CPLR 3211(a)(1) to dismiss so much of the seventh cause of action as alleged a violation of Labor Law § 191(3).
The opinion of the court was delivered by: Dickerson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
WILLIAM F. MASTRO, J.P., JOSEPH COVELLO, THOMAS A. DICKERSON & JOHN M. LEVENTHAL, JJ.
The plaintiffs, Carol Ann Epifani, Kelly Supple, and Agnetta Oliverre, commenced this action against the defendant, Sale Johnson, to recover damages arising from their brief employment as members of Johnson's household staff. Epifani worked as Johnson's personal assistant from July 20, 2004, through November 30, 2004, at which time Johnson terminated her employment. Supple replaced Epifani as Johnson's personal assistant from October 27, 2004, through June 13, 2005, at which time her employment was terminated as well. Oliverre worked as Johnson's laundress, and held that position from sometime in 2004 until August 8, 2005, at which time she quit her job.
The complaint sets forth eight causes of action, sounding in fraudulent inducement (first cause of action), fraudulent misrepresentation (second cause of action), negligent misrepresentation (third cause of action), intentional infliction of emotional distress (fourth cause of action), prima facie tort (fifth cause of action), retaliatory discharge in violation of Labor Law § 215 (sixth cause of action), wrongful wage deductions and late payment of wages in violation of Labor Law §§ 191(3) and 193 (seventh cause of action), and defamation (eighth cause of action). In support of these causes of action, the complaint sets forth numerous allegedly unfair employment practices in which Johnson engaged, which may be categorized as (1) false inducements to accept employment, including promises of overtime pay, (2) unreasonable demands made upon the plaintiffs, and (3) defamatory statements.
Alleged Employment Inducements
The plaintiffs claim that the tasks assigned to them bore no relation to the job description initially articulated by Johnson. The plaintiffs allege that, when Johnson solicited Epifani, she indicated that the nature of the work consisted of supervising the household staff and general secretarial work. Instead, according to the complaint, Johnson required Epifani to perform "very physical house cleaning work," such as cleaning Johnson's basement and performing "other strenuous tasks." When Johnson solicited Supple, she allegedly represented that the work would consist of supervising the household staff, general secretarial work, and organizing Johnson's financial records. Instead, according to the complaint, Johnson required Supple "to work at very physical house cleaning work," such as cleaning the basement, "work[ing] on her hands and knees steaming carpets and stand[ing] on ladders to hook drapery and change light bulbs on staircases." When Johnson solicited Oliverre, she allegedly represented that the position would consist of doing household laundry. However, the complaint alleges that Johnson ultimately required Oliverre to "work at all manner of house keeping," and demanded that she stand at all times. According to Oliverre, Johnson would not permit her to sit at any time during the workday, even when the work could be performed sitting down. The plaintiffs assert, in the complaint, that Oliverre had pins in her foot and ankle as a result of a prior injury.
The plaintiffs further allege that, when Johnson solicited them for employment, she represented that she would pay them overtime, but that once the plaintiffs accepted employment, Johnson stated that she would not pay overtime, instead expecting that all of the work she assigned was to be completed regardless of the time it took. Thus, the plaintiffs assert that they were required to work until Johnson deemed that the work assigned was completed, even if this required unpaid overtime. The plaintiffs further claim that Epifani and Supple were required to bring work home in the evening.
The plaintiffs claim that, while they were employed by Johnson, she placed unreasonable demands on them. As set forth in the complaint, on one Friday evening at 5:00 P.M., Johnson demanded that Supple and Oliverre stay late and haul plywood boards from the floor of the basement to an outside dumpster. The complaint alleges that, when Supple began working for Johnson, Johnson demanded that Supple perform her clerical work on the floor. The plaintiffs further allege that, later, once Supple had a desk at which to work, she found ants on the desk, and that Johnson ordered her to "save the ants so she could look at them." At some point, according to the plaintiffs, Johnson demanded that Oliverre travel to the Johnson home in the Hamptons to prepare it for Johnson's arrival. Johnson allegedly instructed Oliverre to sleep at the house, despite the fact that Oliverre was a single mother and, at the time, her child was sick at home and required her attention. As recounted by the plaintiffs, on another occasion, Johnson demanded that Oliverre come to work despite the fact that she had taken a day off to see a doctor about the injury to her foot and ankle. As a result, Oliverre alleges that she was forced to quit her job in order to keep her appointment with her doctor.
Supple claims that Johnson terminated her employment in violation of Labor Law § 215. Specifically, Supple claims that, in response to her complaint to Johnson that it was a violation of the Labor Law to deny overtime pay to Oliverre and to require Oliverre to stand if standing was painful to Oliverre, Johnson wrongfully discharged Supple. Supple further claims that, during the course of her employment, Johnson supplied her with petty cash in an amount of not more than $200, which Supple kept in her desk. At some point, $105 was allegedly discovered to be missing, and Johnson allegedly and illegally required Supple to reimburse her for the missing money in violation of Labor Law § 193. Additionally, after Johnson terminated Supple's employment, Johnson allegedly and willfully paid Supple her final wages later than the regular payday for the pay period during which the termination occurred, in violation of Labor Law § 191(3).
Supple claims that, on or about June 15, 2005, in the presence of Oliverre and another employee named Marita, Johnson stated that Supple had been fired because she had been stealing. According to Supple, Johnson further stated that she had instructed another employee to search Supple's handbag while Johnson distracted Supple, and that the other employee showed Johnson a list of Supple's personal references recovered from Supple's handbag. As alleged in the complaint, Johnson stated, in the presence of Oliverre, that she contacted each of these references and advised them that Supple was "crazy." Supple contends that these words were false and defamatory. She further claims that, as a consequence, she suffered injury to her reputation, as well as pain and mental anguish. Supple argues that, in committing these acts, the defendant acted with malice, oppression, and fraud. She therefore seeks punitive damages.
The Motion To Dismiss The Complaint
Johnson moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. On a motion to dismiss pursuant to CPLR 3211(a)(7), "the pleading is to be afforded a liberal construction" (Matter of Casamassima v Casamassima, 30 AD3d 596, 596; see CPLR 3026). The reviewing court "accept[s] the facts as alleged in the complaint as true, accord[s] [the] plaintiffs the benefit of every possible favorable inference, and determine[s] only whether the facts as alleged fit within any cognizable legal theory" (Matter of Casamassima v Casamassima, 30 AD3d at 596). "[A] party seeking dismissal on the ground that [his or her] defense is founded on documentary evidence under CPLR 3211(a)(1) has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively ...