New York Supreme and/or Appellate Courts Appellate Term, First Department
June 15, 2011
4KIDS ENTERTAINMENT, INC., AND SAMUEL R. NEWBORN, INDIVIDUALLY,
Plaintiff appeals from (1) a judgment of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered November 23, 2010, dismissing the complaint and awarding defendants damages in the principal sum of $7,325.92 upon their first counterclaim, (2) an order (same court and Judge), entered August 3, 2010, which denied plaintiff's motion for summary judgment and granted defendants' cross motion for summary judgment, and (3) an order (same court and Judge), entered December 20, 2010, which denied plaintiff's motion to reargue the aforesaid order of August 3, 2010.
Salibello v 4Kids Entertainment, Inc.
Decided on June 15, 2011
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
Judgment (Peter M. Moulton, J.), entered November 23, 2010, affirmed, without costs. Appeal from order (Peter M. Moulton, J.), entered August 3, 2010, dismissed, without costs, as subsumed in the appeal from the judgment. Appeal from order (Peter M. Moulton, J.), entered December 20, 2010, dismissed, without costs, as non-appealable.
We agree, essentially for the reasons stated by Civil Court, that plaintiff's conduct in voluntarily submitting a witness statement to the London Employment Tribunal in an action brought by a fellow employee against the corporate defendant constituted a clear violation of paragraph 3(c) of the parties' "Separation Agreement and General Release," entitling defendants to "cease making any [severance] payments ... and to recover" any such payments previously made to plaintiff. We reject, as did Civil Court, plaintiff's strained reading of the agreement as prohibiting her from divulging only "confidential or proprietary information," a limitation not set forth, either expressly or by implication, in the contract language chosen by the parties. Plaintiff's cause of action for accrued vacation pay was properly dismissed as barred by the agreement's broad release provisions.
Nor did plaintiff raise a triable issue with respect to her claim for intentional infliction of emotional distress, since she failed to allege any facts tending to exhibit that defendants' conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (Howell v New York Post Co., 81 NY2d 115, 122 , quoting Murphy v American Home Prods. Corp., 58 NY2d 293, 303 ). Moreover, "there is no right of recovery for mental distress resulting from the breach of a contract-related duty" (Wehringer v Standard Sec. Life Ins. Co. of NY, 57 NY2d 757, 759 ; see Rakylar v Washington Mut. Bank, 51 AD3d 995, 996 ). We reach no other issue.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 15, 2011
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