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Ashby v. ALM Media, LLC

Supreme Court of New York, First Department

October 8, 2013

Douglas H. Ashby, Plaintiff-Appellant,
v.
ALM Media, LLC, et al., Defendants-Respondents.

Law Offices of Stewart Lee Karlin, P.C., New York (Stewart Lee Karlin of counsel), for appellant.

Clarick Gueron Reisbaum LLP, New York (Gregory A. Clarick of counsel), for respondents.

Gonzalez, P.J., Mazzarelli, Andrias, DeGrasse, JJ.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about May 18, 2012, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

Defendant Whittle's statement that plaintiff was "deliberately sabotaging" defendant ALM Media, LLC's IT redesign project was protected by the common-interest privilege because it constituted a communication "made to persons who have some common interest in the subject matter" (Foster v Churchill, 87 N.Y.2d 744, 751 [1996]), namely, the people working on the IT system redesign. The statement is also protected as one made by a "management employee[] having responsibility to report on the matter in dispute" (Murganti v Weber, 248 A.D.2d 208, 209 [1st Dept 1998]; see Dillon v City of New York, 261 A.D.2d 34, 38 [1st Dept 1999]). Plaintiff's allegations of malice, in an effort to overcome the common-interest privilege, amount to little more than "mere surmise and conjecture" (Weiss v Lowenberg, 95 A.D.3d 405, 406 [1st Dept 2012]).

Plaintiff's tortious interference claims against Whittle were also properly dismissed. "It is well established that only a stranger to a contract, such as a third party, can be liable for tortious interference with a contract" (Koret, Inc. v Christian Dior, S.A., 161 A.D.2d 156, 157 [1st Dept 1990], lv denied 76 N.Y.2d 714 [1990]; see Baker v Guardian Life Ins. Co. of Am., 12 A.D.3d 285 [1st Dept 2004]). Whittle was not a stranger to plaintiff's contract with ALM as he was one of ALM's executives.

We have considered plaintiff's remaining arguments and find them unavailing.


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