Opinion
102735/2006.
Decided March 17, 2009.
Alan Serrins, Esq., Queller, Fisher, Dienst, Serrins, Washer Kool, LLP, New York, NY, Plaintiff's Counsel.
Elise M. Bloom, Esq., Nathaniel M. Glasser, Esq., Proskauer Rose, LLP, New York, NY, Defendant's Counsel.
Plaintiff/counter-claim defendant brings this action against his former employer Loews Corporation (Loews) and his former supervisor Susan Becker, alleging that they discriminated and retaliated against him by discharging him on January 6, 2006 and denying him severance pay based on his religion.
The defendants seek summary judgment dismissing plaintiff's complaint because the claims require the disclosure of privileged, confidential and otherwise secret information concerning defendant Loews. Defendant Loews' also moves for summary judgment on its counterclaims for breach of fiduciary duty and violation of a lawyer's duty not to disclose any privileged or confidential information or communication of Marcus Loew Booking Agency, a subsidiary of defendant Loews. Defendants seek summary dismissal of plaintiff's third and fourth claims for relief, which allege that defendants have retaliated against plaintiff in violation of New York State and New York City Human Rights Laws.
The standards applicable to the determination of defendants' motion with respect to the retaliation claim has been set forth by the Court of Appeals as follows:
Under both the State and City Human Rights Laws, it is unlawful to retaliate against an employee for opposing discriminatory practices ( see Executive Law § 296[7]; Administrative Code § 8-107[7]). In order to make out a claim, plaintiff must show that (1) she [he] was engaged in protected activity, (2) her [his] employer was aware that she participated in such activity, (3) she [he] suffered an adverse employment action based upon her [his] activity, and (4) there is a causal connection between the protected activity and the adverse action.
Forrest v Jewish Guild for the Blind , 3 NY3d 295 , 312-313 (2004).
For purposes of this motion, defendants assume, arguendo, that plaintiff can establish that he was engaged in a protected activity — that is that he complained of unlawful discrimination to Richard Seifert, defendant Loews Director of Employee and Labor Relations. Defendants argue that plaintiff cannot establish the remaining three elements of the retaliation cause of action because plaintiff did not complain of unlawful discrimination until after he was informed of the adverse employment action (his discharge and denial of severance pay) on January 6, 2006. As evidence of this fact, defendants refer to the deposition testimony of plaintiff wherein he states that he did not recall whether he complained to anybody at Loews Corporation that he believed that he was being discriminated against up until January 6, 2006. In opposing the motion, plaintiff cites no contrary testimony or evidence, and does not rebut the deposition testimony of his former supervisor that during the discussion when she informed him that he was terminated, she repeatedly told him that it had been previously decided that plaintiff would not receive severance. Plaintiff's affidavit that post dates his deposition by one and one-half year concedes that his complaint followed his termination on January 6, 2006, and is at best equivocal on the question of whether the denial of severance benefits occurred at a later time. In any event, in the face of his deposition testimony wherein he stated that he could not recall when if ever, before January 6, 2006, he made his complaint, his affidavit is insufficient to raise an issue of fact with respect to any causal connection between his complaint and either his termination or the denial of severance benefits. Perez v Bronx Park Avenue Associates, 285 AD2d 402, 404 (1st Dept 2001). Nor does plaintiff cite any legal precedent that supports his argument that the alleged inadequacy of defendants' investigation of his complaint is prima facie evidence of an adverse employment action.
On their motion to dismiss the balance of plaintiff's complaint, defendants cite Wise v Consolidated Edison Co. of New York, Inc., 282 AD2d 335 (1st Dept 1991). In Wise, the Appellate Division, modified that portion of the lower court's order that denied defendant's motion to dismiss the complaint for wrongful discharge. It reasoned that "permitting the action to go forward would entail the improper disclosure by plaintiff . . . of client confidences, including specific corporate strategies". Wise is inapplicable to the employment discrimination case at bar since wrongful discharge is not a cognizable claim in the State of New York. Murphy v American Home Products, 58 NY2d 293 (1987).
Plaintiff's argument that defendants have not filed any portion of their motion under seal pursuant to the parties' Confidentiality Agreement and Protective Order is persuasive that defendants have not demonstrated that any of plaintiff's disclosures during the course of this action constitute communications to which a privilege attaches. Their bald assertions are an insufficient basis to support summary dismissal of plaintiff's complaint.
As for defendant Loews' motion for summary judgment on its counterclaims, the court searches the record pursuant to CPLR 3212(b) and directs a judgment in favor of plaintiff dismissing the counterclaims. The law is clear that no fiduciary duties exist between an employer and an at-will employee. Sullivan Cromwell v Charney, 15 Misc 3d 1128 (A), 2007 NY Slip Op 50889(U) (Sup Ct, NY County, 2007); Vitale v Steinberg, 307 AD2d 107, 109-110 (1st Dept 2003). Nor does a violation of CPLR 4503, which is merely a rule of evidence, support a meritorious cause of action.
Defendant Loews contends that plaintiff has violated 22 NYCRR § 1200.19(a), otherwise known as Disciplinary Rule 4-101(a). Even assuming the truth of that allegation, defendant states no viable cause of action for damages.
Under New York law, an attorney's violation of a disciplinary rule does not, by itself, give rise to a cause of action by his client for breach of fiduciary duty ( Schwartz v Olshan Grundman Frome Rosenzweig, 302 AD2d 193, 199 [1st Dept 2003]), breach of contract ( The William Kaufman Org., Ltd. v Graham James LLP, 269 AD2d 171, 173 [1st Dept 2000]), or legal malpractice ( Swift v Choe, 242 AD2d 188, 192 [1st Dept 1998]).
Sullivan Cromwell v Charney, 15 Misc 3d 1128 (A), supra. Defendant's recourse for wrongful disclosure of its confidences by plaintiff would be to file a disciplinary charge for any ethical violation with the appropriate Appellate Division, or to interpose a cause of action for breach of defendant's Code of Business Conduct and Ethics, which was signed by plaintiff on June 12, 2006, seeking damages and injunctive relief.
Based on the foregoing, the court shall grant defendants' motion to the extent of dismissing the third and fourth causes of action of the complaint, and searching the record dismissing "Count One" and "Count Two" of defendant Loews' answer.
Accordingly, it is
ORDERED that the motion for summary judgment pursuant to CPLR 3212 is GRANTED only to the extent that plaintiff's third and fourth claims for relief are hereby DISMISSED; and it is further
ORDERED that pursuant to CPLR 3212(b) upon all the papers and proof submitted, the defense to defendant Loews counterclaims having been established, the court directs judgment in favor of plaintiff dismissing "Count One" and "Count Two" of defendant Loews' answer.
This is the decision and order of the court.