Opinion
Index No. CA2013-001730
11-12-2014
CARRIANN RAY Plaintiff v. ANNETTE FRANCHINI, individual and as the Director of Human Resources to the New York State Education Department Defendant
At a term of Supreme Court of the State of New York held in and for the County of Oneida at the Oneida County Courthouse, 200 Elizabeth Street, Utica, New York on the 12th day of November 2014. PRESENT:
RJI No. 32-14-0461
Decision , Order and Judgment on Motion
Before the Court is a motion to dismiss pursuant to CPLR § 3211 for failure to state a cause of action filed by the Defendant Annette Franchini, individually and as the Director of Human Resources to the New York State Education Department. Considered on the motion were the notice of motion of the Defendant dated May 9, 2014, the affidavit in support of the motion to dismiss dated May 9, 2014, and the attached exhibit A, the Defendant's counsel's memorandum of law dated May 9, 2014, the Plaintiff's attorney's affirmation in opposition to her motion to dismiss dated June 2, 2014, along with attached exhibits A-C, the Plaintiff's counsel's memorandum of law in opposition to the Defendant's motion to dismiss, dated June 2, 2014, and the Defendant's memorandum of law in reply to the opposition to Defendant's motion to dismiss.
The underlying complaint alleges that the Plaintiff had been employed by the New York State Education Department (SED) as Superintendent of Schools of the New York State School for the Deaf (NYSSD) from her appointment to that post in January 2006 until her termination on August 30, 2012. She alleges that her position was in an exempt class and that she served at the pleasure of the Commissioner of Education. The Plaintiff alleges that during her tenure at NYSSD, another employee, Victoria Stockton maliciously began a campaign to undermine and discredit Plaintiff with the sole objective of convincing SED to terminate Plaintiff's employment. Plaintiff further alleges that without any warning, on August 30, 2012, Defendant, acting as Director of Human Resources for SED, terminated Plaintiff's employment. Upon asking Defendant why, Defendant initially told her that she was not entitled to a reason, but eventually Defendant informed Plaintiff that she was being terminated for her 'inability to lead' and the 'poor morale of the teachers and staff.' The Plaintiff alleges that the Defendant terminated Plaintiff based on a petition which was signed by individuals, including Victoria Stockton, who were only seeking retribution for personal grievances. She further alleges that Defendant terminated Plaintiff without questioning or seeking a rebuttal from Plaintiff herself on any alleged issues and upon information and belief, Defendant terminated Plaintiff without reviewing her personnel file or records regarding Plaintiff's job performance, history or record, and without investigating the motivations of the signatories to the petition. Plaintiff also alleges that the Defendant terminated Plaintiff based on false charges of financial impropriety, which upon investigation were unfounded and meritless. Plaintiff alleges that her employment would not have been terminated if a proper investigation into the complaints and charges had been conducted, and that but for Defendant's hasty termination of Plaintiff based on petty complaints and meritless charges, Plaintiff would not have suffered termination of her position. Thus as a sole and direct result of the Defendant's conduct, Plaintiff has suffered personal harm, loss wage and benefits, humiliation and damage to her career and future employment.
As a result, the Plaintiff has asserted three causes of action in her complaint against the Defendant, to wit: Tortious Interference with Prospective Economic Advantage, Tortious Interference with Economic relations, and Prima Facie Tort.
The Defendant's motion raises several arguments for dismissal. Initially she argues that the exclusive remedy for a discharged public employee is an Article 78 proceeding. Further, she asserts that the Court of Claims has exclusive authority over claims against state officers for their official actions and that the Plaintiff has failed to plead that the Defendant acted outside the scope of her official duty and thus the State is the real party in interest. Further, the Defendant posits that the Plaintiff has failed to state any causes of action.
In the Plaintiff's opposition, she alleges that her termination was based on false allegations of Victoria Stockton, which the Defendant, "without any investigation or inquiry whatsoever, adopted and copied those allegations into her report, that was then used to terminate Plaintiff from her position as Superintendent for the NYSSD." The Plaintiff's counsel further argues that the allegations of "Theft of Services/Abuse of Authority" and " Possible Misappropriation of Funds" which are raised in the Defendant's report were found to be not true in an audit by the Office of Audit Services released several months after Plaintiff's termination. Plaintiff's counsel further alleges that the Defendant never conducted an investigation, nor met with or spoke to the Plaintiff to get her side of the story, and that the Plaintiff never even knew that these allegations were made against her.
The Plaintiff's counsel argues that the Plaintiff was not required to file an Article 78 proceeding because she is suing the employee of a public entity for her individual torts. Further, counsel asserts that the Defendant was not acting within the scope of her employment when engaging in the wrongful acts against the Plaintiff. Further counsel states that Plaintiff has stated proper claims against the Defendant.
Initially, the Court notes that the Fourth Department in Mantione v. Crazy Jakes, Inc., et al., 101 A.D.3d 1719, 1720 [4th Dept. 2012] succinctly stated the evidentiary standards to be employed by the court in assessing an CPLR 3211 motion:
"In determining a CPLR 3211 motion, "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint . . . and 'the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one' " (Leon v Martinez, 84 NY2d 83, 88 [1994]; see Gibraltar Steel Corp. v Gibraltar Metal Processing, 19 AD3d 1141, 1142 [2005]). The court may also consider affidavits and other evidentiary material to "establish conclusively that plaintiff has no cause of action" (Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]; see Gibraltar Steel Corp., 19 AD3d at 1142). "Any facts in the complaint and submissions in opposition to the motion to dismiss are accepted as true, [however,] and the benefit of every possible favorable inference is afforded to the plaintiff" (Gibraltar Steel Corp., 19 AD3d at 1142)."
With regard to the Defendant's first point of contention regarding the utilization of the Article 78 procedure, the Court observes that the Court of Appeals in Austin v. Bd. of Higher Ed. Of the City of New York, 5 N.Y.2d 430 [1959]) in addressing an action at law by 6 discharged public employees for back salary noted that "...the right to a position determines the right to the salary incident thereto (Austin, 5 N.Y.2d at 439)." The Court further went on to state that:
"Manifestly, the validity of a dismissal of a public employee should be determined expeditiously and before the possible accumulation of substantial sums for back pay. Unless reinstatement by means of an article 78 proceeding is a prerequisite to a claim for payment of salary, the dismissed employee, without rendering any service, may defer action until expiration of the six-year Statute of Limitations is imminent (Id., 5 N.Y.2d at 442)."Thus, the Court held that the public employees right to the position which he was discharged from, and his right to the salary from the date of discharge must be promptly determined in an Article 78 proceeding (Id., at 443). However, in the case at bar, the Plaintiff has asserted three tort causes of action, and she is claiming to have sustained "personal injury, humiliation, emotional distress, mental anguish and suffering, and monetary damages." Further, her "wherefore clause" demands compensatory and punitive damages. Thus, clearly more that back salary and benefits are being claimed. Hence, the present situation is distinguishable from Austin.
The Court also notes that the array of damages sought by the Plaintiff is not incidental to the primary relief of reinstatement, which would be required in an Article 78 proceeding (See La Duke v. Lyons, 250 A.D.2d 969, 971 [3rd Dept. 1998]). The compensatory damages for the torts alleged in the complaint herein could be recoverable without regard to the administrative decision to fire the Plaintiff and thus are not available in an Article 78 proceeding as incidental damages (La Duke, 250 A.D.2d at 971). Thus, the salutary purpose of the rule annunciated in Austin is irrelevant to the situation at bar because the Plaintiff may be entitled to damages at law under her causes of action, irrespective of the wrongfulness of her discharge. Therefore, the Court disagrees with the defendant's position, and determines that in the case at bar that there is no requirement for the Plaintiff to have first commenced an Article 78 proceeding.
With regard to the Defendant's second contention that this Court lacks jurisdiction and that the matter should be heard in the Court of Claims, "'[t]he Court of Claims has limited jurisdiction to hear actions against the State itself, or actions naming State agencies or officials as defendants, where the action is, in reality, one against the State—i.e., where the State is the real party in interest' (Borawski v. Abulafia, 117 A.D.3d 662, 663 [2nd Dept. 2014], quoting Morell v. Balasubramanian, 70 N.Y.2d 297, 300; see Starker v. Trump Vil. Section 4, Inc., 104 A.D.3d 937, 937-938, 960 N.Y.S.2d 912)." "Generally, '[t]he Court of Claims has exclusive jurisdiction over actions for money damages against State agencies, departments, and employees acting in their official capacity in the exercise of governmental functions' (Borawski, 117 A.D.3d at 663, quoting Dinerman v. NYS Lottery, 58 A.D.3d 669, 669; see Court of Claims Act § 9[2]; Morell, 70 N.Y.2d at 300; Matter of Peterson v. New York City Dept. of Envtl. Protection, 66 A.D.3d 1027, 1028-1029, 887 N.Y.S.2d 269)." "'Where, however, the suit against the State agent or officer is in tort for damages arising from the breach of a duty owed individually by such agent or officer directly to the injured party, the State is not the real party in interest—even though it could be held secondarily liable for the tortious acts under respondent superior' (Borawski, 117 A.D.3d at 663, quoting Morell v. Balasubramanian, 70 N.Y.2d at 301)."
The Defendant argues that her actions in terminating the Plaintiff were well within the scope of her employment, regardless of whether the accusations against the Plaintiff were accurate. Thus, the Defendant asserts that the real party in interest is the state and Supreme Court is without jurisdiction to hear the Plaintiff's claims because the matter must be heard in the Court of Claims. Further, she asserts that the Plaintiff failed to file a timely notice of claim to preserve her right to bring a claim in the Court of Claims. Thus she argues the complaint should be dismissed. Although the Plaintiff does not directly address the Defendant's legal argument on this point, her memorandum clearly expresses that the Defendant was acting outside the scope of her employment by the use of "wrongful means" when terminating Plaintiff.
In the Court's view, the claims asserted by the Plaintiff are not required to be heard in the Court of Claims. The causes of action asserted are not wrongful termination, but rather are torts regarding the interference with the Plaintiff's employment and prospective economic situation. They involve duties owed directly to the Plaintiff by the Defendant in her personal capacity. Thus, this court has the requisite subject matter jurisdiction.
As to the specific causes of action, the Plaintiff's first cause of action is "Tortious Interference With Prospective Economic Advantage." The complaint alleges and it is undisputed that the Plaintiff was an in an exempt class and served at the pleasure of the Commissioner of Education. Thus, it is clear that the Plaintiff was an at-will employee, and was terminable at will, and without the protections of the Civil Service Law (See Matter of de Zarate v. Thompson, 213 A.D.2d 713 [2nd Dept. 1995]; Education Law § 4354). New York State does not recognize tort liability for abusive or wrongful discharge for an at-will employee. The Court of Appeals held in Murphy v. American Home Products Corporation, 58 N.U.2d 293, 305 [1983] that "...absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired." Further, in Ingle v. Glamore Motor Sales, 73 N.Y.2d 183, 189 [1989], the Court held that a plaintiff "...cannot be allowed to evade the employment at-will rule and relationship by recasting his cause of action in the garb of a tortious interference with his employment." Improper interference with a contract terminable at will is actionable under the theory of tortious interference with prospective business relations (See Guard-Life Corp. v. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 190-191 [1980]). To state a claim for tortious interference with prospective business relations, a plaintiff must show that (1) the plaintiff had business relations with a third party, (2) the Defendant interfered with those business relations, (3) the defendant acted with the sole purpose of harming the plaintiff or used wrongful means, and (4) the business relationship was injured (See NBT Bancorp Inc., v. Fleet/Norstar Fin. Group, Inc., 87 N.Y.2d 614 [1996]; Guard-Life Corp.., 50 N.Y.2d at 193-194).
The Defendant attacks the Plaintiff's pleading on the basis that she has not sufficiently pled wrongful means or action with the sole intent to harm the Plaintiff. The Court concurs with the Defendant's assessment that the Plaintiff has failed to sufficiently plead this claim. "Unlawful or improper means, sometimes referred to as wrongful means, may include physical violence, fraud, misrepresentation, civil suits, criminal prosecutions and economic pressure (10 Ellicott Square Court Corp., v. Violet Realty, Inc., 81 A.D.3d 1366, 1367 [4th Dept. 2011], citing Guard-Life Corp., 50 N.Y.2d at 191)." The complaint is devoid of any factual allegations suggesting wrongful means were employed by the Defendant to terminate the Plaintiff. The closest the complaint comes to doing so are the allegations that the Defendant terminated the Plaintiff based on a petition signed by individuals, including Victoria Stockton, who were only seeking retaliation for personal grievances, and that the complaints of the petition's signatories were merely petty grievances, and that the Plaintiff was terminated based on false charges of financial impropriety, which were later found to be meritless. Yet the complaint is clear that it was Stockton and other individuals who brought these allegations to light against the Plaintiff and that the Defendant merely acted upon them. The essence of the complaint is that the Defendant did not adequately investigate the concerns, not that she misrepresented or fraudulently raised them. Further no connection is suggested between the Defendant and Stockton or the other individuals which would raise any inference that the Defendant was somehow involved in the "campaign to undermine and discredit Plaintiff with the sole objective of convincing SED to terminate Plaintiff's employment..." Thus, the requisite wrongful means has not been sufficiently alleged.
Further, the Plaintiff has not adequately alleged that the Defendant acted solely for the purpose of harming the Plaintiff (10 Ellicott Square Court Corp, 81 A.D.3d at 1368). Although the complaint alleges conclusory language that the Defendant "acting solely out of malice and bad faith ...intentionally interfered with the economic relationship between Plaintiff and SED...", it also alleges that the Plaintiff was told that she was terminated because of her "inability to lead" and the "poor morale of the teachers and staff." In this regard, the complaint also alleges resistence by staff to the changes the Plaintiff instituted, and that staff members had filed a petition against her. Further, the Plaintiff's own submissions in opposition to the motion include the summary of documents reviewed by the Defendants concerning the actions of the Plaintiff. A review of this document establishes that in addition to the allegations of financial improprieties, which were ultimately found to be inaccurate, there were many other complaints concerning the actions of the Plaintiff, any of which could constitute grounds for termination of an at-will employee. This document flies in the face of the Plaintiff's argument that the Defendant's actions were undertaken solely to harm the Plaintiff. Hence the pleading and the Plaintiff's opposition papers suggest that the Defendant did not act solely for the purpose of harming the Plaintiff.
Finally, the Court concurs with the Defendant's argument that under the law for an at-will employee such as the Plaintiff, there is no requirement that the Defendant conduct a proper investigation, notify her of the charges, or afford her an opportunity to respond. Her employment could be terminated at any time for any reason or even no reason at all (Marino v. Vunk, 39 A.D.3d 339, 340 [1st Dept. 2007], citing Murphy, 58 N.Y.2d at 293). Thus, the element of wrongful means is clearly lacking, and the cause of action for Tortious Interference With Prospective Economic Advantage is dismissed.
The Plaintiff's second cause of action is for Tortius Interference With Economic Relations. The elements of this cause of action are: (1) the existence of a valid economic relationship with a third party, (2) the defendant's knowledge of that relationship, (3) the defendant's intentional and improper procurement of a breach by a third party, and (4) damages (White Plains Coat & Apron, Inc., 8 N.Y.3d 422 [2007]). As discussed above there is no recognized tort in New York State Law for wrongful or abusive discharge of an at-will employee (See Murphy, 58 N.Y.2d at 305), and this rule can not be circumvented "... by recasting his cause of action in the garb of a tortious interference with his employment (Ingle, 73 N.Y.2d at 189; Williams v. County of Genesee, 306 A.D.2d 865, 868 [4th Dept. 2003])). However, when a defendant is a co-worker, an exception to the rule exists if the co-worker's actions were outside the scope of his or her employment (See Marino, 39 A.D.3d at 340, or that the defendant procured the plaintiff's termination through "fraudulent misrepresentation, threats or violation of a duty owed to plaintiff by virtue of a confidential relationship (Miller v. Richman, 184 A.D.2d 191, 194 [4th Dept. 1992]). Conclusory allegations of malice, without more, are insufficient to place a defendant's actions outside the scope of their employment (McHenry v. Lawrence, 66 A.D.3d 650, 652 [2nd Dept. 2009]; Barcellos v. Robbins, 50 A.D.3d 934935 [2nd Dept. 2008]). There is no question that in deciding or recommending Plaintiff's termination, the Defendant was acting within the scope of her employment (See Presler v. Domestic & Foreign Missionary Society of the Protestant Episcopal Church, 113 A.D.3d 409 [1st Dept. 2014]). Further, aside from the Plaintiff's conclusory allegations of malice, no factual predicate has been alleged supporting her claim. In particular, there is no allegation of personal relationship between the parties or of a motive to engage in the conduct alleged. Further, and more significantly, there is no allegation that the Defendant knew about the "campaign to undermine and discredit Plaintiff with the sole objective of convincing SED to terminate Plaintiff's employment..." Finally, there are no allegations that the Defendant fraudulently misrepresented anything, nor threatened anyone, or violated any duty stemming from a confidential relationship with the Plaintiff. Thus, the Court concludes that the Plaintiff has failed to state a claim for Tortius Interference With Economic Relations, and the therefore the second cause of action must be dismissed.
The Plaintiff's third cause of action alleges Prima Facie Tort. "The elements of prima facie tort are: '(1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, and (4) by an act or series of acts that would otherwise be lawful' (Jonas v. New York Central Mutual Fire Ins. Co., 244 A.D.2d 916, 918 [4th Dept. 1997], quoting Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 332 [1983]). Additionally, it must be alleged that the defendant's sole motivation for the otherwise lawful conduct was a disinterested malevolence to injure the plaintiff (10 Ellicott Square Corp., 81 A.D.3d at 1368). Yet as stated above, the Plaintiff has insufficiently stated a factual basis to conclude that the Plaintiff was motivated by malevolence. Plaintiff's complaint itself references other motivations expressed by the Defendant such as "her "inability to lead" and "poor morale of the teachers and staff." Further, the Plaintiff's submission on the motion shows that there were other examples of alleged misconduct, other than the alleged financial improprieties, that are unrelated to any malicious intent by the Defendant.
Additionally, in the at-will context, "... a tort [cause] of action alleging ... prima facie tort 'cannot be allowed in circumvention of the unavailability of a tort claim for wrongful discharge or the contract rule against liability for discharge of an at-will employee' (Murphy, 58 N.Y.2d at 304)." Thus, the prima facie tort cause of action in the case at bar fails to state a claim and must also be dismissed.
Now, therefore, in accordance with the above decision, it is hereby
Ordered, Adjudged, and Decreed that the Defendant's motion to dismiss is granted and the complaint is dismissed. Dated: November 12, 2014
/s/_________
Bernadette T. Clark
Supreme Court Justice