Opinion
98-CV-6277
February 2, 2001
Memorandum Order
Before the court is plaintiffs motion for leave to file a Second Amended Complaint pursuant to Fed.R.Civ.P. 15(a). For the reasons that follow, plaintiffs motion should be granted in part and denied in part.
Background
This action arises from plaintiff Milton Silverman's claim that he suffered discrimination on the basis of religion, race and age while employed as a Real Estate Manager for In Rem Properties by the New York City Department of Housing Preservation and Development ("HPD"). Plaintiff is a white Jewish male who in 1997, at the time his claims arose, was 77 years old. Plaintiff was hired by HPD in 1973 and worked there until his resignation in 1997. The factual allegations in the Proposed Second Amended Complaint are largely undisputed. They describe plaintiff as the innocent victim of a plot concocted by his former supervisors and coworkers at HPD, many of whom had received generous loans from plaintiff, to get him fired by falsely accusing him of sexual harassment. Plaintiff contends that in July 1997, he was wrongfully accused of sexually harassing Tiffany Springer, a young black woman who was working at HPD at the time as a summer intern. On July 15, 1997, plaintiff apparently was holding some money when Ms. Springer approached and asked him, in what he contends was an overly personal and disrespectful manner: "How can I get some of that money?" (Proposed Second Am. Compl., ¶ 20) Plaintiff contends that he was taken aback by this comment, as he had previously had very little contact with Ms. Springer, and that he responded by saying: "You must think you are cute." Plaintiff avers that his use of the word "cute" had no sexual connotations, but rather related to the fact that Ms. Springer was being a "wise guy," and that the absence of a sexual implication was objectively obvious to any one who might have overheard the conversation, including Ms. Springer. (Id. at ¶ 21) Plaintiff further suggests that the absence of a sexual implication was obvious to defendants, since they were aware that plaintiff had been through a major operation several years earlier that prevented him from experiencing any sexual desire. (Id. at ¶ 24) Two days later, on July 17, 1997, plaintiff was called to HPD's Disciplinary Unit, where he received a notice of immediate suspension without pay. Plaintiff also was informed by defendant Mario Ferrigno, the Deputy Director of HPD's Disciplinary Unit, that he would likely face criminal charges as a result of the incident involving Ms. Springer. (Id. at ¶ 25) Although plaintiff was never presented with formal charges of misconduct, plaintiff acknowledges that he was told "informally" that he had committed an act of sexual misconduct or harassment. (Id. at ¶ 27) At some later time, which is unspecified in the proposed Second Amended Complaint, plaintiff contends that he was called in for several additional meetings with HPD officials, including officials at the Inspector General Offices and the Disciplinary Unit. At these meetings, plaintiff pleaded with defendant Deena Ghaly, HPD's Deputy General Counsel of Labor Relations, to permit him to complete the one and a half remaining years of service that he needed in order for his pension benefits to accrue. Defendant Ghaly discussed the matter with defendant Richard Roberts, the Commissioner of HPD, but denied plaintiffs request to remain at HPD and threatened him that if he did not resign voluntarily, he would be terminated. (Id. at ¶ 30) Apparently, some discussion took place concerning a hearing to determine whether there was just cause for plaintiffs termination, but defendants Ghaly, Ferrigno and Neil Kaplan, the Director of HPD's Disciplinary Unit, informed plaintiff that if he chose to go through with a hearing he was "not going to win" and that losing a hearing would be difficult to endure at his age. (Id. at ¶ 32) Apparently coerced by Ghaly, Ferrigno and Kaplan, plaintiff involuntarily resigned from his position at HPD.
Plaintiff contends that the investigation that led to his suspension and forced resignation was akin to a conspiracy, in which officials employed by the HPD Inspector General's Office and the Disciplinary Unit were "aided and abetted" by several of plaintiffs co-workers and supervisors, including defendants Lawrence, Paul Navarro, William Abdul Khaaliq, and Phoebe Arnold. (Id. at ¶ 38) While unclear as to who uttered what statements or when those statements were uttered, the proposed Second Amended Complaint alleges that "it was conveyed that plaintiff was a sexual deviant who had flirted with and made sexual advances to women from all walks of life, including drug addicts. Moreover, it was conveyed that it was within plaintiffs nature to offer women money in exchange for sexual services." (Id. at ¶ 38) In addition, plaintiff contends that defendants Navarro and Lawrence, on several unspecified occasions, called plaintiff a "Jew bastard" (id. at ¶ 40), that he was asked at least once (though by whom it is unclear) to explain why a "supposedly wealthy, white Jewish senior citizen would want to work in a predominantly black department at HPD" (id. at ¶ 41); and that defendant Arnold referred to him as the "Banker" or the "money source" of HPD. (Id. at ¶ 44) In fact, plaintiff concedes that he had loaned several defendants and others at HPD significant amounts of money on favorable terms and that, once defendants decided that they had taken sufficient advantage of plaintiff, they acted on their hatred of Jews, whites and the elderly by forcing plaintiff out on the basis of fabricated sexual harassment charges.
Sometime in 1998, after plaintiff had resigned, plaintiff learned that defendant Andrew Lawrence, another HPD employee, had also been accused of sexually harassing a co-worker and a tenant in a property managed by HPD. In contrast to his own experience, plaintiff contends that defendant Lawrence was not suspended but simply required to undergo counseling and that this difference in treatment resulted from the fact that Lawrence was not white, Jewish, or a senior citizen. (Id. at ¶ 36) In addition, plaintiff contends that other HPD employees, whose identities are not alleged in the proposed Second Amended Complaint, have been charged with unspecified workplace conduct, but that none of these employees were subjected to the same treatment to which HPD officials subjected plaintiff. (Id. at ¶ 37)
Plaintiff filed the original Complaint in this action on October 15, 1998. The Complaint contains eight claims based on federal and state laws: (i) a due process claim based on 42 U.S.C. § 1983; (ii) a conspiracy claim based on 42 U.S.C. § 1985(c); (iii) a freedom of speech and due process claim grounded on the state and federal constitutions; (iv) a claim based on New York Civil Service Law § 65; (v) a conspiracy claim; (vi) prima facie tort claim based on New York law; (vii) a wrongful termination claim; and (viii) a discrimination claim based on age, race and religion. On December 24, 1998, before serving the summons and complaint on defendants, plaintiff filed an Amended Complaint for the purpose of adding Phoebe Arnold as a defendant. Defendants served plaintiff with a motion to dismiss the First Amended Complaint on March 31, 1999. According to the briefing schedule originally contemplated by the parties, plaintiff was to file a response by June 25, 1999. In five separate letter requests submitted to the court, plaintiff sought and was granted additional time to respond to the motion to dismiss. However, plaintiff never responded to the motion to dismiss and instead, on October 18, 2000, submitted a proposed Second Amended Complaint, for which he seeks leave to file by this motion.
The proposed Second Amended Complaint eliminates one defendant, Brian Foley, withdraws several claims and adds three new claims. As framed by the proposed Second Amended Complaint, plaintiffs nine claims are: (i) discrimination based on age, race and religion in violation of 42 U.S.C. § 1981 and 1983, the Fourteenth Amendment to the United States Constitution, New York State Human Rights Law (Executive Law §§ 296 and 297), and New York City Human Rights Law (Administrative Code 8-502(c)); (ii) deprivation of a liberty interest protected by the due process clause of the Fourteenth Amendment to the United States Constitution; (iii) deprivation of a property interest protected by the due process clause of the Fourteenth Amendment to the United States Constitution; (iv) denial of equal protection under the United States and New York Constitutions; (v) conspiracy in violation of 42 U.S.C. 1983 and 1985; (vi) defamation, libel and slander; (vii) prima facie tort; (viii) denial of a pre-termination hearing required by New York Civil Service Law 75; and (ix) vicarious liability under New York law against the City of New York.
Defendants oppose the motion for leave to amend in part. Defendants contend that the proposed amendment would be futile since several of the claims asserted in the Second Amended Complaint fail to state a claim upon which relief could be granted. Those claims which defendants argue fail to state a claim upon which relief may be granted include: (i) the § 1981 claim, insofar as it is based on plaintiffs age and race (the first claim alleged in the proposed Second Amended Complaint in part); (ii) the claim based on deprivations of a liberty and property interest in violation of the due process clause of the Fourteenth Amendment to the United States Constitution (the second and third claims); (iii) the § 1983 and § 1985(3) conspiracy claims (the fifth claim); (iv) the defamation claims (the sixth claim); (v) the prima facie tort claim (the seventh claim); and (vi) the New York Civil Service Law § 75 claim (the eighth claim). Accordingly, the only claims defendants believe plaintiff should be permitted to assert in the Second Amended Complaint are: (i) the § 1983 Fourteenth Amendment equal protection claim that he was discriminated against on account of his age, race and religion (the fourth claim); (ii) the § 1981 claim based on religion-based discrimination (the first claim in part); (iii) the New York State Executive Law § 296 claim based on age, race and religion discrimination (the first claim in part); and (iv) the New York City Administrative Code § 8-502(c) claim based on age, race and religion discrimination (the first claim in part).
Discussion
I. Applicable Standard
Before examining the merits of plaintiffs motion, it is appropriate to examine the standard for permitting a proposed amendment to a pleading under Fed.R.Civ.P. 15(a). Leave to amend a complaint "shall be freely given when justice so requires," Fed.R.Civ.P. 15(a), and "if the plaintiff has at least colorable grounds for relief, justice does so require unless the plaintiff is guilty of undue delay or bad faith or unless permission to amend would unduly prejudice the opposing party."S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 41-42 (2d Cir. 1979) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); Clay v. Martin, 509 F.2d 109, 113 (2d Cir. 1975)). "A trial court does not abuse its discretion in denying leave to amend a complaint which even as amended would fail to state a cause of action[.]" Id. at 42 (citingFreeman v. Marine Midland Bank-New York, 494 F.2d 1334, 1338 (2d Cir. 1974)). Futility of the proposed amendment is thus a sound reason to deny leave to amend. John Hancock Mutual Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994); Ruffolo v. Oppenheimer Co., 987 F.2d 129, 131 (2d Cir. 1993). If the proposed claims would be subject to dismissal under Rule 12(b)(6), a court should refuse to grant leave to amend, rather than granting leave and then awaiting a motion to dismiss.Bank of New York v. Sasson, 786 F. Supp. 349, 352 (S.D.N Y 1992). Accordingly, the proposed claims should be construed in the light most favorable to the party moving to amend, plaintiff in this case, and leave to amend should be denied if it appears that plaintiff can prove no set of facts in support of his proposed claims that would entitle him to relief. Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L.Ed.2d 90, 94 S.Ct. 1683 (1974); Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied, 470 U.S. 1084 (1985)).
II. Futility of Claims in Proposed Second Amended Complaint
A. Due Process Claims
Plaintiff alleges in the proposed Second Amended Complaint that defendants deprived him of his constitutionally protected liberty interest by disseminating false and stigmatizing information about him (Proposed Second Am. Compl. ¶¶ 50-52) and that defendants deprived him of a constitutionally protected property interest by constructively discharging him and not providing him with a pre-termination hearing. (Id. at ¶¶ 53-55)
Plaintiff does not contend that these claimed deprivations of his liberty and property interests were the result of established state procedures, but rather alleges that they were the result of random, unauthorized acts by state employees. The acts which plaintiff claims deprived him of his liberty interests were statements by defendants that plaintiff was a "sexual deviant who makes advances on women of all walks of life" (Pl.'s Mem., 5), while the act that plaintiff claims deprived him of his property interests was forcing him to resign. (Id. at 6) The Second Circuit has held, in accordance with relevant Supreme Court rulings, that a due process violation based on random, unauthorized acts by state employees may only occur when the State fails to provide a meaningful post-deprivation remedy. Hellenic American Neighborhood Action Committee v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996) (citingZinermon v. Burch, 494 U.S. 113 (1990); Hudson v. Palmer, 468 U.S. 517, 533-34 (1984); Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986)). The rationale for requiring a hearing after and not before a deprivation that is alleged to have occurred as a result of random or arbitrary acts is that: "in most cases it is not only impractical, but impossible, to provide a meaningful hearing before the deprivation. Hellenistic American, 101 F.3d at 880 (citing Hudson, 468 U.S. at 522-33). A proceeding under Article 78, which provides a hearing as well as a means of redress for petitioners, is a "perfectly adequate postdeprivation remedy" where the alleged deprivations occurred as a result of random and unauthorized acts by state employees. Hellenic American, 101 F.3d at 881 (alleged deprivation of liberty and property interest occurred because of a random and arbitrary act, plaintiff's de facto debarment, which state could cure by offering adequate postdeprivation remedy in the form of an Article 78 proceeding) (citing Interboro Inst., Inc. v. Foley, 985 F.2d 90, 93 (2d Cir. 1993); McDarby v. Dinkins, 907 F.2d 1334, 1338 (2d Cir. 1990); Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 888 (2d Cir. 1987);Gigilo v. Dunn, 732 F.2d 1133, 1135 (2d Cir. 1984), cert. denied, 469 U.S. 832 (1984)). Accordingly, "there is no constitutional violation (and no available § 1983 action) when there is an adequate state postdeprivation procedure to remedy a random, arbitrary deprivation of property or liberty." Hellenic American, 101 F.3d at 882.
Defendants in this case argue that plaintiff cannot show a deprivation of his liberty or property interests because he was afforded a post-deprivation remedy in the form of an Article 78 proceeding, which he neglected to pursue in a timely manner. Plaintiff concedes that he failed to take advantage of the post-deprivation remedy offered by the State by neglecting to initiate a proceeding pursuant to Article 78 but argues that the post-deprivation hearing was insufficient to cure the due process violation. Plaintiff argues that since he was a tenured municipal employee, he was entitled not only to a post-deprivation hearing but to a pre-dismissal hearing under New York Civil Service Law § 75. In support of this argument, plaintiff cites various cases which have required a pre-dismissal hearing for municipal employees who may not be removed except for incompetence or misconduct. Plaintiffs citation to these cases is misplaced. In each of these cases, the requirement that defendant provide a pre-dismissal hearing was premised on the fact that there was a dismissal. O'Neill v. City of Auburn, 685, 688 (2d Cir. 1994) ("When a governmental employee is found to have a "property interest' in continuation of his or her employment, the Due Process Clause of the Fourteenth Amendment forbids discharge unless the employee is afforded a pre-termination hearing.") (emphasis added); Dwyer v. Regan, 777 F.2d 825, 830 (plaintiff "alleged facts that, under § 75(1), entitled him not to be removed from his position except for incompetency or misconduct. He thus alleged sufficient facts to show that he had a property interest that was protected by the Due Process Clause.") (emphasis added); Berns v. Civil Service Comm'n, 537 F.2d 714, 716 (2d Cir. 1976) ("By remaining a police administrative aide after October 29, 1973, Berns acquired an 'enforceable expectation of continued public employment,' Bishop v. Wood, [ 426 U.S. 341 (1976)], and her employment could not thereafter beterminated in the absence of procedural safeguards, including at a minimum, a pre-dismissal hearing of the charges made against her.") (emphasis added); Belgrave v. City of New York, 199 U.S. Dist. LEXIS 13622 ("when a governmental employee is found to have a "property interest' in continuation of his or her employment, the Due Process Clause of the Fourteenth Amendment forbids discharge unless the employee is afforded a pre-termination hearing.") (citing O'Neill, 23 F.3d at 688)). Here, in contrast, even viewing the facts in a light most favorable to plaintiff, it is undisputed that plaintiff was never terminated from his position, but that he resigned. Having never terminated plaintiff, it makes no sense that defendants would have been required to provide him with a pre-dismissal hearing. As in Giglio v. Dunn, 732 F.2d at 1134-35, where a high school principal resigned and then alleged that his resignation was coerced: "When an employee resigns, the only possible dispute is whether the resignation was voluntary or involuntary, and this cannot be determined in advance."
Through this action, plaintiff is in effect seeking to avoid the four month statute of limitations set forth in CPLR § 217 for commencing an Article 78 proceeding. That the law does not recognize such an attempt is clear. "Where . . . Article 78 gave the employee a meaningful opportunity to challenge the voluntariness of his resignation, he was not deprived of due process simply because he failed to avail himself of that opportunity." Giglio, 732 F.2d at 1135. Because plaintiffs due process claims would be futile, leave to amend the complaint for purposes of adding those claims should be denied.
Defendants argue in their Memorandum in Opposition that once the due process claims are dismissed, defendants Roberts, Ghaly, Kaplan, and Ferrigno should drop out since the proposed Second Amended Complaint does not allege any discriminatory conduct on the part of these defendants other than the forced resignation. While defendants are correct that no discriminatory animus is alleged on the part of these individual defendants, these defendants are implicated in the conspiracy claims, the defamation, libel and slander claims, the prima facie tort claim, and the claim based on New York Civil Service Law § 75. For the reasons discussed in the remainder of this Memorandum Order, each of these claims, with the exception of the defamation, libel and slander claims, should be dismissed as against all defendants. However, because the defamation, libel and slander claims cannot at this juncture be dismissed as against the individual defendants, see Section E, including footnote 3, infra, these defendants may not be dismissed from the litigation.
B. § 1981 Race and Age Claims
Plaintiff alleges in the proposed Second Amended Complaint that defendants violated 42 U.S.C. § 1981 by subjecting him to discrimination because he is white, a senior citizen and Jewish. (Proposed Second Am. Compl. ¶¶ 37, 39, 39) Defendants correctly argue that liability may not be imposed under § 1981 unless a plaintiff alleges that he is a member of a racial minority and may never be imposed on the basis of age. In his reply papers, plaintiff concedes that his § 1981 claim should be dismissed to the extent that it is based on his age and the fact that he is white. Therefore, plaintiffs § 1981 claim will be permitted only with respect to the discrimination that he alleges occurred because he is Jewish.
C. § 1983 and § 1985(3) Conspiracy Claims
The proposed Second Amended Complaint next alleges that defendants engaged in "a conspiracy designed to deprive plaintiff of his constitutional and federal rights" and that they "were motivated by class-based animus and had an independent personal stake in achieving the objectives of the City of New York and HPD." (Proposed Second Am. Compl. ¶ 60) In order to make out a conspiracy claim based on § 1983 or § 1985(3), a plaintiff must allege facts sufficient to show the existence of any conspiracy designed to deprive him of his rights. See Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997); Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977) (per curiam); Shabazz v. Pico, 994 F. Supp. 460, 467 (S.D.N.Y. 1998), aff'd in part by, vacated in part in, remanded in part by, 205 F.3d 1324 (2d Cir. N.Y. 2000). As inShabazz, plaintiff here "has not included any allegations or competent evidence to show that 'defendants 'acted in a willful manner, culminating in an agreement, understanding or 'meeting of the minds,' that violated [his] rights, privileges, or immunities secured by the Constitution or federal courts.''" Shabazz, 994 F. Supp. at 467 (internal quotations omitted).
Plaintiff asserts that defendants Roberts, Kaplan, Ferrigno and Ghaly (high-ranking HPD officials) "acted in concert with each other" by forcing plaintiff to resign without a hearing and by publishing false statements about him in the course of the sexual harassment investigation. Moreover, he claims that defendants Navarro, Lawrence, Khaaliq and Arnold (plaintiffs coworkers HPD) conspired against him by taking the opportunity presented by the Springer incident to bring plaintiff down because they all "operated with the same motives and tactic," namely a "discriminatory animus toward the white, Jewish elderly plaintiff." (Pl.'s Reply Mem. 3, 4) Other than offering conclusory allegations regarding defendants' motives and beliefs, plaintiff provides no facts to support his contentions or even inferences suggesting that such an allegation might be well-founded.
As far as the high-ranking HPD officials named in the complaint, the fact that they conducted a joint investigation of the alleged incident of sexual harassment is insufficient to convert defendants' actions into the requisite showing for a conspiracy, that is "a meeting of the minds . . . on a course of action intended to deprive plaintiff of [his] constitutional rights." Hickey-McAllister v. British Airways, 978 F. Supp. 133, 138-39 (E.D.N.Y. 1997). Nor does plaintiff allege facts showing that his co-workers had an agreement to deprive him of his rights. If anything, the fact that plaintiff loaned money to many of them would have likely endeared them to him rather than cause them to conspire against him. "Claims of conspiracy that are vague and provide no basis in fact must be dismissed. Shabazz, 994 F. Supp. at 467 (citing Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993); Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990) (citations omitted), cert. denied, 499 U.S. 937 (1991));see also Boddie, 105 F.3d at 862 (an "unsupported, speculative, and conclusory" claim of conspiracy may be dismissed on the pleadings). As such, plaintiff should not be permitted to assert the conspiracy claims based on § 1983 and § 1985(3).
D. Defamation Claims
Leave to amend is also sought with respect to plaintiffs defamation claims. Defendants argue that these claims should be dismissed for two reasons. First, defendants contend that plaintiffs notice of claim fails to comply with the requirements of General Municipal Law § 50-e, which requires that a notice of claim set forth "the time when, the place where and the manner in which the claim arose," and, second, they allege that the proposed Second Amended Complaint does not comply with New York CPLR 3016(a), which requires that in an action for libel or slander, "the particular words complained of be set forth in the complaint." Each of these arguments is considered in turn.
General Municipal Law § 50-e(2)(3) requires that an action against a municipality be preceded by a Notice of Claim which sets forth "the time when, the place where and the manner in which the claim arose." Plaintiff filed a notice of claim in this action on October 17, 1997. (Defs.' Mem. in Opp'n, Exh. A) In it, he lists a claim of defamation and, under the heading marked "The time when, the place where and the manner in which the claim arose," he provides: "September 5, 1997, New York City, Forced Termination, etc." New York state courts have interpreted the notice of claim requirements in the context of defamation claims and have held that in order to give a defendant the notice contemplated by the General Municipal Law, a notice of claim must provide the time of day that the allegedly defamatory statement was made, specify the exact location where the statement was made and name the individuals who made the statement. Kasachkoff v. City of New York, 107 A.D.2d 130, 132-34 (1st Dep't 1985), aff'd 68 N.Y.2d 654 (1986) (holding invalid notice of claim which merely provided that "on January 26, 1981, the claimant was defamed by employees of the Health and Hospitals Corporation, Bellevue Hospital and the City of New York at Bellevue Hospital by accusing claimant of alcoholism and being drunk.") (citingcf. Faubert v. City of New York, 90 A.D.2d 509, 509 (2d Dep't 1982) (notice of claim "failed to describe the accident location with sufficient particularity to enable defendant to conduct a proper investigation of the site and otherwise assess the merits of plaintiffs' claim"); Campbell v. City of New York, 78 A.D.2d 631, 632 (2d Dep't 1980) ("In light of this significant discrepancy [in the listing of the accident situs in the notice of claim], it was not an abuse of discretion for Trial Term to have denied plaintiffs' application to amend the notice of claim")). Plaintiffs notice of claim in this case provides even less information than that provided in the Kasachkoff case. Moreover, nowhere in any of the versions of the Complaint is it alleged that any of the allegedly defamatory comments were made on September 5, 1997, the date specified in the Notice of Claim. If the purpose of a notice of claim is to permit the defendant "to afford the public corporation the opportunity 'to locate the defect, conduct a proper investigation, and assess the merits of the claim."' Frazier v. City of New York, No. 96 Civ. 3345 (S.D.N.Y Apr. 24, 1997), 1997 U.S. Dist. LEXIS 5505, 8 (internal citations omitted), it can be persuasively argued that the failure to include specific information and the inclusion of a misleading date in that notice prevented defendants here from doing so. Accordingly, leave to amend the complaint to include the defamation claims as against the City of New York should be denied.
Plaintiff correctly notices that a notice of claim is not required for suits brought against municipal employees unless the municipality has an obligation to indemnify the employees. See Gen. Mun. Law § 50-e(1)(b). "The obligation to indemnify in turn depends upon the resolution of the fact-sensitive question of whether [defendants] were acting within the scope of their employment [with the City of New York] in committing the alleged tortious acts." See Martin v. County of Rensselaer, No. 99-CV-1813 (N.D.N.Y. Jan 11, 2001), 2001 U.S. Dist. LEXIS 626, 57-58 (citing Int'l Shared Services, Inc. v. County of Nassau, 222 A.D.2d 407, 408, 634 N.Y.S.2d 722 (2d Dep't 1995) (holding it was too premature to determine whether plaintiffs' failure to file notice of claim barred state law claims against County)). As in Martin, the record at this juncture does not contain sufficient evidence to determine whether the City has a duty to indemnify the individual defendants named in this action and, thus, it is too early to determine whether the flaws in plaintiffs Notice of Claim bar him from asserting the defamation causes of action against them. Accordingly, these claims cannot be dismissed as against the individual defendants on the basis of a faulty Notice of Claim.
Nor does consideration of defendants' second argument, that the defamation claims alleged in the proposed Second Amended Complaint do not meet the requirements of CPLR 3016, compel the conclusion that those claims should be dismissed as against the individual defendants. Defendants correctly note that CPLR 3016(a) requires that in an action for libel or slander "the particular words complained of shall be set forth in the complaint." See Kissner v. Inter-Continental Hotels Corp., No. 97 Civ. 8400 (S.D.N.Y. June 25, 1998), 1998 U.S. Dist. LEXIS 9248, 10-11 ("plaintiffs claim of defamation fails to comply with the special pleading requirement contained in CPLR 3016(a) that the complaint set forth the "the particular words complained of, thereby mandating dismissal. . . . The claim is further defective in that it fails to state the particular person to whom the allegedly defamatory comments were made.") (internal citations omitted). Also correct is defendants' assertion that the allegations in the proposed Second Amended Complaint concerning plaintiffs defamation claims fail to comply with the pleading requirements of CPLR 3016. No mention whatsoever is made of the specific words that plaintiff alleges are defamatory and which individual defendant uttered what. Instead, the complaint merely states: "it was conveyed that plaintiff was a sexual deviant who had flirted with and made sexual advances to women from all walks of life, including drug addicts. Moreover, it was conveyed that it was within plaintiffs nature to offer women money in exchange for sexual favors." (Proposed Second Am. Compl., ¶ 38)
In his response papers, submitted on November 17, 2000, plaintiff seemingly concedes that the statements in the proposed Second Amended Complaint are not specific, but argues that until the completion of discovery, he will not have had full access to the documents which purportedly contain the allegedly defamatory statements. The original deadline for fact discovery in this case was January 31, 2001 and, on January 18, 2001, Magistrate Judge Pollak extended the discovery deadline to March 2, 2001. In the intervening months since plaintiff briefed his motion for leave to amend, plaintiff has not come forward with any additional evidence of the specific defamatory statements. (Pl.'s Reply Mem., 6)
However, a defamation action brought in federal court is governed by the more liberal pleading standard of Fed.R.Civ.P. 8, which requires averments to be "simple, concise, and direct," and pursuant to which a complaint alleging defamation "is not required to contain the defamatory statements in haec verba as long as it affords defendant 'sufficient notice of the communications complained of to enable him to defend himself[.]'" Odom v. Columbia Univ., 906 F. Supp. 188, 196-97 (S.D.N.Y. 1995) (citing Kelly v. Schmidberaer, 806 F.2d 44, 46 (2d Cir. 1986)); see also Albin v. Cosmetics Plus, Ltd., No. 97 Civ. 2670 (S.D.N.Y. Oct. 6, 1997), 1997 U.S. Dist. LEXIS 15217, 8-9 (complaint alleged that defendants "falsely accused Mr. Albin of being a crook . . . in the corporate offices of Cosmetics Plus and his false and defamatory statements were heard by several others, including co-workers and vendors[,] . . . stated to [plaintiffs] co-workers and others that [plaintiff] is dishonest[, and] . . . advised prospective employers and others that Mr. Albin is dishonest and have otherwise disparaged and defamed him"; "The Complaint's references to 'crook' and "dishonest' give 'adequate identification' of what was allegedly said. Moreover, at the pleading stage, the Complaint's references to 'coworkers and vendors' and 'others' are sufficient to identify the relevant persons."); Broome v. Biondi, No. 96 Civ. 805 (S.D.N.Y. Feb. 10, 1997) 1997 WL 83295, 2. To the extent that the proposed Second Amended Complaint in this action states that plaintiffs coworkers and supervisors informed HPD officials conducting the investigation that plaintiff was a sexual deviant and that he had offered money to women in exchange for sexual favors, it contains "an adequate identification of the purported communication." See, e.g., Broome, 1997 WL 83295, at 2 (finding adequate counterclaim for defamation that alleged that "[a]t [defendant corporation's] June 13 meeting with the Broomes, the Broomes, in sum and substance, falsely and recklessly accused the Board and each of its members, in the presence of each other and their agent, of improperly altering the sublease approval process and discriminating against the Broomes based on Mr. Broome's race."). As such, the proposed Second Amended Complaint sufficiently pleads a claim for defamation against the individual defendants in satisfaction of Rule 8.
As for the defamation claim against defendants Roberts, Ghaly and Ferrigno, these must be permitted to stand as well, since plaintiff alleges that officials in the Inspector General's Office and the Disciplinary Unit, presumably including these defendants, "published the [allegedly defamatory] comments in written reports and discussed the statements with others." (Proposed Second Am. Compl., ¶ 38)
Accordingly, plaintiff should be denied leave to amend the defamation claim as against the City since the notice of claim fails to comply with the requirements of General Municipal Law § 50. However, plaintiff should be granted leave to amend the defamation claim against the individual defendants since the proposed Second Amended Complaint meets the requirements of Fed.R.Civ.P. 8.
E. Prima Facie Tort Claims
The proposed Second Amended Complaint alleges that defendants' actions constituted a prima facie tort "because they were taken with malice, with the intent to harm, and without any lawful justification." New York recognizes the general principle that "harm intentionally inflicted isprima facie actionable unless justified." Curiano v. Suozzi, 63 N.Y.2d 113, 117 (1984) (internal citations omitted). A cause of action of prima facie tort consists of four elements: (1) intentional infliction of harm, (2) causing special damages, (3) without excuse or justification, (4) by an act or series of acts that would otherwise be lawful. Id. (internal citations omitted). The complaint must allege that "the sole motivation for the [allegedly tortious] action was 'disinterested malevolence.'" Id. (internal citations omitted).
Defendants here argue that plaintiffs prima facie tort claim should be dismissed because the notice of claim does not contain a claim of prima facie tort or identify the "time when, place where and manner in which" the claim arose. In addition, defendants contend that the proposed Second Amended Complaint fails to state a cause of action for prima facie tort because it does not allege that the defendants acted with disinterested malevolence, but rather with discriminatory animus. It is well-established that "a theory of liability not mentioned in the notice of claim generally may not be asserted in a subsequent lawsuit." Lieber v. Village of Spring Valley, 40 F. Supp.2d 525, 531 (S.D.N.Y. 1999). Plaintiff appears to concede that the notice of claim does not mention aprima facie tort claim, but argues that insofar as it contains the words "wrongful termination" and "malice aforethought," the notice of claim conveys "the essence of a prima facie tort claim." In support of this "conveyance" theory, plaintiff cites the inapposite case of Quail Ridge Ass'n v. Chemical Bank, 162 A.D.2d 917, 919 (3d Dep't 1990), which simply held that plaintiffs cause of action for prima facie tort cannot be sustained where the "defendant's valid business interests preclude the essential finding that 'disinterested malevolence' is the sole motive for defendant's otherwise lawful act." If anything, HPD's ongoing responsibility to investigate allegations of sexual harassment between its employees would suggest that defendants, as in Quail Ridge, were not motivated by disinterested malevolence, but by their duties as employers to ensure the safety of HPD employees. See Montefusco v. Nassau County, 39 F. Supp.2d 231, 239 (E.D.N.Y. 1999) ("The actions taken by defendants [a school superintendent and police detective who conveyed statements allegedly made by plaintiff, a school teacher, in which he admitted that he was a voyeur and used photographs of teenage girls for masturbation], under these circumstances, were, in the Court's view, entirely reasonable and bear no indicia of malevolence.").
Plaintiff also suggests that the case of Wanczowski v. New York, 186 A.D.2d 397, 397, 588 N.Y.S.2d 1011 [ 588 N.Y.S.2d 549] (1st Dep't 1992) permits him to advance a prima facie tort theory despite his failure to specify such a theory in the notice of claim. The notice of claim before the court in Wanczowski specified only assault and battery theories and plaintiff was moving to amend the notice of claim to include theories of false arrest, false imprisonment, malicious prosecution and conspiracy. In a one-paragraph decision that does not include the actual language contained in the notice of claim, the court there denied plaintiff leave on the ground that those theories "were not referred to either directly or indirectly in the notice of claim." Id. Here, similarly, there is nothing to suggest from any of the claims mentioned in plaintiffs notice of claim, including the "wrongful termination" or the "violation of due process with malice aforethought" claims, that plaintiff might also be advancing a prime facie tort theory. General Municipal Law § 50-e therefore prohibits plaintiff from doing so now. See also Balduzzi v. City of Syracuse, No. 96-CV-824 (N.D.N.Y. 1997), 1997 U.S. Dist. LEXIS 1317, 8-9 ("The second notice of claim states that the nature of the claim is 'defamation, libel and slander, invasion of privacy, [and] intentional infliction of emotional distress.' . . . This second notice certainly provided the City with adequate notice of plaintiffs claims for defamation and intentional infliction of emotional distress. There is nothing in either of these notices, however, that would have put the City on notice of plaintiffs claims for tortious interference with contract, malicious prosecution/abuse of process, or prima facie tort. Absence of such notice and plaintiffs failure to comply with the requirements of General Municipal Law §§ 50-e and 50-j require dismissal of these claims").
As with the defamation claims, however, the notice of claim requirement is not necessarily applicable to plaintiffs claims against the individual defendants. Because it is too early in the litigation to determine whether the City is not obligated to indemnify the individual defendants (thus disposing of the need for a notice of claim), plaintiffs claims against the individual defendants may not be dismissed on the ground of a flawed notice of claim. However, plaintiffs claims against the individual defendants must be dismissed for another reason. In order to state a cause of action for prima facie tort, special damages must be "alleged with sufficient particularity to identify actual losses. . . . Indeed, 'round sums without any attempt at itemization are insufficient.'" Frazier v. City of New York, No. 96 Civ. 3345 (S.D.N.Y. April 24, 1997), 1997 U.S. Dist. LEXIS 5505, 10 (citing Johnson v. Harron, 1995 U.S. Dist. LEXIS 7328, 1995 WL 319943 31 (N.D.N.Y. May 23, 1995); Doolittle v. Ruffo, 882 F. Supp. 1247, 1258 (N.D.N.Y. 1994) (citation and internal quotation marks omitted)). As in Doolitle, the proposed Second Amended Complaint in this case fails to specify the alleged value of the injuries plaintiff suffered to his reputation and does not, in the WHEREFORE clause, distinguish among the damages suffered as a result of his prima facie tort claim and those resulting from his other claims. Instead, paragraph (a) of the WHEREFORE clause simply requests a jury trial and judgment "assessing and adjudging against the defendants and in favor of the plainitff compensatory damages, including special damages, on each said claim in the amount of $250,000.00." As such, the proposed Second Amended Complaint fails to plead, with the required particularity, the existence of special damages and plaintiffs cause of action for prima facie tort must be dismissed as against the individual defendants.
Defendants argue that the claims against the individual employees must be dismissed because it is alleged that at least some of them were motivated by discriminatory animus, not the desire to harm plaintiff. As New York's highest court has recognized, however, a prima facie tort may be pleaded in the alternative with a traditional tort, but once a traditional tort is established the cause of action for prima facie tort disappears. Curiano, 63 N.Y.2d at 117 (citation omitted). Therefore, if plaintiff in this case were permitted to assert a prima facie tort claim and ultimately succeeded in proving a tort theory that requires a state of mind inconsistent with the "disinterested malevolence" required to prove a prima facie tort and obtains complete relief to satisfy his injuries, he would be precluded from proving that defendants are liable for a prima facie tort. See Stanley v. Bray Terminals, Inc., 197 F.R.D. 224, 230 (N.D.N.Y. 2000).
Paragraph 46 of the proposed Second Amended Complaint also notes that plaintiffs special damages include: "(a) the loss of pay from July 17, 1997 through November 26, 1998 (the anticipated date of voluntary retirement); (b) the loss of pension differential for 23 1/2 years to 25 years; [and] (c) the plaintiffs loss of personal and professional reputation." However, no specific figures corresponding to any of these losses is provided, other than the round sum provided in paragraph (a) of the WHEREFORE clause.
F. Civil Service Law § 75
The proposed Second Amended Complaint states a cause of action for "denial of a New York Civil Service Law § 75 hearing." Plaintiff correctly notes that New York Civil Service Law § 75 requires a pre-dismissal hearing for certain kinds of municipal employees. However, that provision does not contain a private right of action. Instead, plaintiff must raise any claims based on § 75 in the course of an Article 78 proceeding, which would be time-barred, or in a § 1983 action based on violation of due process, which he has done. For the reasons discussed earlier, the question raised by this litigation is whether plaintiffs resignation from HPD was voluntary or not, not whether he was dismissed without an appropriate pre-dismissal hearing. For the reasons persuasively articulated by the Second Circuit in Giglio, 732 F.2d at 1134-35, there is no requirement for a prior hearing when an employee resigns; rather the appropriate remedy is an Article 78 proceeding, which plaintiff for no apparent reason neglected to institute. Leave to amend the complaint by adding a claim based on § 75 of the New York Civil Service Law should therefore be denied.
Conclusion
For the foregoing reasons, the following claims asserted in the proposed Second Amended Complaint fail to state a claim upon which relief may be granted: (i) plaintiffs claims that he was deprived of liberty and property interests in violation of the due process clause of the United States Constitution; (ii) plaintiffs § 1981 claim based on discrimination because of his age and the fact that he is white; (iii) plaintiffs § 1983 and § 1985 conspiracy claims; (iv) plaintiffs claims of defamation against the City of New York; (v) plaintiffs prima facie tort claim; and (vi) plaintiffs New York Civil Service Law § 75 claim. Because the inclusion of these claims in the proposed Second Amended Complaint would be futile, they should be dismissed. As such, the only claims plaintiff should be permitted to assert in the proposed Second Amended Complaint are the following: (i) plaintiffs § 1983 equal protection claim that he was discriminated against because of his age, race, and religion; (ii) plaintiffs § 1981 claim based on discrimination because he is Jewish; (iii) plaintiffs claims of defamation against the individual defendants, and (iv) plaintiffs State and City Human Rights Law claims.
SO ORDERED.