Opinion
524833/18
04-11-2019
Paul AGUILAR, Plaintiff, v. Scott REBACK, Michael Belcuore, and Titan Motor Group, LLC, Defendants.
Attorney for Plaintiff Rasco Klock Perez & Nieto, LLC 555 Fifth Avenue, 17th Floor New York, NY 10017 (305) 476-5141 Attorney for Defendants Anna M. Andron, LLC 1325 Franklin Avenue, Suite 255 Garden City, NY 11530 (516) 741-6873
Attorney for Plaintiff
Rasco Klock Perez & Nieto, LLC
555 Fifth Avenue, 17th Floor
New York, NY 10017
(305) 476-5141
Attorney for Defendants
Anna M. Andron, LLC
1325 Franklin Avenue, Suite 255
Garden City, NY 11530
(516) 741-6873
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint motion of defendants Scott Reback and Titan Motor Group, LLC (hereinafter the moving defendants) notice of motion, filed on February 12th, 2019, under motion sequence one, for an order dismissing the complaint of Paul Aguilar (hereinafter plaintiff or Aguilar) pursuant to CPLR 3211(a) (7) and 3016 (a) for failure to state a cause of action.
MOTION PAPERS
The moving defendants' motion papers consist of notice of motion, a memorandum of law, an affirmation of counsel, and two exhibits labeled A through B. Exhibit A is the summons and complaint (hereinafter the commencement papers), dated December 11, 2018. Exhibit B is an affirmation of plaintiff's counsel and an email. The email demonstrates an agreement between plaintiff's counsel and moving defendants' counsel to accept service of the commencement papers by the mailing of same to moving defendants' counsel. The affirmation avers service of the commencement papers in accordance with the agreement.
Aguilar opposed the motion with a memorandum of law.
The moving defendants' submitted a memorandum of law in reply.
BACKGROUND
On December 11, 2018, Aguilar commenced the instant action by filing a summons and complaint with the Kings County Clerk's office. The complaint alleges sixty three allegations of fact in support of three causes of action. The first cause of action is for tortious interference. The second is for defamation. The third is for unlawful retaliation in violation of Labor Law § 215.
The complaint alleges the following salient facts among others. From 2013 to December 13, 2017, Aguilar was employed by Titan Motor Group, LLC. From 2013 to 2015, he worked as a finance manager at Titan's Nissan of Queens location. From 2015 until December 13, 2017, he worked as a finance director at Nissan of Staten Island's location. As part of his employment agreement he earned a commission for each vehicle sold. Scott Reback is the owner of Nissan of Staten Island. On or about August 2017, Reback hired co-defendant, Michael Belcuore (hereinafter Belcuore) as a general manager of Nissan of Staten Island. After he was hired, Belcuore expressed surprise and annoyance at the amount of commissions that Aguilar was earning.
In November of 2017, Aguilar purchased and paid for a vehicle from Titan Motor Group, LLC. In December 13, 2017, Belcuore falsely accused Aguilar of stealing the very car that he had purchased and used the false accusation as a basis to terminate him. Titan took the car that Aguilar had purchased and returned the purchase money to him.
In January 2018, Aguilar interviewed for and was offered employment at Mercedes-Benz of Brooklyn. Mercedes-Benz of Brooklyn failed to schedule a meeting to finalize his employment. He later learned that Reback called Mercedes-Benz of Brooklyn to stop them from hiring him. Later in January of 2018, Aguilar interviewed at Chrysler Dodge Jeep Ram Fiat of Bay Ridge in Brooklyn. Aguilar alleges that the general manager told him he would call with a start date. Shortly after the interview, Aguilar received a text message from Reback stating "Wow, you are applying all over the place. I am watching you." Chrysler Dodge Jeep Ram Fiat of Bay Ridge never called Aguilar back and Aguilar believed that it was because Reback convinced the general manager not to hire him on the pretenses of false information. In October of 2018, Aguilar received a referral for potential employment at another car dealership; Porsche Greenwich in Connecticut. After the interview, Aguilar alleges that the general manager had intentions of hiring him right away. However, the week before Aguilar was supposed to start, the general manager of Porsche Greenwich called and said they were no longer interested in hiring him. Aguilar believes that due to a business relationship between Titan Motor Group, LLC and Porsche Greenwich, that Reback found out about his potential employment and convinced the general manager to not hire him based on false information.
In May of 2018, Aguilar filed a pro se complaint against Titan Motor Group, LLC in Richmond County Civil Court seeking unpaid commissions unrelated to this matter. In October of 2018, Aguilar obtained employment at another car dealership. Aguilar alleges that Reback had made several phone calls to the owner of the car dealership where he currently is employed to ask him to fire Aguilar because he was suing Titan Motor Group, LLC for unpaid commissions.
LAW AND APPLICATION
By the instant motion, the moving defendants seek dismissal of the Aguilar's causes of action for tortious interference, defamation and unlawful retaliation in violation of New York Labor Law § 215. The moving defendants contend that all three causes of action should be dismissed pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. They further contend that the second cause of action for defamation must be dismissed for failure to comply with CPLR 3016 (a).
Dismissal Pursuant to CPLR 3211 (a) (7)
In considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must accept the facts as alleged in the complaint as true, accord Aguilar the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Neuman v. Echevarria , —- N.Y.S.3d ——2019 NY Slip Op 02530 [2nd Dept 2019] ). Unlike a summary judgement motion, a motion to dismiss requires the court to merely examine the adequacy of the pleadings (see Davis v. Boeheim , 24 NY3d 262, 268 [2014] ). The pertinent question is "whether the plaintiff has a cause of action, not whether the plaintiff has stated one", and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and it cannot be said that a significant dispute exists regarding it, dismissal should not eventuate ( Stone v. Bloomberg L.P. , 163 AD3d 1028 [2nd Dept 2018] ). A court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint (see Rovello v. Orofino Realty Co. , 40 NY2d 633, 635 [1977] ).
Tortious interference
In regard to the plaintiff's first claim of relief for tortious interference, there are two prongs, tortious interference with contract and tortious interference with business relations. The elements of tortious interference with a contract are: (1) the existence of a contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to plaintiff ( Sammy v. Haupel. —- N.Y.S.3d ——, 2019 NY Slip Op 02372 [2nd Dept2019] ). A necessary element of such cause of action is the intentional and improper procurement of a breach and damages ( Affordable Housing Associates, Inc. v. Town of Brookhaven , 150 AD3d 798 [2nd Dept 2017] citing , White Plains Coat & Apron Co., Inc. v. Cintas Corp. , 8 NY3d 422, 426 [2007] ).
Other than plaintiff's claim of employment by his current employer, the complaint does not allege an existence of a contract with any other third party. At best it alleges potential employment opportunities that were never finalized to an actual contract to employ him. With regard to the unrealized employment opportunities, the complaint does not plead the existence of a contract. With regard to plaintiff's claim that the defendants called the plaintiff's current boss to interfere with his current employment contract, the complaint further alleges that his current boss did not give in to Reback's interference. Therefore, the complaint does not allege that the moving defendants intentionally induced the current employer to breach or otherwise render performance of the employment agreement impossible. Accordingly, plaintiff does not have a cause of action for tortious interference with contract.
Dismissal of the Defamation Claim Pursuant to CPLR 3016 (a)
CPLR 3016 sets forth those actions which require particularity in pleadings. A cause of action for defamation must allege that the defendant published a false statement, without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se (see Arvanitakis v. Lester ,145 AD3d 650, 651-52 [2nd Dept 2016] ). To constitute defamation per se, the alleged statements must (1) charge plaintiff with a serious crime; (2) tend to injure another in his or her trade, business or profession; (3) state that plaintiff has a loathsome disease; or (4) impute unchastity to a woman ( Liberman v. Gelstein , 80 NY2d 429, 435 [1992] ).
CPLR 3016 (a) pertains to causes of action for defamation, requiring that the particular words complained of must be set forth in the complaint (see Lemieux v. Fox , 135 AD3d 713, 714 [2nd Dept 2016] ). Furthermore, the complaint must also allege the time, place, and manner of the false statement and specify to whom it was made (see Arvanitakis , 145 AD3d at 651 citing Dillon v. City of New York , 261 AD2d 34, 38 [1st Dept 1999] ). Compliance with CPLR 3016 (a) is strictly enforced ( Lemieux , 135 AD3d at 714 quoting Horbul v. Mercury Ins. Group , 64 AD3d 682 [2nd Dept 2009] ). Thus, a cause of action sounding in defamation that fails to comply with these special pleading requirements must be dismissed (see CSI Group LLP v. Harper , 153 AD3d 1314 [2nd Dept 2017] ).
The moving defendants contend that the complaint fails to identifying the specific words that the defendants allegedly used to defame him. They further allege that plaintiff has failed to allege the time, place, and recipient of the defamatory statements.
Under CPLR 3211 (a) (7) motion analysis, including CPLR 3016, the court must take the allegations in the complaint as true and resolve all inferences which reasonably flow therefrom in favor of the pleader. Nonspecific, conclusory, or even a summation of alleged defamatory statements does not meet the stringent requirements under CPLR 3016 (a).
Applying this analysis, the plaintiff has failed to state the specific words composing the defamatory statements; the particularities of the statements or the time, place and recipient of the defamatory statements (see Rovello v. Orofino Realty Co. , 40 NY2d 633, 635 [1977] ). Accordingly, plaintiff does not have a cause of action for defamation.
Tortious Interference with Business Relations
A claim for tortious interference with prospective business relations does not require a breach of an existing contract, but the party asserting the claim must meet a more culpable conduct standard ( Law Offices of Ira H. Leibowitz v. Landmark Ventures, Inc. 131 AD3d 583, 585-586 [2nd Dept 2015] ). This standard is met where the interference with prospective business relations was accomplished by wrongful means or where the offending party acted for the sole purpose of harming the other party (Id. ). Wrongful means include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degree of economic pressure (Id. ). As a general rule, the offending party's conduct must amount to a crime or an independent tort, as conduct that is neither criminal nor tortious will generally be lawful and thus insufficiently culpable to create liability for interference with prospective business relations (Id. ). Moreover, the plaintiff must allege a specific business relationship with an identified third party with which the defendants interfered (Id. ).
Here, the complaint failed to properly identify a specific business relationship with a third party in which the defendants interfered. In opposition to the motion, the plaintiff did not submit an affidavit to remedy the pleading deficiency. Moreover, the alleged conduct of the moving defendants failed to reach the level of wrongful means as defined by the general rule of tortious interference with business relations. In sum, the moving defendants alleged actions do not amount to a crime or independent tort. Accordingly, plaintiff does not have a cause of action for tortious interference with business relations.
Dismissal of the Claim under Labor Law § 215
Labor Law § 215 (1) (a) states no employer or his or her agent, or the officer or agent of any corporation, partnership, or limited liability company, or any other person, shall discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee (i) because such employee has made a complaint to his or her employer, or to the commissioner or his or her authorized representative, or to the attorney general or any other person, that the employer has engaged in conduct that the employee, reasonably and in good faith, believes violates any provision of this chapter, or any order issued by the commissioner
To state a retaliation claim under Labor Law § 215, a plaintiff must adequately plead that while engaged in a protected activity as defined by Labor Law § 215 and while employed by the defendant, he or she made a complaint about the employer's violation of New York Labor Law and was terminated or otherwise penalized, discriminated against, or subjected to an adverse employment action as a result ( Oram v. SoulCycle LLC , 979 F.Supp.2d 498, 511 [United States District Court, S.D. 2013] ). Further, a plaintiff must allege that he or she complained about a specific violation of the Labor Law to support a claim of retaliatory discharge pursuant to Labor Law § 215 ( Epifani v. Johnson , 65 AD3d 224, 236 [2nd Dept 2009] ). Here, the plaintiff alleges that the defendant failed to pay the plaintiff's earned commissions.
The defendants have correctly argued that in order to seek relief under Labor Law § 215, the plaintiff must demonstrate that he was engaged in a protected activity while employed by the defendant. The alleged protected activity in this instance occurred in May of 2018, when the plaintiff's commenced an action against the defendants for his earned but allegedly unpaid commissions. The plaintiff however, was terminated on December 13, 2017. Inasmuch as the plaintiff was not employed by the defendant while allegedly engaged in a protected activity he does not have a claim for violation of Labor Law § 215.
CONCLUSION
The joint motion of Scott Reback and Titan Motor Group, LLC for an order dismissing the complaint of Paul Aguilar as asserted against them pursuant to CPLR 3211 (a) (7) and 3016 (a) for failure to state a cause of action is granted.
The foregoing constitutes the decision and order of this Court.