Opinion
30693/2010.
Decided July 6, 2011.
Joseph Stroble, Esq., Sayville, NY, Attorney for Plaintiff.
Landman Corsi Ballaine Ford, P.C., New York, NY, Attorney for Defendants.
Upon the following papers numbered 1 to 17 read upon this motion to dismiss and cross motion to amend pleadings: Notice of Motion and supporting papers, 1 — 8; Notice of Cross Motion and supporting papers, 11 — 15; Replying Affidavits and supporting papers, 16 — 17; Other, memorandum of law, 9 — 10.
This is an action to recover damages for, inter alia, slander, hostile work environment, breach of contract and intentional infliction of emotional distress. The plaintiff was employed by defendant Janson Supermarkets, LLC d/b/a Shop Rite (Shop Rite) at its supermarket located in Nesconset, New York (the store). He claims that he was sexually harassed by a store manager and subsequently defamed by her and another employee of the store after he rebuffed the store manager's advances. The plaintiff further claims that he complained about these matters to his superiors at Shop Rite but that they took no action to remedy the situation and then fired him from his job. The complaint sets forth 30 causes of action which essentially consist of six causes of action repeated seriatim against the five named defendants, many of which include a claim for punitive damages.
The allegations in the complaint indicate that the plaintiff's employment was governed by an unspecified employment contract and identifies the named defendants as follows: Rose "Doe" (Rose) was the front end manager and cashier manager who supervised the plaintiff; Elizabeth Janson (Elizabeth) was an owner and customer service representative at the store; Harry Janson (Harry Sr.) was the president and chief executive officer of Shop Rite; Harry Janson, Jr. (Harry Jr.) was a department manager at the store and a vice president of Shop Rite. The plaintiff further alleges that from March 2009 to January 2010, Rose sexually harassed him by making "unwanted sexual advances." After he rebuffed her advances, Rose began to tell Shop Rite employees and customers that the plaintiff had HIV/AIDS and that he had infected her and an unidentified friend with the virus. The complaint sets forth two specific instances, with the words used, where Rose allegedly told a store employee and a store customer that the plaintiff had the virus and had infected Rose and another female. The complaint also sets forth one instance, with the words used, where Elizabeth allegedly told a customer that the plaintiff was infected with HIV/AIDS. The plaintiff claims that he reported the harassment to Harry Sr., Harry Jr. and a Shop Rite human resources representative on November 21, 2009, November 25, 2009 and December 11, 2009, but they took no action to stop the harassment. He further claims that he was wrongfully terminated on January 12, 2010, in retaliation for the complaints that he made against Rose.
The plaintiff commenced this action on or about September 9, 2010, by service of a summons with notice. Thereafter, counsel for the defendants filed a notice of appearance and demanded service of a complaint. The plaintiff served the complaint on December 10, 2010, and the parties stipulated to extend the defendants' time to answer or to move until January 31, 2011. The defendants brought this motion on January 31, 2011. On March 29, 2011, the plaintiff served an amended complaint, as of right. The defendants do not oppose the service of the amended complaint and they have elected to have the instant motion applied to the amended pleading ( see, D'Addario v. McNab, 73 Misc 2d 59 [Sup. Ct., Suffolk County 1973]). Accordingly, all references herein are to the amended complaint dated March 28, 2011.
The defendants now move for an order dismissing the first through sixth, eighth through twelfth, and fourteenth through thirtieth causes of action pursuant to CPLR § 3211 (a) (7), dismissing the fourth cause of action pursuant to CPLR § 3211 (a) (1), striking the plaintiff's demand for punitive damages and extending the defendants' time to answer the complaint to 20 days after service of the order with notice of entry.
Pursuant to CPLR § 3211 (a) (7), pleadings shall be liberally construed, the facts as alleged accepted as true, and every possible favorable inference given to plaintiffs ( see, Leon v. Martinez, 84 NY2d 83). On such a motion, the Court is limited to examining the pleading to determine whether it states a cause of action ( see, Guggenheimer v. Ginzburg, 43 NY2d 268). In examining the sufficiency of the pleading, the Court must accept the facts alleged therein as true and interpret them in the light most favorable to the plaintiff ( see, Pacific Carlton Development Corp. v. 752 Pacific, LLC , 62 AD3d 677 [2nd Dept., 2009]; Gjonlekaj v. Sot, 308 AD2d 471 [2nd Dept., 2003]). On such a motion, the Court's sole inquiry is whether the facts alleged in the complaint fit within any cognizable legal theory, not whether there is evidentiary support for the complaint ( see, Leon v. Martinez, 84 NY2d 83; International Oil Field Supply Servs. Corp. v. Fadeyi , 35 AD3d 372 [2nd Dept., 2006]; Thomas McGee v. City of Rensselaer, 174 Misc 2d 491 [Sup., Ct., Rensselaer County, 1997]). Upon a motion to dismiss, a pleading will be liberally construed and such motion will not be granted unless the moving papers conclusively establish that no cause of action exists ( see, Chan Ming v. Chui Pak Hoi, 163 AD2d 268 [1st Dept., 1990]).
First, Nineteenth and Twenty-Fifth Causes of Action Sounding In Slander
"Defamation has long been recognized to arise from the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society. The elements are a false statement, published without a 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" ( Dillon v. City of New York, 261 AD2d 34 [1st Dept., 1999]). "In cases involving defamation per se, the law presumes that damages will result, and special damages need not be alleged or proven" ( Gatz v. Otis Ford, 274 AD2d 449 [2nd Dept., 2000]). The per se categories consist of the following statements: (1) the plaintiff committed a crime; (2) the statement tends to injure the plaintiff in his or her trade, business or profession; and (3) the plaintiff has contacted a loathsome disease among others ( see, Matherson v. Marchello, 100 AD2d 233 [2nd Dept., 1984]). When the defamatory statement falls into one of these categories, "the law presumes damage to the slandered individual's reputation so that the cause is actionable without proof of special damages" ( 60 Minute Man v. Kossman, 161 AD2d 574 [2nd Dept., 1990]).
Defamation traditionally consists of two related causes of action, libel and slander. Slander is the uttering of defamatory words which tend to injure another in his reputation, office, trade, etc. ( see, Shapiro v. Glens Falls Ins. Co., 39 NY2d 204; Liffman v. Booke, 59 AD2d 687 [1st Dept., 1977]. Libel is always considered as written ( Liffman v. Booke, 59 AD2d 687 [1st Dept., 1977]; Matherson v. Marchelleo, 100 AD2d 233 [2nd Dept., 1984]; Locke v. Gibbons, 164 Misc 877 [Sup. Ct., New York County, 1937]). Here, the defendants do not seek the dismissal of plaintiff's seventh and thirteenth causes of action, against Rose and Elizabeth respectively, sounding in slander.
However, the defendants seek the dismissal of the first, nineteenth and twenty-fifth causes of action against Shop Rite, Harry Sr. and Harry Jr., respectively. Initially the Court notes the failure of the plaintiff to properly plead that the remaining three defendants made any defamatory statements (CPLR § 3016 [a]). Instead, the plaintiff alleges that the remaining defendants are vicariously liable for Rose and Elizabeth's defamatory remarks. "An employer is vicariously liable for its employees' torts, even where the offending employee's conduct was intentional, if the acts were committed while the employee was acting within the scope of his . . . employment" ( Carnegie v. J.P. Phillips , Inc., 28 AD3d 599 [2nd Dept., 2006]; see also, Yildiz v. PJ Food Serv., Inc. , 82 AD3d 971 [2nd Dept., 2011]). However, there can be no vicarious liability on the part of an employer for torts committed by an employee where such torts are committed solely for personal motives unrelated to the furtherance of the employer's business ( see, Carnegie v. J.P. Phillips, Inc. , 28 AD3d 599 [2nd Dept., 2006]; Vega v. Northland Mktg. Corp., 289 AD2d 565 [2nd Dept., 2001]). Thus, if an employee "for purposes of his own departs from the line of his duty so that for the time being his acts constitute an abandonment of his service, the master is not liable" ( see, State Farm Ins. Co. v. Central Parking Sys., Inc. , 18 AD3d 859 [2nd Dept., 2005] quoting Jones v. Weigand, 134 AD 644 [2nd Dept., 1909]). In addition, under the doctrine of respondeat superior an employer is not vicariously liable for an employee's torts where the employee's tortious conduct could not have been reasonably expected by the employer ( Carnegie v. J.P. Phillips, Inc. , 28 AD3d 599 [2nd Dept., 2006]). Furthermore, a servant is not vicariously liable for the negligence of his co-employee, even where one is a supervisor, officer or shareholder of a corporation ( see, Connell v. Hayden, 83 AD2d 30 [2nd Dept., 1981]; see also, Keitel v. Kurtz , 54 AD3d 387 [2nd Dept., 2008]; Engelbart v. Schachter, 235 AD2d 387 [2nd Dept., 1997]; Diviak v. Schulefand, 140 AD2d 950 [4th Dept., 1988]).
Here, the plaintiff's allegations reveal the personal motivation of Rose and Elizabeth in making the allegedly defamatory statements and that their statements could not have been reasonably expected by Shop Rite. This is true despite the conclusory allegations that Rose and Elizabeth were acting in the scope of their employment. Moreover, neither Harry Sr. nor Harry Jr. can be held vicariously liable for the alleged statements.
Accordingly, the plaintiff's first, nineteenth and twenty-fifth causes of action for slander are dismissed.
Second, Eighth, Fourteenth, Twentieth, and Twenty-Sixth Causes of Action Sounding In Hostile Work Environment and Retaliation
Reading the complaint in the light most favorable to the plaintiff, the allegations in the subject causes of action claim violations of New York Executive Law 296, and invoke three distinct claims. That is, that Rose's actions created a sexually hostile work environment, that the remaining defendants aided and abetted the harassment by failing to take action on the plaintiff's complaints to his superiors and that the defendants retaliated against him for making those complaints.
In addition to the New York State Human Rights Law, the plaintiff had a potential claim for hostile work environment and retaliation based on 42 USC § 2000 et seq. (Title VII). However, prior to commencing a court action under Title VII, a plaintiff is required to file a complaint with the EEOC or with a state agency that cross files it with the EEOC. It is undisputed that the plaintiff did not so file, and makes no claims under Title VII herein.
New York Executive Law § 296 prohibits discrimination by an employer and also prohibits the employer from retaliating against an employee for opposing any practices forbidden under the Human Rights Law. Section 297 (9) of the Human Rights Law states: "Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction . . . unless such person has filed a complaint hereunder . . . with any local commission on human rights." There is no indication that the plaintiff filed a complaint with the local human rights commission.
Executive Law §§ 290 — 301 comprise Article 15 of the Executive Law and is known as the Human Rights Law.
A. Hostile Work Environment and Defendants as Aiders and Abettors
A hostile work environment exists "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment'" ( Forrest v. Jewish Guild for the Blind , 3 NY3d 295 , 310, quoting Harris v. Forklift Sys., 510 US 17, 21; see, Vitale v. Rosina Food Prods., 283 AD2d 141 [4th Dept., 2001]). Even a single incident of sexual harassment can create a hostile work environment if the alleged conduct is sufficiently severe ( see, San Juan v. Leach, 278 AD2d 299 [2nd Dept., 2000]. To recover against an employer for the discriminatory acts of its employee, the plaintiff must demonstrate that the employer became a party to such conduct by encouraging, condoning, or approving it ( see, Matter of State Div. of Human Rights v. St. Elizabeth's Hosp., 66 NY2d 684; Matter of Totem Taxi v. New York State Human Rights Appeal Bd., 65 NY2d 300), or otherwise failed to take immediate action on a complaint ( see, Priore v. The New York Yankees, 307 AD2d 67 [1st Dept., 2003]). Here, the complaint alleges weekly acts of sexual advances by Rose, sets forth specific allegations against Shop Rite that its supervisory personnel were informed of the alleged sexual harassment of the plaintiff and that the named supervisors took no action to remedy the situation.
In addition, the complaint sets forth allegations sufficient to state a cause of action against the individual defendants. Under the New York Human Rights Law, a co-employee may be liable for creating a hostile work environment if found to be an active aider and abettor ( see, Murphy v. ERA United Realty, 251 AD2d 469 [2nd Dept., 1998]; Peck v. Sony Music Corp., 221 AD2d 157 [1st Dept., 1995], but see Trovato v. Air Express Intl., 238 AD2d 333 [2nd Dept., 1997])
B. Retaliation
New York Executive Law § 296 prohibits discrimination by an employer, and also prohibits the employer from retaliating against an employee for opposing any practices forbidden under the Human Rights Law. Section 297(9) of the Human Rights Law states: "Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction . . . unless such person has filed a complaint hereunder . . . with any local commission on human rights." Once an employee files such a complaint, the courts are divested of jurisdiction and dismissal of a subsequent action is required ( see, Emil v. Dewey, 49 NY2d 968; Hirsch v. Morgan Stanley Co., Inc., 239 AD2d 466 [2nd Dept., 1997]). Here, the plaintiff has chosen to commence a court action rather than to file a complaint with the local commission on human rights.
The plaintiff alleges that he was fired from his job in retaliation for his complaints against his supervisor, Rose. In addition, he alleges that Elizabeth told him that his complaints were the reason for his termination and that the individual defendants were in agreement regarding the decision. It has been held that, at the pleading stage, it is even appropriate to make an assumption that a supervisor knew of the complaint when adverse action was taken and, indeed, general corporate knowledge of protected activity may suffice ( see, Patane v. Clark, 508 F3d 106 [2nd Cir., 2007]). Therefore, a cause of action against the employer has been properly plead.
However, the issue remains whether the plaintiff has a cognizable cause of action against his co-employees, the individual defendants herein. Generally, an employee may be subject to individual liability under the Human Rights Law if he or she has an ownership interest in the corporate employer ( see, Kaiser v. Raoul's Rest. Corp. , 72 AD3d 539 [1st Dept., 2010]; Matter of Eastport Assoc., Inc. v. New York State Div. of Human Rights , 71 AD3d 890 [2nd Dept., 2010]; Gallegos, v. Elite Model Mgt. Corp. , 28 AD3d 50 [1st Dept., 2005]). A review of the complaint reveals that the plaintiff has alleged that Elizabeth has an ownership interest in Shop Rite. There are no such allegations regarding the remaining individual defendants.
C. Disparate Treatment
The Court notes that the complaint does not set forth a cause of action for disparate treatment. However, to the extent that the complaint can be read to contain an implicit statement of such a cause of action, the Court finds that it is dismissed. "The standards for recovery under section 296 of the Executive Law are in accord with Federal Standards until Title VII of the Civil Rights Act of 1962 ( 42 USC § 2000e et seq.)" ( Ferrante v. American Lung Assn., 90 NY2d 623). On a claim of discrimination, plaintiff has the initial burden of establishing a prima facie case of discrimination ( id.). While this burden is "de minimus" ( Sogg v. American Airlines, 193 AD2d 153 [1st Dept., 1993], lv dismissed 83 NY2d 846, lv denied 83 NY2d 754), plaintiff must present more than "conclusory allegations of discrimination" and provide "concrete particulars' to substantiate the claim" ( Muszak v. Sears, Roebuck Co., 63 FSupp2d 292 [WDNY, 1999], quoting Meiri v. Dacon, 759 F2d 989 [2nd Cir., 1985], cert. denied474 US 829 [1985]).
Accordingly, the plaintiff's eighth, twentieth, and twenty-sixth causes of action against Rose, Harry Sr. and Harry Jr. for retaliation are dismissed and the plaintiff's second, eighth, fourteenth, twentieth and twenty-sixth causes of action against the defendants for disparate treatment are dismissed.
Third, Ninth, Fifteenth, Twenty-First, and Twenty-Seventh Causes of Action Sounding In Negligent Supervision and Training
As a general rule, a defendant "has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control" ( D'Amico v. Christie, 71 NY2d 76). However, it has been held that certain relationships, including the relationship between an employer and employee, may give rise to a duty to exercise control ( D'Amico v. Christie, 71 NY2d 76; Fernandez v. Rustic Inn, Inc. , 60 AD3d 893 [2nd Dept., 2009]). An employer may be liable to a third person for the employer's negligent hiring or retaining an employee who is incompetent or unfit ( see, Corbally v. Sikras Realty Co., 161 AD2d 107 [1st Dept., 1990]; Jones by Jones v. Trane, 153 Misc 2d 822 [Sup. Ct., Onondaga County, 1992). In addition, an employer may be liable under a claim of negligent supervision ( see, N.X. v. Cabrini Med. Ctr., 280 AD2d 34 [1st Dept., 2001]; Piniewski v. Panepinto, 267 AD2d 1087 [4th Dept., 1999]; Salameh v. Toussaint, 5 Misc 3d 1032[A] [Sup. Ct., New York County, 2003]). In either case, the plaintiff must demonstrate that the employer knew or should have known of the employee's propensity for the conduct resulting in the injury ( see, Schiffer v. Sunrise Removal , 62 AD3d 776 [2nd Dept., 2009]; Osvaldo D. v. Rector Church Wardens and Vestrymen of the Parish of Trinity Church of NY , 38 AD3d 480 [1st Dept., 2007]; Farnsworth v. Brookside Const. Co. , 31 AD3d 1149 [4th Dept., 2006]; Carnegie v. J.P. Phillips, Inc. , 28 AD3d 599 [2nd Dept., 2006]). "[I]t is settled law that a necessary element of a negligent supervision claim requires a showing that the defendant knew of the employee's propensity to commit the tortious act or should have known of such propensity" ( N.X. v. Cabrini Med. Ctr., 280 AD2d 34 [1st Dept., 2001]).
Here, the complaint alleges that the plaintiff was an employee of Shop Rite, and the conclusory allegations against the remaining defendants, whether they are considered co-employees or officers of the corporation, do not state causes of action. In addition, the complaint fails to allege facts from which to infer that defendants Rose and Elizabeth had a propensity for slander or other tortious conduct or that Shop Rite was aware or should have been aware of such propensity ( see, Piniewski v. Panepinto, 267 AD2d 1087 [4th Dept., 1999]; Salameh v. Toussaint, 5 Misc 3d 1032[A] [Sup. Ct., New York County, 2003]). This is true despite the fact that the theories of negligent hiring and supervision are not required to be pleaded with specificity (CPLR § 3013; Porcelli v. Key Food Stores Co-Operative, Inc. , 44 AD3d 1020 [2nd Dept., 2007]).
Accordingly, the plaintiff's third, ninth, fifteenth, twenty-first, and twenty-seventh causes of action are dismissed.
Fourth, Sixteenth, Twenty-Second and Twenty-Eighth Causes of Action Sounding In Breach of Contract
Reading the complaint in the light most favorable to the plaintiff, the Court finds that the plaintiff's claim for breach of contract is based on his allegations that his termination from employment violated the collective bargaining agreement (CBA) between Shop Rite and his local union. There are no allegations that the plaintiff entered into a contract with any of the individual defendants. It is well settled that "when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement, but must proceed, through the union, in accordance with the contract" ( Matter of Board of Educ. v. Ambach, 70 NY2d 501; Wolfson v. Preventitive Medicine Clinical Servs. , 26 AD3d 751 [4th Dept., 2006]; Yoonessi v. State of New York, 289 AD2d 998 [4th Dept., 2001]). An exception arises where the employee alleges that the union breached its duty of fair representation, in which case the employee may litigate the contract dispute directly against the employer ( see, Matter of Board of Educ. v. Ambach, 70 NY2d 501; Yoonessi v. State of New York, 289 AD2d 998 [4th Dept., 2001]). However, the plaintiff's allegations regarding this cause of action do not allege that the union breached its duty of fair representation. In addition, the complaint fails to state a cause of action as it does not allege that, if a formal grievance was filed, his union's decision to forego a grievance under the subject CBA regarding his termination from employment was arbitrary, discriminatory or in bad faith ( see, Melville v. Blanche Community Progress Day Care Ctr., Inc., 2009 NY Slip Op 3189[U] [Sup. Ct., Queens County, 2009]).
Accordingly, the plaintiff's fourth, sixteenth, twenty-second and twenty-eighth causes of action sounding in breach of contract are dismissed.
In light of the decision herein, the Court finds it unnecessary to address the defendants' contention that the plaintiff's fourth cause of action should be dismissed pursuant to CPLR 3211 (a) (1), based on their submission of the subject CBA.
Tenth Cause of Action Sounding In Breach of Contract and Tortious Interference against Defendant Rose
As discussed above, and for the same reasons, that portion of the tenth cause of action which alleges breach of contract against the named defendant is dismissed. The Court now turns to that portion of the instant cause of action sounding in tortious interference. Tortious interference with contract requires the existence of a valid contract between the plaintiff and a third party, the defendant's knowledge of that contract, the defendant's intentional procurement of the third-party's breach of the contract without justification, actual breach of the contract and damages resulting therefrom ( see, Lama Holding Co. v. Smith Barney, 88 NY2d 413; Kronos, Inc. v. AVX Corp., 81 NY2d 90; Avant Graphics Ltd. v. United Reprographics, Inc., 252 AD2d 462 [1st Dept., 1998]; M.J. K. Co. v. Matthew Bender Co., 220 AD2d 488 [2nd Dept., 1995]).
In a cause of action for tortious interference, the plaintiff must allege that the defendants had actual knowledge of the contract in question, and an allegation that they "should have known" of the existence of the contract is insufficient ( see, Burns Jackson Miller Summit Spitzer v. Lindner, 88 AD2d 50 [2nd Dept., 1982], affd 59 NY2d 314; see also, Boll v. Town of Kinderhook, 99 AD2d 898 [3rd Dept., 1984]; A A Tube Testing Co. v. Sohne, 20 AD2d 639 [2nd Dept., 1964]). In addition, the plaintiff must specifically allege that the contract would not have been breached but for the defendants' conduct ( see, Israel v. Wood Dolson Co., 1 NY2d 116; Burrowes v. Combs , 25 AD3d 370 [1st Dept., 2006]; Washington Ave. Assoc. v. Euclid Equip., 229 AD2d 486 [2nd Dept., 1996]).
Here, the complaint does not allege that Rose knew, or even that she should have known, of the unspecified contract, or the CBA, that allegedly protected the plaintiff's status as an employee of Shop Rite. In addition, there are no allegations that "but for" Rose's actions said contract or contracts would not have been breached.
Accordingly, the plaintiff's tenth cause of action for breach of contract and tortious interference is dismissed.
Fifth, Eleventh, Seventeenth, Twenty-Third and Twenty-Ninth Causes of Action Sounding In Intentional Infliction of Emotional Distress
A cause of action for intentional infliction of emotional distress "predicates liability on the basis of extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society" ( Freihofer v. Hearst Corp., 65 NY2d 135). The conduct alleged by plaintiff against Shop Rite is that it acted to wrongfully force the plaintiff to resign from his employment and when that failed it wrongfully terminated his employment. This conduct does not rise to the level of atrocity or outrageousness necessary to sustain a claim of this nature ( see, Howell v. New York Post Co., 81 NY2d 115). In addition, the instant cause of action is duplicative of the plaintiff's cause of action against Shop Rite for hostile work environment because this claim arises from the same facts ( eg., Deer Park Enter., LLC v. Ail Sys., Inc. , 57 AD3d 711 [2nd Dept., 2008]; Silverman v. Carvel Corp. , 8 AD3d 469 [2nd Dept., 2004]; Mecca v. Shang, 258 AD2d 569 [2nd Dept., 1999]).
The conduct alleged by plaintiff against Rose, Elizabeth, Harry Sr., and Harry Jr. is that their actions caused the plaintiff to "sustain damage to his reputation, pecuniary loss, and emotional distress." Here, the plaintiff's causes of action for intentional infliction of emotion distress merely restate plaintiff's causes of action for defamation and damage to his professional reputation ( see, Curren v. Carbonic Sys., Inc., 58 AD3d 1104 [3rd Dept., 2009]; Demas v. Levitsky, 291 AD2d 653 [3rd Dept., 2002]). Significantly, plaintiff's causes of action for intentional infliction of emotional distress fall well within the ambit of his defamation claims, which also provide for recovery of damages based upon emotional harm ( see, Di Orio v. Utica City School Dist. Bd. of Educ., 305 AD2d 1114 [4th Dept., 2003]; Demas v. Levitsky, 291 AD2d 653 [3rd Dept., 2002]; Como v. Riley, 287 AD2d 416 [1st Dept., 2001]; Dec v. Auburn Enlarged School Dist., 249 AD2d 907 [4th Dept., 1998]; Butler v. Delaware Otsego Corp., 203 AD2d 783 [3rd Dept., 1994]). In any event, plaintiff's complaint fails to allege sufficient facts to demonstrate that defendants' conduct was"so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . and [was] utterly intolerable in a civilized community" ( Murphy v. American Home Prods. Corp., 58 NY2d 293, quoting Restatement [Second] of Torts § 46, Comment d; see also, Marmelstein v. Kehillat , 11 NY3d 15 ; Vione v. Tewell , 12 Misc 3d 973 [Sup. Ct., New York County, 2006]).
Accordingly, the plaintiff's fifth, eleventh, seventeenth, twenty-third and twenty-ninth causes of action are dismissed.
Sixth, Twelfth, Eighteenth, Twenty-Fourth, and Thirtieth Causes of Action Sounding In Prima Facie Tort
The elements of a cause of action for prima facie tort are: (1) the intentional infliction of harm; (2) causing of special damages; (3) without lawful excuse or justification; and (4) by an act or series of acts that would be otherwise unlawful ( see, Freihofer v. Hearst Corp., 65 NY2d 135; Curiano v. Suozzi, 63 NY2d 113). There can be no recovery under this tort unless malevolence is the sole motive for the defendant's otherwise lawful act ( see, Lynch v. McQueen, 309 AD2d 790 [2nd Dept., 2003]; Landor-St. Gelais v. Albany Intl. Corp., 307 AD2d 671 [3rd Dept., 2003]). Also, where there are other motives, such as self interest or business advantage, there is no recovery under this tort ( see, Squire Records v. Vanguard Rec. Socy., 25 AD2d 190 [1st Dept., 1996], affd 19 NY2d 797).
Since the complaint does not allege that defendants' sole motivation was disinterested malevolence, the prima facie tort cause of action must fail ( see, Burns Jackson Miller Summint Spitzer v. Lindner, 88 AD2d 50 [2nd Dept., 1982]; Avgush v. Town of Yorktown, 303 AD2d 340 [2nd Dept., 2003]; Hakim v. Paine Webber, 261 AD2d 578 [2nd Dept., 1999]). Furthermore, special damages are an essential element of a prima facie tort and must be pleaded with sufficient particularity ( see, DiSanto v. Forsyth, 258 AD2d 497 [2nd Dept., 1999]).
In the matter before the Court, the complaint only sets forth an amount of damages to be proven at trial without any particularity as to a specific and measurable loss so as to identify and causally relate the actual losses to the allegedly tortious act as required for a prima facie tort cause of action ( see, Vigoda v. DCA Prods. Plus, 293 AD2d 265 [1st Dept., 2002]; Broadway 67th St. Corp. v. City of New York, 100 AD2d 478 [1st Dept., 1984]; see also, Del Vehicco v. Nelson, 300 AD2d 277 [2nd Dept., 2002]; Dembitzer v. Chera, 305 AD2d 531 [2nd Dept., 2003]). "All that plaintiff has alleged is lost future income, conjectural in identity and speculative in amount. As such, this is an insufficient allegation of damages to support a cause of action for prima facie tort. As the complaint fails to show that the defendant acted with disinterested malevolence and also fails to set forth special damages with particularity" ( Vigoda v. DCA Prods. Plus Inc., 293 AD2d 265 [1st Dept., 2002]), the cause of action sounding in prima facie tort is dismissed.
In addition, the instant cause of action is duplicative of the plaintiff's causes of action against the defendants for hostile work environment or slander because this claim arises from the same facts ( eg., Deer Park Enters., LLC v. Ail Sys., Inc. , 57 AD3d 711 [2nd Dept., 2008]; Silverman v. Carvel Corp. , 8 AD3d 469 [2nd Dept., 2004]; Mecca v. Shang, 258 AD2d 569 [2nd Dept., 1999]).
Accordingly, the plaintiff's sixth, twelfth, eighteenth, twenty-fourth, and thirtieth causes of action are dismissed.
Punitive Damages
The third branch of the defendants' motion seeks to strike all demands for punitive damages set forth in the plaintiff's complaint. Pursuant to the decision herein, the remaining causes of action fall into two categories: the seventh and thirteenth causes of action sounding in slander, and the second, eighth, fourteenth, twentieth, and twenty-sixth sounding in hostile work environment and sexual harassment. It is well settled that punitive damages may be asserted in a defamation action ( see, Toomey v. Farley, 2 NY2d 71; Nellis v. Miller, 101 AD2d 1002 [4th Dept., 1984]). However, punitive damages are not recoverable in this action, brought pursuant to Executive Law 297 (9), alleging employment discrimination ( see, Thoreson v. Penthouse Intl., 80 NY2d 490; Harris v. Chen, 283 AD2d 976 [4th Dept., 2001]; McIntyre v. Manhattan Ford, Lincoln-Mercury, 256 AD2d 269 [1st Dept., 1998]).
Accordingly, the demands for punitive damages contained in plaintiff's second, eighth, fourteenth, twentieth, and twenty-sixth causes of action are stricken.
The Plaintiff's Cross Motion For Leave to Amend His Complaint And to Extend Time To Reply to Discovery Demands
Initially, the Court notes that the plaintiff's cross motion was made in the event that the defendants opposed the plaintiff's service of the amended complaint. The defendants have expressly accepted service, and the cross motion should be deemed moot. However, regardless of the plaintiff's motives, the cross motion is denied. The plaintiff's submission contains an exhibit with a copy of the amended complaint served upon the defendants as of right. The cross motion does not contain a proposed second amended complaint. Absent the submission of a proposed second amended complaint, the cross motion is denied ( see, Pollak v. Moore, ___ AD3d ___, 2011 WL 2448011 [1st Dept., 2011]; Kilkenny v. Law Off. of Cushner Garvey, LLP , 76 AD3d 512 [2nd Dept., 2010]; Chang v. First Am. Tit. Ins. Co. of NY , 20 AD3d 502 [2nd Dept., 2005]).
Furthermore, the Court finds that the plaintiff's request to extend his time to provide a bill of particulars and to respond to the discovery demands of the defendants is premature. Counsel for the defendants affirms that demands for a bill of particulars and discovery have not yet been served upon the plaintiff.
Accordingly, the plaintiff's cross motion is denied.
The defendants' time to answer the complaint is extended to 20 days after service of a copy of this order with notice of entry ( see, CPLR § 2004; CPLR § 3211 [f]).
Based on the foregoing, it is
ORDERED that the motion by the defendants for an order pursuant to CPLR § 3211 (a) (1) and (7) dismissing the complaint is granted to the extent of dismissing the plaintiff's first, third through sixth, ninth through twelfth, fifteenth through nineteenth, twenty-first through twenty-fifth, and twenty-seventh through thirtieth causes of action against the defendants pursuant to CPLR § 3211 (a) (7), dismissing the claims sounding in retaliation contained in the plaintiff's eighth, twentieth, and twenty-sixth causes of action against defendant Rose "Doe," defendant Harry Janson, and defendant Harry Janson, Jr., dismissing the claims sounding in disparate treatment contained in the plaintiff's second, eighth, fourteenth, twentieth, and twenty-sixth causes of action against the defendants, and striking the demands for punitive damages contained in plaintiff's second, eighth, fourteenth, twentieth, and twenty-sixth causes of action, and is otherwise denied; and it is further ORDERED that the cross motion by the plaintiff pursuant to CPLR § 3025 (b) for leave to serve an amended complaint and to extend his time to reply to certain discovery demands is denied.