Opinion
INDEX NO. 453138/2017
01-16-2019
DEIDRE CLARK, Plaintiff, v. ALLEN & OVERY LLP and PROSKAUER ROSE LLP Defendants.
NYSCEF DOC. NO. 58 PRESENT: HON. ARLENE P. BLUTH Justice MOTION DATE 11/13/2018 MOTION SEQ. NO. 001
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 47, 54, 57 were read on this motion to/for DISMISS. Upon the foregoing documents,
Defendants' motion to dismiss is granted.
Background
Plaintiff Deidre Holmes Clark is an attorney who formerly worked for defendant law firm, Allen and Overy LLP ("A&O"). A&O terminated plaintiff's employment in January 2009 for gross misconduct. In June 2011, plaintiff filed a sexual harassment and retaliatory discharge claim against A&O. Plaintiff alleged defendants "illegally hacked into, accessed, viewed, copied and distributed to third parties Plaintiff's completely personal emails to her friends and lover dealing solely with her sexual and romantic life, including from her private Hotmail account and including deleted emails" (Plaintiff's complaint at 5). Defendant Proskauer Rose ("Proskauer") represented A&O in that 2011 action. In that 2011 action, the Court (York, J.) ordered plaintiff to sit for an Independent Medical Exam (IME) and ordered that the entire trial docket be sealed. Plaintiff refused to sit for the IME and appealed Justice York's decision directing her to sit for the IME to the First Department. While the appeal was pending, plaintiff sought a stay of the Supreme Court case and defendants sought to seal the record pertaining to the appeal. Plaintiff and defendants had a conference with Appellate Division Judge Judith Gische who granted the stay and declined to seal the documents. Plaintiff claims that following the conference with Judge Gische, Proskauer made a deal with the clerk of the First Department to hide the documents regarding the appeal from the public.
The 2011 suit was originally in front of Justice Louis York who ordered the IME and the sealing of the docket. The case was reassigned to Justice Kathryn Freed after Justice York died in November 2014. Justice Freed dismissed the action in September 2016.
Plaintiff lost her appeal to the First Department and defendants filed a Notice of Entry of the appellate decision under seal in New York Supreme Court, where Justice York had ordered the records sealed. Plaintiff then appealed the First Department's decision to the Court of Appeals, which declined to hear the appeal. Thereafter, petitioner petitioned for a writ of certiorari to the United States Supreme Court, this request was also denied.
Plaintiff filed this suit in 2015 in New York Supreme Court, Suffolk County. In 2017, the Suffolk County Supreme Court granted defendants' motion to transfer the case to New York County. The Court also denied plaintiff's motion for summary judgment without prejudice and denied defendants' motion to dismiss without prejudice so they could refile in New York County if they chose to do so. The case was reassigned a 2017 index number when it reached New York county.
In this case, plaintiff brings claims against defendants for invasion of privacy, fraud, abuse of process, breach of contract, negligent infliction of emotional distress, violation of copyright, fraud upon the courts, breach of privilege, and conspiracy.
Discussion
"On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Nonnon v City of New York, 9 NY3d 825, 827, 842 NYS2d 756 [2007] [internal quotations and citation omitted]).
First Cause of Action (Invasion of Privacy)
"New York state does not recognize the common-law tort of invasion of privacy except to the extent it comes within Civil Rights Law §§50 and 51. These statutes protect against the appropriation of a plaintiff's name or likeness for a defendant's benefit and create a cause of action in favor of any person whose name, portrait, or picture is used for advertising purposes or for trade without the plaintiff's consent" (Farrow v Allstate Ins. Co., 862 NY2d 92, 93 [2d Dept 2008]). Plaintiff's claim for invasion of privacy fails because defendants did not use plaintiff's name, portrait, or picture for advertising purposes or trade without her consent. The first cause of action is dismissed.
Second Cause of Action (Fraud)
"The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages" (Introna v Huntington Learning Centers, Inc., 911 NY2d 442, 445 [2d Dept 2010]). A cause of action for fraud must be "stated in detail" (CPLR 3016 [b]).
Plaintiff claims that defendants committed fraud because they filed a Notice of Entry of the First Department's decision in New York Supreme Court under seal. Pursuant to CPLR 5524 [b], "a copy of the order of the court to which an appeal is taken determining the appeal, together with the record on appeal, shall be remitted to the clerk of the court of original instance except that where further proceedings are ordered in another court, they shall be remitted to the clerk of such court." Plaintiff's fraud claim fails because defendants were merely complying with the rules under the CPLR when filing the Notice of Entry under seal. Because all of the Supreme Court records were under seal pursuant to Justice York's order, defendants also filed the Notice of Entry under seal. Thus, plaintiff has no basis for a claim for fraud and that cause of action is dismissed.
Third and Fourth Causes of Action (Abuse of Process)
"Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective" (Curiano v Suozzi, 63 NY2d 113, 116 [1984]). Plaintiff alleges abuse of process because defendants purportedly abused the discovery process by searching through all of plaintiff's emails in her inbox and asking the clerk of the First Department to illegally keep documents hidden from the public.
Plaintiff's claim fails because the discovery process and the alleged request to the clerk of the First Department to seal the docket do not constitute "regularly issued process" for the purposes of this tort. Regularly issued process "[c]ompels the performance or forbearance of a prescribed act" (James v Saltsman, 99 AD2d 797, 798, 2d Dept [1984]). Examples of process include "writs of attachment, execution or arrest" (Krellman v Livingston, 64 AD2d 621, 622 2d Dept 1978]).
Furthermore, "to sustain a cause of action for abuse of process, the plaintiff must demonstrate 'the deliberate premeditated infliction of economic injury without economic or social excuse or justification'" (Walentas v Johnes, 257 AD2d 352, 354 [1st Dept 1999] quoting Bd. of Ed. of Farmingdale Union Free Sch. Dist. v Farmingdale Classroom Teachers Ass'n, Inc., Local 1889 AFT AFL-CIO, 38 NY2d 397, 343 [1975]). Plaintiff fails to allege any facts that would indicate defendants engaged in a deliberate and premeditated plan to inflict injury. The defendants search of plaintiff's emails was in the regular course of discovery and in response to her request, during the litigation, for all emails in her inbox. The tort of abuse of process simply does not encompass the alleged abuse of the discovery process in a litigation. Additionally, as previously stated, the defendants filed the Notice of Entry of the First Department's decision in New York Supreme Court under seal in an effort to abide by the rules of the CPLR and Justice York's order. Thus, there is no indication that defendants had a deliberate and premediated plan to inflict injury and these causes of action are dismissed.
Fifth Cause of Action (Breach of Contract)
The elements of a breach of contract claim include "the existence of a contract, the plaintiff's performance thereunder, the defendant's breach thereof, and resulting damages" (Harris v Seward Park Hous. Corp., 913 NY2d 161, 162 [1st Dept 2010]). Plaintiff alleges A&O breached her employment contract by viewing and distributing her personal emails to third parties. The statute of limitations for a claim for breach of contract is six years (CPLR 213). The six years statute of limitations began to run when A&O terminated the contract in January 2009. Plaintiff would have had to file her claim/start the case by January 2015. However, plaintiff filed this case in Suffolk County in September 2015. Because September 2015 is more than six years after January 2009, plaintiff's breach of contract claim is time barred and dismissed.
Sixth Cause of Action (Negligent Infliction of Emotional Distress "NIED")
"A cause of action to recover damages for negligent infliction of emotional distress generally requires a plaintiff to show a breach of a duty owed to him which unreasonably endangered his physical safety, or caused him to fear for his own safety" (Sacino v Warwick Valley Cent. Sch. Dist., 29 NY3d 57, 60 [2d Dept 2016]). "An attorney does not owe a duty of care to his adversary or one with whom he is not in privity" (Aglira v Julien & Schlesinger, P.C., 631 NY2d 816, 819 [1st Dept 1995]). Here, defendants do not owe plaintiff a duty of care because they are adversaries in litigation and are not in privity. Thus, plaintiff's NIED claim fails and is dismissed.
Seventh Cause of Action (Violation of Copyright)
To prevail on a claim for infringement of copyright, plaintiff must prove "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original" (Feist Publications, Inc. v Rural Tel. Serv. Co., 499 US 340, 361 [1991]). For a piece of work to be protected under copyright law, it must be "fixed in a tangible form of expression" (17 USC § 102[a]). Plaintiff alleges defendants violated copyright law by distributing her personal emails to third parties. Plaintiff's claim fails because she has not proven she owns a valid copyright for her emails, nor has she sufficiently shown that her emails are protected under copyright law. Therefore, this cause of action is dismissed.
Eight Cause of Action (Fraud Upon the Courts)
A violation of §487 of New York Judiciary Law occurs when an attorney is "guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party" (N.Y. Judiciary Law § 487). Plaintiff alleges defendants engaged in a pattern of fraud upon the courts in violation of §487 by allegedly making a deal with the clerk at the First Department to hide documents and by filing what plaintiff believes is a false Notice of Entry under seal (see Plaintiff's Memorandum in Law in Opposition to Defendants' Motion to Dismiss at 23). Plaintiff's claim fails because defendants were following Justice York's order that the trial court documents were to be filed under seal. Even if the appellate documents were mistakenly filed under seal in the trial court, that does not suggest an intent to deceive the court and this cause of action is dismissed.
Ninth Cause of Action (Breach of Attorney-Client Privilege)
CPLR 4503 provides that:
"Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing."
Plaintiff alleges that while working with A&O her calls and emails were being monitored, including communication with an attorney regarding her sexual harassment complaint. She states her right to attorney client privilege was breached because A&O purportedly read those emails. Plaintiff's claim must fail because New York courts do not recognize a claim for breach of attorney-client privilege for a third person's intrusion into the communication between the attorney and the client (see Madden v Creative Servs., Inc., 84 NY2d 738, 744 [1995]).
Tenth Cause of Action (Conspiracy)
"New York does not recognize an independent cause of action for conspiracy to commit a civil tort" (Abacus Fed. Sav. Bank v Lim, 905 NY2d 585, 588 [1st Dept 2010]). "Accordingly, a claim alleging conspiracy to commit a tort stands or falls with the underlying tort" (Dickinson v Igoni, 76 AD3d 943, 945, [2d Dept 2010]). Thus, plaintiff must first allege an underlying tort. The claim must be "[c]oupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement" (see Perez v Lopez, 97 AD3d 558, 560, [2d Dept 2012]). Plaintiff fails to sufficiently plead an underlying tort, therefore, her claims for conspiracy fails and is dismissed.
Plaintiff's Claims Against Proskauer Rose
"An attorney is not liable to a third party for negligence in performing services on behalf of a client" (see Lavanant v Gen. Acc. Ins. Co. of Am., 164 AD2d 73, 74 [1st Dept 1990]). Plaintiff brings all of the above claims against Proskauer in its defense of its client, A&O. Even if Proskauer was negligent in representing A&O, because no liability can be imposed on an attorney for any injuries faced by a third party as a result of that attorney defending a client, all of plaintiff's claims against Proskauer fail and are dismissed.
Summary
All of plaintiff's claims are either time barred or fail to sufficiently state a cause of action. Therefore, defendants' motion to dismiss is granted with respect to all claims.
Accordingly, it is hereby
ORDERED that the motion by defendants to dismiss the complaint is granted with prejudice. The clerk is directed to enter judgment for defendants and against plaintiff, with costs and disbursements as taxed by the clerk upon the submission of the proper papers therefor. 1·16·19
DATE
/s/ _________
ARLENE P. BLUTH, J.S.C.