Opinion
No. 100676/09.
2010-08-12
Daniel J. MELIOUS and Denise E. Melious, Plaintiffs, v. Lawrence MUSANTI, Robert Minall, John Paddack, Monsignor Farrel High School, and The Archdiocese of New York, Defendants.
PHILIP G. MINARDO, J.
Defendants' motion to dismiss the complaint is granted as to plaintiffs' third and fourth causes of action, which are hereby severed and dismissed. The remainder of the motion is denied.
The Court notes at the outset that a so-ordered stipulation executed subsequent to the making of this motion provides for the joint trial of this action with the case entitled Daniel J. Melious v. Robert Besignano, Monsignor John Paddack, Monsignor Farrell High School, and The Archdiocese of New York, (a/k/a “Melious I”) now pending in Supreme Court, Richmond County, under Index No. 102869/07. Accordingly, so much of defendants' motion as seeks dismissal of plaintiffs' defamation and prima facie tort causes of action on the ground that the allegations thereof are duplicative of the claims asserted in “Melious I” in contravention of CPLR 3211(a)(4) is denied as academic.
This is an action for damages predicated upon allegations of defamation, prima facie tort, retaliatory termination, and interference with prospective advantage brought by plaintiff Daniel Melious (hereinafter “Plaintiff”) against these defendants for acts committed while he was employed as a teacher of religion and junior varsity basketball coach at Monsignor Farrell High School during the 2007–2008 school year. His wife, co-plaintiff Denise Melious, has brought a derivative cause of action for loss of services.
In this motion, defendants seek dismissal of the complaint pursuant to CPLR 3211(a) on the grounds, inter alia, that (1) the claim of defamation fails to state a cause of action insofar as [a] the complaint lacks the pleading specificity required by CPLR 3016(a), [b] the purported derogatory remarks are not defamatory as a matter of law, [c] said remarks are protected by the doctrine of qualified privilege, and [d] there was no publication of these remarks by any of the defendants; (2) the cause of action for prima facie tort similarly fails to state a cause of action due to plaintiffs' failure to allege special damages; (3) the Court lacks subject matter jurisdiction over the claim of retaliatory termination based on the so-called “ministerial exception”; (4) the cause of action for interference with prospective advantage is barred by release ( see CPLR § 3211[a][5] ) and is otherwise legally insufficient; and (5) the claim for loss of services on behalf of plaintiff's wife cannot stand independently following the dismissal of the complaint.
The Court is mindful that when reviewing a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, it “must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, and accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory” (Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414). Moreover, CPLR 3211(d) enjoins a court to deny such a motion “[s]hould it appear ... that facts essential to justify opposition may exist but cannot [now] be stated” ( cf.CPLR 3212[f]; Juseinoski v. New York Hosp Med Ctr. of Queens, 29 AD3d 636). The case at bar being of this nature, that branch of defendants' motion which seeks to dismiss plaintiff's first and second causes of action, alleging respectively defamation and prima facie tort on the part of the individual defendants, is denied as premature.
Here, the statements at issue are set forth in detail in paragraphs 29, 42 and 43 of the complaint, and are essentially of the same type as those sustained in this Court's February 19, 2009 Decision and Order in “Melious I” ( see Defendants' Exhibit B). There, it was determined that these statements were not, as a matter of law, mere expressions of opinion, unfavorable assessments or criticisms, and could be found to be actionable. In addition, the facts as alleged are also susceptible of a malicious interpretation, as if motivated solely by a desire to injure plaintiff ( i.e., common-law malice) ( see Thanasoulis v. National Assn. for the Specialty Foods Trade, 226 A.D.2d 227, 229). Of particular relevance here are the statements attributed to defendants Musanti and Minall regarding plaintiff's treatment of minority students in his class room, and Monsignor Paddack's alleged statement about plaintiff's inappropriate social relationship with his basketball players.
As in “Melious I,” the Court further finds that defendants' claim of qualified privilege is inapplicable in this case as a per se defense since plaintiff has made detailed allegations of fact (deemed to be true for purposes of this motion) that are suggestive of defendants' malevolence towards plaintiff, and an intention to inflict harm upon him without justification. Accordingly, plaintiff should not be foreclosed at this early juncture from asserting a claim of prima facie tort ( see Curiano v. Suozzi, 63 N.Y.2d 113;see also Liberman v. Gelstein, 80 N.Y.2d 429, 437–439). Also in “Melious I,” this Court concludes that plaintiff's allegations of special damages in the form of the lost wages attributable to his dismissal, and his subsequent inability to obtain substitute employment as, e.g., a junior varsity basketball coach, are legally sufficient to withstand dismissal.
Finally, the claim for loss of services being derivative of the causes of action for, e.g., defamation, are legally sufficient even though based principally on emotional rather than physical injury ( see Pratt v. Ocean Med. Care, 236 A.D.2d 380;Delosovic v. City of New York, 143 Misc.2d 801,affd174 A.D.2d 407;cf. Camadeo v. Leeds, 290 A.D.2d 355;Geddes v. Princess Props. Intl., 88 A.D.2d 835).
As previously indicated, the balance of the complaint is dismissed.
Plaintiff's allegation of retaliatory discharge is barred under the at-will employment doctrine where, as here, plaintiff was not a tenured employee, and could be dismissed at will. Somewhat similarly, plaintiff's cause of action for interference with prospective advantage is insufficiently plead, inasmuch as he has failed to allege that he would have been accepted to the NYPD cadet corps if his records had been produced by defendants on an earlier date ( see Almogod Tech Corp. v. Price, 65 AD3d 974). In addition, as this Court previously stated (in “Melious I”) with regard to this same cause of action, in order to be legally sufficient, the degree of interference attributed to the third partyz must be “relatively high”. Here, the defendants' alleged delay in responding to plaintiff's request for records constitutes a mere failure to act, which does not satisfy the threshold requirement for the cause of action ( see generally Pekler v. Health Insurance Plan of Greater New York, –––Misc. ––––, 2008 N.Y. Misc. LEXIS 1248 [Sup Ct Richmond Co 2008][Minardo, J.], mod.on other grounds 67 AD3d 758).
Accordingly, it is
ORDERED, that defendants' motion to dismiss the complaint is granted as to plaintiffs' third and fourth causes of action only; and it is further
ORDERED, that the foregoing causes of action are severed and dismissed; and it is further
ORDERED, that the balance of the motion is denied; and it is further
ORDERED, that the Clerk enter judgment accordingly.