Opinion
11950 Index No. 101659/2018 Case No. 2019-5457
10-06-2020
Alroy RICHARDS, Plaintiff–Appellant, v. SECURITY RESOURCES, Defendant–Respondent Joseph Katanga, Defendant.
Alroy Richards, appellant pro se Lewis Brisbois Bisgaard & Smith LLP, New York (Peter T. Shapiro of counsel), for respondent.
Alroy Richards, appellant pro se
Lewis Brisbois Bisgaard & Smith LLP, New York (Peter T. Shapiro of counsel), for respondent.
Friedman, J.P., Webber, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered June 17, 2019, which granted defendant Security Resources' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint, denied plaintiff's cross motion to compel production of a surveillance video and permit alternate service upon defendant Joseph Katanga via Security Resources and its counsel, and denied plaintiff's motion for an order to subpoena the surveillance video, unanimously affirmed, without costs.
Defendant Security Resources (defendant) timely moved to dismiss the complaint (see CPLR 3012[a], 3211[e] ). Plaintiff's denial of receipt of service is insufficient to rebut the presumption of proper service created by the affidavit of service ( Ocwen Loan Servicing, LLC v. Ali, 180 A.D.3d 591, 119 N.Y.S.3d 474 [1st Dept. 2020] ).
On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must "determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). However, where the court considers extrinsic evidence to remedy any defect in the pleading, "the criterion is whether the plaintiff has a cause of action, not whether he has stated one" ( id. ; see Biondi v. Beekman Hill House Apt. Corp., 257 A.D.2d 76, 81, 692 N.Y.S.2d 304 [1st Dept. 1999], affd 94 N.Y.2d 659, 709 N.Y.S.2d 861, 731 N.E.2d 577 [2000] ).
New York "neither recognizes a tort for wrongful discharge nor requires good faith in an at-will employment relationship" ( Matter of De Petris v. Union Settlement Assn., 86 N.Y.2d 406, 410, 633 N.Y.S.2d 274, 657 N.E.2d 269 [1995], citing Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86 [1983] ), and defendant's written policies on use of force and willful misconduct submitted in opposition to defendant's motion to dismiss are insufficient to limit defendant's right to terminate plaintiff's employment (see Sabetay v. Sterling Drug, 69 N.Y.2d 329, 336, 514 N.Y.S.2d 209, 506 N.E.2d 919 [1987] ). Plaintiff's contention that he was constructively discharged is unavailing as the complaint does not allege he resigned, but that defendants terminated his employment, and in any event his discharge was not actionable (see Morris v. Schroder Capital Mgt. Intl., 7 N.Y.3d 616, 621, 825 N.Y.S.2d 697, 859 N.E.2d 503 [2006] ).
The intentional infliction of emotional distress claim fails because plaintiff failed to allege any conduct so outrageous in character and extreme in degree to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community, particularly here where "plaintiff should not be allowed to ... subvert the traditional at-will contract rule by casting his cause of action in terms of a tort of intentional infliction of emotional distress" ( Murphy, 58 N.Y.2d at 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 ; see also Wilson v. DiCaprio, 278 A.D.2d 25, 26, 717 N.Y.S.2d 174 [1st Dept. 2000] ).
Plaintiff's defamation claim fails because plaintiff fails to allege one allegedly defamatory statement was published to a third-party, an essential element of a defamation claim ( Stepanov v. Dow Jones & Co., Inc., 120 A.D.3d 28, 34, 987 N.Y.S.2d 37 [1st Dept. 2014] ), and the second alleged defamatory statement between defendants' employees regarding his conduct at work is protected by a qualified privilege (see Williams v. Varig Brazilian Airlines, 169 A.D.2d 434, 438, 564 N.Y.S.2d 328 [1st Dept. 1991], lv denied 78 N.Y.2d 854, 573 N.Y.S.2d 467, 577 N.E.2d 1059 [1991] ; see also Present v. Avon Prods., 253 A.D.2d 183, 187–188, 687 N.Y.S.2d 330 [1st Dept. 1999], lv dismissed 93 N.Y.2d 1032, 697 N.Y.S.2d 555, 719 N.E.2d 914 [1999] ).
Plaintiff's claims against defendant sounding in negligence are barred by the Workers' Compensation Law (see Velasquez–Spillers v. Infinity Broadcasting Corp., 51 A.D.3d 427, 427–428, 857 N.Y.S.2d 107 [1st Dept. 2008] ; Thomas v. Northeast Theatre Corp., 51 A.D.3d 588, 589, 859 N.Y.S.2d 415 [1st Dept. 2008] ). Further, plaintiff failed to allege in non-conclusory terms that the individual defendant was acting within the scope of his employment, in furtherance of defendant's interest, or at defendant's direction when he allegedly assaulted plaintiff. Accordingly, the complaint fails to state a claim against defendant for assault or battery (see Velasquez–Spillers, 51 A.D.3d at 427–428, 857 N.Y.S.2d 107 ).
On this record, Supreme Court correctly determined that the individual defendant was never served with the complaint and denied plaintiff's motion for alternate service. In light of the foregoing, plaintiff's motions seeking discovery are moot, as Supreme Court determined.