Opinion
100168/2007
05-06-2011
Cecille Villacorta, Plaintiff, v. Saks Incorporated, SAKS & COMPANY, and SAKS FIFTH AVENUE, INC., Defendants.
For Plaintiff LIDDLE & ROBINSON, L.L.P. (by James R. Hubbard) For Defendants Saks & Company, Saks Fifth Avenue, Inc., and Saks Inc. K & L Gates, LLP (by Michael Gordon)
For Plaintiff
LIDDLE & ROBINSON, L.L.P. (by James R. Hubbard)
For Defendants Saks & Company, Saks Fifth Avenue, Inc., and Saks Inc.
K & L Gates, LLP (by Michael Gordon)
Carol Robinson Edmead, J.
MEMORANDUM DECISION
Plaintiff, a former employee of a New York Saks Fifth Avenue department store, commenced this action for, inter alia, malicious prosecution, false imprisonment, slander and breach of contract, after she was accused of falsifying business records and misappropriating large sums of the employer's money under the guise of various customer discounts and refunds. The action was previously stayed pending the outcome of the related criminal proceeding, as a result of which plaintiff was convicted of grand larceny in the third degree (New York Penal Law [PL] §155.35) and falsifying business records in the first degree (PL §175.10), and sentenced to 90 days in prison and 100 hours of community service, five years probation and a $96,000 fine.
Since plaintiff's criminal action has concluded and her conviction has been upheld on appeal, the stay is hereby lifted, and the court proceeds with the disposition of the long-dormant motion of defendants Saks Incorporated, Saks & Company and Saks Fifth Avenue, Inc. (collectively, "defendants" or "Saks"), pursuant to CPLR §3211 (a)(7), dismissing plaintiff's complaint for failure to state a cause of action and dismissing the fifth cause of action for breach of contract on an additional ground of CPLR §3211 (a)(1) (defense based on documentary evidence).
On September 28, 2010, the Appellate Division, First Department, affirmed plaintiff's March 9, 2009 felony convictions for grand larceny (1 count) and Falsifying Business Records (145 counts) (see People v Villacorta, 76 AD3d 911. 908 NYS2d 35 [1st Dept 2010]; and on December 14, 2010, the Court of Appeals denied plaintiff's motion for leave to appeal (see People v Villacorta, Slip Op No 2010 NY 99297[U]).
Background Facts
Plaintiff was employed by Saks's New York flagship store's fine jewelry department as a sales associate from September 1998 through January 2006, when her employment was terminated. Thereafter, defendants reported to the New York City Police Department (the "NYPD") that plaintiff falsified records and misappropriated in excess of $50,000 of Saks's funds. The New York County District Attorney (the "DA") filed a criminal complaint against her and plaintiff was indicted by a Grand Jury on 316 felony counts for the crimes of grand larceny in the first and third degrees and falsifying business records in the first degree.
After the indictment, plaintiff commenced this action against defendants, alleging 13 causes of action and seeking more than $10 million in damages.
Plaintiff alleges that defendants failed to pay her compensation from 2002 to 2006, refund $22,000 for certain returned merchandise and compensate her for unused vacation time, - all in breach of seven contracts attached to the complaint. Plaintiff also claims that defendants terminated her employment in order to avoid paying her compensation, including a fall 2005 bonus in the amount of approximately $100,000.
Plaintiff further alleges that defendants maliciously prosecuted and defamed her by making false accusations resulting in her arrest and criminal prosecution and stating to certain employees and vendors that she was terminated because of "creating a shortage for the company" and generating false sales to qualify for productivity bonuses. Plaintiff claims defendants made said statements with intent to damage her reputation.
Plaintiff also alleges claims for false imprisonment and intentional infliction of emotional distress, which also resulted in damage to her reputation, loss of earnings and special damages in the form of costs of her defense against the prosecution, and costs of criminal investigation and hospitalization as a result of her severe emotional distress.
Plaintiff's false imprisonment claim is entitled "False Imprisonment and Arrest."
Plaintiff's complaint also alleges two causes of action for promissory estoppel, breach of the implied covenant of good faith and fair dealing, quantum meruit, unjust enrichment and Labor Law §§191, 193 and 198, all based on defendants' alleged failure to pay salary, bonuses and other compensation to plaintiff.
Defendants now move for dismissal of plaintiff's complaint, arguing that none of the asserted causes of action are valid.
The first cause of action for malicious prosecution fails because defendants did not commence a criminal action against plaintiff, the action did not terminate in plaintiff's favor and the indictment and conviction established that probable cause existed.
Further, the second cause of action for false imprisonment should likewise be dismissed because defendants merely supplied the law enforcement authorities with information, and neither "affirmatively induced" the police officers to act, nor participated in plaintiff's arrest. Thus, plaintiff's allegations that "defendants intended to cause [p]laintiff to be arrested and imprisoned" and "made false accusations that led to [plaintiff]'s arrest" are baseless.
The third cause of action for intentional infliction of emotion distress does not allege the requisite "extreme and outrageous" conduct on the part of defendants, and is based on the allegations that defendants questioned plaintiff for four hours without cause (complaint, ¶¶ 6-8; 22-37), failed to pay "what was owed to her" and made false statements to the police resulting in her arrest. Since it is based on the same facts as the claims for malicious prosecution and false imprisonment, it should be dismissed.
The fourth cause of action for slander (entitled "Libel/Slander") is not viable because it is based on the accusations of criminal conduct which were true, as evidenced by plaintiff's conviction. And in any event, it is insufficiently pleaded because it does not specifically name the persons to whom the alleged defamatory statements were made, as required by CPLR §3016 (a), notwithstanding that the statements were made at the employee meeting to "outside vendors" or that "Saks" made defamatory statements to the NYPD.
Further, plaintiff's fifth, seventh and ninth causes of action (i.e., breach of contract claims) should be dismissed for failure to state a cause of action, pursuant to CPLR §3211 (a)(7), as plaintiff does not allege specific contractual provisions on which the claims are based, and the allegations in general, are vague and conclusory. In addition, the fifth cause of action should be dismissed pursuant to CPLR 3211§(a)(1) as controverted by the documentary evidence (Contracts 1 through 5).
Plaintiff's fifth cause of action for breach of contract is based on five documents: "Sales Associate Fact Sheet: Incentive Compensation Program," (Contract 1) and four letters from Saks's executives to plaintiff (Contracts 2, 3, 4, and 5).
With respect to Contracts 1 through 5, spanning over the period from 2002 to 2005, plaintiff does not allege that she was eligible under said contracts to receive bonuses, the enhanced weekly commissions, the cell phone or "special stock grants" (see Contracts 1- 5, exhibits A-F to complaint).
Further, in herseventh cause of action for breach of contract, plaintiff alleges that defendants failed to issue her a refund, pursuant to a contract and the "Saks policy" represented by the sales receipts, for the $22,000 merchandise, which she purchased and later returned to the defendants' store (Contract 6). However, plaintiff failed to attach copies of the sales receipts or allege specific terms of the "Saks policy" to her complaint (complaint, ¶¶ 124-127).
Defendants further argue that plaintiff's ninth cause of action for breach of contract alleging that defendants failed, upon termination, to compensate her $5,600 for unused vacation time (see Separation Agreement dated January 26, 2006, Contract 7, exhibit F), fails to allege the number of months or vacation days unused, or the amounts paid by Saks per vacation day.
Next, plaintiff's sixth and eighth causes of action for promissory estoppel are duplicative of the breach of contract claims and are insufficiently pleaded. And, since plaintiff alleges valid written contracts, she cannot recover on quasi-contractual theory. Thus, plaintiff's allegations in her sixth cause of action that Contracts 1 through 5 constitute "clear and definite promises" on which she relied (complaint ¶114-117), are duplicative of the fifth cause of action for breach of contract. Likewise, the eighth cause of action is duplicative of the seventh cause of action for breach of contract, alleging defendants' breach of the promise to issue a refund based on the sales receipts.
Plaintiff's tenth, twelfth and thirteenth causes of action are likewise duplicative of her breach of contract claims and are insufficiently pleaded. The tenth cause of action for breach of the implied covenant of good faith and fair dealing is merely a substitute for a nonviable fifth and ninth breach of contract claims. The twelfth cause of action for quantum meruit and the thirteenth cause of action for unjust enrichment are based on quasi-contractual theories and cannot be maintained because plaintiff alleges the existence of a valid written contract between the parties. Further, these claims are based on the same allegations and seek the same relief as sought in the breach of contract claims, and, they are precluded by the defense of "unclean hands."
Finally, defendants argue that plaintiff's eleventh cause of action for violation of Labor Law §§191, 193 and 198 should be dismissed as inadequately stated and duplicative of plaintiff's breach of contract claims. First, Labor Law §191 (1)(d) entitled "Frequency of payments," is inapplicable since plaintiff does not allege the lack of periodic payments to her. Further, the complaint contains no allegations to support a claim under Labor Law §193, which prohibits employers from making certain deductions from an employee's wages. And, Labor Law §198 is not a substantive provision, but provides for remedies available to a prevailing employee and cannot be maintained without a viable substantive claim under one of the sections of the statute. And in any event, plaintiff's Labor Law claims seek to recover the same purported unpaid salary, bonuses or other compensation as in her fifth and ninth causes of action for breach of contract.
Plaintiff opposes the dismissal and cross-moves to amend the fourth cause of action for libel and slander, by including the names of the persons present at the employee meeting where defendants allegedly made the defamatory statements, and the fifth cause of action for breach of contract, by including an additional contract, dated December 24, 1999, and entitled "Personal Progress Report."
Plaintiff also moved to stay this action pending the final determination of the appeal of the criminal action. Since the First Department affirmed the conviction and the Court of Appeals denied leave to appeal, this portion of the cross-motion is now moot.
As the court notes below, plaintiff also seeks to add to her Labor Law §191 claim for "unpaid salaries, bonuses and other compensations," the words "with the requisite frequency under New York Labor Law."
Plaintiff's main arguments against the dismissal of the claims for malicious prosecution, false imprisonment, negligent infliction of emotional distress and libel and slander are that defendants falsely accused her of committing larceny and wrongfully instituted a criminal action against her. And, because she was convicted of some, but not all charges, defendants' statements were false as to the charges that were dismissed (i.e., the charge of $1.44 million in "unauthorized credits" was dismissed).
Further, plaintiff contends that in her breach of contract claims she properly alleged the existence of the contracts, her performance and defendants' failure to perform according to the terms of the agreements.
Next, plaintiff's promissory estoppel, breach of the covenant of good faith and fair dealing, quantum meruit and unjust enrichment claims should not be dismissed because she can plead her causes of actions in the alternative, i.e., in the event the court finds the attached contracts to be invalid.
Finally, plaintiff's Labor Law claims should not be dismissed because defendants did not pay plaintiff at all, including, upon her termination, in violation of the timely payment requirements of Labor Law §191. Further, by refusing to pay a salary to plaintiff, defendants violated section 193, which prohibits deductions from employees' wages. And, since both above sections were violated, plaintiff is entitled to attorneys' fees pursuant to section 198. Plaintiff reiterates that in the event no valid contract has been established, the Labor Law claims are not duplicative of the breach of contract claims.
In reply, defendants argue that the complaint, even as amended, should be dismissed. The judgment of conviction established the truth of defendants' statements as to plaintiff's wrongdoings and, since plaintiff's criminal conviction proves that plaintiff has "unclean hands," the court should not consider her claims for equitable relief (quantum meruit and unjust enrichment).
Discussion
On a motion to dismiss pursuant to CPLR §3211 (a)(7), the pleading is to be afforded a liberal construction. The court must accept the allegations of the complaint as true and provide plaintiff the benefit of every possible favorable inference (AG Capital Funding Partners v State Street Bank and Trust Co., 5 NY3d 582, 591 [2005]). In determining a motion to dismiss, the Court's role is ordinarily limited to determining whether the complaint states a cause of action (Frank v DaimlerChrysler Corp., 292 AD2d 118, 741 NYS2d 9 [1st Dept 2002]). Thus, "[w]hether a plaintiff can ultimately establish its allegations, is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19, 799 NYS2d 170 [2005]).
Further, in order to prevail on a CPLR 3211(a)(1) motion ("a defense [ . . . ] founded on documentary evidence"), the moving party must show that the documentary evidence conclusively refutes plaintiff's allegations (AG Capital Funding Partners, at 590-591; Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326, 746 NYS2d 858 [2002]). Where documentary evidence flatly contradicts the factual claims, the entitlement to the presumption of truth and the favorable inferences is rebutted (Ullmann v Norma Kamali, Inc., 207 AD2d 691, 692, 616 NYS2d 583 [1st Dept 1994]).
For the reasons explained below, in light of plaintiff's criminal conviction, plaintiff's causes of action for malicious prosecution, false imprisonment, intentional infliction of emotional distress and libel and slander, based on falsity of defendants' statements and/or lack of probable cause, fail as a matter of law.
First Cause of Action for Malicious Prosecution
To state a cause of action for malicious prosecution, the plaintiff must allege (1) the commencement or continuation of a proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the [plaintiff], (3) the absence of probable cause for the proceeding, and (4) actual malice (Wilhelmina Models, Inc. v Fleisher, 19 AD3d 267, 797 NYS2d 83 [1st Dept 2005] citing Broughton v State of New York, 37 NY2d 451, 457, 373 NYS2d 87 [1975], cert. denied sub nom. Schanbarger v Kellogg, 423 US 929, 96 SCt 277 [1975]). An action brought with actual malice is one brought with "conscious falsity" (Wilhelmina Models, Inc. v Fleisher, 19 AD3d 267, supra). Furthermore, the plaintiff must allege that the underlying action was filed with "a purpose other than the adjudication of a claim," and that there was "an entire lack of probable cause in the prior proceeding" (Wilhelmina Models, Inc. v Fleisher, 19 AD3d 267, supra). A plaintiff must also allege (and prove) "special injury" (Id. citing Engel v CBS, Inc., 93 NY2d 195, 201, 689 NYS2d 411 [1999]). Failure to establish any one of these elements defeats the entire claim (Brown v Sears Roebuck & Co., 297 AD2d 205, 746 NYS2d 141 [1st Dept 2002]).
At this juncture, it is undisputed that the criminal proceeding against plaintiff did not terminate in her favor (see fn 1), since it is established that "[a] criminal defendant has not obtained a favorable termination of a criminal proceeding where the outcome is inconsistent with the innocence of the accused" (Martinez v Schenectady, 97 NY2d 78, 735 NYS2d 868 [2001]).
Further, the record likewise establishes the existence of a probable cause for defendants to provide the information of plaintiff's wrongdoings to the police (Brown v Sears Roebuck & Co., citing Colon v City of New York, 60 NY2d 78, 82, 468 NYS2d 453 [1983] ["Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in a similar situation to believe plaintiff guilty"]). And, "a conviction which survives appeal is conclusive evidence of probable cause" (Broughton v State of New York, 37 NY2d 451, 373 NYS2d 87 [1975]; see also Fink v Shawangunk Conservancy, Inc., 15 AD3d 754, 755, 790 NYS2d 249 [3d Dept 2005]).
Here, such probable cause was conclusively established by the criminal conviction as affirmed by the Appellate Division (see People v Villacorla, 76 AD3d 911, 908 NYS2d 35 [1st Dept 2010]; lv denied by People v Villacorta, Slip Op No 2010 NY 99297[U] [December 14, 2010).
It should be noted, that plaintiff's contention of falsity of the evidence supplied by defendants to the police, i.e., that, some of the information provided by defendants turned out to be not true, since at trial, out of 316 counts she was convicted only of 146, does not vitiate the existence of probable cause (see, Gisondi v Town of Harrison, 72 NY2d 280, 285, 532 NYS2d 234 [existence of conflicting evidence during investigation does not negate finding of probable cause, although relevant to the issue of guilt beyond a reasonable doubt at trial]). Therefore, the existence of probable cause bars plaintiff's cause of action for malicious prosecution (Grieco v Nassau County Police Dept, supra, citing, Broughton v State of New York, 37 NY2d 451, 373 NYS2d 87 [1975], cert. denied 423 US 929, 96 SCt 277 [1975]), warranting dismissal of this cause of action.
While plaintiff's malicious prosecution claim fails for insufficiency of the allegations of "termination in her favor" and "probable cause" elements, plaintiff likewise failed to sufficiently allege that defendants "commenced" the criminal action against her, with "actual malice" and she suffered special damages. To allege special damages, some concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit' must be asserted" (Engel v CBS, Inc., 93 NY2d 195, 689 NYS2d 411 [1999]; Kaye v Trump, 58 AD3d 579, 873 NYS2d 5 [1st Dept 2009]). Here, plaintiff's allegations of special damages "in the form of the cost of defense of the malicious prosecution alleged, including investigation costs" (see complaint, ¶82), are insufficient to assert a claim for special damages (see Engel, supra [allegations of the costs in defending a lawsuit are insufficient to assert a claim of special damages]).
The Second Cause of Action for False Imprisonment and Arrest
A plaintiff pursuing a common-law claim of false imprisonment or false arrest under New York law, must allege that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged (i.e., the arrest was illegal) (Broughton v State of New York, 37 NY2d 451, supra).
Here, it is undisputed that plaintiff was arrested and detained by the NYPD officers, and not by employees of defendants, and that defendants did not actually confine her (Broughton v State of New York, supra, at 456 ["confinement arises when a person unlawfully obstructs or deprives another of his freedom to choose his own location"]).
Furthermore, "it is well settled in New York's jurisprudence that a civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest'" (Du Chateau v Metro-North Commuter R.R. Co., 253 AD2d 128, 131 [1999]; see also Courtman v Hudson Val. Bank, 37 AD3d 181 [2007]; Cobb v Willis, 208 AD2d 1155, 617 NYS2d 601[3d Dept 1994][based upon a civilian complaint, the complainant is not liable in civil liability for false arrest unless he affirmatively induces the police officer to act]). And even where a defendant allegedly provides incorrect or incomplete information to the law enforcement, a successful false arrest claim requires allegations that the private defendant "affirmatively induced or importuned the officer to arrest" plaintiff (LoFaso v City of New York, 66 AD3d 425, 426 [1st Dept 2009]).
Under the circumstances, plaintiff's conclusory allegations that, "as a result of Defendants' actions, Plaintiff was arrested and imprisoned" and "Defendants intended to cause Plaintiff to be imprisoned," are insufficient to state the cause of action for false imprisonment against defendants, warranting dismissal of this claim.
The Third Cause of Action for Intentional Infliction of Emotional Distress
In order to state a cause of action for intentional infliction of emotional distress, plaintiff must allege the following: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and injury; and (4) severe emotional distress (Graupner v Roth, 293 AD2d 408 [1st Dept 2002], citing Howell v New York Post Co., 81 NY2d 115, 121 [1993]). The conduct complained of must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community" (Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983]; Fischer v Maloney, 43 NY2d 553, 557 [1978]; Du Chateau v Metro-North Commuter R.R. Co., 253 AD2d 128, 131 [1st Dept 1999]).
In Kaye v Trump (58 AD3d 579, 873 NYS2d 5 [1st Dept 2009]), the court upheld the dismissal of the plaintiff's claim for intentional infliction of emotional distress alleging that defendants made rude remarks to plaintiff, commenced two baseless lawsuits, filed a criminal complaint against her, and frightened her and her daughter by attempting to instigate her arrest. The court explained that "[t]his conduct, while not to be condoned, is not so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." The facts alleged by plaintiff regarding the manner of her termination likewise fall far short of the strict standard necessary for a claim for intentional emotional distress.
Moreover, the allegations, as here, of instigation of a criminal investigation and providing false information to the police do not rise to the level of outrageous conduct (Akpinar v Moran, 2011 WL 1311902 [1st Dept 2011][statements in a newspaper article about a pending criminal investigation into a mortgage fraud and a civil lawsuit in connection with the fraud, in which plaintiff was named as a defendant are not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency"]; Slatkin v Lancer Litho Packaging Corp., 33 AD3d 421, 422 [1st Dept 2006][threatening his arrest and criminal prosecution; instigation of the individual plaintiff's arrest by means of false statements to the police concerning plaintiffs' indebtedness to defendants held not so outrageous as to be utterly intolerable]; LoFaso v City of New York, 66 AD3d 425, supra; Kaye v Trump, 58 AD3d 579, 873 NYS2d 5 [1st Dept 2009]; Brown v Sears Roebuck & Co., supra [dismissing intentional emotional distress claim where plaintiff's allegations that defendant store's manager gave false information to the police about plaintiff's unauthorized use of a customer's credit card did not rise to outrageous conduct]).
Here, plaintiff's allegations that "defendants' wrongful institution of the Criminal Action and other wrongful actions directed against Ms. Villacorta, after she had been one of its best employees for years," and that they "initiated an unannounced interrogation" which "lasted four hours," failed to pay "what was owed to her" and made false statements to the police resulting in her arrest, fail to constitute conduct that is "so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency" (Kaye v Trump). Thus, since such allegations are insufficient to satisfy the requisite element of egregious or outrageous conduct on the part of defendants, the dismissal of plaintiff's emotional distress claim is warranted (Du Chateau v Metro-North Commuter R.R. Co., 253 AD2d 128, 131 [1999]).
The Fourth Cause of Action for Libel and Slander
The court notes that both terms -"slander," i.e., oral defamatory statements and "libel," i.e., written defamatory statements, - are encompassed in the term of "defamation." While plaintiff's fourth cause of action is entitled "Libel and Slander," the allegations in the complaint sound solely in slander, i.e., oral defamatory statements.
The elements of a defamation claim (including, slander) are (1) a false statement; (2) published without privilege or authorization to a third party; (3) constituting fault as judged by, at a minimum, a negligence standard, and (4) either causing special harm or constituting defamation per se (Dillon v City of New York, 261 AD2d 34, 704 NYS2d 1 [1st Dept 1999], citing Restatement of Torts (Second) §558). "Slander per se" includes, inter alia, "statements charging plaintiff with a serious crime" (Cusimano v United Health Services Hospitals, Inc., 30 Misc 3d 1229 (A), 2011 WL 709463 [ Sup Ct, Broome County 2011], citing Liberman v Gelstein, 80 NY2d 429, 435 [1992]).
"[A] slander claim that does not allege special damages, [ . . . ] is not sustainable unless it falls within one of "[t]he four established exceptions (collectively slander per se') [ . . . ] of statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a women [citations omitted]" (see Cusimano v United Health Services Hospitals, Inc., 30 Misc 3d 1229, citing Liberman v Gelstein, 80 NY2d 429).
Furthermore, CPLR §3016 (a) requires that, in a defamation action, "the particular words complained of [ . . . ] be set forth in the complaint," and the complaint must also allege the time, place, manner and the recipient of the false statement (Dillon, citing Arsenault v Forquer, 197 AD2d 554, 602 NYS2d 653 [2d Dept 1993]).
Most importantly, "[t]ruth provides a complete defense to defamation claims (Dillon, citing Rinaldi v Holt, Rinehart, & Winston, Inc., 42 NY2d 369, 379, 397 NYS2d 943 [1977], cert. denied 434 US 969, 98 SCt 514 [1977]).
Here, plaintiff alleges that defendants, "through Terri Gakos, Vice President of Merchandising at Saks," made false and defamatory statements to attendees of the employee meeting, in the presence of certain outside vendors, that "Cecille Villacorta was terminated for violating company policies that resulted in [ . . . ] creation of shortage for the company and the generation of productivity bonuses [to] which she was not entitled," and that she "stole property in excess of $50,000," made certain fictitious entries of returned merchandise into defendants' computer system, caused improper credits to customers' credit card accounts and received approximately $16,000 in commissions to which she was not entitled (complaint, ¶¶ 44-63; 96-102).
As demonstrated by plaintiff's criminal conviction of grand larceny in the third degree and falsifying business records in the first degree, upheld on appeal, defendants' statements made at the employee meeting and to the police that plaintiff "stole its property" and improperly issued credits for factitious returns, were substantially true, and thus, protected by a complete defense of truth (see Dillon, supra; Cahill v County of Nassau, 17 AD3d 497, 793 NYS2d 190 [2d Dept 2005]; Mitchell v Herald Co., 137 AD2d 213, 529 NYS2d 602 [4th Dept 1988][libel plaintiff's subsequent conviction of criminal charges, arising out of assault and resisting arrest incident, demonstrated that police reports of incidents on which newspaper relied in printing story concerning it were true and foreclosed plaintiff's libel action on grounds of truth]).
Plaintiff's argument that, even though her conviction "tends to establish truth," she was acquitted on some of the charges, "including some alleged in Defendants' slanderous statements," is unavailing since, under New York law, "it is not necessary to demonstrate complete accuracy to defeat a charge of libel. It is only necessary that the gist or substance of the challenged statements be true" (Jewell v NYP Holdings, Inc., 23 FSupp2d 348 [SDNY 1998], citing Printers II, Inc. v Professionals Publishing, Inc., 784 F 2d 141, 146 [2d Cir1986]; see also Korkala v W.W. Norton & Co., 618 FSupp 152, 155 [SDNY1985]). And in any event, plaintiff fails to allege, as required by CPLR §3016 [a], the specific statements made by defendants with the respect to the charges on which she was acquitted, or when and to whom they were made.
Plaintiff s proposed amended complaint includes a new post criminal trial factual allegation, that she was "acquitted of the major charge of issuing "unauthorized credits of $1.44 million and convicted of only certain lesser charges." Under the circumstances, this allegation is immaterial at this juncture. As such, leave to amend this allegation is denied.
In light of the above, and in the absence of any allegations of libel, i.e., written defamatory statements, plaintiff's claim for libel and slander is dismissed.
The Fifth, the Seventh and the Ninth Causes of Action:
Breach of Contract
To state a cause of action for breach of contract, the proponent of the pleading must specify the making of an agreement, the performance by that party, breach by the other party, and resulting damages (Volt Delta Resources LLC v Soleo Communications Inc., 11 Misc 3d 1071, 816 NYS2d 702 [Supreme Court New York County 2006], citing Furia v Furia, 116 AD2d 694, 695 [2d Dept 1986]). Furthermore, a complaint alleging breach of contract must set forth the terms of the agreement upon which liability is predicated by making specific reference to the relevant portions of the contract, or by attaching a copy of the contract to the complaint (Kraus v Visa Intl. Serv Assn., 304 AD2d 408 [1st Dept 2003]; Matter of Sud v Sud, 211 AD2d 423, 621 NYS2d 37 [1st Dept 1995]).
Fifth Cause of Action for Breach of Contract (Based on Contracts 1- 5)
At the outset, even assuming that the controlling documents submitted in support of the fifth cause of action (exhibits A - E) place a duty on defendants to pay compensation to plaintiff, under particular circumstances of this case, the court is compelled to consider matters of public policy, rather than "woodenly" apply the standard of the motion to dismiss.
For the reasons explained below, the court holds that plaintiff's fifth cause of action for breach of contract, based on the alleged Contracts 1 through 5, is barred as a matter of public policy.
"It is a basic principle recognized by the courts throughout this country that no person shall be permitted to take advantage of his own wrongdoing by predicating a legal or equitable claim upon his fraudulent, immoral or illegal conduct (Barker v Kallash, 63 NY2d 19, 479 NYS2d 201 [1984];1 AmJur2d, Actions, §§ 51, 52; 1 CJS, Actions, § 13.)
New York's policy has been frequently and emphatically announced in its highest court's decisions, as described in Riggs v Palmer (115 NY 506, 511-512, 22 NE 188, 190 [1889]): "No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes" (McConnell v Commonwealth Pictures Corp, citing Carr v Hoy, 2 NY2d 185, 187, 158 NYS2d 572, 574-575 [1957]).
Moreover, "even where a contract is not itself unlawful, the bargain may still be illegal under New York law if it is closely connected with an unlawful act (Contemporary Mission, Inc. v Bonded Mailings, Inc., 671 F 2d 81 [2d Cir.1982], citing McConnell v Commonwealth Pictures Corp., 7 NY2d 465, 471, 199 NYS2d 483 [1960][a plaintiff, who entered into a valid contract with defendants to buy a motion picture rights for defendant but performed his covenant by bribing the seller's agent, could not recover the fruits of his crime - i.e., the promised share of defendant's gross receipts from distribution of pictures stemming from the rights plaintiff had procured by bribing a representative of the producer]; see also FCI Group, Inc. v City of New York, 54 AD3d 171, 862 NYS2d 352 [1st Dept 2008], citing Prote Contr. Co. v Board of Educ. of City of NY, 230 AD2d 32, 40, 657 NYS2d 158 [1997][contracts, although legal in their inducement and capable of being performed in a legal manner, which have nonetheless been performed in an illegal manner, will not be enforced]). And, as the Court of Appeals held, "[c]onsistent with public morality and settled public policy, we hold that a party will be denied recovery even on a contract valid on its face, if it appears that he has resorted to gravely immoral and illegal conduct in accomplishing its performance" (see McConnell v Commonwealth Pictures Corp., supra).
This is not a simple breach of contract claim, as plaintiff seeks, in legal effect, the aid of the court to enforce a contract for payment of the compensation, which, as demonstrated by her criminal conviction, was based on the falsely inflated "net sales" numbers.
The record demonstrates that plaintiff was convicted of falsifying business records and grand larceny of $48,000 (Indictment No. 3313/06)(see the sentencing hearing transcript, July 6, 2009, exhibit A to defendants' reply).
Plaintiff claims that, pursuant to Contracts 2 through 5, she was entitled to bonuses, enhanced weekly commissions and special stock grants based on her "outstanding performance" in achieving the "million dollar milestones" in sales (exhibits B, C, D, E). For example, according to Contract 2, plaintiff's 2002 net sales were $1,241,170, which would entitle her to a Sprint Cell Phone, additional 0.5% commissions upon each $500,000 in sales and 10,000 Bonus Points, with additional 1,000 Bonus Points for each $100,000 over $1 million in sales (Exhibit B to complaint). Similarly, according to Contract 5, in 2005, plaintiff's net sales were $2,467,467, which would entitle her to special stock grants (exhibit E to complaint).
As to Contract 1, had the court analyzed this cause of action under the ordinary standard of motion to dismiss, it would hold that Contract 1 is too indefinite to constitute a valid contract as it contains no indication that defendants agreed to pay any compensation to plaintiff.
However, as the record reveals, these "outstanding" figures in net sales were improperly inflated as plaintiff issued fraudulent credits, returns and discounts, processing them under other sales associates' ID numbers, in order to conceal those refunds and obtain financial rewards for larger sales. Such conduct in falsifying of business records is "the illegality [ . . .] central to or a dominant part of the plaintiff's whole course of conduct in performance of the contract" (McConnell, supra), and indeed, an integral part of the contracts on which plaintiff is suing. Thus, to allow this plaintiff to sue on Contracts 1 - 5 for her commissions, bonuses and other benefits of enhanced compensation, would simply be to let her "profit by her own fraud, or to take advantage of her own wrong" and "recover the fruits of her crime" (McConnell v Commonwealth Pictures Corp., citing Riggs v Palmer). In sum, since plaintiff's illegal conduct in falsifying the records to obtain larger financial compensation was inextricably connected with the contested question of defendants' performance under the Contracts 1-5, her recovery thereunder is barred as a matter of public policy (FCI Group, Inc. v City of New York).
Therefore, in the interest of justice and on the ground of public policy, the fifth cause of action for breach of contract is dismissed.
Seventh and Ninth Causes of Action for Breach of Contract (Based on Contracts 6 and 7)
Further, "[I]f the contract is merely collaterally rather than directly connected with the illegal act, the contract is valid" (Contemporary Mission, Inc. v Bonded Mailings, Inc., 671 F 2d 81, 83, citing McConnell v Commonwealth Pictures Corp., 7 NY2d 465, 471; see FCI Group, Inc. v City of New York).
Here, there is no indication that the contract to issue a refund for the returned merchandise (Contract 6) and the contract to pay for unused vacation time (Contract7) were connected to plaintiff's illegal activity as described above. Consequently, the court determines under the standard of CPLR 3211 (a)(7), whether plaintiff states a cause of action for breach of contract (Frank v DaimlerChrysler Corp., 292 AD2d 118, 741 NYS2d 9 [1st Dept 2002]).
The seventh cause of action, based on Contract 6, alleges the essential terms of the contract, i.e., the date of purchase (December 25, 2005), the amount paid by using Saks credit account ($22,000), the approximate date of return (2006), the amount paid out of pocket ($4,000), on the basis of which the balance owed can be easily calculated (see Cobble Hill Nursing Home, Inc. v Henry and Warren Corp., 74 NY2d 475, 548 NYS2d 920 [1989][price term is not necessarily indefinite because the agreement fails to specify a dollar figure, or leaves fixing the amount for the future]; see also 1 Williston, Contracts § 47, at 153-156 [3d ed. 1957]).
The proposed amended complaint states a different amount ($5,500) paid by plaintiff.
Contrary to defendants' contentions, even though plaintiff does not attach the sales receipt or the copy of the "Saks policy" (complaint, ¶¶ 124-127), such allegations sufficiently state the making of the agreement, the performance by plaintiff, and defendants' breach by failing to pay the refund on the balance of the purchase price (Volt Delta Resources LLC v Soleo Communications Inc., 11 Misc 3d 1071; Sud v Sud, 211 AD2d 423, supra).
Similarly, in the ninth cause of action, based on Contract 7 (the Separation Agreement, exhibit F to complaint), plaintiff alleges that at the time of termination, defendants failed to pay her $5,500 for her accrued but unused vacation time. The document, entitled "Associate Separation Confirmation Document," signed by defendants' HR representative Debra McRae, states the date of plaintiff's termination of employment, and that, inter alia, "any remaining earned vacation balances will be paid on [plaintiff's] final paycheck." Thus, the contract specifies that the amount of compensation owed is to be ascertained from the number of the remaining unused vacation days. Such allegations sufficiently set forth the terms of the agreement upon which liability is predicated (Kraus v Visa Intl. Serv Assn., 304 AD2d 408; Matter of Sud v Sud, 211 AD2d 423, supra).
Therefore, at this pleading stage, where the court's determination is directed solely to the pleading and not to the merits of the complaint, the court declines to dismiss the seventh and ninth causes of action. Accordingly, the respective portions of defendants' motion dismissing the seventh cause and the ninth causes of action are denied.
The Sixth Cause of Action for Promissory Estoppel
To maintain a viable cause of action sounding in promissory estoppel, a plaintiff must allege (1) a clear and unambiguous promise, (2) reasonable reliance by the promisee, and (3) an injury sustained in reliance on the promise (Brown v Brown, 12 AD3d 176 [1st Dept 2004]).
In her sixth cause of action for promissory estoppel plaintiff alleges that Contracts 1 through 5 are "definite and clear promise," which defendants failed to fulfill. However, as discussed previously, plaintiff's right to recovery based on said contracts, fails on public policy grounds. Therefore, plaintiff's sixth cause of action for promissory estoppel likewise fails and this portion of defendants' motion is granted.
The Eighth Cause of Action for Promissory Estoppel
The eighth cause of action for promissory estoppel adequately alleges a clear and unambiguous promise of defendants to issue a refund in the event a merchandise is returned to the store, that could give rise to reasonable detrimental reliance (Emigrant Bank v UBS Real Estate Securities, Inc., 49 AD3d 382, 854 NYS2d 39 [1st Dept 2008]; see Esquire Radio & Elecs. v Montgomery Ward & Co., 804 F.2d 787, 793 [2d Cir 1986]).
Although at the trial, plaintiff will be required to prove the specific detail of each of the elements of this cause of action (see Swerdloff v Mobil Oil Corp., 74 AD2d 258, 263, 427 NYS2d 266 [2d Dept 1980]), no such detailed showing is required to survive a motion to dismiss pursuant to CPLR §3211 (a)(7). Thus, at this stage of the proceedings, accepting plaintiff's allegations as true (see Sanders v Winship, 57 NY2d 391, 394, 456 NYS2d 720 [1982]), and providing plaintiff the benefit of every possible favorable inference (AG Capital Funding Partners v State Street Bank and Trust Co., 5 NY3d 582, 591 [2005]), the court holds that the eighth cause of action for promissory estoppel is adequately pleaded.
The Tenth Cause of Action for an Implied Covenant of Good Faith and Fair Dealing
It is axiomatic that all contracts imply a covenant of good faith and fair dealing in the course of performance (Forman v Guardian Life Ins. Co. of America, 76 AD3d 886, 908 NYS2d 27 511 [1st Dept 2010], citing W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 153, 746 NYS2d 131 [2002]), which "embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract'" (id., quoting Dalton v Educational Testing Serv., 87 NY2d 384, 389, 639 NYS2d 977 [1995], quoting Kirke La Shelle Co. v Armstrong Co., 263 NY 79, 87, 188 NE 163 [1933]).
A breach of an implied covenant of good faith and fair dealing claim that is duplicative of a breach of contract claim must be dismissed (New York University v Continental Ins. Co., 87 NY2d 308, 319-320, 639 NYS2d 283 [1995]). In this regard, a good faith claim is redundant if it merely pleads that defendant did not act in good faith in performing its contractual obligations (see Amcan Holdings, Inc. v Canadian Imperial Bank of Commerce, 70 AD3d 423, 894 NYS2d 47, 49-50 [1st Dept 2010][dismissing a good faith and fair dealing claim because it arose from the same facts as the breach of contract claim]).
Here, plaintiff's allegations that defendants failed to pay her compensation pursuant to Contracts 1- 5 fail as indicated above, on public policy grounds. Further, the allegations of defendants' failure to pay under Contract 6 and 7 are duplicative of the same allegations in her seventh and ninth causes of action for breach of contract as plaintiff merely pleads that defendant did not act in good faith in performing its contractual obligations (supra). Therefore, the tenth cause of action of a covenant of good faith is dismissed.
The Twelfth Cause of Action for Quantum Meruit
In order to make out a claim in quantum meruit, a plaintiff must allege (1) the performance of the services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services (Smalley v Dreyfus Corp., 40 AD3d 99, 832 NYS2d 157 [1st Dept 2007]).
Further, "the existence of a valid and enforceable contract governing a particular subject matter ordinarily precludes recovery in quasi-contract for events arising out of the same subject matter (Clark-Fitzpatrick, Inc. v Long Is. RR. Co., 70 NY2d 382, 388 [1987]). And only "where there is a bona fide dispute as to the existence of a contract or where the contract does not cover the dispute in issue, plaintiff may proceed upon a theory of quantum meruit and will not be required to elect his or her remedies" (American Tel. & Util. Consultants v Beth Israel Med. Ctr.
307 AD2d 834, 763 NYS2d 466 [1st Dept 2003], citing Joseph Sternberg, Inc. v Walber, 36th St. Assoc., 187 AD2d 225, 228 [1st Dept 1993]; see Frank v Sobel, 38 AD3d 229, 831 NYS2d 151 [1st Dept 2007]).
Here, the first element of plaintiff's claim, i.e., that she "performed of her services in good faith" fails as a matter of law. First, as stated above, plaintiff's allegations of "faithful" services from 2002 through 2006 for which defendants failed to pay her compensation, including bonuses and commissions, are precluded by the considerations of public policy, precluding recovery of "the fruits of [her] crime" (McConnell v Commonwealth Pictures Corp., citing Riggs v Palmer). Second, plaintiff's claim is barred by the doctrine of "unclean hands," which precludes recovery to a litigant "who is guilty of inequitable conduct with respect to the subject matter of the transaction in suit" (Williams v Stallone, 28 Misc 3d 738, 905 NYS2d 740 [Sup Ct New York County 2010], citing Levy v Braverman, 24 AD2d 430, 260 NYS2d 681 [1st Dept 1965]; Tyco Intern., Ltd v Kozlowski, 2010 WL 4903201 [SDNY 2010]).
In Tyco, the plaintiff, an executive who pilfered the company's treasury of millions of dollars over several years and was convicted of, inter alia, grand larceny and falsifying business records, sought damages and equitable relief based on the company's failure to pay compensation allegedly owed to him under certain compensation plans. The court dismissed the plaintiff's claims explaining that he came to the court with unclean hands (Tyco Intern., Ltd v Kozlowski, 2010 WL 4903201).
Similarly, here, plaintiff has dealt unjustly in the very transaction of which she complains - payments based on the falsified business records, and thus, is not entitled to recover based on quantum meruit.
Further, plaintiff's claim that defendants failed to issue her a refund for the returned merchandise, is not a claim for the performance of any services and thus, likewise fails.
Finally, plaintiff's claim for failure to pay for the unused vacation time, based on the Separation Agreement (Contract 7), is likewise unwarranted. Since "where there is an express contract, no recovery can be had on a theory of implied contract [ . . .] without in some manner removing the express contract from the picture in the normal fashion (rescission, abandonment, etc.) it is not possible to ignore it and proceed in quantum meruit" (Wilmoth v Sandor, 259 AD2d 252, 686 NYS2d 388 [1st Dept 1999]). Here, defendants do not dispute that the contract exists, but rather, argue that it does not expressly state the compensation owed, the number of months of service or vacation days unused. All of these facts pertaining to damages, can be ascertained during discovery or trial.
Thus, this portion of defendants' motion is granted and the cause of action for quantum meruit is dismissed.
The Thirteenth Cause of Action for Unjust Enrichment
To state a cause of action for unjust enrichment, a plaintiff must plead that he or she conferred a benefit upon defendants and that defendants obtained that benefit without adequately compensating plaintiff. Further, plaintiffs must plead that defendants "have reaped the benefit, and equity and good conscience require restitution" (Korff v Corbett, 10 AD3d 248 [1st Dept 2005]).
To the extent that plaintiff alleges that defendants "received the benefit of [plaintiff's] services and were thereby enriched," plaintiff's equitable claim for unjust enrichment is likewise barred on the ground of public policy and the defense of unclean hands.
With respect to compensation, including commissions, bonuses and other incentives, plaintiff "did not come to court with clean hands regarding the subject matter of this litigation and thus, may not obtain equitable relief" (Melius v Breslin, 46 AD3d 524, 846 NYS2d 645 [2d Dept 2007]; Lago v 87-10 51st Ave. Owners Corp., 301 AD2d 527, 753 NYS2d 733 [2d Dept 2003]).
As to the part of plaintiff's claim based on unpaid vacation, it is well established that "plaintiff cannot recover for unjust enrichment while simultaneously alleging the existence of an express contract covering the same subject matter" (MJM Adv. v Panasonic Indus. Co., 294 AD2d 265 [1st Dept 2002]). And even though "there is a dispute as to the terms of [the agreement], it is undisputed that the parties had an agreement that covered the [payment] sought, and thus, there is no dispute as to the existence or application of a contract" (Wilmoth v Sandor, 259 AD2d 254 [1st Dept 1999]). Thus, this cause if action is likewise dismissed.
The Eleventh Cause of Action: Labor Law §§191, 193, 198 .
Labor Law §191, entitled "Frequency of payments," provides that a worker shall be paid wages in accordance with the agreed terms of employment, but no less frequently than semi-monthly and, "if employment is terminated, the employer shall pay the wages no later than a regular pay day for the pay period during which the termination occurred."
Plaintiff is an "employee" or "worker", and defendants are an "employer" within the meaning of Labor Law §190 ("Definitions").
Labor Law §190 states in relevant parts:
"Employee" means any person employed for hire by an employer in any employment.
"Employer" includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service.
"Wages" means the earnings of an employee for labor or services rendered, regardless of whether the amount of earnings is determined on a time, piece, commission or other basis. The term "wages" also includes benefits or wage supplements as defined in section one hundred ninety-eight-c of this article.
Labor Law §198-c provides:
As used in this section, the term "benefits or wage supplements" includes, but is not limited to, reimbursement for expenses; health, welfare and retirement benefits; and vacation, separation or holiday pay."
Further, Labor Law §193 prohibits "deductions from the wages of an employee" except deductions "which are made in accordance with the provisions of any law or any rule or regulation issued by any governmental agency."
Labor Law §193 states in pertinent part:
"No employer shall make any deduction from the wages of an employee, except deductions which:
a. are made in accordance with the provisions of any law or any rule or regulation issued by any governmental agency; or
b. are expressly authorized in writing by the employee."
Here, plaintiff's eleventh cause of action contains no factual allegations of "frequency of payment violation" under Labor Law §191. And in any event, plaintiff cites no case law, and the court has uncovered none, in support of her argument that "an employer that does not make payments at all [ . . . ] is violating the statutory obligation" of periodic payments under Labor Law §191.
Furthermore, inasmuch as here, the alleged violations of both §191 and §193 are based on non-payments of the "salary, bonuses and other compensation for the years 2002 through 2006," the amount of which, as plaintiff alleges, were governed by Contracts 1-5, suchclaims fail since, as state above, plaintiff cannot profit from her own wrongs (see Riggs v Palmer, 115 NY 506, 511-512 , supra; see Campbell v Thomas, 73 AD3d 103, 897 NYS2d 460 [2d Dept 2010] [holding that by defendant's deceptive conduct, defendant forfeited any rights that would flow from her marital relationship, including the statutory right she would otherwise have to an elective share of the decedent's estate"]).
Plaintiff's alleged contractually required bonuses, commissions and other compensation based on her achievements of the "million-dollar milestones" are considered "wages" within the contemplation of the statute (see NY Labor Law §190 (1); Fiorenti v Central Emergency Physicians, P.L.L.C., 187 Misc 2d 805, 723 NYS2d 851 [Sup Ct Nassau County 2001][a compensation scheme which is predicated upon an employee's personal productivity [ . . . ] is a contractual right of the employee and constitutes wages as defined in Labor Law §190 (1)]; see also Misek v Downstairs Cabaret Theatre, Inc., 28 Misc 3d 830, 906 NYS2d 439 [City Court of Rochester 2010]).
However, to a limited extent that plaintiff alleges that, in violation of Labor Law §191, defendants failed, upon termination, to timely pay her $5,600 for unused vacation time, plaintiff sufficiently states, for pleading purposes, a claim under Labor Law §191 (In re CIS Corp., 206 B.R. 680, 30 Bankr Ct Dec 718 [Bkrtcy SDNY 1997][unused vacation pay are "wages" within the definition of New York Labor Law § 198]; see Epifani v Johnson, 65 AD3d 224, 882 NYS2d 234 [2d Dept 2009]).
Thus, the dismissal of the portion of plaintiff's Labor Law claim based on section §191 is unwarranted at this time.
Finally, Labor Law §198 allows for the recovery of costs and attorneys' fees if an employee prevails on a wage claim made pursuant to one of the substantive provisions available for a prevailing employee (Gottlieb v Kenneth D. Laub & Co., 82 NY2d 457 [1993], rearg denied 83 NY2d 801 [1994]). Since here, a portion of plaintiff's Labor Law claim based on §191 survives the dismissal, her claim under Labor Law §198 likewise stands.
Labor Law § 198 (1-a) provides:
"In any action instituted upon a wage claim by an employee ... in which the employee prevails, the courtshall allow such employee reasonable attorney's fees and, upon a finding that the employer's failure to paythe wage required by this article was willful, an additional amount as liquidated damages equal totwenty-five percent of the total amount of the wages found to be due."
Plaintiff's Cross-Motion
As stated above, in light of the First Department's affirmance of the plaintiff's criminal conviction, the portion of plaintiff's cross-motion to stay pending the determination of the appeal of the criminal action is now moot.
Amending the Complaint
While a leave to amend a pleading should be "freely given" (CPLR 3025[b]) "as a matter of discretion in the absence of prejudice or surprise" (Eighth Ave. Garage Corp. v H.K.L. Realty Corp., 60 AD3d 404, 405 [1st Dept 2009]; Stroock & Stroock & Lavan v Beltramini, 157 AD2d 590, 591, 550 NYS2d 337 [1990]), since here, plaintiff seeks to add new factual allegations to her non-viable causes of action, i.e., the fourth cause of action for slander and the fifth cause of action for breach of contract, the proposed amendments are now moot and leave to amend is denied.
The court notes that plaintiff's proposed addition of the words "with the requisite frequency under New York Labor Law" to her Labor Law §191 claim is entirely conclusory and does not cure the pleading insufficiency of the claim. And, as previously noted, plaintiff's proposed new allegation, that she was "acquitted of the major charge of issuing "unauthorized credits of $1.44 million and convicted of only certain lesser charges," is immaterial at this juncture. As such, leave to include the above allegations is denied.
Conclusion
Based on the foregoing, it is hereby
ORDERED that the branches of the motion of the defendants Saks Incorporated, Saks & Company and Saks Fifth Avenue, Inc., pursuant to CPLR 3211 (a)(7) and (a)(1), dismissing plaintiff Cecille Villacorta's first cause of action for malicious prosecution, the second cause of action for false imprisonment and arrest, the third cause of action for intentional infliction of emotional distress, the fourth cause of action for libel and slander, the fifth cause of action for breach of contract, the sixth cause of action for promissory estoppel, the tenth cause of action for implied covenant of good faith and fair dealing, the portion of the eleventh cause of action solely as to claim under Labor Law §193, the twelfth cause of action for quantum meruit and the thirteenth cause of action for unjust enrichment, are granted and said claims are hereby severed and dismissed with prejudice. The motion is denied in all other respects. And it is further
ORDERED that plaintiff's cross-motion to amend the complaint and to stay the action pending the determination of the appeal of the criminal action is denied; and it is further
ORDERED that the parties shall appear for a discovery conference on May 24, 2011, 2:30 p.m. at Part 35, 60 Centre Street, New York, New York.
This constitutes the decision and order of the court.
________________________________
Hon. Carol Robinson Edmead, J.S.C.
In accordance with the accompanying Memorandum Decision, it is hereby
ORDERED that the branches of the motion of the defendants Saks Incorporated, Saks & Company and Saks Fifth Avenue, Inc., pursuant to CPLR 3211 (a)(7) and (a)(1), dismissing plaintiff Cecille Villacorta's first cause of action for malicious prosecution, the second cause of action for false imprisonment and arrest, the third cause of action for intentional infliction of emotional distress, the fourth cause of action for libel and slander, the fifth cause of action for breach of contract, the sixth cause of action for promissory estoppel, the tenth cause of action for implied covenant of good faith and fair dealing, the portion of the eleventh cause of action solely as to claim under Labor Law §193, the twelfth cause of action for quantum meruit and the thirteenth cause of action for unjust enrichment, are granted and said claims are hereby severed and dismissed with prejudice. The motion is denied in all other respects. And it is further
ORDERED that plaintiff's cross-motion to amend the complaint and to stay the action pending the determination of the appeal of the criminal action is denied; and it is further
ORDERED that the parties shall appear for a discovery conference on May 24, 2011, 2:30 p.m. at Part 35, 60 Centre Street, New York, New York.
This constitutes the decision and order of the court.