Weinstein v. City of New York

Full title: MARTIN WEINSTEIN, Plaintiff, v. THE CITY OF NEW YORK and THE NEW YORK CITY…

Court: Supreme Court of the State of New York, New York County

Date published: Nov 4, 2011

2011 N.Y. Slip Op. 32929 (N.Y. Sup. Ct. 2011)

Opinion

104823/11.

November 4, 2011.

DECISION/ORDER

CYNTHIA S. KERN, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:

Papers Numbered Notice of Motion and Affidavits Annexed............................ 1 Answering Affidavits............................................... 2 Cross-Motion and Affidavits Annexed................................ Answering Affidavits to Cross-Motion............................... Replying Affidavits................................................ 3 Exhibits........................................................... 4

Plaintiff commenced the instant action against defendants the City of New York (the "City") and the New York City Department of Education ("DOE") for prima facie tort, fraudulent inducement and defamation to recover damages he sustained when he was asked to resign from his job as a Superintendent of the Board of Education of the City School District of the City of New York and was later allegedly impeded from getting another job in the industry. The City and the DOE (the "defendants") now move pursuant to CPLR § 3211(a)(7) to dismiss plaintiff's complaint on the grounds that the City is not a proper party to this action and that plaintiff's complaint fails to state a cause of action. For the reasons set forth below, defendants' motion is granted.

The relevant facts are as follows. From August 2007 until June 30, 2010, plaintiff worked as the Superintendent for District 19 of the New York City Department of Education ("DOE") in Kings County, New York, as an at-will employee. In late October 2009, plaintiff was summoned to the Office of the Chancellor at 52 Chambers Street, New York, New York by Dr. Dorita Gibson, Supervising Senior Superintendent. At the meeting, plaintiff and Dr. Gibson discussed an exchange of e-mails plaintiff had with the former Chancellor of the DOE about the New York Yankees. The activity was allegedly frowned upon by other supervisors within the DOE and plaintiff was asked to sign a revocable letter of resignation and was encouraged to pursue another similarly paid position within the DOE.

During the second week in January 2010, plaintiff applied for a Network Leader's position at the same salary he had been receiving as a Superintendent. Around that same time, plaintiff reported to the Special Commissioner of Investigation that a BOE employee (the "offender") was pressuring other employees to purchase a book she had recently published. Shortly after plaintiff reported the offender's actions, plaintiff received a call from Executive Director Anthony Canelli requesting that plaintiff "pull his application" for the Network Leader position. Mr. Canelli informed plaintiff that due to the negative feedback he received from Chancellor Klein and Eric Nadelstern, he determined that plaintiff should not be working in a management role. Plaintiff responded that his reputation as a Superintendent was exemplary and that many principals were supporting his new role as Network Leader. In response, Mr. Canelli stated that plaintiff still had tenure as a principal, should he elect to remain with the DOE.

In the weeks that followed this exchange, plaintiff alleges that his office staff began behaving in an uncivil and discourteous manner toward him. During this time, plaintiff applied for several management-level positions within the DOE. Plaintiff alleges his applications were invariably received with great interest by department heads but in virtually every instance, he was informed that due to feedback from "above," he was not allowed to advance in the process. In late April 2010, plaintiff received an e-mail from Gina N. Martinez, Equal Opportunity Compliance Officer. Ms. Martinez indicated that one of plaintiff's employees made an allegation of sexual harassment against him. Ms. Martinez stated that a friend of the offender had accused plaintiff of suggesting that she participate in a menage a trois with three parents of students. Plaintiff, however, alleges that this allegation is completely false.

On June 16, 2010, plaintiff received an e-mail from Ms. Martinez informing him that the Office of Equal Opportunity ("OEO") had substantiated the allegation of sexual harassment made against him and that Dr. Gibson was asked to determine appropriate disciplinary action. At a June 25, 2010 meeting with Dr. Gibson, plaintiff was told that the Chancellor reviewed the OEO's report and that it was the decision of that office to have him terminated, or, in the alternative, have him sign an irrevocable letter of resignation, effective June 30, 2010. This letter was distinguishable from the prior resignation letter because it precluded plaintiff from taking any other position within the DOE. Plaintiff signed the resignation letter but he alleges he was pressured to do so during the meeting with the Chancellor. He also alleges that he was not given an opportunity to consult with an attorney or allowed time to consider his options.

Defendants' motion to dismiss plaintiff's complaint on the ground that the City is an improper party to this action is granted as the court finds that because the City and the DOE are separate legal entities, the City does not belong in the case. It is well-settled that "the Board of Education is not a department of the city of New York." Ragsdale v. Bd. of Educ., 282 N.Y. 323 (1940) (citing to Divisich v. Marshall, 281 N.Y. 170, 173 (1939). Moreover, the First Department has routinely dismissed claims against the City where the City and the DOE were both named as defendants because the City and the DOE are distinct legal entities. See Perez v. City of New York, 41 A.D.3d 378 (1^st Dept 2007) (holding that despite the 2002 amendments to the Education Law providing for greater mayoral control over the DOE, "the City and the Board remain separate legal entities," and thus, the City cannot be held liable for torts allegedly committed by the Board and its employees.) Therefore, the City is not a proper party to this action.

Defendants' motion to dismiss plaintiff's claim of prima facie tort must be granted as plaintiff is attempting to use a prima facie tort claim as a substitute for a wrongful termination lawsuit. In Murphy v. American Home Products, 58 N.Y.2d 293 (1983), the Court of Appeals declined to create a tort of "wrongful discharge" for at-will employees and refused to permit other torts, such as prima facie tort, to be used to circumvent this rule. Specifically, the Court held that in a case involving the exercise of an unrestricted right to discharge an employee, plaintiff cannot, by alleging that the sole reason for his termination was to harm him without justification, convert a wrongful discharge claim into a prima facie tort claim just by alleging malice.

Plaintiff's argument that his prima facie tort claim is not simply a wrongful discharge claim as he is also claiming that defendants prevented him from getting another job is without basis. To the extent that plaintiff is pleading a claim separate from a wrongful discharge claim, he is pleading a defamation claim — that the defendants made statements about him which have prevented him from getting another job in the industry. However, "[p]rima facie tort is designed to provide a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy. Curiano v. Suozzi, 63 N.Y.2d 113, 117 (1984). Thus, "[w]here . . . complete relief can be accorded under classical tort concepts, prima facie tort may not be pleaded side by side with the pleading of a conventional tort." Springer v. Viking Press, 90 A.D.2d 315, 318 (1^st Dept 1982). As complete relief can be accorded to plaintiff based on his claim that defamatory statements were made about him, his prima facie tort claim must fail. Thus, plaintiff's claim for prima facie tort must be dismissed.

Defendants' motion to dismiss plaintiff's claim of fraudulent inducement is also granted as plaintiff has not pled such claim with the requisite specificity. In order to state a claim for fraudulent inducement, "a plaintiff must assert the misrepresentation of a material fact, which was known by the defendant to be false and intended to be relied on when made, and that there was justifiable reliance and resulting injury." Braddock v. Braddock, 60 A.D.3d 84, 86 (1^st Dept 2009). Furthermore, elements of a fraud claim must be pled with specificity. See C.P.L.R. § 3016(b). In the instant action, plaintiff has not stated a claim for fraudulent inducement but merely alleges in conclusory terms that "defendants made knowing representations of present material fact to plaintiff intended to deceive him and which induced him to act upon the misrepresentation with resultant damages." Plaintiff has not asserted that defendants misrepresented a material fact which was known by defendants to be false and intended to be relied on when made. While plaintiff asserts that he was coerced into signing the resignation letter when defendants told him they would not impede his ability to obtain a new job in the industry, plaintiff has not asserted that defendants knew such a fact to be false and intended to deceive plaintiff regardless. Finally, plaintiff has not pled that his reliance on the statement made by defendants was what led to his injuries, a requirement when making out a claim for fraudulent inducement. It is clear that if plaintiff had not signed the resignation letter, he would have been terminated from the DOE anyway. Thus, plaintiff's claim of fraudulent inducement must be dismissed.

Finally, the court will not address the dismissal of plaintiff's claim of defamation as plaintiff withdrew said claim without prejudice at oral argument on this motion.

Accordingly, defendants' motion to dismiss plaintiff's complaint is granted. The Clerk is directed to dismiss the complaint in its entirety. This constitutes the decision and order of the court.