Summary
determining that "[t]he alleged statements that plaintiff was 'dangerous' and had 'chutzpah' are expressions of opinion"
Summary of this case from Alexander v. StrongOpinion
6482 Index 653621/16
05-08-2018
Gadi WOLBERG, Plaintiff–Respondent, v. IAI NORTH AMERICA, INC., et al., Defendants–Appellants.
Herrick, Feinstein LLP, New York (Michael Berengarten and Jared Newman of counsel), for appellants. Resiman, Rubeo, McClure & Altman, LLP, Hawthorne (Sharman T. Propp of counsel), for respondent.
Herrick, Feinstein LLP, New York (Michael Berengarten and Jared Newman of counsel), for appellants.
Resiman, Rubeo, McClure & Altman, LLP, Hawthorne (Sharman T. Propp of counsel), for respondent.
Sweeny, J.P., Renwick, Mazzarelli, Gesmer, Singh, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about November 27, 2017, which, insofar as appealed from, denied defendants' motion to dismiss the complaint as against Israel Aerospace Industries, Ltd. (IAI) for lack of personal jurisdiction and to dismiss the causes of action for breach of a non-disparagement clause and tortious interference with prospective business relations pursuant to CPLR 3211(a)(1) and (7), unanimously modified, on the law, to grant the motion as to IAI and as to the cause of action for tortious interference with prospective business relations, and otherwise affirmed, without costs.
Defendants established that IAI North America, Inc. (IAINA), which does business in the State of New York, is not a mere department of IAI, which operates primarily in Israel, and therefore that jurisdiction over IAINA is not jurisdiction over IAI (see Taca Intl. Airlines, S.A. v. Rolls–Royce of England, 15 N.Y.2d 97, 256 N.Y.S.2d 129, 204 N.E.2d 329 [1965] ). The key executive personnel of the subsidiary were not assigned to their positions by the foreign parent, the subsidiary trained its own personnel, the parent did not write and publish all of the sales literature used by the subsidiary, and the subsidiary prepared its own financial statements (cf. id. at 101–102, 256 N.Y.S.2d 129, 204 N.E.2d 329 ). Moreover, the factors mentioned in Volkswagenwerk AG. v. Beech Aircraft Corp., 751 F.2d 117 (2d Cir. 1984), which we have adopted (see e.g. FIA Leveraged Fund Ltd. v. Grant Thornton LLP, 150 A.D.3d 492, 493, 56 N.Y.S.3d 12 [1st Dept. 2017] ), do not show that IAI may be subjected to New York jurisdiction. While IAINA is a wholly owned subsidiary of IAI, common ownership is "intrinsic to the parent-subsidiary relationship and, by [itself], not determinative" ( Porter v. LSB Indus., 192 A.D.2d 205, 213–214, 600 N.Y.S.2d 867 [4th Dept. 1993] ). IAINA showed that it observed corporate formalities. Nothing in plaintiff's affirmation indicates that IAI interferes in the selection and assignment of IAINA's executive personnel, and the CEO of IAINA denied this. He also denied that IAI controlled IAINA's marketing and operational policies. Plaintiff claimed that IAI had control over the approval of IAINA's annual budget during the 11 years he worked at IAINA. However, this does not suffice (see id. at 210, 213–214, 600 N.Y.S.2d 867 ).
IAINA (the only remaining defendant in this case) contends that the cause of action for breach of a non-disparagement clause should be dismissed because, even if it made disparaging remarks about plaintiff (its former employee), the remarks were privileged. However, the common interest privilege it relies on—which is part of the law of defamation—does not apply to a claim for breach of a non-disparagement clause (see Arts4All, Ltd. v. Hancock, 25 A.D.3d 453, 454, 810 N.Y.S.2d 15 [1st Dept. 2006], lv dismissed 6 N.Y.3d 891, 817 N.Y.S.2d 625, 850 N.E.2d 672 [2006] ). The mere fact that the absolute witness privilege applies to a claim for breach of a non-disparagement clause (see Arts4All, Ltd. v. Hancock, 5 A.D.3d 106, 108, 773 N.Y.S.2d 348 [1st Dept. 2004] ) does not mean that the qualified common interest privilege also applies to such a claim. An absolute privilege protects a greater public interest than a qualified privilege (see Rosenberg v. MetLife, Inc., 8 N.Y.3d 359, 365, 834 N.Y.S.2d 494, 866 N.E.2d 439 [2007] ).
In any event, the common interest privilege defense would not dispose of the entire cause of action. While the privilege might apply to IAINA's statements to nonparty ELTA North America, Inc. (the subsidiary of IAINA that was going to hire plaintiff) (see Sborgi v. Green, 281 A.D.2d 230, 722 N.Y.S.2d 14 [1st Dept. 2001] ; Amato v. New York City Dept. of Parks & Recreation, 110 A.D.3d 439, 973 N.Y.S.2d 29 [1st Dept. 2013] ), IAINA failed to show that remarks made to vendors of IAI, IAINA, or their subsidiaries or divisions are covered by that privilege. Indeed, we have cautioned, "There ... is no general qualified privilege to issue ... a defamatory statement ... merely because it may serve to protect a business interest" ( Shenkman v. O'Malley, 2 A.D.2d 567, 577, 157 N.Y.S.2d 290 [1st Dept. 1956] [internal quotation marks omitted] ).
The complaint fails to state a claim for tortious interference with prospective business relations, because it does not sufficiently allege that IAINA "acted solely out of malice or used improper or illegal means that amounted to a crime or independent tort" ( Amaranth LLC v. J.P. Morgan Chase & Co., 71 A.D.3d 40, 47, 888 N.Y.S.2d 489 [1st Dept. 2009], lv dismissed in part, denied in part 14 N.Y.3d 736, 898 N.Y.S.2d 74, 925 N.E.2d 73 [2010] ), i.e., that it acted "for the sole purpose of inflicting intentional harm on plaintiff[ ]" ( Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190, 785 N.Y.S.2d 359, 818 N.E.2d 1100 [2004] [internal quotation marks omitted] ). IAINA showed that it had an economic self-interest (see id. ) in preventing ELTA (its wholly owned subsidiary) from paying plaintiff $4,000 a month for four days' work while IAINA was paying plaintiff a salary and benefits for no work (see generally Steiner Sports Mktg., Inc. v. Weinreb, 88 A.D.3d 482, 483, 930 N.Y.S.2d 186 [1st Dept. 2011] ).
The complaint also fails to allege improper or illegal means. While defamation would suffice (see Amaranth, 71 A.D.3d at 47, 888 N.Y.S.2d 489 ), the complaint fails to state a claim for defamation based on IAINA's statements to ELTA. The alleged statements that plaintiff was "dangerous" and had "chutzpah" are expressions of opinion (see Mann v. Abel, 10 N.Y.3d 271, 276, 856 N.Y.S.2d 31, 885 N.E.2d 884 [2008], cert denied 555 U.S. 1170, 129 S.Ct. 1315, 173 L.Ed.2d 584 [2009] ) or "[l]oose, figurative or hyperbolic statements" ( Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1 [1st Dept. 1999] ). The allegation that any of four named individuals made statements to another named individual and to "all IAINA employees" "in or about Spring 2016" or "in April or May 2016" is insufficiently specific (see e.g. Dillon, 261 A.D.2d at 38, 704 N.Y.S.2d 1 ; Simpson v. Village Voice, Inc., 2007 N.Y. Slip Op. 32532[U], *9–10, 2007 WL 2815376 [Sup. Ct., N.Y. County], affd 58 A.D.3d 421, 870 N.Y.S.2d 302 [1st Dept. 2009], lv denied 12 N.Y.3d 710, 2009 WL 1259138 [2009] ). IAINA's statements to ELTA are protected by the common interest privilege (see e.g. Miller v. Mount Sinai Med. Ctr., 288 A.D.2d 72, 733 N.Y.S.2d 26 [1st Dept. 2001] ).
Although the complaint does not contain a cause of action for tortious interference with contract, plaintiff contends that the cause of action for tortious interference with prospective business relations can be sustained as such a claim because the complaint alleges that he and ELTA had entered into an agreement. However, the only agreement mentioned in the complaint is an oral one for an indefinite term, which therefore was terminable at will and, "as such, contemplated prospective contractual relations only" and "cannot support a claim for tortious interference with an existing contract" (see Miller, 288 A.D.2d at 72, 733 N.Y.S.2d 26 ).