| Salvatore v Kumar |
| 2007 NY Slip Op 08435 [45 AD3d 560] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Irene Salvatore et al., Appellants-Respondents, v SanjayKumar et al., Respondents, and Kaye Scholer, LLP, et al.,Respondents-Appellants. |
—[*1] Pillsbury Winthrop Shaw Pittman, LLP, New York, N.Y. (E. Leo Milonas and Frederic A.Brodie of counsel), for respondents-appellants, and Kaye Scholer, LLP, New York, N.Y. (AaronRubinstein, Phillip A. Geraci, and Peter N. Keesler of counsel), respondent-appellant pro se, andfor respondent-appellant Jane W. Parver (one brief filed). Lynn & Gartner, LLP, Mineola, N.Y. (Kenneth L. Gartner and Dilworth Paxson, LLP[Lawrence G. McMichael and Laura E. Vendzules] of counsel), for respondent Sanjay Kumar. Farrell Fritz, P.C., Uniondale, N.Y. (John P. McEntee and David A. Scheffel of counsel), forrespondent Computer Associates International, Inc.
In an action, inter alia, to recover damages for wrongful termination of employment,defamation, and legal malpractice, (1) the plaintiffs appeal, as limited by their brief, from (a) so[*2]much of an order of the Supreme Court, Suffolk County(Emerson, J.), dated April 18, 2006, as granted the separate motions of the defendants SanjayKumar and Computer Associates International, Inc., to dismiss the complaint insofar as assertedagainst them pursuant to CPLR 3211 (a) (7), (b) so much of a judgment of the same court enteredJune 21, 2006, as, upon the order dated April 18, 2006, dismissed the complaint insofar asasserted against the defendants Sanjay Kumar and Computer Associates International, Inc., and(c) so much of an order of the same court dated January 3, 2007, as denied their motion for leaveto renew their opposition to the motions of the defendants Sanjay Kumar and ComputerAssociates International, Inc., to dismiss the complaint insofar as asserted against them pursuantto CPLR 3211 (a) (7), and (2) the defendants Kaye Scholer, LLP, and Jane W. Parvercross-appeal from (a) so much of the order dated April 18, 2006, as denied their motion todismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (7), and (b) somuch of the order of the same court dated January 3, 2007, as denied their motion for leave torenew and reargue their motion to dismiss the complaint insofar as asserted against thempursuant to CPLR 3211 (a) (7).
Ordered that the plaintiffs' appeal from the order dated April 18, 2006, is dismissed; and it isfurther,
Ordered that the appeal by the defendants Kaye Scholer, LLP, and Jane W. Parver from somuch of the order dated January 3, 2007, as denied that branch of their motion which was forleave to reargue is dismissed, as no appeal lies from an order denying reargument; and it isfurther,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that the order dated January 3, 2007 is modified, on the law, by deleting theprovision thereof denying that branch of the motion of the defendants Kaye Scholer, LLP, andJane W. Parver which was for leave to renew their motion to dismiss the complaint insofar asasserted against them pursuant to CPLR 3211 (a) (7), and substituting therefor a provisiongranting that branch of the motion, and upon renewal, granting the motion of the defendantsKaye Scholer, LLP, and Jane W. Parver to dismiss the complaint insofar as asserted againstthem; as so modified, the order dated January 3, 2007 is affirmed insofar as reviewed, and theorder dated April 18, 2006 is modified accordingly; and it is further,
Ordered that the cross appeal by the defendants Kaye Scholer, LLP, and Jane W. Parver fromthe order dated April 18, 2006 is dismissed as academic; and it is further,
Ordered that one bill of costs is awarded to the defendants Sanjay Kumar, ComputerAssociates International, Inc., Kaye Scholer, LLP, and Jane W. Parver, payable by the plaintiffs.
The plaintiffs' appeal from the order dated April 18, 2006 must be dismissed because theright of direct appeal therefrom terminated with the entry of judgment dismissing the actioninsofar as asserted Sanjay Kumar and Computer Associates International, Inc. (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are broughtup for review and have been considered on the appeal from the judgment (see CPLR5501 [a] [1]).[*3]
The plaintiffs Irene Salvatore, Andrew Press, and BrianA. Wright, are former employees of the defendant Computer Associates International, Inc.(hereinafter CA). Their employment with CA was terminated in or about April 2004. Thecomplaint alleges that the termination occurred following interviews with the plaintiffs byattorneys working for CA who were conducting an internal investigation regarding internalaccounting practices at CA. CA's accounting practices were the subject of an investigation byseveral law enforcement authorities, including the United States Attorney's Office for the EasternDistrict of New York, which later resulted in various criminal prosecutions and convictions,including the guilty plea to securities fraud by the defendant Sanjay Kumar, CA's former ChiefExecutive Officer.
According to the complaint, the plaintiffs were working in CA's accounting department andparticipated in the accounting practices at issue. After having been interviewed several times inthe context of CA's internal investigation, during which time the plaintiff Irene Salvatoreadmitted to her participation in the accounting practices at issue, Salvatore retained the defendantJane W. Parver, Esq. from the defendant law firm Kaye Scholer, LLP (hereinafter Kaye Scholer),to represent her in the context of the investigation, after CA suggested that she retain counsel andoffered to pay her legal fees. Kaye Scholer represented Salvatore during her fourth and finalinterview, and was paid by CA. The retainer letter agreement, signed by Salvatore and KayeScholer, plainly revealed this payment arrangement.
Following their termination, the plaintiffs commenced this action, alleging that they weredefamed by Kumar and CA when CA published its 2004 Annual Report (hereinafter the Report)which included statements regarding the internal investigation of the accounting practices atissue. The plaintiffs also alleged that they were wrongfully terminated without just cause orreason, that CA promised them continued employment as well as bonuses, additionalcompensation, and other benefits if they continued to comply with CA's orders, that they reliedupon these promises to their detriment, and that CA and Kumar conspired to defame andwrongfully terminate them, which caused them to lose benefits and suffer harm to theirprofessional reputations. The plaintiffs also asserted a cause of action sounding in legalmalpractice against Kaye Scholer and Parver, alleging that they gave erroneous and incorrectlegal advice to Salvatore and that but for this advice, she would not have been defamed orwrongfully terminated. Kaye Scholer and Parver together moved, and CA and Kumar eachseparately moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as assertedagainst each of them. The Supreme Court granted CA's and Kumar's motions, and denied KayeScholer's and Parver's motion.
Upon a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), thecourt must determine whether from the four corners of the pleading "factual allegations arediscerned which taken together manifest any cause of action cognizable at law" (Morad v Morad, 27 AD3d 626,627 [2006] [internal quotation marks omitted]). Further, the pleading is to be afforded a liberalconstruction, the facts alleged in the complaint accepted as true, and the plaintiffs accorded thebenefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88[1994]). However, "[w]hile the allegations in the complaint are to be accepted as true whenconsidering a motion to dismiss . . . , 'allegations consisting of bare legalconclusions as well as factual claims flatly contradicted by documentary evidence are not entitledto any such consideration' " (Garber vBoard of Trustees of State Univ. of N.Y., 38 AD3d 833, 834 [2007], quoting Maas vCornell Univ., 94 NY2d 87, 91 [1999]).
The plaintiffs contend that their cause of action to recover damages for defamation againstKumar and CA was improperly dismissed. We disagree. The elements of a cause of action [*4]for defamation are a "false statement, published without privilege orauthorization to a third party, constituting fault as judged by, at a minimum, a negligencestandard, and it must either cause special harm or constitute defamation per se" (Dillon v Cityof New York, 261 AD2d 34, 38 [1999]). The cause of action alleging defamation wasproperly dismissed insofar as asserted as against Kumar because the allegedly defamatorystatement was contained in a CA publication issued after Kumar's resignation from the companyand, therefore, the plaintiffs cannot allege that the statement came from him. The cause of actionwas properly dismissed insofar as asserted against both Kumar and CA because the allegedlydefamatory statement was true (seeManfredonia v Weiss, 37 AD3d 286 [2007]; Silver v Mohasco Corp., 94 AD2d820, 822 [1983], affd 62 NY2d 741 [1984]). In any event, the plaintiffs failed to showthat readers of the Report, which does not identify them by name but instead refers generally tocertain "executives and personnel" would be able to discern from the facts referred to in theReport that any defamatory statements were "of and concerning" them (Springer v VikingPress, 60 NY2d 916, 917 [1983]; see Gelencser v Orange County Publ., Div. of OttawayNewspapers, 116 AD2d 696 [1986]). Moreover, the qualified privilege applies (cf. Rosenberg v MetLife, Inc., 8 NY3d359, 365, 368 [2007]).
"New York does not recognize civil conspiracy to commit a tort as an independent cause ofaction" (Pappas v Passias, 271 AD2d 420, 421 [2000]). Such a claim stands or falls withthe underlying tort (see Sokol v Addison, 293 AD2d 600, 601 [2002]). Thus, as all of theother underlying causes of action were properly dismissed, the cause of action to recoverdamages based on civil conspiracy was also properly dismissed (see Ward v City of New York, 15AD3d 392, 393 [2005]).
The defendants Kaye Scholer and Parver correctly contend that, inasmuch as they were neverretained by the plaintiffs Wright and Press, the complaint should have been dismissed insofar asasserted against them by those two plaintiffs (see Moran v Hurst, 32 AD3d 909, 910-911 [2006]).
Further, the defendants Kaye Scholer and Parver also correctly contend that the SupremeCourt erred in denying that branch of their motion which was for leave to renew their motion todismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (7), based onthe dismissal of the underlying causes of action alleging defamation, wrongful termination,promissory estoppel, and civil conspiracy. We agree with the contention of Kaye Scholer andParver that dismissal of the underlying causes of action requires dismissal of the legalmalpractice claim asserted against them. With the dismissal of those causes action, the plaintiffSalvatore cannot allege that "but for" Kaye Scholer's and Parver's alleged legal malpractice,Salvatore was wrongfully terminated and defamed and, therefore, cannot allege a legallycognizable injury (see Billis v Dinkes &Schwitzer, 30 AD3d 260 [2006]; Lauer v Rapp, 190 AD2d 778, 779 [1993]; see generally Bauza v Livington, 40AD3d 791, 793 [2007]).
The Supreme Court should have dismissed the claims for punitive and treble damages (see Goldfarb v Schwartz, 26 AD3d462, 464 [2006]; Kaiser v VanHouten, 12 AD3d 1012, 1015 [2004]).
The plaintiffs' remaining contentions are without merit. Crane, J.P., Goldstein, Florio andDillon, JJ., concur. [See 12 Misc 3d 1157(A), 2006 NY Slip Op 50946(U) (2006).]