“Prima Facie Tort” Claim Dismissed, but its Assertion Was Not Sanctionable

In Gallas v. Chopard USA Ltd., No. 158114/2019, 2020 WL 4547124 (N.Y. Sup Ct, New York County Aug. 03, 2020), the court granted defendant’s motion to dismiss plaintiff’s “prima facie tort” claim, as well as its motion for sanctions against plaintiff and plaintiff’s attorney under 22 N.Y.C.R.R. § 130-1.1.

In this case, plaintiff seeks to recover damages for discrimination and retaliation under the New York State and New York City Human Rights Laws, as well as for a prima facie tort. (In this decision, the court does not address the merits of plaintiff’s discrimination and retaliation claims.)

In sum, plaintiff was employed by defendant, a luxury jewelry and watch manufacturer and seller. She alleged that her position “required her to promote expensive jewelry pieces that defendant represented as containing only ethically sourced gold” and that defendant “nevertheless knowingly acquired and sold jewelry pieces that incorporated unethically sourced gold into defendant’s final products.”

The court summarized the basis for plaintiff’s prima facie tort claim:

[E]ven though she explicitly communicated her concerns about potential unethical gold sources in specific jewelry pieces, defendant forced her to promote those expensive jewelry pieces because only she would suffer any public or professional backlash if such a scandal was discovered. Plaintiff further alleges that defendant forced her to inflate the prices of jewelery pieces and then purport to offer a discount to her best American customers, to ensure that defendant profited from the transaction.

Now what, you may ask, is a “prima facie tort”? Generally a “tort” is a civil wrong, other than a breach of contract, for which a remedy (usually damages) may be obtained. They include assault, battery, intentional infliction of emotional distress, and negligence. The “prima facie tort” (in my experience) is seldom asserted, and, when asserted, rarely successful.

The court summarized the law as follows:

The elements of a prima facie tort are (1) intentional infliction of harm, (2) causing special damages, (3) without justification or excuse, (4) by otherwise lawful acts. To establish special damages, plaintiff must plead that defendant caused a specific and measurable loss from defendant’s alleged tortious conduct. To satisfy the requirement that defendant’s alleged actions were without justification or excuse, plaintiff must show that malevolence was the sole motivation for defendant’s actions. Simply alleging that defendant inflicted harm without justification does not demonstrate that defendant’s sole motivation was malevolence. [Citations omitted.]

Applying the law, the court concluded:

Although plaintiff claims she “suffered special damages including loss of pay and medical costs” potentially resulting from the alleged prima facie tort, Aff. of Jane B. Jacobs Ex. B (Am. V. Compl.) ¶ 100, she neither itemizes the damages nor provides a final damages calculation, thus failing ultimately to identify the specific measurable loss required for a prima facie claim. Freihofer v. Hearst Corp., 65 N.Y.2d at 143; Britt v. City of New York, 151 A.D.3d at 606; Matthaus v. Hadjedj, 148 A.D.3d at 426; Wigdor v. SoulCycle, LLC, 139 A.D.3d at 614; Phillips v. New York Daily News, 111 A.D.3d 420, 421 (1st Dep’t 2013). Nor does plaintiff allege facts showing that defendant’s sole motivation was disinterested malevolence. In fact, her allegations that defendant forced her to promote jewelry pieces, knowing her reservations about the original gold sources, and to inflate the prices of jewelry pieces, so as to appear that they were being sold at a discount, indicate defendant was at least partially motivated by profit or commercial success.

Next, the court considered defendant’s motion for sanctions. “The court may impose sanctions when plaintiff’s or her attorney’s conduct is completely without merit and unsupported by any reasonable argument.” 22 N.Y.C.R.R. § 130-1.1(c).

That, according to the court, was not warranted here:

Although defendant’s attorney advised plaintiff’s attorney, in writing, that plaintiff’s prima facie claim was frivolous, as defined by 22 N.Y.C.R.R. § 130-1.1(c), the correspondence merely notified plaintiff’s attorney that the claim was meritless and failed to request that plaintiff discontinue or amend it. Consequently, she did not do so. Yet defendant asks that she be penalized for failing to do what defendant failed to ask her to do.

Absent such a request, plaintiff’s prima facie tort claim was not so blatantly meritless as to warrant sanctions. Plaintiff reasonably argued that it was contrary to defendant’s employee policies and to its business interests for her to conduct business as defendant forced her to do. Even if conducting business as defendant demanded was to its business advantage, as plaintiff was not part of the sales team, she was inessential to that endeavor. These arguments, even though unpersuasive in sustaining her prima facie tort claim, demonstrate that she pursued her claim in good faith and did not – engage in “frivolous” conduct.

Therefore, the court granted defendant’s motion to dismiss plaintiff’s prima facie tort claim under CPLR 3211(a)(7), but denied its motion for sanctions.

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