Retaliation, Defamation, and Tortious Interference Claims Properly Dismissed, Court Holds

In Petrisko v Animal Medical Center, No. 12095, 151573/18, 2019-5044, 2020 N.Y. Slip Op. 05830, 2020 WL 6065450 (N.Y.A.D. 1 Dept., Oct. 15, 2020), the court affirmed the dismissal of plaintiff’s defamation, retaliatory discharge, and tortious interference.

From the decision:

The motion court correctly dismissed as untimely the defamation claims arising from statements that were made more than a year before this action was commenced (CPLR 215[e] ). Contrary to plaintiff’s contention, the continuing course of conduct doctrine does not apply to defamation claims (see Cheves v. Trustees of Columbia Univ., 89 A.D.3d 463, 931 N.Y.S.2d 877 [1st Dept. 2011], lv denied 18 N.Y.3d 807, 2012 WL 489934 [2012] ). The remaining defamation claims were correctly dismissed as statements of opinion (see Scialdone v. DeRosa, 148 A.D.3d 741, 742, 48 N.Y.S.3d 471 [2d Dept. 2017] ) or lacking the requisite temporal and factual specificity (see CPLR 3016[a]; Knopf v. Sanford, 123 A.D.3d 521, 522, 1 N.Y.S.3d 18 [1st Dept. 2014] ).

The complaint fails to state a claim under Labor Law § 215 for constructive discharge in light of plaintiff’s attempt to rescind her resignation (see Cadet v. Deutsche Bank Sec. Inc., 2013 WL 3090690, *11, 2013 U.S. Dist. LEXIS 87328, *29–30 [S.D. N.Y., June 18, 2013] ). In any event, the passage of eight months between plaintiff’s complaint about defendant Animal Medical Center’s policies and her purported discharge precludes a finding of a causal connection between them (see Garrett v. Garden City Hotel, Inc., 2007 WL 1174891, *21, 2007 U.S. Dist. LEXIS 31106, *69–70 [E.D. N.Y. April 19, 2007] ).

The complaint fails to state a claim for tortious interference with prospective employment because there can be no tortious interference with prospective at-will employment (Pezhman v. Chanel, Inc., 126 A.D.3d 497, 2 N.Y.S.3d 792 [1st Dept. 2015] ). The claim for tortious interference with contract in connection with a stable where plaintiff kept her horses was correctly dismissed because an agreement terminable at will is classified as a prospective contractual relation only, not an existing contract.

The court also found that the lower court properly exercised its discretion in denying plaintiff’s request for leave to file a second amended complaint, since plaintiff’s proposed pleading was without merit.

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