Paula D. Miller, Respondent, v. Terry M. Richman et al., Appellants.

Supreme Court of New York, Appellate Division, Fourth Department

184 A.D.2d 191; 592 N.Y.S.2d 201; 1992 N.Y. App. Div. LEXIS 14910

December 30, 1992, Decided; December 30, 1992, Filed.

PRIOR HISTORY: Appeal from an order of the Supreme Court (Edmund A. Calvaruso, J.), entered May 8, 1992 in Monroe County, which denied defendants' motion to dismiss the complaint for failure to state a cause of action.

HEADNOTES:

Libel and Slander - Opinions

1. In an action by plaintiff, who had been employed as a legal secretary at defendant law firm, alleging that remarks made about plaintiff by the individual defendants, two associates at the law firm, were defamatory and that the firm ratified the defamatory statements by firing plaintiff, plaintiff's causes of action for defamation should have been dismissed because the statements at issue, which criticized plaintiff's performance and compared her unfavorably to other secretaries at the firm are, as a matter of law, nonactionable expressions of opinion. Because the individual defendants' statements are not actionable, it is not necessary to determine whether the firm ratified the statements when it fired plaintiff; in any event, no cause of action for defamation exists for the discharge of an at- will employee, and an employer has the right, without judicial interference, to assess an employee's performance on the job.

Torts - Interference with Employment Relations - Injurious Falsehood

2. In an action by plaintiff, whose employment as a legal secretary had been terminated by defendant law firm, plaintiff has failed to state a cause of action for tortious interference with her employment relationship against the individual defendant, an associate at the firm who made statements to a partner at the firm two weeks before plaintiff was fired criticizing plaintiff's performance and comparing her unfavorably to other secretaries at the firm. The complaint fails to allege that the individual defendant was acting outside the scope of her employment when she made the statements allegedly causing plaintiff's termination, or that the individual defendant procured her discharge through fraudulent misrepresentation, threats or the violation of a duty owed to plaintiff by virtue of a confidential relationship. Further, plaintiff cannot be allowed to evade the employment at-will rule and relationship by recasting her cause of action in the garb of tortious interference with her employment. Similarly, plaintiff's cause of action for injurious falsehood may not serve as a device to escape the rule of nonliability for termination of an at-will employee, and is, accordingly, dismissed.

COUNSEL: Geiger & Rothenberg, Rochester (David Rothenberg of counsel), for appellants.

Peter V. Calviera and Donna Marianetti, Rochester, for respondent.

JUDGES: Callahan, J. P., Green, Balio, Fallon and Doerr, JJ.

Order unanimously reversed, on the law, without costs, motion granted and complaint dismissed.

OPINION

GREEN, J.

Plaintiff cannot circumvent the employment-at-will rule by asserting causes of action for defamation, injurious falsehood and tortious interference with her employment (see, Ingle v Glamore Motor Sales, 73 NY2d 183; Murphy v American Home Prods. Corp., 58 NY2d 293). Therefore, defendants' motion to dismiss the complaint for failure to state a cause of action (see, CPLR 3211 [a] [7]) should have been granted.

In considering the motion addressed to the sufficiency of the complaint, we accept plaintiff's allegations as true (see, Prudential-Bache Sec. v Citibank, 73 NY2d 263, 266; Silsdorf v Levine, 59 NY2d 8, 12, cert denied 464 US 831). Plaintiff began working as a legal secretary in the corporate department of the defendant law firm, Chamberlain, D'Amanda, Oppenheimer & Greenfield (Chamberlain) in November 1988. One of her supervisors was defendant Richman, a Chamberlain associate. In the spring of 1991, plaintiff arranged to transfer to another department within the firm allegedly because of poor treatment she received from Richman. The day after plaintiff accepted a new position with Chamberlain partner Anita Miller, however, the anticipated transfer fell through. Plaintiff learned that, after a discussion with Richman, Miller no longer wanted plaintiff to work for her. Richman had told Miller that plaintiff is "one of the worse [sic] secretaries at the firm," that her "work habits are bad," her "performance is bad," and that plaintiff "is not what you are looking for." On July 24, 1991, two weeks after the conversation between Richman and Miller, Chamberlain terminated plaintiff's employment. Following plaintiff's discharge, defendant Matthew J. Fusco, a Chamberlain associate, stated to another employee that plaintiff "was one of the worst secretaries at the firm."

In her first, second and third causes of action, plaintiff alleges that the remarks of Richman and Fusco were defamatory and that Chamberlain ratified the defamatory statements by firing her. We conclude that the causes of action for defamation should be dismissed because the statements at issue are protected expressions of opinion. Whether a statement is an expression of fact or opinion is a question of law for the court (see, Silsdorf v Levine, 59 NY2d 8, 13, supra; Park v Capital Cities Communications, 181 AD2d 192, 196). In our view the statements criticizing plaintiff's performance and comparing her unfavorably to other secretaries at the firm are, as a matter of law, nonactionable expressions of opinion (see, Williams v Varig Brazilian Airlines, 169 AD2d 434, lv denied 78 NY2d 854 [criticism of plaintiff's work performance, attitude and disposition]; Amodei v New York State Chiropractic Assn., 160 AD2d 279, 280, affd 77 NY2d 890 [chiropractor accused of "unprofessional conduct"]; Goldberg v Coldwell Banker, 159 AD2d 684 [attorney described as "most uncooperative, abrasive and dilatory" in fulfilling responsibilities]; Hollander v Cayton, 145 AD2d 605, 606 [statements that physician was "immoral", "unethical", and had "mismanaged cases"]). The individual defendants' unfavorable assessments of plaintiff's work are "incapable of being objectively characterized as true or false" (Park v Capital Cities Communications, supra, at 196; Amodei v New York State Chiropractic Assn., supra).

Because the individual defendants' statements are not actionable, it is not necessary to determine whether Chamberlain ratified the statements when it fired plaintiff. We note, however, that no cause of action for defamation exists for the discharge of an at-will employee (Weintraub v Phillips, Nizer, Benjamin, Krim, & Ballon, 172 AD2d 254) and that "an employer has the right, without judicial interference, to assess an employee's performance on the job" (Williams v Varig Brazilian Airlines, supra, at 438).

Plaintiff also fails to state a cause of action against defendant Richman for tortious interference with her employment relationship. The complaint fails to allege that Richman was acting outside the scope of her employment when she made the statements allegedly causing plaintiff's termination (see, Vardi v Mutual Life Ins. Co., 136 AD2d 453, 456; Kartiganer Assocs. v Town of New Windsor, 108 AD2d 898, 899, appeal dismissed 65 NY2d 925) or that Richman procured her discharge through fraudulent misrepresentation, threats or the violation of a duty owed to plaintiff by virtue of a confidential relationship (see, Ingle v Glamore Motor Sales, 73 NY2d 183, supra; Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 194). Further, "the plaintiff here cannot be allowed to evade the employment at-will rule and relationship by recasting [her] cause of action in the garb of a tortious interference with [her] employment" (Ingle v Glamore Motor Sales, 73 NY2d 183, 189, supra).

Similarly, plaintiff's cause of action for injurious falsehood may not serve as a device to escape the rule of nonliability for termination of an at-will employee (see, Ingle v Glamore Motor Sales, supra, at 188-189; Murphy v American Home Prods. Corp., 58 NY2d 293, 303-304, supra). Because plaintiff fails to allege injury to any legally protected property interest, her cause of action for injurious falsehood should be dismissed (see, Cunningham v Hagedorn, 72 AD2d 702, 704).

Accordingly, defendants' motion to dismiss the complaint for failure to state a cause of action should be granted.