Elsky v. Hearst Corp.
| Decision Date | 29 October 1996 |
| Citation | 648 N.Y.S.2d 592,232 A.D.2d 310 |
| Parties | Stephen L. ELSKY, Plaintiff-Respondent, v. THE HEARST CORPORATION, et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Marvin J. Goldstein, New York City, for Plaintiff-Respondent.
Charles S. Sims, New York City, for Defendants-Appellants.
Before ROSENBERGER, J.P., and KUPFERMAN, NARDELLI, TOM and MAZZARELLI, JJ.
Order, Supreme Court, New York County (Stephen Crane, J.), entered May 1, 1996, which partially granted defendants' motion to dismiss the complaint for failure to state a cause of action, unanimously reversed to the extent appealed from, on the law, without costs, to grant the motion and dismiss the first, fourth, fifth and sixth causes of action in their entirety.
Although the IAS court treated defendants' motion as one to dismiss pursuant to CPLR 3211, this Court will treat it as one for summary judgment, the parties' evidentiary submissions "clearly indicating that they were 'deliberately charting a summary judgment course' " (Mihlovan v. Grozavu, 72 N.Y.2d 506, 508, 534 N.Y.S.2d 656, 531 N.E.2d 288, quoting Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 320, 515 N.Y.S.2d 1).
The fourth, fifth and sixth causes of action are premised upon an alleged statement by defendant Cunningham, an executive of defendant Hearst, that plaintiff had "cooked the books" while in Hearst's employ as a financial officer. However, the four people who are alleged to have heard the statement denied in their affidavits that they did, and plaintiff's conclusory, hearsay assertion that some unnamed individuals informed him of the comment is insufficient to raise an issue that the comment was in fact uttered (see, Barber v. Daly, 185 A.D.2d 567, 569-570, 586 N.Y.S.2d 398). Accordingly, the fourth, fifth and sixth causes of action are dismissed.
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