Hoeffner v. Orrick

• Decision Date: 07 June 2011
• Citation: 85 A.D.3d 457,2011 N.Y. Slip Op. 04760,924 N.Y.S.2d 376
• Court: New York Supreme Court — Appellate Division
• Parties: Patrick J. HOEFFNER, Plaintiff–Appellant,v.ORRICK, HERRINGTON & SUTCLIFFE LLP, et al., Defendants–Respondents.

85 A.D.3d 457

924 N.Y.S.2d 376

2011 N.Y. Slip Op. 04760

Patrick J. HOEFFNER, Plaintiff–Appellant,

v.ORRICK, HERRINGTON & SUTCLIFFE LLP, et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

June 7, 2011.

Thompson Wigdor & Gilly LLP, New York (Douglas H. Wigdor of counsel), for appellant.Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Andrew G. Gordon of counsel), for respondents.MAZZARELLI, J.P., SWEENY, MOSKOWITZ, RENWICK, ROMÁN, JJ.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered March 3, 2011, which, to the extent appealed from, granted defendants' motion for an order striking the demand for punitive damages, and denied plaintiff's cross motion for an order permitting plaintiff to seek full economic damages on his claim of conspiracy to commit fraud, unanimously affirmed, without costs.

Plaintiff was an associate at defendants' firm when two of its partners left to open a intellectual property practice at another firm. This new firm offered plaintiff a “partnership track” position with a salary increase and signing bonus. Plaintiff commenced this action alleging that, from March 2002 to May 2005, defendants entered into a deceitful scheme to prevent him from leaving the firm at a point in time when he was the key associate on patent infringement litigation for an important client. Plaintiff claims that, while he was promised that he would be voted on for partnership, and assured that he would eventually be made partner, his employment was terminated soon after he successfully concluded the litigation which the firm had been eager to keep.

Punitive damages are not available “in the ordinary fraud and deceit case” ( Walker v. Sheldon, 10 N.Y.2d 401, 405, 223 N.Y.S.2d 488, 179 N.E.2d 497 [1961] [internal quotation marks and citation omitted] ), but are permitted only when a “defendant's wrongdoing is not simply intentional but ‘evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations' ” ( Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 489, 836 N.Y.S.2d 509, 868 N.E.2d 189 [2007], quoting Walker at 405, 223 N.Y.S.2d 488, 179 N.E.2d 497). Mere commission of a tort, even an intentional tort requiring proof of common law malice, is insufficient; there must be circumstances of aggravation or outrage, or a fraudulent or evil motive on the part of the defendant ( Prozeralik v. Capital Cities Communications, 82 N.Y.2d 466, 479, 605 N.Y.S.2d 218, 626 N.E.2d 34 [1993] ).

Neither defendants' alleged misrepresentations concerning their support for plaintiff's partner candidacy, nor the breach of their contractual promise to put him up for a partnership, evidence such a high degree of moral turpitude and wanton dishonesty as to imply criminal indifference. Cases involving mere fraudulent misrepresentations to induce a party to accept an employment agreement, do not warrant imposition of punitive damages (see Kelly v. Defoe Corp., 223 A.D.2d 529, 636 N.Y.S.2d 123 [1996] ).

As for plaintiff's cross motion, it is well settled that New York does not recognize an independent civil tort of conspiracy ( Jebran v. LaSalle Bus. Credit, LLC, 33 A.D.3d 424, 425, 824 N.Y.S.2d 224 [2006]; see Algomod Tech. Corp. v. Price, 65 A.D.3d 974, 886...