King v. Kline
| Decision Date | 18 January 2013 |
| Docket Number | Index No. 104287/11 |
| Citation | 2013 NY Slip Op 30116 |
| Parties | LAURA KING, Plaintiff, v. DANA KLINE, JUSTIN WELCH and FUSION BRANDS, INC., Defendants. |
| Court | New York Supreme Court |
DECISION/ORDER
Plaintiff commenced the instant action against defendants Dana Kline ("Ms. Kline"), Justin Welch ("Mr. Welch") and Fusion Brands, Inc. ("Fusion") alleging fraud, defamation, conspiracy, hostile work environment and deceptive business practices. After plaintiff failed to appear at two scheduled compliance conferences, this case was marked off the calendar pursuant to the Uniform Rules for New York State Trial Courts § 202.27(b). Plaintiff now moves for an Order pursuant to CPLR § 5015(a) restoring this action to the calendar. For the reasons set forth below, plaintiff's motion is denied.
The relevant facts are as follows. Plaintiff and Ms. Kline worked together at Icon Beauty ("Icon"). Ms. Kline then resigned from Icon to work for Fusion instead. Plaintiff alleges that Ms. Kline actively recruited her to leave Icon and work at Fusion. Plaintiff resigned from Icon inApril 2010 and began working at Fusion in or around June 2010. However, plaintiff alleges that Ms. Kline and defendant Justin Welch ("Mr. Welch") conspired "to get rid of her from her employ at Fusion and that she was eventually fired from Fusion on September 28,2010.
This case was set for a compliance conference on July 17, 2012. Plaintiff's counsel alleges that during the week of July 8, 2012, he received a telephone call from Robert Kaplan, counsel for defendants, who mentioned that he would be taking vacation the following week and asked if plaintiff would agree to adjourn the compliance conference for two weeks. Plaintiff's counsel agreed to the adjournment but thought that the new conference date was set for July 31, 2012. However, the new conference date was actually set for July 24, 2012 and plaintiff's counsel failed to show up to the conference.
Another compliance conference was scheduled for September 11, 2012. Plaintiff's counsel alleges that he was en route to the conference that morning but that he started to feel faint and went home, thus, failing to appear for the conference. As plaintiff failed to appear for two scheduled compliance conferences, on September 11, 2012, this court dismissed the instant action pursuant to the Uniform Rules for New York State Trial Courts § 202.27(b). This court then received a motion from defendants for an Order pursuant to CPLR § 3211(a)(7) and (a)(1) dismissing the complaint. However, this court denied the motion as the case had already been disposed. Plaintiff then brought the instant motion to vacate the default judgment entered against her and restore the action to the calendar.
A case that has been dismissed due to the plaintiff's failure to appear for two or more scheduled court conferences may be restored if the plaintiff establishes "a reasonable excuse for the failure to attend the conference and a meritorious cause of action." Biton v. Turco, 88 A.D.3d 519 (1st Dept 2011). In the instant case, plaintiff's motion to restore the case to the calendar isdenied. As an initial matter, plaintiff's counsel has demonstrated a reasonable excuse for failing to appear for the two scheduled compliance conferences. Plaintiff's counsel has established that there was some confusion about the date of the July 24, 2012 conference as he thought that it was scheduled for July 31, 2012. Further, plaintiff alleges that he suddenly became ill en route to the second conference, thereby making his appearance on that date impossible. The court finds that these excuses are reasonable. See Donnelly v. Treeline Companies, 66 A.D.3d 563 (1st Dept 2009)("plaintiff's default was reasonable and likely attributable to the court's failure to notify everyone about the conference, whose date is not found in any prior conference order"); see also Acciarito v. Homedco, Inc., 237 A.D.2d 236 (2d Dept 1997)( that plaintiff established reasonable excuse by reason of counsel's illness).
However, plaintiff has failed to establish a meritorious cause of action. As an initial matter, plaintiff's first cause of action alleging fraud in the inducement fails to state a cause of action. To state a claim for fraud in the inducement, "a plaintiff must assert the misrepresentation of a material fact, which was known by the defendant to be false and intended to be relied on when made, and that there was justifiable reliance and resulting injury." Braddock v. Braddock, 60 A.D.3d 84, 86 (1st Dept 2009). Furthermore, elements of a fraud claim must be pled with specificity. See CPLR § 3016(b). In the instant action, plaintiff has failed to state a claim for fraud in the inducement as plaintiff has not asserted that defendants misrepresented a material fact which was known by defendants to be false and intended to be relied on when made. While plaintiff asserts that she was coerced into resigning from her job at Icon in reliance upon the representation by Ms. Kline that she would be hired by Fusion, this allegation is insufficient to establish a claim for fraud in the inducement as such representation was true. Plaintiff has alleged in her complaint that after resigning from Icon, she was offered ajob at Fusion and started working at Fusion on June 3, 2010. That plaintiff was terminated from her position a few months later does not establish that defendants made any misrepresentations to her. Plaintiff's assertion that she relied on defendants' promise that she could have a career at Fusion is without merit as plaintiff was an at-will employee who could be terminated for any reason or no reason at all and thus, reliance on a statement promising plaintiff a career was without basis. Moreover, plaintiff did not have an employment contract with Fusion which could have specified the terms of her employment. Therefore, as plaintiff has failed to allege any misrepresentations made by defendants, her claim for fraud in the inducement fails to state a meritorious cause of action.
Additionally, plaintiff's second cause of action for defamation fails to state a cause of action. To state a claim for defamation, a plaintiff must plead "a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se." Dillon v. City of New York, 261 A.D.2d 34, 38 (1st Dept 1999). Further, the allegation must set forth the exact words uttered or communicated by the defendant or the cause of action will be dismissed. See Manas v. VMS Associations, LLC, 53 A.D.3d 451 (1st Dept 2008); see also CPLR § 3016(a) () Finally, a cause of action for defamation must set forth with particularity how and when the allegedly offending words were communicated and must specifically identify any third-party to whom those words were communicated. See Dillon, 261 A.D.2d at 38.
In the instant action, plaintiff has failed to state a claim for defamation as she has failed to plead such cause of action with the requisite specificity. In her complaint, plaintiff merely alleges that defendants defamed her work ethic and ability by stating that she was disorganizedand incompetent. However, plaintiff's complaint does not (a) set forth the exact words uttered or communicated by the defendant; (b) allege whether the defamatory words were communicated by defendant orally or in writing; (c) allege when the defamatory words were communicated by defendant; and (d) specifically identify a single third-party to whom the defamatory words were communicated. Moreover, plaintiff has not alleged that the defamatory words are false. An essential element of a cause of action for defamation is an allegation that the words at issue are false. See Christopher Lisa Matthew Policano, Inc. v. North American Precis Syndicate, Inc., 129 A.D.2d 488 (1st Dept 1987). Therefore, plaintiff's claim for defamation fails to state a meritorious cause of action.
Further, plaintiff's third cause of action for conspiracy fails to state a cause of action. It is well-settled that New York does not recognize a cause of action for civil conspiracy. See Legion Lighting Co., Inc. v. Switzer Group, Inc., 171 A.D.2d 472 (1st Dept 1991); see also Cunningham v Hagedorn, 72 A.D.2d 702 (1st Dept 1979). Allegations of conspiracy are "permitted only to connect the actions of separate defendants with an otherwise actionable tort." Alexander & Alexander of New York, Inc. v. Fritzen, 68 N.Y.2d 968 (1986). In the instant action, plaintiff alleges that defendants "did conspire among themselves and others to damage the reputation of the Plaintiff with her current employer and with the beauty/fragrance industry itself." The only underlying tort that plaintiff attempts to allege is injury to her reputation. However, it is well-settled that New York does not recognize a cause of action for damage to reputation as such a claim must be asserted through a "specific cause of action like libel,...
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