Mansour v. Abrams

• Decision Date: 15 November 1988
• Citation: 144 A.D.2d 905,534 N.Y.S.2d 602
• Court: New York Supreme Court — Appellate Division
• Parties: John MANSOUR & Helga-Roswitha Mansour, Individually and as Wife of John Mansour, Respondents-Appellants, v. Robert ABRAMS, Ronald Goldstock and Martin Marcus, Appellants-Respondents.

Page 602

534 N.Y.S.2d 602

144 A.D.2d 905

John MANSOUR & Helga-Roswitha Mansour, Individually and as Wife of John Mansour, Respondents-Appellants, v. Robert ABRAMS, Ronald Goldstock and Martin Marcus Appellants-Respondents.

Supreme Court, Appellate Division Fourth Department.

Nov. 15, 1988.

Robert Abrams by Michael Buskus Atty. Gen., Albany, for appellants-respondents.

John Mansour, Rochester, for respondents-appellants.

Before CALLAHAN, J.P., and DOERR, GREEN, PINE and LAWTON, JJ.

MEMORANDUM:

Defendants appeal from an order denying without prejudice their motion for summary judgment dismissing the complaint pending compliance with a discovery order to which they had stipulated. We previously reinstated five causes of action which had been dismissed for failure to state a cause of action (Mansour v. Abrams, 120 A.D.2d 933, 502 N.Y.S.2d 877). We now hold that summary judgment should have been granted on the eighth cause of action dismissing it with respect to defendant Goldstock only.

That cause of action, alleging tortious interference with plaintiff's contract of employment, concededly terminable at will, was brought against Goldstock and Marcus only, and the theory of the complaint was that they had wrongfully induced Abrams to fire plaintiff. By affidavit submitted on the motion for summary judgment, which plaintiff does not controvert, Abrams averred that he had delegated to Goldstock the power to hire and to fire Assistant Deputy Attorneys-General in the Organized Crime Task Force. As the person with contracting authority, even though not the employer, Goldstock could not interfere with plaintiff's at-will contract, and his good faith or lack thereof is irrelevant (see, Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303-305, 461 N.Y.S.2d 232, 448 N.E.2d 86). However, defendants have not established that Marcus, who prepared the plaintiff's performance evaluations relied on by Goldstock, had the authority to terminate plaintiff. Plaintiff is entitled to the previously ordered discovery to explore Marcus's motivation because plaintiff must prove that Marcus acted in bad faith to prove his cause of action (see, Murtha v. Yonkers Child Care Assn., 45 N.Y.2d 913, 915, 411 N.Y.S.2d 219, 383 N.E.2d 865). Contrary to defendants' contention, tortious interference with contractual relations is not limited to unfair dealings between competitors (see, Murtha v. Yonkers Child Care Assn., supra; Kartiganer Assocs. v. Town of New Windsor, 108 A.D.2d 898, 485 N.Y.S.2d 782, appeal dismissed 65 N.Y.2d 925, appeal denied 70 N.Y.2d 612, 523 N.Y.S.2d 496, 518 N.E.2d 7).

With respect to the three libel causes of action, concerning plaintiff's employee performance evaluations, Special Term properly refused to rule on the motion until the completion of discovery. Statements in the evaluations were subject to a qualified rather than absolute privilege (cf., Ward Telecommunicatio & Computer Servs. v. State of New York, 42 N.Y.2d 289, 397 N.Y.S.2d 751, 366 N.E.2d 840), and whether they were motivated by actual malice is a disputed factual issue (see, 44 NY Jur 2d, Defamation and Privacy, §§ 73-75).

With respect to plaintiff's 42 U.S.C. § 1983 cause of action, Special Term properly refused to rule on it until the completion of discovery. A constitutionally impermissible purpose limits an employer's right to terminate an at-will employee (Murphy v. American Home Products Corp., supra, 58 N.Y.2d at 305, 462 N.Y.S.2d 232, 448 N.E.2d 86). Plaintiff contends that ...