Snyder v. Sony Music Entertainment, Inc.

• Decision Date: 28 January 1999
• Citation: 252 A.D.2d 294,684 N.Y.S.2d 235
• Parties: 1999 N.Y. Slip Op. 785 Craig SNYDER, Plaintiff-Respondent-Appellant, v. SONY MUSIC ENTERTAINMENT, INC., et al., Defendants-Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 235

684 N.Y.S.2d 235

1999 N.Y. Slip Op. 785

Craig SNYDER, Plaintiff-Respondent-Appellant, v. SONY MUSIC ENTERTAINMENT, INC., et al.,

Defendants-Appellants-Respondents.

Supreme Court, Appellate Division,

First Department.

Jan. 28, 1999.

Sonya J. Brouner, attorney for plaintiff-respondent-appellant.

Martin Glenn, of counsel (Claudia Ray, on the brief, O'Melveny & Myers LLP, attorneys) for defendants-appellants-respondents.

BETTY WEINBERG ELLERIN, J.P., MILTON L. WILLIAMS, ANGELA M. MAZZARELLI and DAVID B. SAXE, JJ.

MAZZARELLI, J.

The first issue presented on appeal is whether the defendants are entitled to summary judgment dismissing plaintiff's causes of action for slander and slander per se where each of the three persons present during the alleged slander deny that the slanderous statements were made. The second issue is whether plaintiff's causes of action for tortious interference with contractual relations and prospective economic advantage should be dismissed where the plaintiff attorney had an at-will employment agreement with his law firm, and he resigned from the firm after defendants told his employers that he was representing litigants without the employers' knowledge. As we conclude that defendants have demonstrated entitlement to judgment as a matter of law on each of plaintiff's four causes of action, we reverse the IAS court's order and grant defendants' motion for summary judgment dismissing the complaint.

In April 1997, plaintiff Craig Snyder was employed full-time as an associate attorney at the law firm Carter, Ledyard and Milburn ("Carter Ledyard"). Contemporaneously, and acting as "of counsel" to the New Jersey law firm Wheeler & Lawson, Snyder represented one Mauricette Martin in an employment discrimination suit against defendant Sony Music. This representation of Martin, outside of Carter Ledyard's practice, was a violation of the firm's written policy, and constituted his second infraction of that policy. Wheeler & Lawson had no New York office, yet in several pleadings signed by Snyder in the Martin discrimination suit, Snyder listed his home address in Manhattan as the address of plaintiff's counsel.

On April 14, 1997, a settlement conference in the discrimination suit was held. It was attended by Snyder, attorney Wheeler and a law clerk from Wheeler & Lawson on behalf of Martin. Defendant Gail Edwin and attorney Steven Kessler represented Sony Music. By all accounts, the conference did not go well. Snyder terminated the discussions and he and his colleagues began to depart. As they left, Edwin expressed some confusion about the address in the pleadings, stating "What is the address, is that your home address, is this your home office?" Snyder replied, "The address is in the pleadings, read the pleadings." Edwin then asked, "Does [Carter Ledyard] know about your little side practice? Maybe I should call them." Snyder stated "Go ahead" to which Edwin responded "I will."

Later, Edwin called Carter Ledyard and spoke to James Rayhill, a partner and Chairman of the firm's litigation department. Kessler was present when Edwin spoke with Rayhill. She told Rayhill that Snyder had filed papers in a discrimination action as of counsel to Wheeler & Lawson, listing a Manhattan residential address for plaintiff's counsel. Rayhill responded that Snyder was a full-time associate at Carter Ledyard, that the Manhattan address was Snyder's residence, and that based on Edwin's comments he was concerned that Snyder was practicing law outside the firm without its knowledge. Edwin then told Rayhill that Snyder seemed angry at the conference, and asked whether she "should be fearful that Snyder might in some way take his anger out on me." Rayhill responded that she should not be concerned.

The next day, Rayhill called Snyder into his office and, in the presence of William Sloane, another partner, told Snyder that he was aware of his involvement in the discrimination suit against Sony Music. Rayhill warned Snyder not to have any further contact with Edwin, Sony or Sony's outside counsel, and "not to make threats of any kind." Within a week, Snyder resigned from Carter Ledyard. This was before the firm's Executive Committee had determined whether or not to dismiss him.

Snyder commenced the instant action against Edwin and Sony Music. The amended complaint, filed on July 28, 1997, alleged four causes of action: slander, slander per se, tortious interference with contract and interference with prospective economic advantage. In support of the first two causes of action, Snyder alleged that Edwin, acting as agent for Sony Music, made the following slanderous statement to Rayhill: "Snyder threatened Edwin and made her fearful of her physical safety." As to the third and fourth causes of action, Snyder alleged that Edwin and Sony Music "intentionally and maliciously" interfered with his at-will employment agreement with Carter Ledyard, and did so for the sole purpose of harming Snyder's future employment status there.

In August 1997, defendants moved for summary judgment asserting that the slander never occurred. In support of the motion, defendants submitted affidavits from Edwin, Rayhill and Kessler, the only three persons who could have heard the alleged slanderous utterance. Each affiant stated in unequivocal terms that Edwin never said nor implied that Snyder had threatened her. In opposition, Snyder submitted his own affidavit that related hearsay statements from Sloane, and another unnamed Carter Ledyard employee, to the effect that Rayhill had stated or implied that Edwin had accused Snyder of threatening her. Snyder's counsel also submitted an affidavit, in which he affirmed that the unnamed Carter Ledyard employee, who allegedly heard Rayhill's comments, would not submit an affidavit because she feared she would lose her job.

The IAS court denied defendants' motion in its entirety. It found that "facts essential to justify opposition to this motion may exist but cannot be stated at this time as they are within the exclusive knowledge of Gail Edwin and Sony (see CPLR 3212(f))." The court further ruled that Snyder was entitled to pre-trial discovery before any summary disposition was appropriate.

On appeal, defendants argue that their motion for summary judgment should have been granted because they demonstrated, as a matter of law, that the alleged slander never occurred. We agree. A cause of action for slander requires publication of the defamatory matter, which occurs when it is heard by some third party (Barber v. Daly, 185 A.D.2d 567, 568, 586 N.Y.S.2d 398). By submission of affidavits from the only three persons present during the conversation, in which each unequivocally denies that the slanderous statement was made, defendants made a prima facie showing of no publication (see, Barber v. Daly, supra at 569, 586 N.Y.S.2d 398; Memory Gardens v. D'Amico, 91 A.D.2d 1159, 458 N.Y.S.2d 956; Indig v. Finkelstein, 29 A.D.2d 851, 288 N.Y.S.2d 113, affd. 23 N.Y.2d 728, 296 N.Y.S.2d 370, 244 N.E.2d 61; Green v. Irwin, 28 A.D.2d 971, 283 N.Y.S.2d 455). Snyder was therefore bound to come forward with proof in evidentiary form to show that a bona fide, triable issue of fact existed as to whether the slanderous statement was actually made and published (Indig v Finkelstein, supra; Green v Irwin, supra; see also, Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068, 416 N.Y.S.2d 790, 390 N.E.2d 298; CPLR 3212[b] ). Snyder has failed to do so.

When challenged on a motion for summary judgment, a plaintiff may not rely solely on hearsay or conclusory allegations that the slanderous statement was made (see, Schwartz v. Society of the New York Hospital, 232 A.D.2d 212, 213, 647 N.Y.S.2d 776; Barber v. Daly, supra; Green v. Irwin, supra). Here, Snyder's opposition consists solely of such allegations. For example, Snyder claims that Rayhill told Sloane that Edwin had accused Snyder of threatening her. However, Rayhill and Sloane deny that Rayhill ever made such statement. Additionally, Snyder asserts that an "unnamed" Carter Ledyard employee heard Rayhill state, in purported reference to Snyder, that "threats are a criminal matter." It is not alleged that the unnamed employee has any knowledge of the actual words uttered. Thus, the hearsay evidence offered by Snyder to defeat defendants' motion is either directly refuted by an individual present during the alleged slander, or relates to a listener's after-the-fact characterization of the slander, rather than the slanderous utterance itself. As such, Snyder's evidence is insufficient to defeat defe...