WOYTISEK v. JP MORGAN CHASE CO (2007)

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered June 5, 2006, which, to the extent appealed from, granted defendant's motion to dismiss the seventh cause of action alleging prima facie tort, unanimously affirmed, without costs.

Dismissal of plaintiff employee's claim alleging prima facie tort was proper where it was based upon the same allegations of harassment and discrimination as his claim for intentional infliction of emotional distress, which the court also dismissed (see Belsky v. Lowenthal, 62 A.D.2d 319, 405 N.Y.S.2d 62 [1978], affd. 47 N.Y.2d 820, 418 N.Y.S.2d 573, 392 N.E.2d 560 [1979] ).   Plaintiff also failed to sufficiently plead that the challenged conduct of his employer and certain of its employees was motivated by “disinterested malevolence” (see Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 333, 464 N.Y.S.2d 712, 451 N.E.2d 459 [1983], quoting American Bank & Trust Co. v. Federal Bank, 256 U.S. 350, 358, 41 S.Ct. 499, 65 L.Ed. 983 [1921] ).