HIRSCHFELD v. INSTITUTIONAL INVESTOR INC (1999)

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered May 15, 1997, which granted defendants' motion for summary judgment dismissing plaintiff's first cause of action alleging age discrimination, dismissed the complaint as against defendants Capital Cities/ ABC, Inc., and Leonard K. Herman, and denied defendants' motion for summary judgment dismissing plaintiff's second and third causes of action, alleging defamation and seeking severance pay, respectively, unanimously modified, on the law, to the extent of granting defendants' motion for summary judgment dismissing the second and third causes of action and otherwise affirmed, without costs or disbursements.

 The IAS court properly determined that plaintiff's evidence failed to create any issue of fact concerning pretext or discriminatory motive (see, Ferrante v. American Lung Assn., 90 N.Y.2d 623, 665 N.Y.S.2d 25, 687 N.E.2d 1308), since plaintiff could not meet her burden on the motion by simply refuting the employer's articulated non-discriminatory reasons for terminating her (see, Ioele v. Alden Press, Inc., 145 A.D.2d 29, 536 N.Y.S.2d 1000), and plaintiff's professed evidence of discrimination lacked probative value (see, Weiner v. Cataldo, Waters & Griffith Architects, 200 A.D.2d 942, 607 N.Y.S.2d 163).

 Likewise, the IAS court properly dismissed the complaint as to defendants Leonard K. Herman and Capital Cities/ABC, Inc., since plaintiff failed to demonstrate that they had control over her as an employee or were involved in the decision to terminate her (see, Patrowich v. Chemical Bank, 63 N.Y.2d 541, 543, 483 N.Y.S.2d 659, 473 N.E.2d 11).

 Additionally, defendants Institutional Investor, Inc., Peter A. Derow and Jeffrey L. MacDonald should have been granted summary judgment dismissing plaintiff's second cause of action alleging defamation.   Plaintiff sent a letter to MacDonald requesting that he provide her a written statement of the reason for her termination, which she admits had been previously communicated to her orally.   Thus, plaintiff consented to publication, and such consent has been held to bar a defamation claim in New York (see, Teichner v. Bellan, 7 A.D.2d 247, 181 N.Y.S.2d 842;  see also, Mandelblatt v. Perelman, 683 F.Supp. 379, 383 (S.D.N.Y. 1988)).

 Further, even assuming arguendo that plaintiff did not consent to publication of the allegedly defamatory statement in the March 2 letter, New York recognizes a qualified privilege for such intracompany communications in the absence of specific proof of malice.   The letter herein was one which MacDonald, the Chief Financial Officer for Institutional Investor, had a bona fide and legitimate interest in preparing.   He had prepared it, in fact, in response to a direct written request from plaintiff that he provide a writing setting forth the reason for her discharge.   His secretary had a corresponding duty to type and mail that letter to plaintiff.   Thus, the communication falls within the New York qualified privilege protection (see, Misek-Falkoff v. Keller, 153 A.D.2d 841, 545 N.Y.S.2d 360).

 The third cause of action, alleging breach of defendant Institutional Investor's severance policy, should also have been dismissed.   Initially, plaintiff did not present any evidence of detrimental reliance on Institutional Investor's severance policy.   Such absence of actual proof of reliance on a regular practice of severance payments constitutes sufficient grounds of the dismissal for a claim for severance pay (see, Gallagher v. Ashland Oil, 183 A.D.2d 1033, 583 N.Y.S.2d 624 lv. denied 80 N.Y.2d 758, 589 N.Y.S.2d 309, 602 N.E.2d 1125).   Further, the Second Circuit has recently held that when a severance plan is covered by the Employee Retirement Income Security Act of 1974, as amended (ERISA), a common-law breach of contract claim based on the severance plan is pre-empted by this overriding Federal statute and must be dismissed (Tischmann v. ITT/Sheraton Co., 145 F.3d 561, 565 [2nd Circuit 1998] ).

MEMORANDUM DECISION.