HAMMOND v. Michael Alexander, Defendant. (2021)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about April 27, 2020, which, to the extent appealed from as limited by the briefs, granted defendants Equinox Holdings LLC, doing business as Equinox Fitness Club, doing business as Equinox, and Equinox Wall Street, Inc.'s (together, Equinox) motion to dismiss the complaint as against them, unanimously affirmed, without costs.

Plaintiff alleges that defendant Michael Alexander, an Equinox employee, slandered him when he told another Equinox employee that he had witnessed plaintiff engaging in lewd conduct in an Equinox steam room.  Regardless of whether Alexander was on or off duty at the time that he made this statement, Equinox cannot be held liable for the statement under the theory of respondeat superior if Alexander was not acting within the scope of his employment when he made the statement (Seymour v. New York State Elec. & Gas Corp., 215 A.D.2d 971, 973, 627 N.Y.S.2d 466 [3d Dept. 1995];  see Eng v. NYU Hosps. Ctr., 172 A.D.3d 645, 646–647, 101 N.Y.S.3d 320 [1st Dept. 2019]).  Since the complaint alleges that Alexander fabricated his statement “to procure special benefits and protections from [Equinox] to which he was not entitled and to protect his otherwise threatened employment,” this statement does not support the defamation claim against Equinox, which did not stand to benefit from Alexander's misconduct.

The remainder of the defamation claim, premised on a variety of statements made by various Equinox employees, was also correctly dismissed for reasons including plaintiff's failure to set forth “the particular words complained of” (CPLR 3016[a];  see e.g. BCRE 230 Riverside LLC v. Fuchs, 59 A.D.3d 282, 283, 874 N.Y.S.2d 34 [1st Dept. 2009]), his failure to dissolve the protection of the common interest privilege (see Liberman v. Gelstein, 80 N.Y.2d 429, 437–438, 590 N.Y.S.2d 857, 605 N.E.2d 344 [1992];  Sagaille v. Carrega, 194 A.D.3d 92, 143 N.Y.S.3d 36 [1st Dept. 2021]), and his failure to make the requisite “rigorous showing” as to the statements that he alleges were defamatory by implication (see Stepanov v. Dow Jones & Co., Inc., 120 A.D.3d 28, 37–38, 987 N.Y.S.2d 37 [1st Dept. 2014];  Armstrong v. Simon & Schuster, 85 N.Y.2d 373, 380–381, 625 N.Y.S.2d 477, 649 N.E.2d 825 [1995];  November v. Time Inc., 13 N.Y.2d 175, 178–179, 244 N.Y.S.2d 309, 194 N.E.2d 126 [1963]).  We note that Equinox's statement about the matter in its motion to dismiss an action brought against it by Alexander (Alexander v. Equinox Holdings LLC, 2019 N.Y. Slip Op. 32830[U], 2019 WL 4643772 [Sup. Ct., N.Y. County 2019]) was also absolutely privileged and therefore immune from suit (see Baratta v. Hubbard, 136 A.D.2d 467, 468–469, 523 N.Y.S.2d 107 [1st Dept. 1988];  see also e.g. Martirano v. Frost, 25 N.Y.2d 505, 307 N.Y.S.2d 425, 255 N.E.2d 693 [1969]).

In support of his breach of contract claim, plaintiff failed to identify a provision in his membership agreement with Equinox – which, we note, is not included in the record on appeal – in which Equinox promised to investigate allegations of misconduct against its members before terminating their memberships (see New York City Educ. Constr. Fund v. Verizon N.Y. Inc., 114 A.D.3d 529, 531, 981 N.Y.S.2d 11 [1st Dept. 2014];  Sklover & Donath, LLC v. Eber–Schmid, 71 A.D.3d 497, 897 N.Y.S.2d 62 [1st Dept. 2010]).  Plaintiff also failed to allege that Equinox foresaw, or could have foreseen, at the time that it entered into the membership agreement the damages that he now seeks to recover as a consequence of the alleged breach of the agreement (see Yenrab, Inc. v. 794 Linden Realty, LLC, 68 A.D.3d 755, 759, 892 N.Y.S.2d 105 [2d Dept. 2009];  see generally Ashland Mgt. v. Janien, 82 N.Y.2d 395, 403, 604 N.Y.S.2d 912, 624 N.E.2d 1007 [1993]).

The claim for breach of the implied covenant of good faith and fair dealing is duplicative of the breach of contract claim (see Art Capital Group, LLC v. Carlyle Inv. Mgt. LLC, 151 A.D.3d 604, 55 N.Y.S.3d 54 [1st Dept. 2017]).

The negligence claims are also duplicative of the breach of contract claim (see generally Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987]).

In support of the negligent hiring, training, supervision, and retention claim, plaintiff failed to allege that Equinox knew or should have known of Alexander's propensity to falsely accuse Equinox members of engaging in lewd conduct (see generally Sheila C. v. Povich, 11 A.D.3d 120, 129–130, 781 N.Y.S.2d 342 [1st Dept. 2004]).  All the alleged instances of Alexander's misbehavior were uncovered as part of the investigation undertaken by Equinox after Alexander accused plaintiff.

We reject plaintiff's effort on appeal to recast his pleaded negligent infliction of emotional distress claim as a claim for intentional infliction of emotional distress.  However, extreme and outrageous conduct is an element of either cause of action (Sheila C., 11 A.D.3d at 130–131, 781 N.Y.S.2d 342), and Equinox's alleged conduct was not so extreme or outrageous as to support the claim (see Matthaus v. Hadjedj, 148 A.D.3d 425, 49 N.Y.S.3d 393 [1st Dept. 2017]).