LERWICK v. KELSEY (2005)

Appeal from an order of the Supreme Court (Dowd, J.), entered January 11, 2005 in Chenango County, which, inter alia, granted a motion by defendants Ralph E. Kelsey, Steven P. Krna and Ruth A. Smith to dismiss the complaint against them and/or for summary judgment.

This action is one of three actions pending before this court (Lerwick v. Kelsey, 24 A.D.3d 918, 806 N.Y.S.2d 732 [2005] [decided herewith];  Lerwick v. Kelsey, 24 A.D.3d 920, 804 N.Y.S.2d 706 [2005] [decided herewith] ).   The facts underlying this matter are more fully set forth in one of those companion cases (Lerwick v. Kelsey, supra).   This third action based upon the same facts, alleges a prima facie tort.   Plaintiff asserts that defendants Ralph E. Kelsey, Steven P. Krna and Ruth A. Smith (hereinafter collectively referred to as defendants) acted with “disinterested malevolence,” causing him to be fired from his position as president of the Broome Cooperative Insurance Company.   Plaintiff sought compensatory and punitive damages and defendants moved to dismiss the complaint for failure to state a cause of action and/or for summary judgment.   Supreme Court dismissed the action.   Upon this appeal, we affirm.

 Accepting plaintiff's facts as true, and allowing for every favorable inference to determine whether any cognizable legal theory can be discerned (see Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414, 729 N.Y.S.2d 425, 754 N.E.2d 184 [2001] ), we agree that the pleadings are insufficient to set forth a cause of action for prima facie tort.   That cause of action requires a showing of an intentional infliction of harm, without excuse or justification, by an act or series of acts that would otherwise be lawful (see Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142, 490 N.Y.S.2d 735, 480 N.E.2d 349 [1985] ).   It must also be shown that there were special damages and that malevolence was the sole motivating factor (see Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 332-333, 464 N.Y.S.2d 712, 451 N.E.2d 459 [1983] ).   The Court of Appeals has explained that “ ‘the genesis which will make a lawful act unlawful must be a malicious one unmixed with any other and exclusively directed to injury and damage of another’ ” (id. at 333, 464 N.Y.S.2d 712, 451 N.E.2d 459, quoting Beardsley v. Kilmer, 236 N.Y. 80, 90, 140 N.E. 203 [1923] ).   Here, the record shows that plaintiff was an at-will employee.   For that reason, there can be no viable claim for a wrongful discharge or breach of contract action against an employer and a prima facie tort claim cannot be utilized to circumvent the unavailability of those claims (see Ingle v. Glamore Motor Sales, 73 N.Y.2d 183, 188-189, 538 N.Y.S.2d 771, 535 N.E.2d 1311 [1989];  Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303-304, 461 N.Y.S.2d 232, 448 N.E.2d 86 [1983];  LaDuke v. Lyons, 250 A.D.2d 969, 973, 673 N.Y.S.2d 240 [1998];   Boyle v. Stiefel Labs., 204 A.D.2d 872, 876, 612 N.Y.S.2d 469 [1994], lv. denied 84 N.Y.2d 803, 617 N.Y.S.2d 137, 641 N.E.2d 158 [1994] ).   To the extent that the allegations were to show disinterested malevolence, their dismissal was warranted due to the qualified privilege which attached to defendants' communications due to their status as members of the board (see Lerwick v. Kelsey, supra;  see also Liberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344 [1992] ).¹  We further find the specific allegations regarding the scheduling of board meetings or the critique of plaintiff's corporate plans and competence to be insufficient to dissolve the shield given from the qualified privilege on the grounds of malice (see Burns Jackson Miller Summit & Spitzer v. Lindner, supra at 333, 464 N.Y.S.2d 712, 451 N.E.2d 459;  Lerwick v. Kelsey, supra ).

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   Notably, defendants did specifically plead qualified privilege as an affirmative defense in their answer.

PETERS, J.

CREW III, J.P., MUGGLIN, ROSE and LAHTINEN, JJ., concur.