CERICK v. MTB BANK

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Supreme Court, Appellate Division, First Department, New York.

M. Richard CERICK, Plaintiff-Appellant, v. MTB BANK, et al., Defendants-Respondents.

Decided: June 17, 1997

Before MILONAS, J.P., and ELLERIN, NARDELLI, WILLIAMS and MAZZARELLI, JJ. Steven A. Morelli, for plaintiff-appellant. Anthony Di Sarro, for defendants-respondents.

Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered May 31, 1996, which, insofar as appealed from as limited by plaintiff's brief, granted defendants' motion to dismiss plaintiff's causes of action for defamation and intentional infliction of emotional distress for failure to state a cause of action, and denied plaintiff's cross motion to disqualify defendants' attorneys without prejudice to renewal, unanimously affirmed, without costs.

 The alleged statement made by defendant president of defendant bank to various bank regulators and investigators referring to the bank's failure to file over 4,000 currency transaction and monetary instrument reports, that plaintiff, the bank's then general counsel and vice-president, “should have caught it”, was not a slander per se (see, Amelkin v. Commercial Trading Co., 23 A.D.2d 830, 259 N.Y.S.2d 396, affd 17 N.Y.2d 500, 267 N.Y.S.2d 218, 214 N.E.2d 379).   Nor should dismissal have awaited disclosure where the complaint was otherwise deficient in failing to allege in haec verba the particular defamatory words (Gardner v. Alexander Rent-A-Car, 28 A.D.2d 667, 280 N.Y.S.2d 595).   In addition, the conduct elsewhere alleged “fall[s] short of the rigorous standard of outrageous conduct necessary to maintain a cause of action for intentional infliction of emotional distress”, and it appears that plaintiff is attempting to circumvent the employee at will discharge rule by pleading such distress (Jaffe v. National League for Nursing, 222 A.D.2d 233, 635 N.Y.S.2d 9).   Plaintiff's cross motion to disqualify defendants' law firm was properly denied (see, Talvy v. American Red Cross, 205 A.D.2d 143, 618 N.Y.S.2d 25, affd 87 N.Y.2d 826, 637 N.Y.S.2d 687, 661 N.E.2d 159).

MEMORANDUM DECISION.