Summary
dismissing claim where “ [p]laintiff's allegations of malice, in an effort to overcome the common-interest privilege, amount to little more than mere surmise and conjecture”
Summary of this case from Ratajack v. Brewster Fire Dep'tOpinion
2013-10-8
Douglas H. ASHBY, Plaintiff–Appellant, v. ALM MEDIA, LLC, et al., Defendants–Respondents.
Law Offices of Stewart Lee Karlin, P.C., New York (Stewart Lee Karlin of counsel), for appellant. Clarick Gueron Reisbaum LLP, New York (Gregory A. Clarick of counsel), for respondents.
Law Offices of Stewart Lee Karlin, P.C., New York (Stewart Lee Karlin of counsel), for appellant. Clarick Gueron Reisbaum LLP, New York (Gregory A. Clarick of counsel), for respondents.
Gonzalez, P.J., MAZZARELLI, ANDRIAS, DeGRASSE, JJ.
Order, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about May 18, 2012, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
Defendant Whittle's statement that plaintiff was “deliberately sabotaging” defendant ALM Media, LLC's IT redesign project was protected by the common-interest privilege because it constituted a communication “made to persons who have some common interest in the subject matter” ( Foster v. Churchill, 87 N.Y.2d 744, 751, 642 N.Y.S.2d 583, 665 N.E.2d 153 [1996] ), namely, the people working on the IT system redesign. The statement is also protected as one made by a “management employee[ ] having responsibility to report on the matter in dispute” ( Murganti v. Weber, 248 A.D.2d 208, 209, 669 N.Y.S.2d 818 [1st Dept.1998]; see Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1 [1st Dept.1999] ). Plaintiff's allegations of malice, in an effort to overcome the common-interest privilege, amount to little more than “mere surmise and conjecture” ( Weiss v. Lowenberg, 95 A.D.3d 405, 406, 944 N.Y.S.2d 27 [1st Dept.2012] ).
Plaintiff's tortious interference claims against Whittle were also properly dismissed. “It is well established that only a stranger to a contract, such as a third party, can be liable for tortious interference with a contract” ( Koret, Inc. v. Christian Dior, S.A., 161 A.D.2d 156, 157, 554 N.Y.S.2d 867 [1st Dept.1990], lv. denied76 N.Y.2d 714, 564 N.Y.S.2d 718, 565 N.E.2d 1269 [1990];see Baker v. Guardian Life Ins. Co. of Am., 12 A.D.3d 285, 785 N.Y.S.2d 437 [1st Dept.2004] ). Whittle was not a stranger to plaintiff's contract with ALM as he was one of ALM's executives.
We have considered plaintiff's remaining arguments and find them unavailing.