Summary
holding it was too premature to determine whether plaintiffs' failure to file notice of claim barred state law claims against County
Summary of this case from Silverman v. City of New YorkOpinion
December 4, 1995
Appeal from the Supreme Court, Nassau County (Ain, J.).
Ordered that the order is modified, on the law, by (1) deleting the provision thereof granting those branches of the defendants' motion which were to dismiss the second and fourth causes of action and substituting therefor a provision denying those branches of the defendants' motion, and (2) deleting the provision thereof granting that branch of the defendants' motion which was to dismiss the fifth cause of action and substituting therefor a provision granting that branch of the motion only to the extent of dismissing the fifth cause of action insofar as asserted against the defendants County of Nassau and Nassau County Medical Center and denying that branch of the motion in all other respects; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
According to the allegations of the complaint, the plaintiff entered into a contract with the defendant County of Nassau and the defendant Nassau County Medical Center (hereinafter NCMC) to provide certain services to NCMC, and those defendants thereafter terminated the plaintiff's performance of services without cause. The plaintiff commenced this action and added Raymond Pritchet and Thomas Kennedy, two NCMC employees, as defendants. The second and third causes of action respectively alleged that Pritchet tortiously interfered with the contract and committed a prima facie tort by falsely denigrating the plaintiff's contractual performance to his superiors to advance the interests of a competing company owned by his friend. The fourth cause of action alleged that Kennedy similarly interfered with the contract, while the fifth cause of action asserted that all of the defendants conspired to defraud the plaintiff and frustrate its rights. The defendants moved, inter alia, to dismiss the foregoing causes of action as time barred under General Municipal Law § 50-i and for failure to file a notice of claim as required by General Municipal Law § 50-e. The defendants sought to dismiss the third cause of action on the additional ground that it failed to state a claim for prima facie tort. The Supreme Court granted the motion and dismissed these causes of action. We now modify the order to reinstate the second and fourth causes of action and to reinstate the fifth cause of action to the extent that it is asserted against the defendants Pritchet and Kennedy.
It is clear that the one-year-and-90-day limitations period of General Municipal Law § 50-i and the notice of claim requirement of General Municipal Law § 50-e apply to the claims against the individual defendants only if the defendant County of Nassau is obligated to indemnify them (see, General Municipal Law § 50-e [b]; Urraro v Green, 106 A.D.2d 567; Albano v Hawkins, 82 A.D.2d 871). The obligation to indemnify in turn depends upon the resolution of the fact-sensitive question of whether Pritchet and Kennedy were acting within the scope of their employment with NCMC in committing the alleged tortious acts (see generally, Riviello v Waldron, 47 N.Y.2d 297; Overton v Ebert, 180 A.D.2d 955; Beare v Byrne, 103 A.D.2d 814, affd 67 N.Y.2d 922).
Contrary to the defendants' position and the Supreme Court's determination, the record in this case does not contain sufficient evidence upon which to resolve the scope of employment issue. The complaint alleges that Pritchet and Kennedy did not act in the scope of their employment, and the plaintiff's Long Island service manager submitted an affidavit of personal knowledge stating that Pritchet had engaged in a deliberate scheme to aid his friend's company by falsifying information regarding the plaintiff to NCMC executives. The defendants submitted only an attorney's affirmation in support of their claim that Pritchet and Kennedy acted within the scope of their employment. Significantly, there is no affidavit, deposition, or documentary evidence in the record identifying the employment positions of Pritchet and Kennedy, the work duties associated therewith, or the manner in which the alleged conduct fell within the scope of their employment. Accordingly, resolution of the issue must await discovery and further motion practice or trial (see, Giordano v O'Neill, 131 A.D.2d 722; Albano v Hawkins, 82 A.D.2d 871, supra), and the second and fourth causes of action, as well as the fifth cause of action insofar as it is asserted against Pritchet and Kennedy, must be reinstated. The fifth cause of action was properly dismissed as against the County of Nassau and NCMC on the grounds of failure to serve a notice of claim (see, General Municipal Law § 50-e) and expiration of the applicable limitations period (see, General Municipal Law § 50-i).
However, we agree with the defendants that the third cause of action fails to state a claim for prima facie tort inasmuch as it fails to allege that the sole motivation for Pritchet's conduct was disinterested malevolence (see, e.g., Niego v Braun, 212 A.D.2d 445; Deising v Town of Esopus, 204 A.D.2d 940; Boyle v Stiefel Labs., 204 A.D.2d 872; WFB Telecommunications v NYNEX Corp., 188 A.D.2d 257). In fact, the allegations of the complaint actually negate this requisite element. Similarly, the plaintiff failed to adequately plead special damages (see, Nu-Life Constr. Corp. v Board of Educ., 204 A.D.2d 106; Constant v Hallmark Cards, 172 A.D.2d 641; Dalton v Union Bank, 134 A.D.2d 174).
The plaintiff's contention that the Supreme Court erred in denying its cross motion is not properly before us since the plaintiff did not appeal from that part of the order (see, CPLR 5515; Kinns v. Schulz, 131 A.D.2d 957; Royal v. Brooklyn Union Gas Co., 122 A.D.2d 132; Vias v. Rohan, 119 A.D.2d 672; Christian v. Christian, 55 A.D.2d 613; Marocco v. Marocco, 53 A.D.2d 707). Bracken, J.P., Sullivan, Rosenblatt and Hart, JJ., concur.