Opinion
November 6, 2003.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered July 24, 2002, which granted defendants' motions for summary judgment dismissing the complaint, denied the branch of plaintiffs' cross motion seeking summary judgment and partially denied the branch of that cross motion seeking dismissal of the counterclaims, unanimously affirmed, without costs.
Richard A. Hubell, for plaintiffs-appellants.
Joel E. Cohen Stephen J. McGrath, for defendants-respondents.
Before: Nardelli, J.P., Mazzarelli, Sullivan, Rosenberger, Lerner, JJ.
Pursuant to a contract with defendant New York City Health and Hospitals Corporation, defendant St. Barnabas Hospital employed plaintiffs as surgical attending physicians to provide surgical and emergency medical services for Lincoln Medical and Mental Health Center. When plaintiffs intimated that they would "stop taking call," that is, decline availability for patient care, defendant hospital terminated their employment. Because plaintiffs were at-will employees, the court properly dismissed their claim for breach of contract or improper termination (see Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 304-305). Both the policy manual and employee handbook explicitly disclaim any contractual relationship (see Lobosco v. New York Tel. Co., 96 N.Y.2d 312, 316-317).
Statements regarding plaintiffs' performance contained in the termination memorandum are protected by the qualified "common interest" privilege (see Liberman v. Gelstein, 80 N.Y.2d 429, 437-38; Loughry v. Lincoln First Bank, N.A., 67 N.Y.2d 369, 376). Statements made with respect to plaintiff Kazigo in particular are afforded the same qualified privilege since they were made in the context of an employment relationship (see Present v. Avon Prods., 253 A.D.2d 183, 187-188, lv dismissed 93 N.Y.2d 1032). Finally, statements reported in The New York Times constitute non-actionable opinion statements concerning the reasons for plaintiffs' actions (see Julian v. American Bus. Consultants, 2 N.Y.2d 1, 8-9; Howard v. Alford, 229 A.D.2d 996, 997). Thus, plaintiffs' defamation claims were properly dismissed (see Dillon v. City of New York, 261 A.D.2d 34, 38-39).
Setting an initial salary equal to plaintiff Priovolos's former rate of pay is a legitimate, non-discriminatory reason for the original discrepancy with the salary of other attendings, an inconsistency that was eliminated by retroactive adjustment (see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-507). Nor do two instances of alleged ridicule, even if substantiated, comprise a pattern sufficient to establish gender discrimination (see Youth Action Homes v. State Div. of Human Rights, 231 A.D.2d 7, 12). We note that plaintiffs Kazigo and Rao did not accept the contracts that they allege to be discriminatory based on their age and were discharged as at-will employees. Thus, plaintiffs' claims predicated on discrimination were properly dismissed.
As to defendants' counterclaims, we agree that issues of fact as to whether plaintiffs violated their duty of good faith and loyalty preclude summary dismissal of defendants' causes of action for breach of fiduciary duty (see AM Cosmetics v. Solomon, 67 F. Supp.2d 312, 320; Krause v. Gelman, 181 A.D.2d 424).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.