The following papers were read on this motion by defendant for an order, pursuant to CPLR 3211 (a) (2) and (7), dismissing the complaint. Papers Numbered Notice of Motion, Affidavit, Exhibits, Memorandum of Law E15-26 Memorandum in Opposition E27 Reply Memorandum of Law E28 Upon the foregoing papers, it is ordered that this motion is determined as follows: Plaintiff’s complaint alleges causes of action for breach of fiduciary duty, breach of contract, and slander per se against defendant. Defendant was an at-will employee of plaintiff, a private, non-profit pedagogical organization with campuses in Queens and Brooklyn, from March 2006 through January 2018. Boris Davidoff is the President and Chief Executive Officer of plaintiff. Defendant was terminated after it was discovered that he had engaged in a relationship with a student of plaintiff. The student filed a signed statement with plaintiff claiming defendant harassed her, and, as a result of such harassment, she feared for her safety. On March 22, 2018, defendant commenced a lawsuit in the United States District Court for the Eastern District of New York against plaintiff and its owner, Boris Davidoff, alleging unpaid overtime under the Fair Labor Standards Act and New York Labor Law (the “Federal Lawsuit”). Plaintiff commenced this action a few weeks after an unsuccessful settlement conference in the Federal Lawsuit. Defendant argues that this lawsuit was brought in retaliation to defendant’s earlier Federal Lawsuit. Defendant now moves to dismiss the complaint, arguing that the claims in this action are barred, as they should have been filed as compulsory counterclaims in the Federal Lawsuit, pursuant to Federal Rules of Civil Procedure rule 13. Defendant also moves to dismiss, pursuant to CPLR 3211 (a) (7), for failure to state a cause of action. I. CPLR 3211 (a) (2) — Subject Matter Jurisdiction Plaintiff’s claims are not barred by the compulsory counterclaim rule in the Federal Rules of Civil Procedure rule 13, as the claims in the Federal Lawsuit are distinct from the claims asserted herein. The Federal Lawsuit involves a claim for unpaid overtime, whereas this case involves claims for breach of fiduciary duty, breach of contract, and slander per se, rooted in defendant’s prior relationship with a student of plaintiff. Defendant has failed to explain how the Federal Lawsuit has any connection to that relationship. While both arise from defendant’s former employment with plaintiff, this is not a sufficient nexus be found as “aris[ing] out of the transaction or occurrence that is the subject matter” of defendant’s claims in the Federal Lawsuit (Fed Rules Civ Pro rule 13 [a]). Moreover, the Court of Appeals, in Paramount Pictures Corp. v. Allianz Risk Transfer AG (31 NY3d 64 [2018]), found the preclusive effect of the federal claim derived from the prior federal-court judgment, as the case was fully decided on the merits. II. CPLR 3211 (a) (7) — Failure to State a Cause of Action On a motion to dismiss, pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (Leon v. Martinez, 84 NY2d 83 [1994]), and the plaintiff is to be accorded the benefit of every possible inference (Cueto v. Hamilton Plaza Co., Inc., 67 AD3d 722 [2d Dept 2009]). Initially, the sole criterion to dismiss a complaint is whether the pleading, and the factual allegations contained within its four corners, manifests any cause of action cognizable at law (Gaidon v. Guardian Life Ins. Co. of America, 94 NY2d 330 [1999]). The court must find the plaintiff’s complaint to be legally sufficient if it finds that plaintiff is entitled to recovery upon any reasonable view of the stated facts (Hoag v. Chancellor, Inc., 246 AD2d 224 [1st Dept 1998]). “However, bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on such a motion” (Palazzolo v. Herrick, Feinstein, LLP, 298 AD2d 372 [2d Dept 2002]). A. Breach of Fiduciary Duty (First Cause of Action) Contrary to plaintiff’s contention, the complaint fails to plead any facts demonstrating how the arms-length, employer-employee relationship between itself and defendant gave rise to any fiduciary duty (see Schenkman v. New York Coll. of Health Professionals, 29 AD3d 671 [2d Dept 2006]; cf. Cuomo v. Mahopac Natl. Bank, 5 AD3d 621 [2d Dept 2004]; Wiener v. Lazard Freres & Co., 241 AD2d 114 [1st Dept 1998]; Michnick v. Parkell Prods., 215 AD2d 462 [2d Dept 1995]). As such, plaintiff’s cause of action for breach of fiduciary duty is dismissed. B. Breach of Contract (Second Cause of Action) The elements of a cause of action for breach of contract are (1) the formation of an agreement, (2) performance of the agreement by one party, (3) breach by the other party, and (4) damages (see Furia v. Furia, 116 AD2d 694 [2d Dept 19861). All of the elements must be properly pleaded in order to avoid dismissal (see Bonamii v. Straight Arrow Publs., 133 AD2d 585 [1st Dept 1987]). A cause of action for breach of contract will be dismissed if it fails to allege the breach of a specific contractual provision (see Kraus v. Visa Intl. Serv. Assn., 304 AD2d 408 [1st Dept 2003]; Lebow v. Kakalios, 156 AD2d 301 [1st Dept 1989]). In this case, plaintiff fails to allege the specific contractual provision, or even the contract, upon which the claim of breach is based. Nor does plaintiff cite any authority in support of its contention that, under circumstances such as those presented herein, an “implied-in-law obligation to act ethically” is recognized under New York law. Plaintiff’s breach of contract claim is therefore dismissed. C. Slander Per Se (Third Cause of Action) “Defamation has long been recognized to arise from ‘the making of a false statement which tends to “expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.” ‘ The elements are a false statement, published without a privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and, it must either cause special harm or constitute defamation per se” (Dillon v. City of New York, 261 AD2d 34, 37-38 [1st Dept 1999], quoting (Foster v. Churchill, 87 NY2d 744, 751 [1996], quoting Rinaldi v. Holt, Rinehart, & Winston, Inc., 42 NY2d 369, 379 [1977], quoting Sydney v. MacFadden Newspaper Publ. Corp., 242 NY 208, 211-212 [1926]). “In cases involving defamation per se, the law presumes that damages will result, and special damages need not be alleged or proven” (Gatz v. Otis Ford, 274 AD2d 449,711 NYS2d 467 [2d Dept 2000]). The per se categories consist of the following statements: (1) the plaintiff committed a crime, (2) the statement tends to injure the plaintiff in his or her trade, business, or profession, and (3) the plaintiff has contacted a loathsome disease among others (see Matherson v. Marchello, 100 AD2d 233 [2d Dept 1984]). When the defamatory statement falls into one of these categories, “the law presumes damage to the slandered individual’s reputation so that the cause is actionable without proof of special damages” (60 Minute Man, Ltd. v. Kossman, 161 AD2d 574 [2d Dept 1990]). Defamation traditionally consists of two related causes of action, libel and slander. The demarcation between libel and slander rests upon whether the allegedly defamatory words are written or spoken (see Matherson, 100 AD2d 233). Slander is the uttering of defamatory words which tend one’s reputation, office, trade, etc. (see Shapiro v. Mount Pleasant v. Burke Glens Falls Ins. Co., 39 NY2d 204 [1976]; Liffman v. Brooke, 59 AD2d 687 [1st Dept 1977]. Libel is always considered as written (see id.). Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance (see Golub v. Enquirer/Star Group, 89 NY2d 1074 [1997]). In deciding whether the statement is defamatory, the court must determine if it constitutes a statement of fact or opinion, that is, whether a reasonable person would have believed the statements were conveying facts about the plaintiff. Defamation is the publication of a statement about an individual that is both false and defamatory. Because only assertions of fact are capable of being proven false, a defamation action cannot be maintained unless it is premised on published assertions of fact (see Brian v. Richardson, 87 NY2d 46 [1995]). Non-actionable “pure opinion” is a statement of opinion accompanied by recitation of facts upon which it is based, or, if not accompanied by such factual recitation, the statement must not imply that it is based upon undisclosed facts (see Steinhilber v. Alphonse, 68 NY2d 283 [1986]). Expressions of an opinion, “false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions” (see id.). The complaint must set forth the particular words allegedly constituting the defamation (CPLR 3016 [a]), and it must also allege the time when, place where, and manner in which the false statement was made and specify to whom it was made (Dillon, 261 AD2d 34). Statements are not considered defamatory if they did not subject the plaintiff “to the scorn and contempt of the community” (Herlihy v. Metro. Museum of Art, 214 AD2d 250, 260 [1st Dept 1995]). Here, none of the statements allegedly made by defendant rise to a level of slander per se. These loose, figurative, hyperbolic statements were merely expressions of opinion, which, even if deprecating, does not constitute actionable defamation (see Kaye v. Trump, 58 AD3d 579 [1st Dept 2009]; Dillon v. City of New York, 261 AD2d 34 [1st Dept 1999]). Although it is clear that the language was offensive, it is not actionable as slander, as it does not falsely relate facts or characteristics concerning plaintiff (see 600 West 115th St. Corp. v. Van Gutfeld, 80 NY2d 130 [1992]). Plaintiff’s complaint also fails to allege the place where the statements were made and, as to whom, the complaint merely alleges the defamatory statements were “communicated to co-workers and third parties.” Plaintiff’s cause of action for defamation therefore fails to satisfy the required pleadings standard. Additionally, to the extent that the complaint alleges defamatory statements were made on or about October 2017 through November 2017, those allegations are not sufficiently specific with respect to time. Accordingly, defendant’s motion to dismiss plaintiff’s complaint is granted. This constitutes the decision and order of the court. Dated: August 29, 2019
