Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: Papers NYSCEF Numbered Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed 11-15 Opposing Affidavits (Affirmations) 17-20 Reply Affidavits (Affirmations) 23 Other DECISION/ORDER Upon the foregoing papers, in this action by plaintiff Jeffrey Lax (plaintiff) against defendants the City University of New York (CUNY), Stuart Suss (Suss), Julie Block-Rosen (Block-Rosen), Fredrick Schaffer (Schaffer), Gloriana Waters (Waters), and Kingsborough Community College (Kingsborough) (collectively, defendants) alleging claims for defamation,1 breach of fiduciary duties, aiding and abetting breaches of fiduciary duty, and intentional infliction of emotional distress, defendants move, under motion sequence number one, for an order, pursuant to CPLR 3211 (a) (7), dismissing plaintiff’s complaint based on the ground that it fails to state a cause of action. Facts and Procedural Background CUNY is the public university system of the City of New York, and Kingsborough is a public community college that is part of the CUNY system. Plaintiff is a professor and the chairperson of the business department of Kingsborough. Plaintiff began his employment with Kingsborough in 2004 as an assistant professor and was assigned to the business department. After five years, plaintiff earned tenure. In 2010, Kingsborough promoted plaintiff to the position of associate professor, and in 2011, plaintiff became the chairperson of the business department with the responsibility for supervising 65 full-time and part-time faculty members and six office staff members. In 2013, plaintiff was promoted to the position of professor. Plaintiff is an Orthodox Jewish person, who characterizes himself as an “obvious Jew” or “outward Jew.” Suss is the former Provost, interim president (from September 1, 2013 to August 31, 2014), and vice-president of academic affairs of Kingsborough. Plaintiff alleges that Suss has engaged in an obsessive, concerted, and relentless pattern of religious discrimination (including the perpetual use of mocking and offensive antisemitic language) against him due to his orthodox Jewish observance. Plaintiff asserts that Suss mocked his and the chair of the math department’s religious beliefs. Plaintiff further alleges that part of Suss’ mission was to eliminate outward Jewish people from the faculty at Kingsborough. Plaintiff cites examples of Suss’ alleged efforts to remove Jewish people from Kingsborough, including ignoring the selections of the hiring committees, and eliminating Jewish candidates from consideration and replacing them with non-Jewish candidates who were less qualified. Plaintiff alleges that Suss blocked the promotions and harassed the more active Jewish faculty members. Plaintiff notes that when Suss took over as Provost in 1999, Jewish faculty represented a large percentage of the department chairs (and consequently, a large percentage of the 14-15-member college personnel and budget committee), often constituting a strong majority of that group. Plaintiff asserts that Suss worked diligently to effectuate the removal of Jewish people from positions of authority at Kingsborough, such as department chairs and members of the personnel and budget committee. Plaintiff points out that by the time Suss announced his retirement in the Spring of 2015 (effective August 2015), only two Jewish people remained on the personnel and budget committee, namely him and the chair of the math department. Plaintiff further alleges that word of the policies spread outside of Kingsborough and that an outwardly Jewish person who inquired about applying for a position at Kingsborough was told “don’t bother, there are too many Jews here already.” Plaintiff alleges that this reduction of Jewish faculty members was due to the concerted efforts of Suss. Block-Rosen is the former legal counsel and labor designee at Kingsborough. On November 18, 2014, in a completely unprovoked incident, Block-Rosen allegedly screamed at plaintiff in a hallway at Kingsborough after another faculty member mentioned something that Block-Rosen mistakenly attributed to plaintiff. As a result, plaintiff, on November 20, 2014, sent an email to Block-Rosen requesting that she not scream at him and requesting that she act professionally moving forward. Block-Rosen immediately showed this email to Suss. Anna Geller-Koplan (Geller) was a full-time lecturer in the business department at Kingsborough. In the fall 2014 semester, Geller was up for reappointment, and the business department’s personnel and budget committee unanimously voted 0-5 not to reappoint Geller for various legitimate reasons. On November 25, 2014, plaintiff, who supervised Geller, met with Geller for her annual evaluation conference. Plaintiff alleges that in early December 2014, Suss held a secret meeting with Geller, in which they discussed a recording that Geller had made of her November 25, 2014 annual evaluation conference. Plaintiff claims that at this meeting, due to Suss’ intent to remove Jewish people from Kingsborough and to target and discriminate against him because he was an “outward Jew,” Suss persuaded Geller, who had been pregnant and taken maternity leave, into filing a false gender and pregnancy discrimination complaint against him, spreading a series of lies against him in an attempt to discredit him by making him look mentally ill and capable of discriminatory acts. Specifically, plaintiff alleges that Suss coaxed Geller to, among other things, make him look crazy by stating in her discrimination complaint against him that he had accused her of screaming at him during the November 25, 2014 annual evaluation conference. Plaintiff asserts that Suss reasoned that since the November 25, 2014 conference was only five days after plaintiff had sent the email to Block-Rosen asking her not to scream at him, it would be easy to demonstrate to Kingsborough’s president Farley Herzek (Herzek) and others that an individual accusing two separate people on campus of screaming at him within a matter of days of each other was “literally going crazy” and was likely committing the discriminatory acts falsely alleged by Geller. Plaintiff further alleges that Suss also directed Geller to attribute false statements to plaintiff to build a false discrimination case against him. Plaintiff states that Suss, motivated by antisemitism, sought to persuade administrators that he was mentally incompetent and discriminated against Geller. On December 10, 2014, several days after learning of her non-reappointment, Geller filed a CUNY-internal written complaint of gender and pregnancy discrimination, hostile work environment, and allegations of retaliation against plaintiff. Plaintiff claims that Geller followed Suss’ instructions and falsely claimed that he had told her during the November 25, 2014 annual evaluation conference that he gave her “a ‘bad’ schedule for the spring,” “repeatedly stated this campus is not for you,” and stated that “I appreciate you not screaming at me.” Plaintiff asserts that the claim that he repeatedly asked Geller to stop screaming at him when she was not raising her voice and these other statements were all intentionally fabricated by Suss and Geller. Plaintiff states that he, unbeknownst to Geller and Suss prior to Geller’s filing of her discrimination complaint, had recorded the November 25, 2014 annual evaluation conference, and that both his and Geller’s recordings show that he never accused Geller of screaming at him and that he never made any of the above statements which Geller attributed to him. Plaintiff alleges that in a December 2014 or January 2015 meeting with Herzek (who, as noted above, was Kingsborough’s president), diversity officer Angel Rivera, and at least one other person, Suss, then unaware that the November 25, 2014 annual evaluation was recorded not just by Geller but also by him, in a discussion related to the allegations of Geller, stated that he was “literally going crazy.” According to plaintiff, Mr. Rivera then asked Suss, “Literally? Do you believe he is literally going crazy?” to which Suss again repeated and affirmed his statement to everyone in the room: “he is literally going crazy.” Plaintiff further asserts that Suss also falsely and maliciously told Herzek and others at Kingsborough that plaintiff had “aggressively pursued” Block-Rosen on November 18, 2014 and that Block-Rosen “was scared” for her physical safety. Plaintiff contends that the statements made by Suss constituted defamation and slander per se. Plaintiff alleges that in January 2015, in a meeting with another department chair, Suss verbally stated that Geller’s allegations of discrimination and retaliation against him were “all laid out and true” and were “a slam dunk” against plaintiff. Plaintiff states that Suss repeated these statements to others at Kingsborough and also told various individuals that plaintiff was “crazy” or “is literally going crazy.” Plaintiff asserts that Suss’ statements were false and defamatory and known to be false by Suss. Plaintiff also claims that Suss made these statements with malice. Plaintiff further claims that these statements falsely impugned his honesty, integrity, trustworthiness, sanity, legal capacity, dependability, and professional fitness and abilities by falsely charging him with conduct that would tend to injure him in his profession, namely, as a professor and well-respected department chair, and in his ability to publish scholarly works in the field of civil rights, most detrimentally, his research and publication in the field of women’s rights. After an internal investigation into Geller’s discrimination complaint was opened by CUNY, the central office’s human resources management, led by Pinar Ozgu (Ozgu), made a finding of retaliation by plaintiff against Geller. Plaintiff alleges that Ozgu was an agent of and reported directly to Waters, who was the vice chancellor for human resources management and an officer of CUNY. Ozgu conducted the investigation under the orders and direction of Waters. Waters issued a letter, dated June 2, 2015, to plaintiff, Suss, Geller, and Herzek which stated that the “acts that…Geller complained about were the result of [plaintiff's] retaliation.” Plaintiff asserts that since he took no actions whatsoever related to Geller’s work situation at Kingsborough after she filed her discrimination complaint on December 10, 2014, any retaliation claim was impossible. Plaintiff claims that Waters and CUNY published this statement to individuals at Kingsborough and CUNY, while Waters refused to convey what findings of retaliation were found against him. Plaintiff notes that despite the untenable finding of purported retaliation by him, the June 2, 2015 letter from Waters exonerated him of all allegations of discrimination made by Geller, including gender and pregnancy discrimination and claims of a hostile work environment. Plaintiff contends that the statement in this letter that he had engaged in retaliation against Geller was defamatory. Plaintiff claims that Waters and CUNY inappropriately published this false and defamatory statement to improper individuals at Kingsborough and CUNY and engaged in a course of conduct to distribute Geller’s false discrimination complaint to a myriad of individuals at Kingsborough and CUNY. Plaintiff asserts that this statement was untrue and defamatory in that it falsely reported his character and actions, and that Waters and CUNY published this statement with knowledge of its falsity and with malice. Plaintiff alleges that the defamatory statements made against him have caused him embarrassment, humiliation, emotional injury, reputational harm, and the inability to advance his career. Plaintiff also asserts that CUNY has a well-established policy and practice of keeping complaints under investigation private and confidential until a full investigation has been conducted. Plaintiff claims that flouting this policy and practice, Waters inappropriately released Geller’s complaint, which was under her control due to the investigation being performed, to numerous persons. In July 2015, plaintiff, who was then pro se,2 filed his complaint against defendants.3 Plaintiff’s complaint asserts a first cause of action for defamation and libel per se, a second cause of action for defamation and slander per se, a third cause of action for breach of fiduciary duties, a fourth cause of action for aiding and abetting breaches of fiduciary duty, and a fifth cause of action for intentional infliction of emotional distress. While plaintiff originally named Geller as a defendant in this action, plaintiff has since discontinued this action as against her, with prejudice. On August 19, 2022, defendants filed their instant motion under motion sequence number one (NYSCEF Doc No. 11). Plaintiff, in his memorandum of law in opposition to defendants’ motion, states that he hereby withdraws his claims against Block-Rosen, and also withdraws his fourth cause of action for aiding and abetting breaches of fiduciary duty which was asserted as against Block-Rosen, Kingsborough, and CUNY (NYSCEF Doc No. 17). Plaintiff further states that he withdraws his fifth cause of action for intentional infliction of emotional distress as against all defendants except Suss (id.). Plaintiff sets forth that, therefore, his defamation claims are presently asserted against CUNY, Suss, Waters, Schaffer, and Kingsborough. However, neither plaintiff’s first cause of action nor his second cause of action actually allege a claim against Kingsborough or Schaffer. Plaintiff’s first cause of action for defamation and libel per se was only asserted against Waters, CUNY, and Geller, and thus is presently asserted as against Waters and CUNY (as vicariously liable for Waters’ alleged defamation). Plaintiff’s second cause of action for defamation and slander per se was asserted as against Geller and Suss, and thus is presently asserted only as against Suss. Plaintiff did not allege any vicarious liability on the part of CUNY or Kingsborough for Suss’ alleged defamation. Plaintiff’s third cause of action for breach of fiduciary duties is asserted as against Suss, Schaffer, Waters, Kingsborough, and CUNY. There is no longer a fourth cause of action, and plaintiff’s fifth cause of action for intentional infliction of emotional distress claim is now asserted as against Suss only. The court now addresses defendants’ instant motion. Discussion Standard on a Motion to Dismiss On a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), “the court must afford the pleadings a liberal construction.” EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 (2005). A court must “accept the facts as alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” Leon v. Martinez, 84 NY2d 83, 87-88 (1994); see also Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 (2002); Redwood Prop. Holdings, LLC v. Christopher, 211 AD3d 758, 758-759 (2d Dept 2022); Shah v. Exxis, Inc., 138 AD3d 970, 971 (2d Dept 2016); Sokol v. Leader, 74 AD3d 1180, 1181 (2d Dept 2010). “Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus in determining a motion to dismiss.” EBC I, Inc., 5 NY3d at 19. Plaintiff’s First Cause of Action The requisite elements of a cause of action to recover damages for defamation are “(1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published without privilege or authorization to a third party, (3) amounting to fault as judged by, at a minimum, a negligence standard, and (4) either causing special harm or constituting defamation per se.” Laguerre v. Maurice, 192 AD3d 44, 50 (2d Dept 2020); see also Levy v. Nissani, 179 AD3d 656, 657-658 (2d Dept 2020); Gugliotta v. Wilson, 168 AD3d 817, 818 (2d Dept 2019); Stone v. Bloomberg L.P., 163 AD3d 1028, 1029 (2d Dept 2018); Greenberg v. Spitzer, 155 AD3d 27, 41 (2d Dept 2017). “A statement is defamatory per se if it (1) charges the plaintiff with a serious crime; (2) tends to injure the plaintiff in her or his trade, business, or profession; (3) imputes that the plaintiff has a loathsome disease; or (4) imputes unchastity to a woman.” Laguerre, 192 AD3d at 50; see also Levy, 179 AD3d at 658; Epifani v. Johnson, 65 AD3d 224, 234 (2d Dept 2009). “‘When statements fall within one of these categories, the law presumes that damages will result, and they need not be alleged or proven.’” Laguerre, 192 AD3d at 50, quoting Liberman v. Gelstein, 80 NY2d 429, 435 (1992). Here, plaintiff’s first cause of action for defamation alleges that Waters and CUNY published, through their pretextual investigative findings, defamatory statements about him in an effort to injure him in his profession as a professor, scholar, and respected department chair, thereby alleging defamation per se. Specifically, plaintiff alleges that in the June 2, 2015 letter to him (and distributed to others, including Herzek, Suss, Geller, and others) from the office of Waters,4 he was found liable by CUNY for engaging in “certain acts [against Geller that] were the result of retaliation.” Plaintiff alleges, in paragraph 197 of his complaint, that Waters’ defamatory statements (on behalf of CUNY) include the assertion that “acts that…Geller complained about were the result of [his] retaliation” against Geller. Plaintiff asserts that Waters’ office made this finding of retaliation, in her capacity at the time as vice chancellor for human resources management for CUNY, which oversaw the internal employment discrimination investigation into Geller’s complaints against him. Defendants contend, however, that Waters’ statement is protected by the qualified common-interest privilege because the investigative report which she issued pertaining to the Geller matter was part of an internal CUNY investigation. Defendants assert that Waters’ office and CUNY had an interest and a duty in investigating claims of discrimination and retaliation by one employee in a supervisory role against another employee that he supervised and that Waters’ office simply came to a conclusion and published this conclusion. Defendants argue that as such, the qualified common-interest privilege applies and that this action should be dismissed on this basis.5 Generally, a cause of action predicated on allegedly defamatory statements is subject to dismissal where the statements are protected by a qualified privilege. See Gottlieb v. Wynne, 159 AD3d 799, 800 (2d Dept 2018). “A communication is qualifiedly privileged when it is fairly made by a person in the discharge of some public or private duty upon any subject matter in which that person has an interest, and where it is made to a person or persons with a corresponding interest or duty.” Hollander v. Cayton, 145 AD2d 605, 606 (2d Dept 1988); see also Buckley v. Litman, 57 NY2d 516, 520-521 (1982); Colantonio v. Mercy Med. Ctr., 115 AD3d 902, 903 (2d Dept 2014). Thus, the common-interest privilege defense extends to a “‘communication made by one person to another upon a subject in which both have an interest.’” Ferrara v. Bank, 153 AD3d 671, 673 (2d Dept 2017), quoting Stillman v. Ford, 22 NY2d 48, 53 (1968); see also Kamchi v. Weissman, 125 AD3d 142, 158 (2d Dept 2014). The court finds that the qualified common-interest privilege is applicable here to the extent that plaintiff alleges that Waters made the alleged defamatory statement to him, Herzek, Geller, and Suss,6 all of whom had a common interest in this finding. However, “the common-interest privilege can be overcome by a showing of malice.” Colantonio, 115 AD3d at 903. “To establish the malice necessary to defeat the privilege, the plaintiff may show either common-law malice, i.e., spite or ill will, or may show actual malice, i.e., knowledge of falsehood of the statement or reckless disregard for the truth.” Diorio v. Ossining Union Free School Dist., 96 AD3d 710, 712 (2d Dept 2012) (internal quotation marks omitted); see also Kamchi, 125 AD3d at 158. Plaintiff, in his complaint, alleges that this defamatory statement was untrue and that Waters and CUNY knew that this statement was false and that they published it to third parties, including Herzek (who, as noted above, is Kingsborough’s president), with knowledge of its falsity. Plaintiff further alleges that this defamatory statement was published with both common-law malice and actual malice. Plaintiff specifically alleges that this statement published by Waters was made without regard for the truth. Plaintiff, in paragraph 157 of his complaint, points to the fact that he could not possibly have committed retaliation against Geller since any claim by her that a November 2014 teaching schedule created by him was “retaliatory” would be impossible on its face for a discrimination complaint filed a month later on December 10, 2014. Thus, plaintiff sufficiently alleges actual malice since his allegations are that Waters’ alleged defamatory statement was made and published by her, knowing it was false or, at the very least, with reckless disregard for the truth. Furthermore, plaintiff’s allegations that Waters acted with ill will towards him in publishing the alleged defamatory statement is sufficient to allege common-law malice. In this regard, it is noted that “‘a plaintiff has “no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211 (a)(7)”‘” prior to any discovery taking place. Ferrara, 153 AD3d at 673, quoting Colantonio, 115 AD3d at 903, quoting Sokol, 74 AD3d at 1182; see also Kamchi, 125 AD3d at 159. Rather, it is sufficient if the complaint adequately alleges it. Thus, plaintiff’s allegations of malice are sufficient to defeat the common-interest privilege. With respect to CUNY, it is well established that an employer may be held vicariously liable for an allegedly defamatory statement by an employee where the employee was acting within the scope of his or her employment at the time that the statement was made. See Seymour v. New York State Elec. & Gas Corp., 215 AD2d 971, 973 (3d Dept 1995). Thus, the above analysis also applies to CUNY since Waters was employed by CUNY and acting within the scope of her employment when the alleged defamatory statement was published. Therefore, defendants’ motion, insofar as it seeks dismissal of plaintiff’s first cause of action, must be denied.7 Plaintiff’s Second Cause of Action With respect to plaintiff’s second cause of action for defamation as against Suss, plaintiff alleges that when discussing the discrimination case filed by Geller against him with executive level CUNY staff, including the Kingsborough college president, Herzek, Suss stated that the allegations against plaintiff by Geller in her internal discrimination complaint were “all laid out and true” and a “slam dunk,” and that he was “literally going crazy.” These were allegedly false statements that tended to expose plaintiff to “public contempt, hatred, ridicule, aversion, or disgrace.” Plaintiff also alleges that these statements tended to injure him in his profession. Defendants, however, argue that Suss’ statement that plaintiff was “literally going crazy” constitutes an expression of opinion, and, therefore, cannot constitute defamation. It is true that where a statement that someone is “crazy” constitutes a mere “hyperbolic expression of opinion,” it is nonactionable. Epifani v. Johnson, 65 AD3d 224, 235 (2d Dept 2009). Here, however, Suss made this statement in the context of a professional meeting regarding plaintiff’s actions towards Geller. Thus, based upon the context in which this statement was made and by using the term “literally,” it would not be perceived as hyperbolic but as a genuine assessment of plaintiff’s mental state based upon facts known by Suss and which could be proved true or false. A reasonable listener could have believed that Suss’ statement was conveying a fact about plaintiff’s mental health. This statement attributing mental illness to plaintiff, made in this context, may constitute defamation. See Fleming v. Laakso, No. 18-CV-1527RABCM, 2019 WL 959521, *9 (SD NY Feb. 5, 2019), report and recommendation adopted No. 18-CV-1527 (RA), 2019 WL 952349 (SD NY Feb. 26, 2019); Musacchio v. Maida, 137 NYS2d 131, 132 (Sup Ct, Kings County 1954). “On a CPLR 3211 (a) (7) motion to dismiss, denial is warranted if taking the words used both in their ordinary meaning and in context make them susceptible to a defamatory connotation as occurs in this case.” Davis v. Brown, 211 AD3d 524, 525 (1st Dept 2022); see also Davis v. Boeheim, 24 NY3d 262, 272 (2014). Defendants also argue that Suss’ statement that Geller’s internal complaint against plaintiff was a “slam dunk” and “true” was a nonactionable opinion. This argument is rejected. A reasonable listener could have believed that Suss’ statement was conveying an actual fact about the charges made against plaintiff based upon facts known by Suss. Even if construed as Suss’ opinion, Suss’ statements imply that “‘it is based upon facts which justify the opinion but are unknown to those…hearing it,’ and would be a “mixed opinion” which is actionable.”‘” Davis, 211 AD3d at 525, quoting Davis, 24 NY3d at 269, quoting Steinhilber v. Alphonse, 68 NY2d 283, 289 (1986). Indeed, these alleged statements would be particularly egregious given plaintiff’s allegations that Suss had aided in contriving the charges against him and Suss’ alleged knowledge of their falsity. Defendants further contend that the statements made by Suss are nonactionable because they are subject to the qualified common-interest privilege. Defendants assert that Suss made the communications at issue to others on a subject matter upon which they shared a common interest. They state that the fact that Suss, in his capacity as Provost, discussed the internal investigation of Geller’s discrimination complaint with Herzek (who, as previously noted, is the president of Kingsborough) and others at the meeting falls within the common-interest privilege. As discussed above, however, a showing of malice can defeat the common-interest privilege. See Laguerre, 192 AD3d at 49; Colantonio, 115 AD3d at 903. Here, to the extent that the common-interest privilege may apply to the communications made by Suss, plaintiff’s complaint sufficiently alleges that the statements were made with malice. See Laguerre, 192 AD3d at 49; Colantonio, 115 AD3d at 903; Skarren v. Household Fin. Corp., 296 AD2d 488, 489 (2d Dept 2002). Plaintiff’s complaint alleges that Suss acted with spite and/or ill will in making his allegedly defamatory statements because he conspired with Geller to contrive the statements to make plaintiff look mentally ill, thereby acting with common-law malice. Plaintiff’s complaint further alleges that after Geller made her complaint and it had been published, Suss, acting with spite, ill will, and knowledge that the statements attributed to plaintiff by Geller were false, and in furtherance of the ruse that he had manufactured, broadcast that the statements in Geller’s complaint of discrimination were a “slam dunk” and “true.” Plaintiff’s complaint specifies that Suss defamed him with the intent to disparage, defame, marginalize, and destroy his career due to his Jewish religious beliefs as a part of a discriminatory campaign against him. Plaintiff’s complaint also alleges that Suss knew that the subject matter of the allegedly defamatory statements was false since he listened to the recording of the November 25, 2014 annual evaluation conference and he made these statements with actual knowledge of their falsity, thereby acting with actual malice. Accepting the facts as alleged in the complaint to be true, and affording plaintiff the benefit of every possible favorable inference, the complaint sufficiently alleges that Suss made false statements of fact with malice so as to defeat the common-interest qualified privilege. See Leon, 84 NY2d at 87; see also Kamchi, 125 AD3d at 159; Diorio, 96 AD3d at 712. Consequently, defendants’ motion, insofar as it seeks dismissal of plaintiff’s second cause of action, must be denied. Plaintiff’s Third Cause of Action As to plaintiff’s third cause of action for breach of fiduciary duties as against Suss, Schaffer, Waters, Kingsborough, and CUNY, it is noted that “‘”[t]he elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct.”‘” WMC Realty Corp. v. City of Yonkers, 193 AD3d 1018, 1023 (2d Dept 2021), quoting Litvinoff v. Wright, 150 AD3d 714, 715 (2d Dept 2017), quoting Rut v. Young Adult Inst., Inc., 74 AD3d 776, 777 (2d Dept 2010); see also Glaubach v. Slifkin, 198 AD3d 618, 621 (2d Dept 2021); Avery v. WJM Dev. Corp., 197 AD3d 1141, 1144 (2d Dept 2021). “A cause of action sounding in breach of fiduciary duty must be pleaded with particularity under CPLR 3016 (b).” WMC Realty Corp., 193 AD3d at 1023; see also Litvinoff, 150 AD3d at 715; Swartz v. Swartz, 145 AD3d 818, 823 (2d Dept 2016). A fiduciary relationship arises when one is “‘under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation.’” Oddo Asset Mgt. v. Barclays Bank PLC, 19 NY3d 584, 592-593 (2012), rearg denied 19 NY3d 1065 (2012), quoting Roni LLC v. Arfa, 18 NY3d 846, 848 (2011); see also DiTolla v. Doral Dental IPA of N.Y., LLC, 100 AD3d 586, 587 (2d Dept 2012). It is “grounded in a higher level of trust than normally present in the marketplace between those involved in arm’s length business transactions.” EBC I, Inc., 5 NY3d at 19; see also Saul v. Cahan, 153 AD3d 947, 949 (2d Dept 2017). “While a contractual relationship is not required for a fiduciary relationship, ‘if [the parties] do not create their own relationship of higher trust, courts should not ordinarily transport them to the higher realm of relationship and fashion the stricter duty for them.’” Oddo Asset Mgt., 19 NY3d at 593, quoting Northeast Gen. Corp. v. Wellington Adv., 82 NY2d 158, 162 (1993). The affiliation of an educational institution as an employer and a tenured professor as an employee “‘does not create a cognizable fiduciary relationship.’” See Lasher v. Albion Cent. School Dist., 38 AD3d 1197, 1198 (4th Dept 2007), quoting Maas v. Cornell Univ., 245 AD2d 728, 731 (3d Dept 1997); see also Schenkman v. New York Coll. of Health Professionals, 29 AD3d 671, 672 (2d Dept 2006). Thus, there was no fiduciary relationship between plaintiff and Kingsborough or plaintiff and CUNY. There is also no fiduciary relationship between plaintiff and Waters, who worked for CUNY, or Schaffer, who was counsel for CUNY and who, at no point, undertook the legal representation of plaintiff or provided him with legal advice. Therefore, even affording the complaint a liberal construction, accepting the facts alleged therein to be true, and granting plaintiff the benefit of every possible favorable inference, plaintiff’s complaint fails to adequately plead the existence of a fiduciary relationship as required to state a viable claim for breach of fiduciary duty. See Saul, 153 AD3d at 949. Consequently, plaintiff’s third cause of action for breach of fiduciary duties must be dismissed. See CPLR 3211 [a] [7]; Saul, 153 AD3d at 949; Maas, 245 AD2d at 731. Plaintiff’s Fifth8 Cause of Action As to plaintiff’s fifth cause of action for intentional infliction of emotional distress,9 the court notes that the tort of intentional infliction of emotional distress has four required elements, namely: “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.” Howell v. New York Post Co., 81 NY2d 115, 121 (1993); see also Eskridge v. Diocese of Brooklyn, 210 AD3d 1056, 1057 (2d Dept 2022); Davydov v. Youssefi, 205 AD3d 881, 883 (2d Dept 2022). The element of extreme and outrageous conduct is essential, in that liability will only be imposed when the conduct is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Howell, 81 NY2d at 122. “Indeed, where severe mental pain or anguish is inflicted through a deliberate and malicious campaign of harassment or intimidation,” the remedy of intentional infliction of emotional distress is available. Matter of Leff v. Our Lady of Mercy Academy, 150 AD3d 1239, 1242 (2d Dept 2017). Defendants argue that plaintiff alleges, without specificity and in conclusory fashion, intentional infliction of emotional distress and has failed to clearly plead any facts to meet the extreme and outrageous conduct requirement. The court rejects defendants’ argument. Plaintiff’s allegations are, among other things, that Suss instigated and coaxed Geller into filing a false discrimination complaint against him, told others that Geller’s allegations of discrimination and retaliation against plaintiff were “a slam dunk” and “true,” and made statements both to cause plaintiff’s sanity to be questioned and to show that plaintiff, who had published scholarly works arguing for women’s rights in the workplace, was not a supporter of women’s rights, in order to destroy plaintiff’s reputation and to have his employment terminated as part of a malicious campaign against him because he was Jewish. These allegations sufficiently allege extreme and outrageous conduct so as to form a basis for intentional infliction of emotional distress.10 Plaintiff has further alleged that Suss intended to cause him severe emotional distress, and that he has suffered severe emotional distress as a result of Suss’ conduct. Thus, plaintiff has sufficiently alleged the requisite elements of a cause of action for intentional infliction of emotional distress. Consequently, defendants’ motion, insofar as it seeks dismissal of plaintiff’s fifth cause of action as against Suss, must be denied. Conclusion Accordingly, defendants’ motion is granted to the extent that plaintiff’s third cause of action for breach of fiduciary duties as against Suss, Schaffer, Waters, Kingsborough, and CUNY is dismissed. Defendants’ motion is denied with respect to plaintiff’s first cause of action for defamation and libel per se as against Waters and CUNY, plaintiff’s second cause of action for defamation and slander per se as against Suss, and plaintiff’s fifth cause of action for intentional infliction of emotional distress as against Suss. The action is severed accordingly. Any issue raised and not addressed in this decision and order is hereby denied. The foregoing constitutes the decision and order of this Court.
