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finding that putatively false statements submitted to the DHR accusing plaintiff of incompetence, fraud, and unjustified billing practices were insufficiently outrageous
Summary of this case from Rother v. N.Y. State Dep't of Corr.Opinion
03 CV 5832 (JBW)
March 12, 2004
MEMORANDUM JUDGMENT AND ORDER
I. Introduction
Plaintiff, pro se, brings twenty-one claims arising out of the alleged discriminatory conditions of his employment as a paralegal with Lester, Schwab, Katz Dwyer, LLP ("LSKD"). He also sues Gregory I. Rasin and Jackson Lewis, LLP, the attorney and law firm that represent LSKD and two of its employees, Alfredo Alvarado and Scott Haworth, in this matter.
Defendants move for dismissal of fifteen of the twenty-one claims. The partial motion to dismiss is based on failure to state a claim upon which relief can be granted and failure to plead with specificity. Not included in the motion to dismiss are claims against LSKD, Alvarado, and Haworth for negligence in hiring, discriminatory discharge and retaliatory discharge. For the reasons stated below, defendants' motion to dismiss is granted except for the fraudulent misrepresentation claims. Plaintiff is granted leave to amend any claim within twenty days. Defendants have ten days after receipt of the amended complaint to respond.
Plaintiff moves to disqualify Gregory I. Rasin and Jackson Lewis, LLP, counsel for the defendants. This motion to disqualify is denied.
II. Summary of Claims and Disposition
The nature of plaintiff's claims and this court's disposition with respect to each claim moved against are summarized as follows (bearing in mind that the somewhat confused nature of the complaint by the plaintiff himself makes deconstruction into specific charges difficult):
Claim Title Type Status of motion
1 Libel per se against LSKD, Alvarado, Haworth, Jackson Lewis and Rasin State Granted 2 Slander per se against LSKD, Alvarado, Haworth, Jackson Lewis and Rasin State Granted 3 Tortious interference with business relations against Alvarado State Granted 4 Emotional distress against LSKD, Alvarado, and Haworth State Granted 5 Negligence in hiring, supervision and retention against LSKD State Not moved 6 Negligence in hiring, supervision and retention against LSKD State Not moved 7 Fraudulent misrepresentation against LSKD and Alvarado State Denied 8 Emotional distress LSKD, Alvarado, Haworth, Jackson Lewis, Rasin State Granted 9 Emotional distress against Haworth State Granted 10 Discriminatory discharge against LSKD, Alvarado and Haworth Federal, Title VII Granted as to Alvarado and Haworth 11 Retaliatory discharge against LSKD, Alvarado, and Haworth Federal, Title VII Granted as to Alvarado and Haworth 12 Discriminatory employment practices against LSKD, Alvarado and Haworth Federal, Title VII Granted 13 Discriminatory discharge against LSKD, Alvarado and Haworth State Not moved 14 Retaliatory discharge against LSKD, Alvarado and Haworth State Not moved 15 Discriminatory employment practices against LSKD, Alvarado and Haworth State Granted 16 Discriminatory discharge against LSKD, Alvarado and Haworth State Not moved 17 Retaliatory discharge against LSKD, Alvarado and Haworth N.Y.C. Not moved 18 Discriminatory employment practices against LSKD, Alvarado and Haworth N.Y.C. Granted 19 Discriminatory harassment against LSKD, Alvarado and Haworth N.Y.C Granted 20 Racketeering Influence and Corrupt Organization Act (RICO) claims against LSKD, Alvarado and Haworth Federal Granted 21 Attorney misconduct against Gregory Rasin and Jackson Lewis State GrantedFACTUAL ALLIGATION
In November 2001, plaintiff was hired by LSKD as a paralegal. He was involuntarily discharged in January 2003. Defendant Alfredo Alvarado, a partner at LSKD, was plaintiffs direct supervisor. The unit for which plaintiff worked included defendant Scott Haworth, also a partner at the firm.Plaintiff claims that a confrontation occurred in early January 2003 between himself and defendant Alvarado regarding a romantic relationship Alvarado was allegedly had engaged in with another paralegal. Plaintiff initiated a conversation on behalf of his co-worker to inform Alvarado she no longer wished to continue their relationship.
Plaintiff alleges that later that same month he received a call from a law firm to schedule a deposition for defendant Haworth. He contends that he told the inquiring firm that Haworth was unavailable and left a voicemail for defendant informing him of the call. The following day, Haworth called plaintiff into his office to discuss the scheduling incident and allegedly proceeded to tell him, "Don't tell people my personal business, you stupid nigger." Following this exchange, plaintiff contends that he reported the comment to Alvarado, his supervisor. Plaintiff was discharged on January 24, 2003.
Defendants contend that plaintiff was fired because of his poor work performance and problems with alleged absences and low billable hours. In an email dated February 22, 2002 from Alvarado to Haworth, he expressed concern with plaintiffs performance. The email stated, in part, "This new para, possesses none of the nuts bolts we thought he would."See Complaint, Exhibit 5. In another email from Alvarado to LSKD's personnel director, dated January 10, 2003, Alvarado summarized complaints received regarding defendant's work: "Since Mr. Daniels started with the firm, I have received nothing but complaints about his work, including his work product, his billable hours, and his 'absences' from his desk without explanation." See Complaint, Exhibit 6.
Plaintiff filed a complaint with the State Division of Human Rights and the Equal Employment Opportunity Commission ("EEOC") in February 2003 alleging employment discrimination based on race in violation of Article 15 of the Executive Law of the State of New York (Human Rights Law). Mr. Rasin responded to plaintiffs complaint in a letter to the State Division on Human Rights dated April 9, 2003. It stated, "[Mr. Daniels] was counseled on several occasions by Mr. Alvarado with respect to this low billable hours and unsatisfactory work product. . . . Mr. Daniels' unsatisfactory performance and low billable hours continued throughout 2002. In 2002, Mr. Daniels billed a total of 712 hours, below the firm's minimum requirement of 800 hours per year for paralegals." See Complaint, Exhibit 4. The Attorney Paralegal Office Manual supplied to plaintiff by LSKD at the commencement of his employment states, "The firm has no minimum billable hours per year per lawyer or paralegal." See Affidavit of Williams Daniels, Pro Se, Exhibit 1, Daniels v. Alvarado (E.D.N.Y. Feb. 9, 2004) (No. 03-5832).
Plaintiffs complaint and EEOC charge were closed in September 2003 at plaintiffs request. A right to sue letter was issued by the EEOC on September 17, 2003.
Plaintiff brought this action in November 2003 against Alvarado, Haworth and LSKD, as well as the firm and attorney retained by LSKD in this matter before this court and the EEOC, Jackson Lewis LLP and Gregory Raisin. Defendants now move for partial dismissal of the complaint under Federal Rules of Civil Procedure 8(a)(2), 9(b), and 12(b)(6) for failure to plead causes of action with requisite specificity and for failure to state a claim for which relief may be granted.
IV. Motion to Dismiss
A. Rule 12(b)(6) Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss "for failure to state a claim upon which relief may be granted." Defendant has the burden of proving "beyond doubt that the plaintiff can prove not set of facts in support of the claim [that] would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957). "The issue is not whether the plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974).
When a case involves a pro se litigant, the standards for dismissal are the same. A court, however, "should give the pro se litigant special latitude in responding to a motion to dismiss." Adams v. Galletta, 966 F. Supp. 210, 211 (S.D.N.Y 1997).
B. Fraudulent Misrepresentation
1. Law
To state a cause of action for fraudulent misrepresentation, a plaintiff must allege (1) defendant made a representation; (2) as to a material fact; (3) which was false; (4) and known to be false by the defendant; (5) the representation was made for the purpose of inducing the other party to rely upon it; (6) the other party rightfully did rely; (7) in ignorance of its falsity; and (8) to his injury. Annecy v. Viscardi, 672 N.Y.S.2d 816 (N.Y.App.Div. 1998).
An at-will employment relationship accords an employer "an unfettered right to terminate the employment at any time." Murphy v. Am. Home Prods. Corp., 448 N.E.2d 86, 90 (N.Y. 1983). In the context of such an employment relationship, an employee can sustain a cause of action for fraudulent misrepresentation only if it is based on misrepresented facts that induced him to enter employment with the defendant. Navaraetta v. Group Health Inc., N.Y.S.2d 839, 840 (N.Y.App.Div. 1993). The defendant must allege a misstatement of present facts as opposed to expressions of future expectations. Channel Master Corp. V. Aluminum Ltd. Sales, 151 N.E.2d 833, 835 (N.Y. 1958).
To state a claim for fraudulent misrepresentation a plaintiff must allege the time, place, speaker and "sometimes even the content of the alleged misrepresentation" in order to comport with the heightened pleading requirements for fraud set forth in Rule 9(b) of the Federal Rules of Civil Procedure. Ouoknine v. MacFarlane, 897 F.2d 75, 78-90 (2d Cir. 1990). While Rule 8(a) only requires a "short and plan statement" of claims for relief, allegations of fraud must be pleaded with sufficient specificity such that they give rise to a "strong inference of fraudulent intent." Id. at 90.
2. Application of Law to Facts
Although Rule 9(b) sets out a heightened pleading standard for causes of action involving fraud, this rule must be considered in light of plaintiff's pro se status. Plaintiff sufficiently alleges a misstatement of existing fact regarding LSKD's minimum billable hours policy. Statements contained within the firm's employee manual, received by plaintiff at the start of his employment, as well as assurances allegedly made to him by Alvarado during the interview process, refer to a policy of no minimum billable hours at the firm. Nevertheless, plaintiff was allegedly discharged, at least in part, for failure to meet an annual requirement of at least 800 billable hours.
The specificity required in a compliant was achieved in plaintiffs oral statement at the hearing in this court on the motion to dismiss. He said in effect that he was informed orally and in the manual given to him at the time of hiring that no minimum billable hours were required and, in reliance on those statements, he accepted the job. These allegations sufficiently provide defendants with notice of the claim and give rise to an inference of fraudulent intent. Defendant's motion to dismiss plaintiffs seventh claim of fraudulent misrepresentation is therefore denied.
C. Employment Discrimination Claims
1. Law
Title VII prohibits an employer from discharging or discriminating against an individual with respect to "employment, because of such individual's . . . race. . . ." 42 U.S.C. § 2000e-2(a). In order to survive a Rule 12(b)(6) motion in such an employment discrimination proceeding, a complaint need only include a "simple statement" showing plaintiff is entitled to relief and giving the defendant fair notice of the claim. Swierkiewicz v. Sorema 534 U.S. 506, 512-13, 152 L.Ed.2d 1, 122 S. Ct, 992 (2002). A court may dismiss the claim if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Id. at 514.
The substance of plaintiff's claims for discriminatory discharge, discriminatory employment practices, and retaliatory discharge under federal, state, and local law are all largely analyzed within a Title VII framework. See Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003) (holding that state and federal discrimination claims in the employment context should be decided together); Thomas v. Westchester County Health: Care Corp., 232 F. Supp.2d 273, 281 (S.D.N.Y. 2002) (claims under Title VII and New York State Human Rights law require the same analysis); Cruz v. Coach Stores. Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) (applying Title VII framework to claims brought under New York City Human Rights Law).
Individuals are not liable in their individual capacities in Title VII cases. Tomka v. Seiler, 66 F.3d 1295, 1313-17 (2d Cir. 1995). Furthermore, a Title VII action cannot be maintained against an individual in his official capacity. Id. at 1313. Under the New York Human Rights Law ("NYHRL"), however, an individual may be liable for aiding and abetting an employer's discriminatory conduct. The United States Court of Appeals for the Second Circuit has held that "a defendant who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the NYHRL." Id. at 1317. Although New York state courts have not uniformly adopted this interpretation, the majority of federal district courts have followed Tomka and suggest that "actual participation" can give rise to individual liability under NYHLR.See, e.g., King v. Wallkill, 2004 U.S. Dist. LEXIS 2487, at *40-44 (S.D.N.Y. 2004); Perks v. Town of Huntington, 251 F. Supp.2d 1143, 1160-61 (E.D.N.Y. 2003); Lewis v. Triborough Bridge Tunnel Auth., 77 F. Supp.2d 376, 379 (S.D.N.Y 1999);Petrosky v. N.Y. State Dep't of Motor Vehicles, 72 F. Supp.2d 39, 64-65 (N.D.N.Y. 1999).
Under New York City Human Rights Law (NYCHRL), federal standards are used to determine hosfile environment and harassment claims. Walsh v. Covenant House, 664 N.Y.S.2d 282, 282 (N.Y.App.Div. 1997). To prevail on a claim of a hosfile work environment, a plaintiff must prove that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is "sufficiently severe or pervasive to alter the conditions of employment." Alfano_v. Costello, 294 F.3d 365, 373 (2d Cir. 2002). In determining whether an environment is sufficiently hosfile, courts consider: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening; (4) whether the conduct reasonably interfered with plaintiffs work; and (5) what psychological harm resulted,Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 437. Isolated remarks and epithets are insufficient to establish a hosfile work environment. Schwapp v. Avon, 118 F.3d 106, 110 (2d Cir. 1997).
2. Application of Law to Facts
Plaintiff argues that defendants took impermissible consideration of his race into account in the conduct of their employment practices. Under Title VII, the individual defendants, Alvarado and Haworth, are not liable for the charges of discriminatory discharge, retaliatory discharge, and discriminatory employment practices. Plaintiffs tenth, eleventh, and twelfth federal claims against Alvarado and Haworth therefore fail as a matter of law and are dismissed. His state claims of discriminatory and retaliatory discharge against Haworth and Alvarado, however, remain.
Plaintiff argues that defendants' treatment constituted discriminatory harassment creating a hosfile work environment. The conduct plaintiff alleges does not rise to the level sufficient to sustain a claim for discriminatory harassment. His nineteenth claim against LSKD, Haworth, and Alvarado is therefore dismissed.
Plaintiffs federal, state, and city claims against LSKD for discriminatory employment practices are, based on the allegations he has set forth, redundant claims that have been subsumed by his claim of discriminatory discharge. He alleges no other practice by LSKD, other than discharge based on an impermissible consideration of race, that could be construed as a discriminatory employment practice in violation of Title VII and its analogous state and local statutes. Plaintiffs twelfth, fifteenth, and eighteenth claims are therefore dismissed against all defendents as surplusage, redundant, and confusing. Nothing is gained by this repetition in the required simple pleading.
D. Intentional Infliction of Emotional Distress
1. Law
A plaintiff must satisfy four elements in order to sustain a claim for intentional infliction of emotional distress under New York law: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of, causing severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. Howell v. New York Post Co., 612 N.E.2d 699, 702 (N.Y. 1993).
Extreme and outrageous conduct must be "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 to a civilized community." Murphy v. Am. Home Prods. Corp., 448 N.E.2d 86, 90 (N.Y. 1983). Conduct may be so characterized "a recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" Restatement of the Law, Second, Torts, § 46, comment'd (1979).
False statements in and of themselves do not meet this threshold.Neilson v. D'Angelis, 2002 U.S. Dist. LEXIS 25195, at *41 (E.D.N.Y. Dec. 20, 2002). Additionally, evaluations of employees' conduct and performance do not rise to the level of intentional infliction of emotional distress, even in the context of wrongful termination, as this would, in effect, create a tort claim for wrongful discharge. See, e.g. Rodriguez v. American Friends of the Hebrew Univ., 1998 U.S. Dist. LEXIS 3701, at *30-31 (S.D.N.Y. Mar. 23, 1998) (stating that to accept criticism of plaintiffs performance and termination as stating a claim for intentional infliction of emotional distress "would be to establish a tort for alleged wrongful discharge of an at-will employee which the New York Court of Appeals has explicitly rejected").
Racial slurs on their own do not constitute conduct so "extreme and outrageous" in nature as to sustain a claim for intentional infliction of emotional distress. See e.g., Graham v. Guilderland Central School Dist, 681 N.Y.S.2d 831 (N.Y. A.D. 1998) (a teacher's description of her student as a "nigger" during a classroom discussion on discrimination did not create a claim for intentional infliction of emotional distress); Herlihy v. Metropolitan Museum of Art, 633 N.Y.S.2d 106 (N.Y.App.Div. 1995) (a cause of action for intentional infliction of emotional distress could not be sustained against volunteers who falsely accused a supervisor of using anti-Semitic slurs); Leihowitz v. Bank Leiumi Trust Co., 548 N.Y.S.2d 513 (N.Y.App.Div. 1989) (use of the terms "Hebe" and "Kike" were strongly disapproved and condemned but were not found to be so extreme or outrageous as to meet the threshold requirement for intentional infliction of emotional distress).
2. Application of Law to Facts
Plaintiffs claim against Rasin and Jackson Lewis stems from statements submitted to the New York Division of Human Rights, These statements allegedly accusing plaintiff of incompetence, fraud, and unjustified billing practices do not constitute behavior so extreme and outrageous as to support a claim of intentional infliction of emotional distress. Claim eight against Rasin and Jackson Lewis is therefore dismissed.
LSKD's and Alvarado's accusations of incompetency and fraud do not, on their own, support a claim for intentional infliction of emotional distress. Their actions in this case do not go beyond the bounds of decency and do not rise to the level of extreme and outrageous conduct. The statements made were criticism of plaintiff's work performance and conduct. These allegations cannot be accepted as stating a claim for intentional infliction of emotional distress because this would, in effect, create a tort for wrongful discharge of an at-will employee, a cause of action not recognized under New York law. Claims four and eight against Alvarado and LSKD for emotional distress are therefore dismissed.
Plaintiffs claim against Haworth is based on his alleged characterization of the plaintiff as a "stupid nigger." Haworth's alleged comment, while offensive, deplorable and condemnable, does not constitute behavior sufficiently egregious to sustain a claim for intentional infliction of emotional distress. Even if this comment is considered in the context of other animosity plaintiff alleges defendant exhibited towards him, these incidents, even broadly construed, do not rise to the level requisite to sustain this cause of action. Claims four, eight, and nine against Haworth for emotional distress are therefore dismissed.
E. Remaining Claims 1. Libel Per Se and Slander Per Se
a. Law
In order to establish a prima facie case for slander or libel under New York law, a claimant must allege (1) an oral or written defamatory statement or act; (2) regarding the plaintiff; (3) published to a third party by the defendant; and (4) injury to the plaintiff. Town of Massena v. Healthcare Underwrites Mut. Ins. Co., 779 N.E.2d 167, 171 (N.Y. 2002). The fourth element is presumed when the statement takes the form of slander or libel per se. Priviteria v. Phelps, 435 N.Y.S.2d 402, 404 (N.Y.App.Div. 1981).
A slanderous statement is actionable per se if it imputes: (1) the commission of a crime; (2) a loathsome disease; (3) unchaste behavior in a woman; (4) homosexual behavior; or (5) affects plaintiff in his trade, occupation, or business. Id. All other slander is only actionable upon allegation and proof of special damages. Id. Special damages include the loss of something of economic value which must flow directly from the injury to reputation caused by the defamation and not from the general effects of the slander. Matherson v, Marchello, 473 N.Y.S.2d 998, 1001 (N.Y.App.Div. 1984). They must be pleaded with specificity to identify actual losses. "Round numbers" and general allegations of dollar amounts are insufficient as special damages. Id.
New York Civil Practice Law requires that in an action for slander, "the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally." N.Y. C.P.L.R. § 3016(a). Although plaintiff is not required to plead a defamation action "in these words" or with specificity, a lack of reference to any allegedly defamatory statements fails to comport with even the liberal pleading requirements of Federal Rule of Civil Procedure 8.
To be actionable in libel, a statement must be false, defamatory, and injurious to a person's reputation and thereby expose him to public shame or contempt. Christopher Lisa Matthew Poliano Inc. v. North American Precis Syndicate. Inc., 514 N.Y.S.2d 239, 241 (N.Y.App.Div. 1987). Under New York law, a liable action must be commenced within one year of the publication of the alleged defamatory statement. N.Y. C.P.L.R. § 215(3).
Statements by attorneys "are absolutely privileged if, by any view or under any circumstances, they are pertinent to the litigation."Grasso v, Matthew, 564 N.Y.S.2d 576 (N.Y.App.Div. 1990). Statements by employers evaluating the work performance of their employees are protected statements of opinion and not actionable in a defamation suit. Williams v. Varig Brazilian Airlines, 564 N.Y.S.2d 328 (N.Y.App.Div. 1991).
b. Application of Law to Facts
Plaintiff claims defendants committed libel per se against him as a result of the January 10, 2003 email sent from Alvarado to the personal director at LSKD. He further alleges defendants LSKD, Haworth, Alvarado, Rasin and Jackson Lewis have slandered him through false accusations of misconduct and defendant Haworth slandered him by calling him a "stupid nigger."
Plaintiffs libel claim against defendant Haworth, based on an email dated February 22, 2002, is untimely. In any event, the statements were protected statements of opinion. Claim one against Haworth is therefore dismissed.
Plaintiffs libel claim against defendants Rasin and Jackson Lewis for statements submitted on behalf of LSKD to the New York State Division of Human Rights are protected by absolute privilege. Claim one against Rasin and Jackson Lewis fails as a matter of law and is dismissed.
Plaintiffs libel claim against Alvarado and LSKD for statements made in an email sent to LSKD's personnel director, dated January 10, 2003, are protected statements of opinion and, as such, are not actionable as defamation. Claim one against Alvarado and LSKD is dismissed.
Plaintiff has not alleged words spoken by defendants Rasin, LSKD, Jackson Lewis and Alvarado that could be construed as an oral defamation. These claims fail as a matter of law. Claim two against LSKD, Alvarado, Rasin, and Jackson Lewis is dismissed.
Plaintiffs slander claim against defendant Haworth does not meet the standard for slander per se because it does not encompass one of the five categories of statements that is per se actionable. As plaintiff has not pled special damages, Claim two against Haworth is dismissed.
3. Tortious Interference with Plaintiffs Business Relations
a. Law
To establish a claim for tortious interference with a business relationship, a plaintiff must assert: (1) there exists an employment relationship with the employee and a third party; (2) defendant, with knowledge of that relationship, intentionally interferes with the employment relationship; (3) defendant acts with the sole purpose of harming plaintiff, or failing that level of malice, uses dishonest, unfair, or improper means; and (4) the relationship is injured.Burba v. Rochester Gas Elec. Corp., 528 N.Y.S.2d 241 (N.Y.App.Div. 1998). Plaintiff must identify a third party with whom he would have "entered into or extended a contractual relationships with" but for the intentional acts of the defendants. WFB Communications v. NYNEX Corp., 590 N.Y.S.2d 460, 461 (N.Y.App.Div. 1992).
An employer cannot be held liable for tortiously interfering with the employment contract of one of its own employees, since a party to a contract cannot be held liable in tort for breaching its own contract.Mihalakis v. Cabrini Med. Ctr., 542 N.Y.S, 2d 988, 990 (N.Y.App.Div. 1989). A claim for tortious interference cannot be sustained against agents of an employer or partners to a partnership "absent a showing that they acted outside the scope of their authority." Ives v. Guilford Mills Inc., 3 F. Supp.2d 191, 197 (N.D.N.Y. 1998) (citing Kosson v. Algaze, 610 N.Y.S.2d 227, 228-9 (N.Y. A.D. 1994)).
b. Application of Law to Facts
Plaintiff claims defendant Alvarado tortiously interfered with his business relations with LSKD by intentionally spreading false comments about him. Plaintiff fails to allege a preexisting business relationship or third party through which he would have done business if not for the allegedly tortious behavior. Alvarado did not act maliciously and therefore outside the scope of his authority in his actions. Plaintiffs allegation that defendant Alvarado tortiously interfered with his business relations with LSKD fails as a matter of law. Claim Three therefore is dismissed.
4. Racketeer Influenced and Corrupt Organization Act (RICO) Claims
a. Law
In order to have standing to bring a RICO claim under 18 U.S.C 1964(c), the plaintiff must show (1) a violation of section 1962; (2) injury to his business or property; and (3) that the violation caused the injury.Hecht v. Commerce Clearing House. Inc., 897 F.2d 21, 23 (2d Cir. 1990).
Dismissal of an employee for his refusal to participate in RICO violative activities does not confer standing upon that employee to bring those RICO claims; causation is too attenuated and the injury suffered by the plaintiff is too indirect. Burdick v. American Express Company, 865 F.2d 527 (2d Cir. 1989).
b. Application of Law to Facts
Plaintiff has pled mail and wire fraud as a violation of the RICO statutes and injury in the form of intimidation and discharge from his employment. He has not, however, met the causation requirement of this threshold inquiry. Because plaintiff does not have standing to bring a cause of action based on the RICO act, his twentieth claim is dismissed.
5. Violation of Judiciary Law Section 427-Attorney Misconduct
a. Law
Judiciary Law section 487 provides for a cause of action against an attorney who has engaged in "deceit or collusion . . . with the intent to deceive the court or any party." N.Y. Jud. L. 487(1). In establishing the requisite intent to deceive, New York courts often look for "chronic" or "extreme" legal delinquency. O'Connel v. Kerson, 736 N.Y.S.2d 895, 896 (N.Y.App.Div. 2002).
b. Application of Law to Facts
Plaintiff claims that the submissions of defendants Jackson Lewis and Rasin to the New York State Division of Human Rights on behalf of their clients constitute attorney misconduct. Defendants' alleged actions do not meet the threshold set out in section 487. The papers filed presented LSKD's version of the facts and issues involved in this case; all information submitted was reasonably related to the proceedings at hand. No intent to deceive has been evidenced. Plaintiffs twenty-first claim is dismissed.
V. Motion to Disqualify
A. Law
Disqualification is generally disfavored and granted only upon a finding that the presence of a particular counsel "will taint the trial by affecting his or her presentation of a case." Bottaro v. Hatton Assocs., 680 F.2d 985, 896-97 (2d Cir. 1982). A high standard of proof must be met before a motion to disqualify is granted because "disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants." SS Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 508 N.E.2d 647, 650 (N.Y. 1987).
Disciplinary Rule 5-102(A) in the Code of Professional Responsibility requires a lawyer to refuse employment if he "knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of his client." N.Y. Jud. Law DR 5-102(A), Code Prof. Resp. (McKinney 2003). A client can choose to forgo the testimony of the lawyer because it prefers that firm's continued representation. SS Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 508 N.E.2d 647, 651 (N.Y. 1987)
Disciplinary Rule 5-102(b) in the Code of Professional Responsibility requires a lawyer to refuse employment if he "knows or it is obvious that the lawyer ought to be called as a witness on a significant issue other than on behalf of the client and it appears that the testimony would be prejudicial to the client." N.Y. Jud. Law DR 5-102(A), Code Prof. Resp. (McKinney 2003).
B. Application of Law to Facts
Plaintiff does not meet the high standard required for disqualification of defendants' counsel. Defendants have no intentional of calling Rasin or any other representative of Jackson Lewis on their behalf, thus rendering Disciplinary Rule 5-102(A) inapplicable to this case.See Def. Mem. of Law in Opp. to Pl. Motion to Disqualify at 4-5; Daniels v. Alvarado (E.D.N.Y. Feb. 9, 2004) (No. 03-5832). As the claims against Rasin and Jackson Lewis have been dismissed, the prejudicial effects of counsel's possible testimony are no longer at issue. Plaintiffs motion to disqualify Raisin and Jackson Lewis counsel is denied.
VI. Conclusion
Defendants' motion to dismiss is granted with respect to all claims except fraudulent misrepresentation. Plaintiff is granted leave to amend any and all claims within twenty days. Defendants have ten days after receipt of the amended complaint to respond.
Plaintiffs motion to disqualify is denied. Discovery on the remaining claims should proceed expeditiously.
SO ORDERED