Opinion
2013-02-19
Martin WEINSTEIN, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Fred Lichtmacher, New York, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for respondents.
Fred Lichtmacher, New York, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for respondents.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered November 7, 2011, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
A claim for prima facie tort cannot be asserted by an at-will employee to avoid this State's rule that a wrongful termination claim is not available to him ( Russek v. Dag Media Inc., 47 A.D.3d 457, 851 N.Y.S.2d 399 [1st Dept. 2008] ). Nor may plaintiff avoid the defects in his defamation claim by recasting the claim as one for prima facie tort ( see Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142–143, 490 N.Y.S.2d 735, 480 N.E.2d 349 [1985] ). As plaintiff withdrew his defamation claim during oral argument of the motion, his request for discovery to enable him to replead it is not properly before us. Were we to consider the request, we would deny it, because plaintiff failed to show that he has a valid claim for defamation; he may not use discovery—EITHER PRE-ACTION OR PRETRIAL—TO REMEDY the defects in his pleading ( see Liberty Imports v. Bourguet, 146 A.D.2d 535, 536, 536 N.Y.S.2d 784 [1st Dept. 1989];Chappo & Co., Inc. v. Ion Geophysical Corp., 83 A.D.3d 499, 500–501, 921 N.Y.S.2d 227 [1st Dept. 2011] ). The fraudulent inducement claim is pleaded without the requisite specificity ( see CPLR 3016[b] ), since it alleges only that plaintiff was “led to believe” that defendants would not interfere with his subsequent job search, and fails to identify any statement by defendants or any speaker ( see MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 87 A.D.3d 287, 295, 928 N.Y.S.2d 229 [1st Dept. 2011] ).