Miller v. Richman, 184 A.D.2d 191 (N.Y. App. Div. 1992). · Go Syfert
Miller v. Richman, 184 A.D.2d 191 (N.Y. App. Div. 1992). Cases Citing This Book View Copy Cite
30 citation events (13 in the last 25 years) across 7 distinct courts.
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Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (rule) Colantonio v. Mercy Medical Center
N.Y. App. Div. · 2010 · confidence medium
Here, the first, sixth, seventh, ninth, tenth, and seventeenth causes of action, which include allegations of statements that the plaintiff was an imminent danger to patients and created havoc in the ICU, that there was something wrong with the plaintiff, and that a doctor could not work with the plaintiff, all constituted nonactionable expressions of opinion (see Farrow v O’Connor, Redd, Gollihue & Sklarin, LLP, 51 AD3d 626, 627 [2008]; Leone v Rosenwach, 245 AD2d 343 [1997]; Ott v Automatic Connector, 193 AD2d 657 [1993]; Miller v Richman, 184 AD2d 191, 193 [1992]; Williams v Varig Brazili…
discussed Cited as authority (rule) Cioffi v. Habberstad (2×)
N.Y. Sup. Ct. · 2008 · confidence medium
(Joyce v Thompson Wigdor & Gilly LLP, 2008 WL 2329227 , *8, 2008 US Dist LEXIS 43210 , *22, quoting Miller v Richman, 184 AD2d 191, 192-193 [1992].) Miller held that the statements which criticized plaintiff’s performance were, “as a matter of law, nonactionable expressions of opinion” whereby the “defendant’s unfavorable assessments of plaintiffs work are incapable of being objectively characterized as true or false.” (Miller v Richman at 193 [internal quotation marks omitted].) In distinguishing between actual factual assertions and non-actionable opinion, the courts must conside…
discussed Cited as authority (rule) Farrow v. O'Connor, Redd, Gollihue & Sklarin, LLP
N.Y. App. Div. · 2008 · confidence medium
Here, the defendants demonstrated their entitlement to summary judgment by establishing that the communication at issue, which amounted to a subjective characterization of the plaintiffs behavior and an evaluation of her job performance, constituted a nonactionable expression of opinion (see Leone v Rosenwach, 245 AD2d 343 [1997]; Ott v Automatic Connector, 193 AD2d 657, 658 [1993]; Miller v Richman, 184 AD2d 191, 193 [1992]; Angel v Levittown Union Free School Dist.
discussed Cited as authority (rule) Rosenberg v. Home Box Office, Inc.
N.Y. App. Div. · 2006 · confidence medium
The court properly declined to consider the belated assertion of injurious falsehood, for which we note that plaintiff failed to plead injury to any legally protected property interest (Miller v Richman, 184 AD2d 191, 194 [1992]) or special damages (Rail v Heilman, 284 AD2d 113, 114 [2001]).
discussed Cited as authority (rule) Qureshi v. St. Barnabas Hospital Center
S.D.N.Y. · 2006 · confidence medium
March 25, 1998) (statement of one supervisor to another); Miller v. Richman, 184 A.D.2d 191 , 592 N.Y.S.2d 201, 202-03 (App. Div. 4th Dep’t 1992) (same); Williams v. Varig Brazilian Airlines, 169 A.D.2d 434 , 564 N.Y.S.2d 328, 331 (App. Div. 1st Dep’t 1991) (memorandum of one supervisor to another and termination letter from supervisor to plaintiff); Goldberg v. Coldwell Banker, Inc., 159 A.D.2d 684 , 553 N.Y.S.2d 432, 433 (App. Div.2d Dep’t 1990) (memorandum from employee to his supervisor regarding retained attorney); Hollander v. Cayton, 145 A.D.2d 605 , 536 N.Y.S.2d 790, 791 (App. Di…
discussed Cited as authority (rule) Curto v. Medical World Communications, Inc.
E.D.N.Y · 2005 · confidence medium
Feb.10, 1997) (finding statements that plaintiff was “incompetent,” and “there had been problems with her before and she wasn’t doing her job right” were non-actionable statements of opinion); Aronson v. Wiersma, 65 N.Y.2d 592 , 594, 493 N.Y.S.2d 1006 , 483 N.E.2d 1138 (1985) (holding that an expression of unhappiness with an employee’s performance is not libelous as a matter of law); Miller v. Richman, 184 A.D.2d 191 , 592 N.Y.S.2d 201, 203 (4th Dep’t 1992) (statement that plaintiff “was one of the worst secretaries at the firm” held to be nonactionable) (collecting cases); …
discussed Cited as authority (rule) Williams v. County of Genesee
N.Y. App. Div. · 2003 · confidence medium
However, “plaintiff here cannot be allowed to evade the employment at-will rule and relationship by recasting his cause [s] of action in the garb of a tortious interference with his employment” (Ingle v Glamore Motor Sales, 73 NY2d 183, 189 [1989]; see Thawley v Turtell, 289 AD2d 169 [2001]; Miller v Rickman, 184 AD2d 191, 194 [1992]).
discussed Cited as authority (rule) Samuel Albert v. Salmen Loksen, Brooklyn Hospital and Karen Buono
2d Cir. · 1999 · confidence medium
See, e.g., Nu-Life Const. Corp. v. Bd. of Educ., 204 A.D.2d 106, 107 , 611 N.Y.S.2d 529, 530-31 (1st Dep’t 1994) (granting summary judgment to co-employee accused of inducing employer to breach contract with plaintiff, an independent contractor, where plaintiff “failed to produce evidence ... to prove that [the defendant employee] was at any time acting other than as an agent of the Board or to show that [the defendant employee] committed any independent tort.”) (emphasis added); Miller v. Rickman, 184 A.D.2d 191, 194 , 592 N.Y.S.2d 201, 203 (4th Dep’t 1992) (noting that “[t]he compl…
examined Cited as authority (rule) Murphy v. Cadillac Rubber & Plastics, Inc. (3×) also: Cited "see, e.g."
W.D.N.Y. · 1996 · confidence medium
See McDowell v. Dart, 201 A.D.2d 895 , 607 N.Y.S.2d 755 (4th Dep’t 1994) (statements regarding work performance are opinion and are not actionable); Miller, supra, 184 A.D.2d at 193 , 592 N.Y.S.2d at 203 (statements criticizing plaintiffs job performance and comparing her unfavorably with other workers were nonaetionable opinions); Williams v. Varig Brazilian Airlines, 169 A.D.2d 434 , 564 N.Y.S.2d 328 (1st Dep’t 1991) (memo and letter criticizing plaintiffs work performance, attitude, and disposition were clearly expressions of opinion).
discussed Cited as authority (rule) Cohen v. Davis
S.D.N.Y. · 1996 · confidence medium
Corp., 50 N.Y.2d 183, 194 , 406 N.E.2d 445, 451 , 428 N.Y.S.2d 628, 634 (1980) (in cases involving at-will contracts, plaintiff may have tortious interference with contract claim “when the alleged means employed by the one interfering were wrongful as consisting of fraudulent misrepresentations ... or threats ... or as in violation of a duty of fidelity owed to the plaintiff by the defendant by reason of a relation of confidence existing between them”); Miller v. Rickman, 184 A.D.2d 191, 194 , 592 N.Y.S.2d 201, 203 (4th Dep’t 1992) (dismissing tortious interference with contract claim be…
Retrieving the full opinion text from the archive…
Paula D. Miller
v.
Terry M. Richman
Appellate Division of the Supreme Court of the State of New York.
Dec 30, 1992.
184 A.D.2d 191
APPEARANCES OF COUNSEL, Geiger & Rothenberg, Rochester (David Rothenberg of counsel), for appellants., Peter V Calviera and Donna Marianetti, Rochester, for respondent.
Green.
Cited by 21 opinions  |  Published

OPINION OF THE COURT

Green, J.

Plaintiff cannot circumvent the employment-at-will rule by asserting causes of action for defamation, injurious falsehood and tortious interference with her employment (see, Ingle v Glamore Motor Sales, 73 NY2d 183; Murphy v American Home Prods. Corp., 58 NY2d 293). Therefore, defendants’ motion to dismiss the complaint for failure to state a cause of action (see, CPLR 3211 [a] [7]) should have been granted.

In considering the motion addressed to the sufficiency of the complaint, we accept plaintiff’s allegations as true (see, Prudential-Bache Sec. v Citibank, 73 NY2d 263, 266; Silsdorf v Levine, 59 NY2d 8, 12, cert denied 464 US 831). Plaintiff began working as a legal secretary in the corporate department of the defendant law firm, Chamberlain, D’Amanda, Oppenheimer & Greenfield (Chamberlain) in November 1988. One of her supervisors was defendant Richman, a Chamberlain associate. In the spring of 1991, plaintiff arranged to transfer to another department within the firm allegedly because of poor treatment she received from Richman. The day after plaintiff accepted a new position with Chamberlain partner Anita Miller, however, the anticipated transfer fell through. Plaintiff learned that, after a discussion with Richman, Miller no longer wanted plaintiff to work for her. Richman had told Miller that plaintiff is "one of the worse [sic] secretaries at the firm,” that her "work habits are bad,” her "performance is[*193] bad,” and that plaintiff "is not what you are looking for.” On July 24, 1991, two weeks after the conversation between Richman and Miller, Chamberlain terminated plaintiff’s employment. Following plaintiff’s discharge, defendant Matthew J. Fusco, a Chamberlain associate, stated to another employee that plaintiff "was one of the worst secretaries at the firm.”

In her first, second and third causes of action, plaintiff alleges that the remarks of Richman and Fusco were defamatory and that Chamberlain ratified the defamatory statements by firing her. We conclude that the causes of action for defamation should be dismissed because the statements at issue are protected expressions of opinion.

Whether a statement is an expression of fact or opinion is a question of law for the court (see, Silsdorf v Levine, 59 NY2d 8, 13, supra; Park v Capital Cities Communications, 181 AD2d 192, 196). In our view the statements criticizing plaintiff’s performance and comparing her unfavorably to other secretaries at the firm are, as a matter of law, nonactionable expressions of opinion (see, Williams v Varig Brazilian Airlines, 169 AD2d 434, lv denied 78 NY2d 854 [criticism of plaintiff’s work performance, attitude and disposition]; Amodei v New York State Chiropractic Assn., 160 AD2d 279, 280, affd 77 NY2d 890 [chiropractor accused of " 'unprofessional conduct’ ”]; Goldberg v Coldwell Banker, 159 AD2d 684 [attorney described as " 'most uncooperative, abrasive and dilatory’ ” in fulfilling responsibilities]; Hollander v Cayton, 145 AD2d 605, 606 [statements that physician was " 'immoral’ ”, " 'unethical’ ”, and had " 'mismanaged cases’ ”]). The individual defendants’ unfavorable assessments of plaintiff’s work are "incapable of being objectively characterized as true or false” (Park v Capital Cities Communications, supra, at 196; Amodei v New York State Chiropractic Assn., supra).

Because the individual defendants’ statements are not actionable, it is not necessary to determine whether Chamberlain ratified the statements when it fired plaintiff. We note, however, that no cause of action for defamation exists for the discharge of an at-will employee (Weintraub v Phillips, Nizer, Benjamin, Krim, & Ballon, 172 AD2d 254) and that "an employer has the right, without judicial interference, to assess an employee’s performance on the job” (Williams v Varig Brazilian Airlines, supra, at 438).

Plaintiff also fails to state a cause of action against defendant Richman for tortious interference with her employ[*194] ment relationship. The complaint fails to allege that Richman was acting outside the scope of her employment when she made the statements allegedly causing plaintiffs termination (see, Vardi v Mutual Life Ins. Co., 136 AD2d 453, 456; Kartiganer Assocs. v Town of New Windsor, 108 AD2d 898, 899, appeal dismissed 65 NY2d 925) or that Richman procured her discharge through fraudulent misrepresentation, threats or the violation of a duty owed to plaintiff by virtue of a confidential relationship (see, Ingle v Glamore Motor Sales, 73 NY2d 183, supra; Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 194). Further, "the plaintiff here cannot be allowed to evade the employment at-will rule and relationship by recasting [her] cause of action in the garb of a tortious interference with [her] employment” (Ingle v Glamore Motor Sales, 73 NY2d 183, 189, supra).

Similarly, plaintiffs cause of action for injurious falsehood may not serve as a device to escape the rule of nonliability for termination of an at-will employee (see, Ingle v Glamore Motor Sales, supra, at 188-189; Murphy v American Home Prods. Corp., 58 NY2d 293, 303-304, supra). Because plaintiff fails to allege injury to any legally protected property interest, her cause of action for injurious falsehood should be dismissed (see, Cunningham v Hagedorn, 72 AD2d 702, 704).

Accordingly, defendants’ motion to dismiss the complaint for failure to state a cause of action should be granted.

Callahan, J. P., Balio, Fallon and Doerr, JJ., concur.

Order unanimously reversed, on the law, without costs, motion granted and complaint dismissed.