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Taylor v New York University Medical Center
2003 NY Slip Op 30188(U)
January 6, 2003
Supreme Court, New York County
Docket Number: 109216/02
Judge: Diane A. Lebedeff
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SUPREME COURT OF THE STATE OF NEW YORK -   NEW YORK COUNTY
PRESENT:   DIANE A. LEBEDEFF
PART  8
Justice
INDEX NO.
MOTION DATE
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MOTION SEQ. NO.
The following papers, numbered 1 to        were read on this motion
PAPERS NUMBERED
I
Notice of                                  - Affidavits -E xhibits ...
                                           Answering Affidavits - Exhibits
Replying Affidavits
                                                                                                                        JAM
Cross-Motion:                              Yes                                                  No
                                           Upon the foregoing papers, it is ordered that this
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n
IS DECIDED    ACCQRDANCE
W
ACCOMPANYING MEMORANDUM DECISION.
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a
t
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e
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K
Dated:                                     06
Check one:                                 FINAL DISPOSITION                                    NON-FINAL DISPOSITION




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MARK TAYLOR,
Plaintiff,
-against-                                                                                     Index No. 1092 16/02
Mot. Seq. No. 001
NEW YORK UNIVERSITY MEDICAL, CENTER
and ANNETTE JOHNSON,
Defendants.
X
DIANE A. LEBEDEFF, J.:
Defendants New York University Medical Center, or the School of Medicine
and Annette Johnson, who is a vice dean and general counsel of NYUSM,
move to dismiss the complaint brought by Mark Taylor based on a defense founded upon
documentary evidence (CPLR 321 1[a][    and for failure to state a cause of action (CPLR
321 1                                                                                         The complaint asserts one cause of action for retaliation under Article 8 of the
New York City Administrative Code, and a second cause of action for tortious interference
with plaintiffs existing and prospective business and contractual relations with his former
employer, MSB Strategies, Inc. (“MSB”) and its owner, Martin S. Begun.
Factual
Plaintiff has a separate lawsuit pending against NYUSM, in which he alleges the
termination of his employment in October, 1997, was the result of sexual orientation
discrimination. In early February, 2002, the Appellate Term affirmed a decision denying
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motion for summary judgment, leaving plaintiffs claim for discriminatory
termination to be tried (see Taylor v. New York University Medical Center, 2002 WL
257570,2002 N.Y. Slip Op. 50060 [App. Term, 1st Dept. 20021). The New York Times
published an article reporting on the decision on February 13,2002 (motion, exhibit F).
At the time the article was published, plaintiff was employed as a                            by
MSB, (complaint paras. 12-14), and was also the chair of Community Board 6 in
Manhattan (see motion exhibit C). Mr. Begun also was formerly employed by                     and
his company, MSB, was retained by NYUSM for public relations and lobbying work.
Plaintiff alleges that, the day after the New York Times article was published, defendant
Johnson faxed the article to Begun, and spoke to him by telephone (id., paras. 15-17). He
further alleges that Mr. Begun terminated plaintiffs employment with MSB the next day,
and that within days thereafter NYUSM paid MSB past due invoices for lobbying work
(id., paras. 18-19).
In support of its motion to dismiss, NYUSM submits evidence that on February 12,
2002, plaintiff, in his capacity as chairman of Community Board 6, had distributed a letter
to at least 50 people, including defendant Johnson and four others at NYUSM, using
MSB’s fax machine. Taylor’s letter, dated February 11, 2002, urged the City’s
Independent Budget Office to investigate questions concerning East River Science Park,
which defendants describe as a major biomedical research-related initiative to promote
development of life science enterprises and research in the City, and to supplement and
improve medical research central to the School of Medicine’s mission (Meloy affidavit,
exhibits C and D). According to NYUSM, MSB and Begun had been engaged by NYUSM




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to assist with governmental relations related to the East River Science Park project, and
other matters (id., exhibits I and J).
Defendants argue that plaintiffs February 1 1th letter raised an obvious conflict of
interest, and that plaintiff voluntarily                                                       MSB’s employ after his conflict of interest
                                                                                               became evident. Ms. Johnson’s fax to Mr. Begun on February 13th enclosed both Taylor’s
                                                                                               February 11,2002, letter, and the New York Times article concerning Taylor’s lawsuit
                                                                                               (Meloy affidavit, exhibit E). Defendants also submit a letter from Mr. Begun to plaintiff,
which states that plaintiffs “departure”                                                                                                                                                    MSB was “entirely at your initiative,” and
that                                                                                           did not ask that he discontinue the relationship (id.,exhibit H). There is also
documentary evidence showing that payment requests for MSB’s retainer were processed
before February 11,2002, not days after plaintiff left MSB (Meloy affidavit para. 12 and
exhibits I and J). In reply, defendants submit affidavits of Mr. Begun and Ms. Johnson,
who state that Ms. Johnson did not ask MSB to terminate its relationship with Mr. Taylor,
and that Mr. Taylor severed his “consulting relationship” with MSB because of the conflict
of interest resulting from his activities on behalf of the Community Board (Begun affidavit,
para. 4; Johnson, affidavit para. 3).
Motion to Dismiss
Dismissal based on documentary evidence “is warranted only if the documentary
evidence submitted conclusively establishes a defense to the asserted claims as a matter of
law’’ (Ladenburg                                                                               Co.,                                                                                         v. Tim’s Amusements,                         275   243,246
[ 1st Dept. 20001). Defendants’ evidentiary submissions raise issues of fact that cast doubt
on plaintiffs ability to prevail on his claims, but they do not “conclusively” establish any
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defense. In particular, plaintiff denies that his departure                                     MSB was voluntary, and
contests defendants’ assertion that MSB represented NYUSM in connection with East
River Science Park. Accordingly, dismissal is not warranted under CPLR 321
When considering a motion to dismiss on the face of the pleadings, it is well settled
that                                                                                                                                                                    sole criterion is whether the pleading states a cause of action, and if from its four
                                                                                                                                                                        comers factual allegations are discerned which taken together manifest any cause of action
                                                                                                cognizable at law, a motion for dismissal will fail” (Guggenheimer v.                                                                                                43
268,275                                                                                                                                                                 The factual allegations of the complaint are to be taken as true, and the
                                                                                                complaint must be interpreted in a fair and reasonable manner (see,                                                                                                  v.
Grossman, 24                                                                                    609,612                                                                 Williams v.  Williams, 23                                                                    592
Plaintiffs first cause of action is based on section 8-107 of the Administrative Code
of the City of New York Human Rights Law                                                        which, among other things, makes it
unlawful for an employer in its employment practices to discriminate against any person
because of sexual orientation (HRL                                                              Plaintiff brings suit under HRL
107 (7) which makes it “an unlawful discriminatory practice for any person engaged in any
activity to which this chapter applies to retaliate or discriminate in any manner against any
person because such person has ...                                                              commenced a civil action alleging the commission
of an  act which would be an unlawful discriminatory practice under this chapter.”
To establish a prima facie case of retaliation, an  employee must show that (1) he
was engaged in a protected activity, (2) the employer was aware of the activity, (3) the
employer thereafter took some adverse employment action against him, and (4) a causal
connection exists between participation in the protected activity and the adverse




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employment action                                                                               A.    Lawrence   Co., 95                                                                                                                              1170, 1178 [2d
accord                                                                                          v. General Electric Co., 252                                                            205,216 [2d                                                   Although neither
                                                                                                party addresses the issue, NYUSM was not plaintiffs “employer” in February, 2002, and
                                                                                                did not take “adverse employment action” against him at that time (see Smith v. A
Intern.,                                                                                        F.                                                                                      302, [SDNY 20011; see Patrowich v. Chemical Bank, 63
                                                                                                541, 542 [                                                                              an  “employer” under the State Human Rights Law is a person
with either an ownership interest in the company or some form of control over the
plaintiffs employment status). Under these circumstances, plaintiff does not have a claim
against NYUSM and Johnson under the Administrative Code in relation to the termination
of his relationship with the Begun firm.
As to the cause of action for tortious interference with contract, the elements of
such claim are “the existence of a valid contract, the tortfeasor’s knowledge of the contract
                                                                                                and intentional interference with it, the resulting breach and damages”                                                                               v.
Chancellor,                                                                                     246                                                                                     224,228 [lst Dept. 19981). The complaint does not allege
that plaintiff was employed pursuant to a contract for a definite term, and it appears
the submissions that plaintiff had an at-will consulting arrangement with MSB (see Taylor
affidavit, para. 8 “during the time in question I worked virtually full time in Mr. Begun’s
offices”). It is well-established that, because                                                 agreements are classified as only
“prospective contractual relations,” they cannot support a claim for tortious interference
with existing contracts                                                                         v.                                                                                      289                                                           169 [ 1st Dept. 20011).
Accordingly, plaintiffs tortious interference claim can only be for interference with
business relations.
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To establish such a claim, a “plaintiff must demonstrate that the defendant’s
interference with its prospective business relations was accomplished by ‘wrongful means’
or that defendant acted for the sole purpose of harming the                                     (Scalise v.                                                                       267
295 [2d Dept. 19991). Plaintiff has not alleged that defendants were “motivated
solely by a desire to harm him” (Snyder v. Sony Music Entertainment, Inc., supra, 252
at                                                                                              and, in light of the evident conflict of interest, such an allegation could not
be made. As to wrongful means, the complaint alleges that defendant Johnson faxed an
article and letter to Mr. Begun, and discussed them with him, after which plaintiff was fired
and MSB received payment on overdue invoices. While, as plaintiff argues, a causal
connection between these events may be inferred, “defendants’ actions, as alleged, amount
to no more than ‘simple persuasion,’ and, as such, do not constitute the sort of coercive,
maliciously motivated wrong required to support a cause of action for tortious interference
                                                                                                with prospective business relations” (Dilimetin   Dilimetin v. Stein, 297         601 [ 1st
Dept.                                                                                           see also, Snyder v. Sony Music Entertainment, Inc., 252                           294,299-300
[ 1st Dept.                                                                                     summary judgment granted absent showing of wrongful means or that
sole motive was to harm employee, and given evidence that plaintiffs outside work put his
employment by law firm at risk).
Accordingly, defendants’ motion to dismiss the complaint is granted. No sooner
than five days after service of a copy of this order with notice of entry upon defendant and
a proposed judgment, the clerk shall enter judgment accordingly upon the presentation of
appropriate papers.
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This decision constitutes the order of the court.
Dated:  January                                     ,2003
J.S.C.
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