Case 7:14-cv-09503-KMK Document 3 Filed 12/16/14 Page 1 of 4

RuTHERFORD & C HRISTIE nr

NEw YoRK A TLA NTA

December 16, 2014

VIA ECF
The Honorable Kenneth M. Karas
United States District Court
Southern District ofNew York
300 Quarropas Street
White Plains, New York 10601-4150

Re:

Harisch v. Town ofNorth Castle, et a/.

Docket No.: 14 CV 9503 (KMK)
Our File No.: 1020.071

Dear Judge Karas:

We represent the Defendants in this matter and are writing, pursuant to Your Honor's
individual rules, to request a pre-motion conference and to briefly set fotih the basis for Defendants'
anticipated motion to dismiss the complaint in this matter. At the outset, Defendants note that the
complaint in this matter, which consists of 77 pages and 206 paragraphs, contains facts and
allegations that have no direct bearing on the purported causes of action and that the complaint, as
a whole, fails to comply with Plaintiff's obligations under FRCP 8 to set forth "a short and plain
statement of the claim." Nonetheless, Defendants believe that this lengthy complaint still fails to
state a single claim for which relief can be granted and should be dismissed now, before the parties
are required to spend any more time or resources addressing the allegations therein.

P1aintifrs First Cause Of Action, For Negligent Hiring, Should Be Dismissed

It is not clear whether Plaintiff seeks damages based simply upon the fact that Defendant
Godlberg was hired by the Town, or whether this cause of action is meant to provide a basis for
liability based upon other alleged injuries. Assuming the former, Plaintiff has not identified any
injuries that arose solely from the Town' s hiring of Defendant Goldberg. Assuming the latter to be
the case, the claim should nonetheless be dismissed. First, Plaintiffhas failed to plead plausible facts
suggesting that Defendants The Town of North Castle and the Town ofNorth Castle Town Board
ignored or failed to heed complaints about Defendant Goldberg which were sufficiently similar to
the allegations in the complaint to place them on notice of a propensity to act in the matmer alleged
in the complaint. Second, even if Plaintiff had pled facts sufficient to establish such a claim, the
claim would sti 11 fail as a matter of law. Specifically, it is well settled that if an employee is acting
within the scope of their employment then the employer can only be held liable through respondeat
superior, and no alternative theories of liability are available. Gray v. Schenectady City School
Dis!., 86 A.D.3d 771,773-774 (3'd Dept., 2011)("The employee also must not be acting within the
369 LEXINGTON AVENUE
8TH FLooR

N EW YORK, N Y 10017-5947

T: (2 12) 599-5799

I F: (2.12) 599-5162

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Case 7:14-cv-09503-KMK Document 3 Filed 12/16/14 Page 2 of 4

Harisch v. Town Of North Castle, eta/.

Our File No.: 1020.071
December 16, 2014
Page2
scope of his or her employment; in that situation the employer could only be held liable, if at all,
vicariously under the theory of respondeat superior, not for negligent supervision or
retention.")(citing cases). In this case, all of Plaintiffs numerous allegations concern actions taken
by Defendant Goldberg within the scope of her employment as Town Administrator. As such,
Plaintiffs First cause of action should be dismissed.
Plaintiff's Claims Under Labor Law 740 Should Be Dismissed Because Plaintiffls A Public
Employee
Plaintiff alleges claims for retaliation under Labor Law 740. However, it is well settled that
Labor Law 740 does not apply to claims against public employers. Tamayo v. City ofNew York,
2004 WL 13 7198, *7 (S.D.N.Y.2004) (dismissing retaliation claim brought by city police detectives
under Labor Law 740). Since it is well settled that Plaintiff was (and still is) employed by the
Town of North Castle; a public employer, these claims cannot stand and Plaintiffs Fifth and Sixth
causes of action should be dismissed.
By Asserting A Claim Under Labor Law 740, Plaintiff Has Waived Any Claims For Common
Law Retaliation
Labor Law 740 states, in pertinent part, that "[t]he institution of an action in accordance
with this section shall be deemed a waiver of the rights and remedies available under any other
contract, collective bargaining agreement, law, rule or regulation or under the common law." Thus,
it is well settled that once an action pursuant to Labor Law 740 is initiated, a plaintiff waives his
right to prosecute an action for the same transaction or occurrence against his employer. Maccagno
v. Prior, 78 A.D.3d 549 (2010)("In dismissing the complaint in its entirety, the court held that
plaintiff inadequately pleaded a cause of action under the Whistleblower Law, but in doing so,
elected a remedy that effectively waived any other rights and remedies it had.") As such, Plaintiff
is precluded from bringing claims for "common law retaliation" and Plaintiffs Third and Fourth
causes of action should be dismissed.
Plaintiff Has Not Pled Facts That Constitute A Cause Of Action For Reputational Injury
This cause of action is based upon Plaintiffs allegation that Defendant Goldberg sent an
email to Town Board members and the Westchester County Human Resources Department
indicating that Plaintiff was unhappy with his job. This email does not, as a matter oflaw, constitute
libel per se. As such, Plaintiff was required to plead special damages. As he has not done so, nor
can he, this cause of action should be dismissed.

RuTHERFORD & CHRISTIE

LLP

Case 7:14-cv-09503-KMK Document 3 Filed 12/16/14 Page 3 of 4

Harisc/1 v. Town Of North Castle, eta/.

Our File No.: 1020.071
December 16, 2014
Page3

Plaintiffs Seventh Cause Of Action, For "Violation Of 42 U.S.C. 1983," Should Be Dismissed
With regard to this cause of action, Plaintiffs Complaint does not identify a specific
underlying Constitutional or Statutory injury. As such, the cause of action appears to be based upon
an alleged injury to his rights pursuant to Section 1983 itself. As it is well settled, however, that
section 1983 does not, by itself, establish a right of action, this cause of action does not actually state
a claim for which relief can be granted and should be dismissed.

Plaintiffs Eighth Cause Of Action, For Injurious Falsehood, Should Be Dismissed

This cause of action is based upon the same email upon which Plaintiff bases his claim for
reputational injury. A claim for injurious falsehood, however, is "confined to [statements]
denigrating the quality of [a plaintiffs] goods or services" Korova Milk Bar of White Plains, Inc. v.
PRE Props., 2013 WL 417406, at *16 (S.D.N.Y. Feb. 4, 2013) (quoting Berwick v. New World
Network lnl'l, Ltd. , 2007 WL 949767, at *15 (S.D.N.Y. Mar. 28, 2007)). Since Plaintiffs
allegations do not concern such remarks, this claim should be dismissed.

Plaintiff's Ninth Cause Of Action, For Intentional Interference With Prospective Economic
Advantage, Should Be Dismissed
Plaintiff has brought this claim against all defendants, including the Town Board, based upon
their alleged interference with his relationship with the Town Board. In doing so, Plaintiffhas failed
to identify a third party with whom he had a relationship with which Defendants interfered.
Moreover, this claim appears to be duplicative of his retaliation claims and is therefore waived due
to Plaintiffs elections of remedies under Labor Law 740.

Plaintiffs Tenth Cause Of Action, For Prima Facie Tort, Should Be Dismissed
This claim should be dismissed for two reasons. First, Plaintiff has remedies available under
other, more traditional tort claims. Second, Plaintiff has not, nor can he, plead facts to establish that
Defendants acted with "disinterested malevolence."

Respectfully Submitted,
RUTH~RD & C RIS'HE, LLP

Lewis R. ilver
Gerald S. Smith

R u TH ERFORD & CHRISTIE

LLP

Case 7:14-cv-09503-KMK Document 3 Filed 12/16/14 Page 4 of 4

Harisch v. Town Of North Castle, eta/.

Our File No.: 1020.071
December 16, 2014
Page4
CC:

Via ECF & Facsimile ((646) 755-3599)

Jason H. Berland, Esq.
Beys Stein Mobargha & Berland, LLP
Attorneys for Plaintiff
405 Lexington Avenue, 7'h Floor
NewYork,NewYork 10174

RuTHERFORD & CHRISTIE

LLP