Opinion
121087/02.
Decided July 9, 2003.
This case arises out of an alleged physical attack by defendant Aston Taylor a/k/a Funkmaster Flex on plaintiff Stephanie Saunders, who is also known as Steph Lova. Taylor and Saunders are hip-hop disc jockeys at rival radio stations.
Motion sequence numbers 001, 002, 003, and 004 are consolidated for disposition.
In motion sequence no. 001, defendants Taylor, Franchise Marketing (Franchise), Dope on Plastic, Inc. (sued herein as Dope on Plastic) (Plastic), and Big Dawg Record Pool (Record Pool) move, pursuant to CPLR 3211 (a) (7), to dismiss the first, second, fifth, sixth, seventh, eighth, 10th, and 14th causes of action that are alleged in plaintiff's second amended complaint, and, pursuant to CPLR 3024, for an order directing the removal of certain fictitious names from the caption. Saunders cross-moves, pursuant to CPLR 3025 (b), for leave to serve a third amended complaint (the Complaint) but does not oppose the removal of the fictitious names.
Defendants Taylor, Record Pool, Franchise, and Plastic represent that Taylor is the sole owner of Plastic, which does business as Franchise, and that Taylor is the majority shareholder of a non-party corporation which does business as Record Pool.
In motion sequence no. 002, defendant Barry Security, Inc. (Barry Security) moves, pursuant to CPLR 3211 (a) (1) and (7), to dismiss the second amended complaint.
By decision dated January 21, 2003, Justice Heitler granted this motion on default. However, because the default had been inadvertent, the parties agreed to vacate the default and agreed on a briefing schedule, by stipulation dated January 22, 2003.
In motion sequence no. 003, defendants Hot 97 FM (the Station) and the Station owner, Emmis Communications Corp. (Emmis) move to dismiss the third, fourth, 15th, and 16th causes of action in the second amended complaint and the corresponding causes of action in the Complaint. Saunders cross-moves, pursuant to CPLR 3025 (b), for leave to serve the Complaint.
In motion sequence no. 004, defendants NYC District Council of Carpenters Pension Fund (the Pension Fund), and NYC District Council of Carpenters Apprenticeship, Journeyman Retraining, Education and Industry Funds (the District Council) move for summary judgment dismissing the second amended complaint. The gravamen of the Complaint is that, on September 20, 2002, Taylor assaulted and defamed Saunders on the sidewalk, in front of 395 Hudson Street, the building (Building) in which the Station is housed. The Pension Fund and the District Council own the Building; defendant Cushman Wakefield manages it; and Barry Security provides security services for it, pursuant to a contract with Cushman Wakefield.
The Complaint alleges that, on or about March 2002, non-party WWPR 105.1 FM (Power) changed its program format so as to compete directly with the Station. On or about June 26, 2002, Saunders, who had been employed by the Station but who, by this time, was working for Power, hosted a program on which a rap artist known as "Nas" criticized the Station, its program director non-party Tracey Cloherty, and several of its disk jockeys, specifically including Taylor and non-party Angie Martinez. Nas attacked the Station for engaging in "dirty politics" and accused Taylor of accepting bribes, known as "payola," to play certain songs on his shows. Plaintiff's theory is that Taylor attacked her in retaliation for her interview with Nas.
The Complaint alleges 16 causes of action. The first cause of action alleges that, on September 20, 2002, Taylor struck plaintiff's face; attempted to punch and choke her; stated that plaintiff was a "broke ass bitch," an "ungrateful bitch," a "stupid f[*]cking bitch, a "dumb bitch," a "slut," and a "whore," and that she "worked weekends because [she was] not [a] good enough [disc jockey] for weekdays"; and threw money at her, saying "you're gonna need this to pay your lawyer's retainer, you stupid bitch."
The second cause of action (against Taylor) alleges that Taylor acts as the employee, agent, servant or owner of Record Pool, Franchise, and Plastic, both while he is on the air at the Station and when he is not; that the business of those entities was injured as a result of Saunders' interview of Nas; and that the business of those entities improved as a result of Taylor's assault on Saunders.
The third cause of action (against the Station) alleges that Taylor's attack on Saunders was undertaken in furtherance of the Station's business, inasmuch as Nas' accusation that Taylor and other Station disk jockeys accepted payola threatened the Station's market share, and that the attack was within the scope of the authority given to Taylor by Ms. Cloherty, who had earlier authorized and directed him to promote the Station by, among other things, verbally insulting Power and its staff, both on and off the air. This cause of action also alleges that the Station was negligent in hiring and in retaining Taylor.
The fourth, fifth, sixth, and 14th causes of action (against, respectively, Emmis, Plastic, Franchise, and Record Pool) all allege that the assault was committed in furtherance of those entities' businesses and that Taylor was acting in the course and general scope of his employment in pursuance of the authority given to him by those entities, whose businesses were adversely affected by Saunders' interview of Nas. Those claims further allege that the entities knew or should have known that Taylor was unfit for employment and that he was vicious and potentially dangerous, that by hiring him they created a situation where it was likely that assaults would occur and that they were negligent in his hiring and supervision. The fourth cause of action also adds the allegation that, on or about September 24, 2002, the Station issued a statement that defended Taylor and maligned the plaintiff.
The seventh and eighth causes of action allege, respectively, that Taylor intentionally inflicted emotional distress on Saunders, and that he negligently did so.
The ninth, 11th, 12th, and 13th causes of action allege, respectively, that Cushman Wakefield, Barry Security, the Pension Fund, and the District Council were negligent in failing to protect the plaintiff.
The tenth cause of action alleges that Taylor slandered the plaintiff by making the remarks that are quoted above.
The 15th cause of action alleges that, after Taylor's alleged attack on Saunders, the Station issued a libelous press release (presumably the statement referred to in the fourth cause of action), which stated that:
[s]ince being fired, many of our staff have witnessed [Saunders] lingering in front of the Hot 97 offices at all hours of the day and night. Her repeated, uninvited presence in front of our facilities has made our employees extremely uncomfortable and anxious. We are seeking an order of protection so that Ms. Saunders will keep away from our offices and staff.
The 16th cause of action purports to allege that the Stations's press release casts plaintiff in a false light.
Discussion
For reasons of efficiency, plaintiff's cross motion to amend the Complaint will be discussed first and the Court will address the motions as they apply to each cause of action.
Absent prejudice to the defendant, leave to amend a pleading should ordinarily be given freely ( see CPLR 3025 [b]; Murray v. City of New York, 43 NY2d 400). However, the Court should deny leave to amend, if the proposed cause of action, or defense, plainly lacks merit ( see Duffy v. Wetzler, 260 AD2d 596 [2nd Dept 1999]; Norwood v. City of New York, 203 AD2d 147 [1st Dept 1994]).
The factual allegations in the first cause of action of the Complaint allege a claim for assault and battery against Taylor. However, the Court agrees with defendants Taylor, Franchise, Dope and Record Pool that the factual allegations in the second cause of action of the Complaint (that the business of certain companies, with which Taylor is associated, was injured as a result of Saunders's interview of Nas, and improved as a result of Taylor's attack on Saunders) do not state any cognizable claim for relief against Taylor. The remaining allegation, that Taylor attacked Saunders because of her interview with Nas, is redundant with the first cause of action. Accordingly, the second cause of action is dismissed.
Plaintiff's third cause of action alleges that the Station is vicariously liable for Taylor's alleged attack and is liable for negligent hiring and supervision. Similarly, the fourth, fifth, sixth, and 14th causes of action allege the assault was committed "in the course and general scope of the authority given" to him by Emmis, Plastic, Franchise, and Record Pool, and that each of these entities was negligent in hiring and retaining Taylor. Affidavits have been submitted by Taylor, the Station, and the attorney for Plastic, Franchise, and Record Pool in connection with their motions to dismiss. The affidavits essentially state that, at the time of the assault, Taylor was not authorized to conduct those entities' businesses. However, even if the Court were to depart from the general principles of Rovello v. Orofino Realty Co., Inc. ( 40 NY2d 633) the Court cannot consider such affidavits, without other evidence on a CPLR 3211 (a) (7) motion ( see Biondi v. Beekman, 257 AD2d 76 [1st Dept 1999] [affidavits and documentary evidence were sufficient on a motion to dismiss pursuant to CPLR 3211 (a) (7)]).
An employer is liable for an employee's tort only if the employee committed the tort within the scope of his or her employment. "[I]t is elementary that 'if a servant goes outside of his employment, and without regard to his service, acting maliciously, or in order to effect some purpose of his own, wantonly commits a trespass, or causes damage to another, the master is not responsible'" ( Lazo v. Mak's Trading Co., 84 NY2d 896, 899 [Titone, J. concurring], quoting Mott v. Consumers' Ice Co., 73 NY 543, 547; see also Demas v. Levitsky, 291 AD2d 653 [3rd Dept 2002]). An employee's actions are within the scope of his or her employment only if "'the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business'" ( Schilt v. New York City Tr. Auth., ___ AD2d ___, 2003 WL 1891986, *3 [1st Dept 2003], quoting Stavitz v. City of New York, 98 AD2d 529, 531 [1st Dept 1984]). Thus, for example, employers will generally not be liable to third parties for a sexual assault by an employee ( see N.X. v. Cabrini Med. Ctr., 97 NY2d 247; Judith M. v. Sisters of Charity Hosp., 93 NY2d 932; Cornell v. State of New York, 46 NY2d 1032). Nor will an employer be liable for a completely unforeseen assault by an employee ( see Wallace v. Gomez, 296 AD2d 306 [1st Dept 2002]), or for one that directly contravenes the employer's instructions ( see Flowers v. New York City Transit Auth., 267 AD2d 132 [1st Dept 1999] [assault on panhandler by token booth clerk]; Jaccarino v. Supermarkets Gen. Corp., 252 AD2d 572 [2nd Dept 1998] [assault on a customer by security guard]). However, where the tortious conduct is a "natural incident of the employment," an employee's intentional tort may be found to have been within the scope of his or her employment ( Riviello v. Waldron, 47 NY2d 297, 304). For an employee to be regarded as within the scope of his employment, "the employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected" ( id. at 304). Whether the tortious act of an employee is within the scope of the employee's employment depends largely on the particular facts, and the determination is normally left to the trier of fact ( id.; Schilt, supra). Accordingly, the Court will not dismiss the third, fourth, fifth, sixth, and 14th causes of action as a matter of law.
With respect to negligent hiring and retention, the third, fourth, fifth, sixth, and 14th causes of action are sufficient to withstand the motions to dismiss pursuant to CPLR 3211 (a) (7). There is no statutory requirement that causes of action sounding in negligent hiring, retention, or supervision must be pled with specificity ( see Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 AD2d 159 [2nd Dept 1997] [negligent hiring and retention claim was sufficient to withstand a CPLR 3211 motion]). An employer may be liable for negligent hiring and retention when it knew or should have known of the employee's propensity to commit injury and has a duty to investigate a prospective employee when it knows of facts that would lead a reasonable prudent person to investigate ( see T.W. v. City of New York, 286 AD2d 243 [1st Dept 2001]). Plaintiff has sufficiently pled this claim, which the Court must accept as true, including not only the Complaint's material allegations, but also whatever can be reasonably inferred therefrom ( see P.T. Bank Central Asia, New York Branch v. ABN AMRO Bank, N.V., 301 AD2d 373 [1st Dept 2003]). Accordingly, the third, fourth, fifth, sixth, and 14th causes of action are sufficient to state a claim against defendants Franchise, Plastic, Record Pool, Emmis and Station for negligent hiring and retention.
However, the Court agrees with defendants Taylor, Franchise, Plastic and Record Pool that the seventh and eighth causes of action fail to state a claim. Liability for the intentional or reckless infliction of emotional distress may be had "'only where the conduct has been 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 in a civilized community'" ( Howell v. New York Post Co., Inc., 81 NY2d 115, 122, quoting Murphy v. Am. Home Prods. Corp., 58 NY2d 293, 303, quoting Restatement (Second) of Torts § 46, comment d). The reprehensible conduct that is alleged in the seventh and eighth causes of action does not even approach that standard ( cf. Nader v. General Motors Corp., 25 NY2d 560 [deliberate and malicious campaign of harassment states claim for intentional infliction of emotional distress]; Bunker v. Testa, 234 AD2d 1004 [4th Dept 1996] [yelling and gesturing obscenely at victim, following her home, refusing to leave, and implicitly threatening to harm her children]; Laurie Marie M. v. Jeffrey T.M., 159 AD2d 52 [2nd Dept 1990] [sexual abuse of 11 year-old stepdaughter]; Murphy v. Murphy, 109 AD2d 965, 966 [3rd Dept 1985] ["deliberate and malicious campaign of harassment"]). Moreover, Taylor's alleged conduct falls squarely within the ambit of traditional tort liability for battery ( see Fischer v. Maloney, 43 NY2d 553, 558). Accordingly, the seventh and eighth causes of action are dismissed.
With respect to the 10th cause of action for slander against Taylor, the Court agrees with defendants Taylor, Franchise, Plastic and Record Pool that it fails to state a claim because the statements were hyberbole, not fact ( see Aronson v. Wiersma, 65 NY2d 592, 593 [the defamatory nature of any speech constitutes a legal issue to be determined by the court]). In order to protect the unfettered interchange of ideas, speech that cannot be reasonably construed as conveying facts but which is loose, figurative, or hyperbolic, cannot be considered slander ( see 600 West 115th Street Corp. v. Von Gutfeld, 80 NY2d 130, 139 [a reasonable listener would view defendant's comments, made at a heated public meeting, not as statements of fact, but as an angry unfocused diatribe]). To determine whether the speech may be construed as conveying facts, the courts must consider "(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to 'signal'" to listeners that the speech is likely to be fact ( Gross v. New York Times Co., 82 NY2d 146, 153).
Generally, speech consisting of statements "(i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman" constitutes slander per se ( Walia v. Purmasir Assocs., Inc., 160 F Supp2d 380, 394 (EDNY 2000), quoting Liberman v. Gelstein, 80 NY 429, 435). However, such speech is not actionable where the context indicates that the speech is nothing more than hyperbole or epithet. Although "fraud," "bribery," and "corruption" "are commonly understood to mean criminal behavior and refer to verifiable acts," the context of a heated debate "negate[s] the impression of factual assertions" ( 600 W. 115th Street Corp., supra at 143; Gross, supra at 155 ["assertions that a person is guilty of 'blackmail,' 'fraud,' 'bribery' and 'corruption' could, in certain contexts, be understood as mere nonactionable 'rhetorical hyperbole' or 'vigorous epithet[s]'"]; cf. Walia, 160 F Supp2d 380 [defendant's statements that plaintiff was a whore, uttered in conversations with members of the Indian community and accompanied by descriptions of plaintiff's dress and demeanor, constituted actionable slander per se]).
Plaintiff alleges that Taylor called her a whore, slut and varieties of bitch during the alleged altercation. However, even if Taylor's use of "bitch," "slut" and "whore" can be normally understood to impute unchastity to plaintiff in this day and age when such terms are used generically, the context of Taylor's alleged assault of plaintiff negates any implication of factuality and renders those statements hyperbole or epithets which are exempt from action as slander. Although the Court does not approve of such statements, allegedly used, the 10th cause of action fails to state a claim for slander.
Contrary to motion of Emmis and the Station, the 15th cause of action states a claim for libel against the Station. The Station argues that Saunders is, at least, a limited-purpose public figure, and, accordingly, that she can recover for libel only if she proves both that the statements in the press release were false and that the Station issued the press release either with actual malice, i.e., actual knowledge that the statements were false ( see New York Times Co. v. Sullivan, 376 US 254, 279-280) or with a reckless disregard for the truth or falsity of the statements contained therein ( see generally id.; Hustler Mag., Inc. v. Falwell, 485 US 46; Freeman v. Johnston, 84 NY2d 52, cert denied 513 US 1016). Plaintiff has alleged that the Station knowingly and falsely asserted in a press release that it would seek an order of protection against her (falsely implying that she posed a menace) when it knew that no such order could issue; and that the distribution of this press release to business associates and the public caused pecuniary harm to plaintiff's career. Taking plaintiff's allegations as true, the 15th cause of action states a claim.
With respect to the 16th cause of action, the Court agrees that plaintiff has failed to state a claim against the Station. A cause of action alleging that one has been cast in a false light is not recognized in New York ( see Howell v. New York Post Co., 81 NY2d 115); Sarwer v. Conde Nast Publs., Inc., 237 AD2d 191 [1st Dept 1997]). Accordingly, the 16th cause of action is dismissed.
The remainder of the Complaint raises the following question: can the Building owners and Barry Security (which contracted to provide security services) be held liable in negligence for an attack by Taylor that allegedly took place on the street in front of the Building? The owners of the Building, Pension Fund and the District Council (hereafter the Owners), have moved for summary judgment on the 12th and 13th causes of action, alleging that they had no duty to plaintiff as a matter of law. Barry Security has moved to dismiss the 11th cause of action pursuant to CPLR 3211 (a) (1) and (a) (7), alleging that it had no duty under its security contract to protect plaintiff. Under the circumstances of this case, the Court finds that only the Owners owed a duty to plaintiff as a matter of law.
A landowner has a duty to maintain its property in a reasonably safe condition, whether the property is open to the public or not ( see Peralta v. Henriquez, 2003 NY LEXIS 1274, * 7 [May 13, 2003]). However, it is generally stated that the owner does not owe a duty of care to members of the public at large who are on the street in front of the building ( see Waters v. New York City Hous. Auth., 69 NY2d 225). Waters, however, which is relied upon by the Owners in their summary judgment motion, does not dictate a finding that a duty does not exist under the circumstances of this case. In Waters, the Court found that a building owner had no duty to protect a plaintiff who was attacked by an assailant outside a building and then forced inside. Notably, the Court distinguished Nallan, infra, based on the fact that the plaintiff had no connection whatsoever to the building in which she was assaulted ( Waters, supra at 228). In fact, the Court pointed to two important factors in determining the scope of a landowner's duty: (1) the relationship between the landowner and the assailant, and, (2) the relationship between the landowner and the victim ( id. at 229-230). These factors are relevant because a landowner has no control over the acts of an assailant or of the conditions of public byways that make attacks common place ( id. at 230). Further, if those two factors are not considered, a landlord would be subject to virtually limitless liability ( id.). Concerned with the need to place controllable limits on liability, the Court declined to find that the landowner had a duty because the building had no association with the plaintiff, independent of the crime itself, and the building had no relationship at all with the unidentified wrongdoer ( id. at 230-231).
Mindful of the precedent limiting the orbit of a landowner's duty, this Court nonetheless finds there is a sufficient relationship between the Owners and plaintiff (as a former employee of the Station, who was familiar with the building security) and the Owners and the alleged wrongdoer (a current employee of the Station).
Waters must be read in light of Nallan v. Helmsley-Spear, Inc. ( 50 NY2d 507) cited by plaintiff in opposition to the Owners' motion. In Nallan, the Court held that a building owner had a duty to protect a plaintiff, who, familiar with the after hours security in a building, was shot in the lobby by an unknown assailant while the security attendant was absent. Although the assault occurred on the building premises, and not outside the building as in this case, the reasoning is instructive. The Court found that the building owner undertook to provide security, potentially placing the plaintiff in a more vulnerable position than if no security had been provided at all ( id. at 522). The Court observed that plaintiff might show that, because he was familiar with the building's after hours procedures and expected that an attendant would be present, he was lulled into a false sense of security, and as a consequence, neglected to take the precautions he might otherwise have taken had the building owner never assumed the duty in the first instance.
Although the ninth, 11th, 12th, and 13th causes of action are pled in a bare-bones, formulaic fashion, plaintiff has submitted an affidavit in which she avers that she knew that Barry Security provided security services in the Building; that there were cameras mounted on the outside of the Building; that security personnel observed the street in front of the Building through monitors in the lobby; and that said personnel had, in the past, intervened on a number of occasions when there was a disturbance in front of the Building. Plaintiff may be able to introduce evidence at trial from which a jury could find that she had relied on, or been lulled into, a false sense of security by the security arrangements of which she was aware (and that it was reasonably foreseeable that she and other people familiar with the presence of the monitors would so rely), and, accordingly, that she was in a more vulnerable position than she would have been in had the Building's security system not included cameras with a view of the street. The fact that the plaintiff's claim here occurred outside the building while the plaintiff's claim in Nallan occurred inside the building is of no import because the cameras here were mounted on the outside of the Building (essentially extending the duty of the Owners beyond the inside of the Building), and, the alleged assault was close enough to the Building to have been captured on camera.
Of course, plaintiff would also have to show that Taylor's alleged attack on her lasted a sufficiently long time for the security guards to have been able to intervene.
The other cases cited by the Owners are inapposite. In Rodriguez v. Oak Point Mgt., Inc. ( 87 NY2d 931) the Court held that the building owner did not have a duty to protect a child who was shot 191 feet from the front of his aunt's apartment by a drug dealer because, as a result of the distance from the building, he was no different from a passerby whose relationship to the building was merely fortuitous. However, here, both the plaintiff and defendant have a relationship to the Building; plaintiff alleges that she was lulled into a false sense of security because of the security already provided; and the alleged assault took place close enough to the Building to be caught on camera. Additionally, Evans v. 141 Condominium Corp. ( 258 AD2d 293 [1st Dept 1999]) which distinguished Nallan, supra, is inapposite because plaintiff, who was aware of the doorman's break, could not have been lulled into a false sense of security when she was assaulted during the break by an unidentified robber. Here, however, plaintiff alleges reliance upon the security provided. Further, in Audrey B. v. New York City Hous. Auth. ( 202 AD2d 532 [2nd Dept 1994]) the plaintiff was a resident of a building several blocks away from the building where the crime took place, and neither she nor the assailants had any connection to the building where the attack occurred.
Barry Security, however, stands on different footing from the Owners. Plaintiff contends that she is a third party beneficiary to a security contract between Barry Security and the Building's managing agent. Barry Security argues that, "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" ( Espinal v. Melville Snow Contrs., Inc., 98 NY2d 136, 138). Before an injured party may recover as a third party beneficiary for failure to perform a duty imposed by contract, it must clearly appear from the contract that the parties intended to confer such a benefit ( see Paradiso v. Apex Investigators Sec. Co., Inc., 91 AD2d 929 [1st Dept 1983]). However, the security contract specifically provides in paragraph 32 that nothing contained therein is intended, or should be construed, to confer any rights or remedies to third parties. Numerous cases have dismissed claims that a security company owes a duty to protect a plaintiff as a third party beneficiary for negligent performance of a security contract ( see Moskal v. Fleet Bank, 269 AD2d 260 [1st Dept 2000]; King v. Resource Prop. Mgt. Corp., 245 AD2d 10 [1st Dept 1997]; Rudel v. Natl. Jewelry Exch. Co., 213 AD2d 301 [1st Dept 1995]; Carrini v. Supermarkets Gen. Corp., 158 AD2d 303 [1st Dept 1990]).
The fact that the plaintiff cannot be considered a third party beneficiary does not end the inquiry. The Court must also address whether Barry Security assumed a special duty of care to the plaintiff ( see King, supra). Plaintiff makes the same argument with respect to Barry Security as with respect to the Owners. However, the duty imposed by law upon security companies and landowners are not the same. Plaintiff fails to allege that Barry Security assumed a special duty of care to the plaintiff, as required by law. Plaintiff's allegation that she observed the security company intervening to assist other individuals on prior occasions is insufficient as such allegations do not relate to plaintiff herself ( cf. McKinnon v. Bell Sec., 268 AD2d 220 [1st Dept 2000] [Court held security company had a duty to plaintiff, when its guard intervened in a dispute and took custody of a suspect stating "I'll handle this"]; Lewis v. McDonald's Corp., 245 AD2d 270 [2nd Dept 1997] [Court held security company had a duty to plaintiff, when its guard intervened in a dispute and assured plaintiff he would "take care of it"]). Accordingly, the 11th cause of action is dismissed.
Accordingly, it is hereby
ORDERED that plaintiff's cross motion for leave to amend the complaint is granted, in part, and plaintiff is directed to serve an amended complaint in conformance with this decision, omitting the second, seventh, eighth, 10th, 11th and 16th causes of action alleged in her proposed third amended complaint, and renumbering the paragraphs of the complaint and deleting the fictitious John Does 1-10 and ABC Corp. 1-10; and it is further
ORDERED that the defendants shall answer the amended complaint within 20 days from the date of said service; and it is further
ORDERED that the motion of defendants Taylor, Franchise, Plastic and Record Pool to dismiss pursuant to CPLR 3211 (motion seq 001) is granted to the extent of dismissing the second, seventh eighth and 10th cause of action; and it is further
ORDERED that the motion of defendant Barry Security to dismiss the 11th cause of action pursuant to CPLR 3211 (motion seq 002) is granted; and it is further
ORDERED that the motion of defendants Hot 97 FM and Emmis to dismiss pursuant to CPLR 3211 (motion seq 003) is granted to the extent of dismissing the 16th cause of action; and it is further
ORDERED that the motions of defendants NYC District Council of Carpenters Pension Fund and New York City District Council of Carpenters Apprenticeship Journeyman Retraining, Education and Industry Funds to dismiss the 12th and 13th cause of action pursuant to CPLR 3212 (motion seq 004) is denied.