Summary
holding that a claim for constructive discharge brought by an at-will employee was "properly deemed untenable by the motion court"
Summary of this case from Silberman v. Atl. Dialysis Mgmt. Servs., LLCOpinion
February 18, 1999
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
Since plaintiff was, pursuant to the unambiguous language of paragraphs four and five of her agreement with defendants setting forth the terms of her employment, an at-will employee, her causes of action for breach of contract and constructive discharge were properly deemed untenable by the motion court (see, Matter of De Petris v. Union Settlement Assn., 86 N.Y.2d 406).
The complaint, however, sufficiently pleaded a cause of action for defamation per se, and we accordingly affirm the denial of the motion seeking its dismissal. The complained of statements appearing in articles published in AdWeek and the Delaney Report were reasonably susceptible of defamatory meaning (see, Howard v. Alford, 229 A.D.2d 996), since the readers of the aforementioned periodicals (see, Aronson v. Wiersma, 65 N.Y.2d 592, 593), generally persons professionally interested in matters pertaining to advertising, might well have understood the statements at issue as disparaging of plaintiff's competence as an advertising executive (see, Golub v. Enquirer/Star Group, 89 N.Y.2d 1074, 1076). The viability of a defamation action, such as the one at bar, premised upon statements tending to injure a plaintiff professionally or in business, does not depend upon the pleading of special damages, since a presumption of damage arises from the particular nature of the disparagement (see, Liberman v. Gelstein, 80 N.Y.2d 429, 435).
Concur — Tom, J. P., Mazzarelli, Andrias and Saxe, JJ.