Allegations of malice, without evidentiary support, by a fired employee in a defamation lawsuit overcame the common-interest privilege raised as a defense by his former employer at the motion to dismiss stage, a state appeals court has ruled.
The suit by J. Mark Ferrara, a former chief loan officer at Esquire Bank in Suffolk County, should survive the dismissal motion because “the amended complaint sufficiently alleges malice,” ruled an Appellate Division, Second Department, panel in Ferrara v. Esquire Bank, 4883/15.
The unanimous panel disagreed partially with Suffolk County Supreme Court Justice Joseph Pastoressa when it found a common-interest privilege existed regarding communications about Ferrara between the bank and a recruiting agency used to hire him. Pastoressa had ruled no privilege existed.
But the panel’s ultimate ruling was the same as Pastoressa’s: that the defendants’ motion to dismiss must be denied.
Ferrara was terminated in 2014, said Justices Ruth Balkin, Sheri Roman, Sandra Sgroi and Colleen Duffy. According to Pastoressa’s 2016 decision, Ferrara had alleged bank officers Andrew Sagliocca and Eric Bader, in separate conversations with Adams Consulting Group LLC/ACG Resources, falsely told it that he’d engaged in either “borderline criminal” or criminal activity.
The panel wrote that the agency “had an interest in the reason for the termination … and as to why Esquire was seeking the return of the placement fee it had paid ACG. … Therefore, the common-interest privilege applies.” But it also wrote that “accepting the facts … as true, and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently alleges malice to overcome the privilege.”
A “plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211 (a) (7),” the panel added, quoting Colantonio v. Mercy Medical Center, in its Aug. 16 decision.
Jason Canales, a Moses & Singer partner, represented defendants the bank, Sagliocca and Bader. He declined to comment. Gerald Dandeneau, Ferrara’s lawyer, could not be reached.