PRESENT: Hon. HELEN E. FREEDMAN PART 39
Justice

Feinberg

Plaintiff ,

- v -

MacKay-Sheilds

Defendant.

Cross-Motion: [ ] Yes [X] No

Motions with sequence numbers 001 and 002 are consolidated for disposition.

Pursuant to CPLR 3211(a)(7), Defendant MacKay-Shields LLC ("MacKay-Shields") moves for an order dismissing the complaint, and defendant Denis Laplaige moves for an order dismissing the claims against him, on the ground that plaintiff Neil Feinberg fails to state causes of action for breach of contract (against MacKay-Shields) and defamation (against both movants.).

The relevant facts and allegations are as follows: Feinberg, who worked at MacKay as a securities portfolio manager under Laplaige, MacKay-Shields's former president, alleges that MacKay- Shields fired him for trumped-up reasons as part of a cover-up of the defendants' own misconduct, He claims that MacKay-Shields breached Feinberg's employment agreement by failing to pay him certain compensation and bonuses, on the false ground that MacKay-Shields had fired Feinberg "for cause." Feinberg further alleges that, as part of their campaign to terminate him, the defendants defamed him by publishing intentionally false statements to MacKay-Shields's officers and employees, and to other members of the financial community, to the effect that Feinberg was violating various SEC rules, that MacKay-Shields had investigated Feinberg for this misconduct, and that MacKay-Shields had fired Feinberg for his misconduct.

Moving to dismiss the breach of contract claim, MacKay-Shields contends that the pleading is fatally vague, because Feinberg failed to annex the employment contract or quote from the breached contract provisions. Despite that failure, however, Feinberg's allegations are specific enough to make out a breach of contract claim. The complaint identifies the contract at issue, Compl. at ¶ 5, and alleges that the contract provided that MacKay-Shields would pay Feinberg a salary and, under certain conditions, incentive compensation and bonuses, Id. at ¶ 10. The complaint also states that, if MacKay-Shields terminated Feinberg for any reason other than "cause," MacKay-Shields would pay him certain severance compensation. Id. at ¶ 8, 10. Finally, the complaint alleges that MacKay-Shields breached the contract by firing Feinberg without cause, and then refusing to pay him the compensation due. These allegations are sufficient to alert MacKay-Shields to particular claims that Feinberg asserts against it.

With respect to the cause of action for defamation, movants contend that Feinberg fails to state a claim, because he does not specify the alleged defamatory statements. Movants also contend that the defendants' statements are protected by the qualified privilege and that they are protected opinion. Finally, movants contend that the statements were not defamatory per se, and accordingly that Feinberg had to plead special damages, but failed to do so.

None of these contentions have merit. First, Feinberg pled the defamation claim with sufficient particularity. CPLR § 3016(a) requires that "the particular [defamatory] words complained of ... be set forth in the complaint", but the defamatory words do not to be in quotation marks. See Taub. V. Amana Imports, Inc., 140 AD2d 687, 689 (2nd Dep't 1988). The defamation claim must also set forth the time, place and manner the statements were made, and their audience. See Seltzer v. Fields, 20 AD2d 60, 64 (1st Dep't 1963). Here, Feinberg alleges that, on various occasions, defendants stated that Feinberg had violated SEC rules, that his trades were suspicious, that an investigation was needed into his improper trading and that he had been fired as a result of his securities laws violations. Feinberg adequately specifies the manner in which these statements were made, and to whom, where and when they were made.

Second, defendants' alleged statements, as pled, are not protected by the qualified privilege. Generally, statements made between parties having an interest in a subject, or a moral or societal duty to speak, are protected by a qualified privilege, see Buckley v. Litman, 57 NY2d 516, 518-19 (1982), but a qualified privilege is "conditioned on its proper exercise, and cannot shelter statements published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity," Loughry v. Lincoln First Bank, 67 NY2d 369, 376 (1986). Here, Feinberg alleges that the defendants were motivated by malice to make knowingly false statements as a pretext for firing him, and that Laplaige's antipathy toward Feinberg arose from jealousy over Feinberg' superior work performance. Thus the qualified privilege is unavailable here.

Nor, as pled, do defendants' statements qualify as protected opinion. A "pure opinion," when accompanied by the facts upon which it is based, is non-actionable. See Steinhilber v. Alphonse, 68 NY2d 283, 289 (1989). An expressed opinion which implies that it is justified by facts that are unknown to the audience, however, is a "mixed opinion," which is actionable, if those implied factual statements are false. See Immuno A.G. v. J. Moor-Jankowsi, 77 NY2d 235, 254 (1990). In this case, defendants' published statements are actionable, because they implied to their audience that defendants knew facts about Feinberg's misconduct that justified their allegations, and because Feinberg claims that these underlying statements are false.

Finally, Feinberg does not need to plead special damages to make out a defamation claim. Words which disparage a person's conduct of his or her profession or business are slander per se. See Privitera v. Town of Phelps, 79 AD2d 1, 3 (1st Dep't 1981). A plaintiff does not need to plead special damages to make out a claim for slander per se. See Saha v. Record, 177 AD2d 763, 766 (3d Dep't 1991). Here, Feinberg alleges that defendants falsely called his business integrity into question, and

accused him of violating securities regulations. This constitutes slander per se, and accordingly Feinberg does not have to plead special damages.

For the reasons set forth above, the motions to dismiss are denied. This is the order of the Court.

Dated:

____________________

J.S.C.