Plaintiff commenced this action to recover for damages sustained when he was "summarily dismissed" from his employment with defendant. By his complaint, plaintiff alleges causes of action for breach of contract, breach of implied contract, slander, and libel. [*2]Defendants move to dismiss plaintiff's complaint pursuant to CPLR §3211(a)(1) and CPLR §3211(a)(7).On a CPLR 3211 motion to dismiss a complaint, this Court must accept plaintiff's "allegations as true and resolve all inferences which reasonably flow therefrom in favor of the pleader" (Cron v. Hargro Fabrics, 91 NY2d 362 [cit. om.]). A plaintiff may submit affidavits in opposition to a motion to dismiss in order "to remedy defects in the complaint and to preserve inartfully pleaded but potentially meritorious claims" (Id.). Notably, "[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I Inc. V. Goldman Sachs & Co., 5 NY3d 11).

In support of his first cause of action for breach of contract, plaintiff alleges in his complaint that during his employment with defendants he, "duly relied upon the representations of the Defendant...with respect to the rules, procedures and policies of the company. Specifically, the Plaintiff relied upon the provisions contained in the [defendant's] Employee Handbook and subsequent amendments thereto." (Complaint, ¶9). Plaintiff further alleges that during his employment, he received good performance reviews (Id., ¶ 10).

Where, as here, a person is hired for an indefinite term, the employment is presumed to be at-will, that is, a relationship that may be terminated "at any time for any reason or even for no reason" (Lobosco v. New York Telephone Company/NYNEX, 96 NY2d 312, 316). Generally, this "at-will employment" rule will inhibit a cause of action for breach of an employment contract, unless it can be demonstrated, "that the employer made its employee aware of an express written policy limiting the right of discharge and the employee detrimentally relied on that policy in accepting employment" (Id., citing, Weiner v. McGraw-Hill, Inc., 57 NY2d 458). In Weiner, the Court found that there existed sufficient evidence of both a contract and breach thereof to survive a motion to dismiss because (1) plaintiff was induced to leave his prior employment on the premise that he would only be terminated for cause; (2) this premise was incorporated within the employment application, (3) plaintiff rejected other offers of employment in reliance on the promise that he would only be terminated for cause, and (4) his own experience with the employer was that when it was necessary for him to dismiss a subordinate, he was instructed to comply strictly with the "just cause" procedure in the employee manual (Weiner v. McGraw Hill, 57 NY2d 458, 466).

In support of the instant motion to dismiss, defendant submits the "Employee Handbook" issued to its employees. The "Preface" to the Handbook explains:

The contents of this manual are presented as a matter of information only. They are not conditions of employment. The Company reserves the right to modify, suspend or terminate any or all of these policies procedures, and benefits in whole or in part, at any time, with or without notice. This employee manual is not intended to create, nor is it to be construed to constitute, a contract between the Company and any one or all of its employees.

The Employee Handbook also provides certain "Work Rules and Standards". For [*3]example, it sets forth certain enumerated "Work Rule Violations" and "Major Work Rule Violations" but expressly states that neither list is limited to the violations stated in the policy. Further, it includes a provision that sets forth a progressive discipline structure that is "usually" applicable to address work rule violations. The policy expressly provides that, "Neither the Work Rules and Standards, the violations of these Work Rules and Standards nor the prescribed disciplinary action are intended to be all inclusive. Circumstances surrounding the violations are a factor in determining appropriate discipline" (Id., p. 53).

In further support of its motion to dismiss, the defendant also provides an acknowledgment signed by plaintiff on May 17, 1999. Therein, it is acknowledged that the plaintiff had been given a copy of the Handbook, that the plaintiff understood that the Handbook was not a contract and did not create any vested rights, and that the plaintiff understood

"that unless otherwise specifically stated in writing, signed by an authorized officer of the Company, my employment is at will, and for an indefinite term. This means that my employment and compensation may be terminated at any time by either myself or by the Company, with or without notice, cause or reason."

Defendant also provides a copy of "Employment Guidelines and Standards of Conduct", signed by plaintiff on May 19, 1999. Therein, an explicitly non-exhaustive list of events that could lead to discipline is provided. The document also provides that the signatory understood

that this document, or any other document regarding personnel policies, procedures and practices, or any discussions about employment with my supervisor, General Manager, or divisional human resources personnel do not create any vested rights or imply that my employment is anything other than "at will". Documents viewed alone or with any other documents do not create an employment contract and are only guidelines which the Company may revise periodically and without notice.

unless otherwise specifically stated in writing, signed by an authorized officer of the Company, and notwithstanding anything to the contrary otherwise noted herein, my employment is "at will" and for an indefinite term. (This means that my employment and compensation may be terminated at any time by either myself or by the Company, with or without cause or reason).

In opposition to defendant's motion to dismiss plaintiff submits an affidavit wherein he avers that,

"During the course of my employment with the Defendant, it was repeatedly represented to me...that if I followed the guidelines enunciated in the Employment Handbooks as well as preformed my duties proficiently, then I would retain my job"

"In reliance on the explicit representations of management for the Defendant, I proceeded to work in good faith and devote my professional career to the Defendant"

The Court finds that accepting the allegations in plaintiff's complaint as true, and after resolving all inferences emanating from both the complaint and the supplemental affidavits in plaintiff's favor, defendants motion to dismiss the first cause of action must be granted. First, it is recognized that "[r]outinely issued employee manuals, handbooks and policy statements should not lightly be converted into binding employment agreements" (Lobosco, Supra , 96 NY2d at 317).Second, plaintiff does not allege facts to bring him within the Weiner exception to the at-will employment rule. Notably, the Employee Handbook in Weiner, Supra, specifically provided that the employer would

resort to dismissal for just and sufficient cause only, and only after all practical steps toward rehabilitation or salvage of the employee have been taken and failed. However, if the welfare of the company indicates that dismissal is necessary, then that decision is arrived at an is carried out forthrightly

Plaintiff's second cause of action alleges that defendant's termination of plaintiff constituted a breach of an implied employment contract. In certain cases, an obligation of good faith and fair dealing by one party to a contract may be implied and enforced, but such implied contract may only be imposed if it is consistent with other terms of the contractual relationship (Murphy v. American Home Products, 58 NY2d 293, 304; Sabetay v. Sterling Drug, 69 NY2d 329, 335). Here, as set forth above, there exists no express contractual limitation on the defendant's right to terminate. It would be thus, "incongruous to...[infer]...that the employer impliedly agreed to a provision which would be destructive of his right of termination" (Murphy, Supra at 305). Accordingly, defendant's motion to dismiss the second cause of action is granted.

Defendant also seeks to dismiss plaintiff's third and fourth causes of action alleging slander and libel, respectively. Specifically, defendant contends that plaintiff's complaint must be dismissed because the plaintiff failed to specifically plead a cause of action for defamation. Further, defendant argues that the complaint should be dismissed because plaintiff failed to plead special damages.

CPLR §3016(a) provides that, "[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint". A cause of action may be dismissed where a plaintiff fails to "sufficiently articulate the particular words complained of, as well as the time, manner and persons to whom the alleged defamatory statements were made'" (Dobies v. Brefka, 273 AD2d 776, 777, lv. dismd. 95 NY2d 931 [citations omitted]; Wadsworth v. Beaudet, 267 AD2d 727,729)). The purpose of this enhanced pleading requirement is "to give adequate notice to the defendant as to the occurrence constituting the wrong and to discourage the institution of vexatious actions" (Pappalardo v. Westchester Rockland Newspapers Inc., 101 AD2d 830, aff'd. 64 NY2d 862).

In support of the third and fourth causes of action, plaintiff alleges in his complaint that [*5]the defendant "by its officers, agents, managers and employees, in the days prior to his termination, falsely stated that the Plaintiff pointed a gun at another employee and threatened him" (Complaint at ¶¶ 18, 24). Further, plaintiff alleges that the purported slander and libel "falsely and defamatorily (sic) attributed criminal behavior to the plaintiff" (Complaint at ¶¶ 19, 25). In opposition to the instant motion to dismiss, plaintiff submits an affidavit wherein he alleges that,

With respect to my Causes of Action for Defamation, I was informed by management, including [RW]...that another employee who I had previously complained about, [TH], told management that I had pointed a gun at him and threatened him...As far as the circumstances and times in which [TH's] defamatory claim about me was relayed, both verbally and in writing, this is solely in the knowledge of the Defendant.

By his complaint dated March 21, 2007 and affidavit sworn May 7, 2007, therefore, plaintiff alleges that (1) a statement was made to him by "management" and (2) that an oral and written statement was made by a co-worker to "management" sometime prior to his termination

which occurred "on or about March 28, 2006" (Id., ¶11) and (3) that the oral and written statement was false. The Court agrees with defendant that the statement made to plaintiff by "management" fails to state a cause of action for slander, inasmuch as the alleged defamatory statement must be made to someone other than the person alleged to be defamed (Hochberg v. Nissen, 180 AD2d 435, app. den. 80 NY2d 755).

As for the statement purportedly made by the co-worker, plaintiff has identified the speaker and publisher (his co-worker) and that the alleged defamation occurred prior to his termination on March 28, 2006. These allegations provide sufficient notice of the "occurrence constituting the wrong" (Pappalardo, Supra). Additional information may be sought through a bill of particulars (Siegel, NY Prac §216, at 355 [4th Ed.]). Accordingly, defendant's motion to dismiss the complaint pursuant to CPLR §3016(a) is denied.

Defendant's alternative ground for dismissal is that plaintiff failed to plead special damages. Generally, unless a plaintiff suffers special damage, slander is not actionable (Lieberman v. Gelstein, 80 NY2d 429, 434). Special damages are those which "contemplate the loss of something having economic or pecuniary value'" (Id., citing Restatement [Second] of Torts §575, Comment b). Special damages are not sufficiently pled where damages are not itemized (Larson v. Albany Medical Center, 252 AD2d 936, 939). Further, allegations of lost income are not not special damages (Id.). An exception to this general rule exists, however, where a plaintiff alleges slander per se (Lieberman, Supra). Statements constituting slander per se are those which (1) charge the plaintiff with a serious crime, (2) that tend to injure another in his or her trade, business or profession; (iii) that the plaintiff has a loathsome disease; or (4) impugning unchastity to a woman (Id., [cit.om.]).

Here, plaintiff alleges in his third and fourth causes of action that as a result of the purported defamation he, "was damaged in an amount greater than the jurisdictional limits of all lesser courts" (Complaint ¶21, ¶26), thus, the Court agrees that he has not pled special damages (Larson, Supra). For the reasons that follow, however, the Court finds that plaintiff has sufficiently pled "slander per se" inasmuch as the purported statement charges plaintiff with a [*6]serious crime.

The first, "criminal conduct" category of slander per se includes conduct which would be punishable by imprisonment in a state or federal institution or would be regarded by public as involving "moral turpitude" (Restatement [Second] Torts, §571). Defendant argues that the statement "the plaintiff pointed a gun at another employee and threatened him" does not constitute a "serious crime". In Lieberman, relied upon by defendant, the Court determined that the statement, "[plaintiff] threatened to kill me and my family" did not constitute slander per se because the words falsely attributed harassment, a "relatively minor offense...not even a misdemeanor and thus the harm to the reputation of a person falsely accused of committing harassment would be correspondingly insubstantial" (Lieberman, Supra at 437).

Unlike Lieberman, here, the imputed conduct, that the plaintiff pointed a gun at another person, constitutes Menacing in the Second Degree, a Class A Misdemeanor (Penal Law §120.14). Second degree Menacing is punishable by up to one year imprisonment (Penal Law §70.15). Though such conduct may not lead to imprisonment in a State or Federal institution (Penal Law §70.20(2)), it does involve "moral turpitude" inasmuch as if it were true that plaintiff pointed a gun at his co-worker, it would be an "extreme...departure from ordinary standards of honesty, good morals, justice or ethics as to be shocking to the moral sense of the community" (Restatement, Supra, at Comment g [the expressly noncomprehensive list of crimes involving moral turpitude includes, criminal assault, perjury, selling mortgaged chattel or diseased meat, malicious mischief, bootlegging]).

Finally, defendant argues that plaintiff's claim must be dismissed because the alleged statement to "management" was protected by the qualified privilege of "common interest". This qualified privilege

extends to a communication made by one person to another upon a subject in which both have an interest'...The rationale for applying the privilege...is that so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded.

The "common interest" privilege is an affirmative defense, and, "the recognized procedure is to plead the privilege...and thereafter move for summary judgment on that defense, supporting the motion with competent evidence establishing prima facie that the allegedly defamatory communications were...made by one person to another upon a subject in which both have an interest" (Demas v. Levitsky, 291 AD2d 653; appeal den., 98 NY2d 728). Here, however, the question before the court is whether the facts alleged fit into any cognizable legal theory, and the Court should not consider the existence or validity of the moving party's defenses (Unadilla Silo Co., Inc. v. Ernst & Young, 234 AD2d 754). Thus, inasmuch as this is a pre-answer motion to dismiss, the Court declines defendants's invitation to treat this motion as one for summary judgment (see CPLR §3211(c)) and defendant's motion is denied, without prejudice to renew upon completion of discovery (Demas, Supra).

Accordingly, based on the foregoing, defendants's motion to dismiss plaintiff's first and second causes of action is granted and defendants's motion to dismiss the third and fourth causes of action is denied, without costs and without prejudice to motion for summary judgment following joinder of issue. Defendant shall serve its answer to the remaining causes of action I the complaint within twenty days from the date of service of this decision and order with Notice [*7]of Entry.

This Memorandum constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorney for plaintiff.The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

SO ORDERED!

ENTER.

Dated: Albany, New York

, 2008

_______________________________________

Michael C. Lynch

J.S.C.