Plaintiff Paul J. Herskovitz (plaintiff) moves for an in limine order: excluding any and all evidence, references to evidence, testimony or argument relating to (i) defendant Esther Emerald Klein's (defendant) valuation of the parties' subject intellectual property, and/or (ii) the defendant's measurement of the damages, allegedly caused by plaintiff, as being speculative, remote, contingent, and incapable of measurement based upon any known reliable factors. Alternatively, plaintiff moves for an order dismissing defendant's third counterclaim alleging theft of intellectual property or for an order severing this claim in order to avoid prejudice, confusion, and delay.

In or about 1998, while working as college professors, plaintiff and defendant co-authored an article entitled, "The Biblical Narrative of Joseph: A Study of Leadership in Three Contexts." According to the article's abstract: [*2]

"This paper uses the biblical story of Joseph as a case study on leadership. Specifically, we examine the leadership of Joseph in three different contexts - as slave, as prisoner, and as highest ranking official in Pharaonic Egypt. We argue that the Joseph story illustrates the presently out-of-favor trait or great man' theories of leadership, which posit that leaders are born and not made . . . The moral for those in the business world is that opportunities for leadership exist in all situations and that leadership can be exercised not only in the loftiest domains but also in the lowliest places."

After completing the article, plaintiff and defendant submitted it to the "Mid-American Journal of Business" for publication. However, by letter dated March 11, 1999, the journal rejected the article for publication. In this regard, the journal's editor stated that the piece would be of "limited interest" to its audience and that "the applicability of the Joseph story to the business world needs additional development that would assist practitioners in understanding its relatedness to a business setting."

On August 13, 2000, plaintiff and defendant were married. On or about May 1, 2008, plaintiff and defendant separated. Also in or about 2008, plaintiff co-authored an article with non-party Toby H. Birnbaum entitled "The Biblical Story of Joseph: Lessons in Servant Leadership." According to the article's abstract:

"This article examines the biblical story of Joseph as a case study on servant leadership. Although the Joseph story can be viewed through the lens of the great man and charismatic leadership theories, this paper suggests that the Joseph story best illustrates the servant leadership approach. We examine the evolution of Joseph from a self-centered brother to a servant leader in several different contexts: as slave, as prisoner, and as the highest-ranking official in Pharaonic Egypt . . . The biblical account of Joseph contributes to business management scholarship. It demonstrates that genuine leadership emerges from a sincere desire to serve others rather than the reliance upon charisma and inherent qualities."

In the Spring of 2009, this article was published in the "John Ben Shepperd Journal of Practical Leadership."

On or about September 15, 2009, plaintiff commenced the instant action for divorce on the grounds of abandonment. Thereafter, defendant interposed an answer containing two counterclaims for divorce on the grounds of abandonment and cruel and inhuman treatment. In addition, defendant asserted a third counterclaim alleging theft of intellectual property. Specifically, defendant alleged that the published article plaintiff co-authored with Ms. Birnbaum in 2008 was identical to the unpublished article that he co-authored with defendant in 1998. Defendant further alleged that plaintiff's failure to credit the defendant with co-authorship of this article when it was published constituted theft of intellectual property which caused defendant one million dollars in damages. The instant motion is now before the court.

In moving for an in limine order precluding the introduction of evidence related to the value of the underlying intellectual property (i.e., the article co-authored by plaintiff and defendant) and/or defendant's measurement of damages, plaintiff argues that any attempt to value the property or set damages would be inherently speculative, remote, and contingent upon factors which are incapable of measurement. Under the circumstances, plaintiff maintains that [*3]such evidence would be prejudicial to him and, if a jury trial is demanded, such evidence will be confusing to the jury. In support of this contention, plaintiff maintains that both the published and unpublished article lack any commercial value as the works were generated purely as scholarship endeavors and were not sold. Further, plaintiff avers that defendant cannot establish that the alleged theft of the intellectual property adversely affected her career or earnings. In this regard, plaintiff points out that, on or about September 1, 1999, before the first article was rejected for publication, defendant listed the paper as a work "in progress" on her Curricular Vitae (CV) in support of her recommendation for reappointment as an assistant professor. However, after the article was rejected, defendant stopped listing the work on her subsequent CVs. Nevertheless, according to plaintiff, defendant advanced her career without relying upon the unpublished article as evidenced by the fact that defendant was promoted to associate professor in 2008. Accordingly, given its speculative and prejudicial nature, plaintiff maintains that defendant should be precluded from introducing any evidence regarding damages arising out of her third counterclaim.

Plaintiff further seeks an order dismissing or severing the third counterclaim from the matrimonial action. Specifically, plaintiff maintains that, inasmuch as he and defendant were co-owners of the original article, and the subsequent published article was markedly different from the original article, no "theft" of the intellectual property could have occurred in this case. In this regard, plaintiff avers that, inasmuch as there was never any written agreement between the parties with respect to the unpublished article, he was entitled to modify, utilize and market the paper for publication with (at most) an obligation to share any financial gain with the defendant. However, according to plaintiff, the subsequently published article had no commercial value and therefore, no theft could have occurred by the publication of the revised article. In any event, plaintiff avers that the subsequent published article was so different and discrete from the original article, there is no basis for defendant's allegation that plaintiff improperly removed her name from this work since defendant had nothing to do with the published work. In this regard, plaintiff notes that the original article used the biblical figure of Joseph to support a "charismatic leadership" theory while the published article was premised upon Joseph being an example of the "servant leadership theory."

Plaintiff also argues that defendant abandoned the unpublished article as evidenced by the fact that she failed to list the work on her CV after 1999. Finally, plaintiff reiterates his argument that plaintiff cannot establish any damages.

In opposition to plaintiff's motion, defendant initially maintains that, inasmuch as plaintiff seeks dismissal of her third counterclaim and all evidence regarding the damages stemming from this claim, plaintiff's motion is not an in limine motion, but rather, seeks summary judgment. According to defendant, plaintiff's evidence is insufficient to meet his burden on a summary judgment motion. Specifically, defendant maintains that, as co-authors of the unpublished article, neither party has the right to exclude the other from using the property or to deplete the value of the property. However, in subsequently publishing the article after removing her name from the work, defendant argues that plaintiff both excluded her from using the article and prevented her from using the article herself. In this regard, defendant submits her own affidavit in which she claims that she had planned to revisit and build upon the original article so as to produce a published work that would aid her in obtaining a promotion from associate professor [*4]to full professor. Defendant also argues that there is no basis for plaintiff's argument that, because the damages may be difficult to calculate, the underlying tort claim should be dismissed. In particular, defendant notes that there is no requirement that her pleadings set forth the basis for damages. In any event, defendant alleges in her affidavit that plaintiff's publication of the article has prevented defendant from using this work, thereby damaging her career. Finally, defendant maintains that her third counterclaim is properly before the court in this divorce proceeding. Indeed, defendant argues that the failure to raise this claim in this action would prevent her from raising it after the matrimonial action is concluded due to res judicata.

The court must first address that branch of plaintiff's motion which seeks dismissal of defendant's third counterclaim since dismissal would render plaintiff's motion for in limine relief and/or severance moot. As an initial matter, the court notes that plaintiff has failed to identify the statutory basis under which he seeks dismissal. However, in his reply papers, plaintiff rejects defendant's assertion that he is seeking summary judgment. Thus, it would appear that plaintiff seeks dismissal based upon the documentary evidence submitted (CPLR 3211 [a][1]) and/or defendant's failure to state a claim (CPLR 3211 [a][7]). In particular, plaintiff maintains that the documentary evidence in this case including the published and unpublished articles, and defendant's CVs, demonstrate that: defendant abandoned the unpublished article prior to the publication of the subsequent article; the published and unpublished articles are different and distinct works; and that the unpublished article was transformed into a publishable article due solely to the initiative and efforts of plaintiff and his co-author Birnbaum. In addition, plaintiff argues that defendant has failed to state a claim since she cannot prove damages and, in any event, there could be no theft or conversion of the unpublished article since plaintiff and defendant co-owned the work.

On a motion to dismiss pursuant to CPLR 3211 (a)(7), "the . . . complaint is to be afforded a liberal construction. The facts as alleged in the . . . complaint are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court's function is to determine only whether the facts as alleged fit within any cognizable legal theory" (Goldfarb v Schwartz, 26 AD3d 462, 463 [2006]). Further, "[a] motion pursuant to CPLR 3211 (a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may only be granted where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law" (Mendelovitz v Cohen, 37 AD3d 670 [2007]).

Here, the fact that defendant failed to list the unpublished article in her CV following its rejection for publication is insufficient to "utterly refute" defendant's allegation that she intended to revisit the subject article so as to produce a publishable work which would advance her career. Indeed, for purposes of the instant motion, the court must accept this allegation as true. With respect to plaintiff's claims that the two articles are distinct and that the second article was transformed into a publishable work due solely to the initiative and efforts of plaintiff and Birnbaum, the court notes that the two articles are not "identical" as alleged in defendant's answer.On the other hand, there are substantial similarities between the works including the basic premise of the articles; namely the use of the biblical figure of Joseph as a case study in leadership qualities through three periods of his life in order to serve as an example for modern [*5]business leaders. Under the circumstances, and affording defendant the benefit of every reasonable inference, it cannot be said that the two articles are so distinct so as to require the dismissal of defendant's counterclaim under CPLR 3211 (a)(1).

With respect to plaintiff's argument that defendant has failed to state a claim since she cannot prove damages, "[t]o survive a CPLR 3211 [a][7] . . . dismissal motion, a pleading need only state allegations from which damages attributable to the defendant's conduct may reasonably be inferred" (Lappin v Greenberg, 34 AD3d 277, 279 [2006]). Here, affording the counterclaim liberal construction, accepting the allegations therein as true, and giving defendant the benefit of all reasonable inferences, it sufficiently states allegations from which damages may be reasonably inferred. In particular, the counterclaim alleges that plaintiff converted defendant's interest in the article which resulted in defendant sustaining damages. Moreover, defendant has amplified these allegations in her affidavit in opposition to the instant motion. Specifically, defendant alleges that plaintiff's alleged conversion of the property has prevented her from using the article as the basis for her own publication, which has hindered her from being promoted to the more prestigious and lucrative position of full professor.

Further, none of the cases cited by plaintiff stand for the proposition that a claim may be dismissed under CPLR 3211 (a)(7) based upon alleged difficulties in proving actual and ascertainable damages. Specifically, in Wenger v Alidad (265 AD3d 322 [1999]), the Appellate Division, Second Department ruled that the defendant's breach of contract counterclaim must be dismissed due to the speculative nature of the underlying damages after the defendant failed to prove damages at trial. Similarly, in Halaby v Halaby (289 AD2d 657 [2001]), the Third Department found that there was insufficient evidence presented at a bench trial to support defendant/wife's contention that her husband/plaintiff's postdoctoral fellowship enhanced his earning capacity, so as to entitle defendant/wife to an equitable portion of said earnings. These post-trial cases have no application to a pre-trial CPLR 3211 (a)(7) motion.^[FN1] Plaintiff's misguided reliance on Rather v CBS Corporation (68 AD3d 49, 58-59 [2009], lv denied 13 NY3d 715 [2010]) involves a fraud claim, which has enhanced pleading requirements and where damages must be based upon what was actually lost, and not what might have been gained.

Finally, plaintiff contends that there can be no claim that he stole the subject article inasmuch as he was a co-owner of the article and free to utilize and modify the material whereupon, at most, he would be obligated to share in any financial gain with the defendant. According to plaintiff, the subsequently published article had no commercial value. However, defendant's counterclaim is not based upon any allegation that plaintiff failed to share in the profits generated by the published article. Rather, defendant alleges that by publishing the article without crediting her, plaintiff excluded and prevented defendant from using the article to advance her own career.

Accordingly, that branch of plaintiff's motion which seeks an order dismissing the third counterclaim is denied. [*6]

Turning to that branch of plaintiff's motion which seeks an in limine order and/or severance of the third counterclaim, the court finds that the third counterclaim should be severed from the main action. In this regard, "[p]arties are free . . . to join their interspousal tort claims with the matrimonial action and the trial court retains discretion to sever the claims in the interest of convenience, if necessary" (Chen v Fischer, 6 NY3d 94, 100 [2005], citing CPLR 601[a], 603). With respect to issues of convenience, there are several inherent factors which weigh against trying an interspousal tort claim as part of a matrimonial action which the Court of Appeals examined in Chen. In particular, the two actions differ in purpose, in the types of relief sought, and in the types of proof required. Further, tort actions are usually tried by a jury, while matrimonial actions are decided by a judge when fault is not contested (id. at 98-99). In addition, the joinder of an interspousal tort counterclaim will often complicate and prolong the divorce proceeding, which is "contrary to the goal of expediting these proceedings and minimizing the emotional damage to the parties and their families" (id. at 100).

In the instant matter, all of these factors are relevant and weigh in favor of severing the counterclaim from the main action. Furthermore, the third counterclaim stands apart from and is not intertwined with the action for dissolution of the marriage. In particular, both parties are in agreement that the subject intellectual property is not marital property inasmuch as the original article was written prior to the marriage. Moreover, defendant's counterclaim does not seek an adjustment to equitable distribution based upon any alleged value added to plaintiff's career as a result of the article. Rather, defendant seeks straight monetary damages.

Accordingly, those branches of plaintiff's motion which seeks an in limine order and/or severance of the third counterclaim is granted to the extent that the counterclaim is severed from the matrimonial action pursuant to CPLR 603 and defendant is directed to purchase a new index number under which she may pursue said counterclaim.

In summary, that branch of plaintiff's motion which seeks an order dismissing defendant's third counterclaim is denied. Those branches of plaintiff's motion which seeks an in limine order precluding the introduction of evidence regarding the third counterclaim and/or severance is granted to the extent that the third counterclaim is hereby severed from the matrimonial action.

This shall constitute the decision and order of the court.

ENTER:

Jeffrey S. Sunshine

J. S. C.