This is the decision following the trial on liability resulting from Frank Staron's termination from his position as an architect. Mr. Staron had worked for a private firm, RBSD Architects,^[FN1] but he contends that he lost his job because of the acts of a person or persons acting on behalf of the State of New York. It is undisputed that there was no contract of employment, express or implied, and that by the time of trial, claimant was proceeding under one cause of action - - tortious interference with business relations.^[FN2]

At trial, in addition to claimant, Leonardo (Leonard) Chao and Larry Fink took the stand. Mr. Chao, a civil engineer employed by the State since 1990 with its Office of General Services, has held the title of regional building construction engineer since 2000. Mr. Fink is an experienced architect both in the New York metropolitan area and internationally, serving two stints with RBSD, the latter one beginning in 2003 in an executive capacity in which he manages project teams and serves as his firm's contact with particular clients.

Mr. Staron maintains that he was fired from RBSD because Chao complained about him to the firm's executives for testifying against the State in a civil action brought by a previous employer of claimant under a contract it had with the State.

Staron began work for RBSD on January 2, 2007; at that time, he had been a practicing architect for 27 years on a broad range of projects for public and private clients (def exh A). Prior to his hiring by RBSD, claimant had worked for another architectural firm, Gilbane. The Gilbane company had been the construction manager for a project involving the Ridgewood Bushwick Community Center in Brooklyn on which Staron was the project manager.

Sikanib had been the prime contractor on the Ridgewood Bushwick job and Chao testified that he along with two other state employees (Bob Levin, Chao's immediate supervisor, and the State contracting officer, John Lewyckyj had made the decision to remove Sikanib from the job because "[t]hey were not performing satisfactorily." Sikanib responded by suing the State, the case went to trial, and, at some point, was settled. At the trial, which occurred during claimant's employment with RBSD, Staron was called as a witness by Sikanib. That day, Leonard Chao was present in the courtroom, assisting the State in its defense.

On February 4, 2008, Dr. Mahmoud Agha, a principal at RBSD, told claimant that he was being terminated. According to Staron, the only other things that came up with Dr. Agha then were claimant's request to delay his termination date (which was done, to February 15) and "I had asked if there's anything I could do, or any other project I could work on . . . and his response was not positive."

Claimant testified that Behrooz Fatehi, who like Larry Fink was a project executive (which is one level below the principals or owners), came up to him and said he felt that Staron had been terminated because of the Sikanib court case. According to Staron, Fatehi told him that Larry Fink had spoken to Chao who had said that the lawsuit "made . . . the State, very unhappy."

Staron testified that a few days later, he and Larry Fink sat in a conference room and "I wanted to hear straight from him . . . and I had asked him, you know, [if] there was any problems, and if he had any problem with me . . ." He said Fink "seemed to indicate that it was just purely because of that phone call that he received [from Chao about the lawsuit]."

RBSD had secured an $8 million dollar consultancy on a major renovation for Building 102 at the Manhattan Psychiatric Center (MPC) on which Staron was assigned as the project manager (cl exh 1). Claimant testified that Fink had said that Chao did not want Staron working on this project. Staron continued: "I mean he wasn't too forthcoming in his response, so I kind of asked multiple questions to see . . . exactly what the problem was, and he seemed to indicate that it was because of that testimony [in the Sikanib case]."

What would otherwise be hearsay can, as we know, be admissible as a party admission or a non-party declaration, although claimant here has arguably failed to show, for example, that Behrooz Fatehi was unavailable. With that said, claimant's argument relating to the motivation and action of the State was, to a significant degree, brought out via the testimony of Leonard Chao.The start of the MPC project was delayed. In fact, as set out more fully below, the project was ultimately discontinued, but in any event, at some point there was an initial "kickoff" meeting on design. Chao testified that he had seen Frank Staron's name on the minutes of the meeting and remembered him as the architect who took the stand in the Gilbane lawsuit and who he believed was not then truthful. Chao testified that within a day or so, he contacted his own immediate supervisor (Levin), told him that he had decided to recommend Staron's removal from the MPC project, and then contacted Larry Fink at RBSD, with whom he had never spoken before.

Chao informed Fink that Staron had testified against the State's interests; Fink responded that he would look into the matter. Fink had a conversation with Agha, the result of which was that claimant was taken off the MPC project. Fink was quite clear that he did not speak to Fatehi about Staron. As for claimant himself, Fink said he did not recall any meeting with him in the conference room or otherwise talking with Staron about why he had been terminated.

The following exchange ensued with Mr. Chao on the witness stand:

"Q. Would Mr. Staron be disqualified from working on any State project under your auspices?

A. Depends on what he would be submitted for.

Q. As a project manager.

A. Probably so."

Chao was a credible witness by his straightforward demeanor, and his blunt testimony and willingness to concede things that might not cast him or the State in a blameless light. The Court credits Chao's testimony that:

The decision was made to remove Frank Staron from the MPC project, but Chao did not know he was terminated, and he never spoke to Agha or Fatehi about the claimant; and

When Chao saw claimant in court on the Sikanib case, he did not realize that Staron was then working for RBSD; he believed that claimant did not testify truthfully at the Sikanib trial, which was based on Chao's firsthand interactions with Staron while claimant was project manager for the Gilbane firm on the Ridgewood Bushwick project, and claimant's trial testimony was "one of the reasons" he thought claimant should be removed from the MPC project.^[FN3]

Chao was responding to a question at trial when he said that Staron would probably be disqualified from working on future state contracts as a project manager; there was no testimony that this was conveyed to RBSD.

But the bigger picture here involves the role of the project manager and the business climate for RBSD at the time. Chao's considerations as an executive with the State's Office of General Services (OGS) was for the projects to be "driven" to completion in accordance with specifications and in a timely manner. Chao testified that Staron did not adequately do so. He had spoken to Larry Fink, who confirmed his view in his testimony that Staron did not do a sufficiently good job as project manager on another contract of RBSD's - - for the Kings County Hospital Center Behavioral Health Building.

Chao testified in some detail about the Ridgewood Bushwick project, on which, as noted, Staron was the project manager for Gilbane, for which Chao, on behalf of the State, had supervisory authority:

"Q. And being a supervisor of the Construction Manager, you would direct the activities of Mr. Staron, correct?

A. That is correct.

Q. And in your role directing his activities, did you come to an assessment of his abilities?

. . .

A. I didn't think he was satisfactorily performing the job . . . He wasn't following up on the . . . required paperwork, wasn't driving the project satisfactorily.

Q. And what do you mean by driving the project in a satisfactory manner?

A. Coordinating the activities [of the] contractor."

Chao testified that he conveyed this to Staron both by phone and email, but there was no improvement; in fact things got worse: "it was in a downturn." Chao spoke more than once about this to Lee Soklowski, the project executive at Gilbane, with the result that Soklowski found a replacement for Staron - - Chao never learned that Gilbane had terminated Staron.^[FN4] The next time Chao saw Staron was at the Sikanib trial.

RBSD specialized in the health care field where the economic prospects had slowed. Going into 2008, RBSD had 35 employees and because of the poor climate for their business, they had to lay off 14 employees or 40% of the workforce. For example, Larry Fink explained that the Manhattan Psychiatric Center project got caught up in the overall planning of the State Office of Mental Health (OMH):

" OMH was in a situation where they were doing a lot of strategic planning as to how they were going to position various beds of different types throughout the State of New York . . . and then the project basically was shelved, because they couldn't make up their mind as to how [*4]many beds they wanted . . . [This was] the end of 2007, early 2008."

As Fink testified, Staron was hired for the Manhattan Psychiatric Center work, which was "shelved . . . we tried him on a couple of projects. I introduced him at Kings County [hospital] to try to do some field work there because I needed help [of a] more senior variety, and I also tried him on a couple of other projects . . . " At a two-hour meeting on the Kings County project,^[FN5] Fink recalled - - he apparently thought it was significant - - that Staron took no notes.

Chao testified that he has the authority to have a contractor or an individual project manager removed from a job and has done so three to five times in each. Similarly, RBSD's Larry Fink has reassigned project managers that clients have objected to: "I've seen excellent architects that don't get along with a particular client . . ."

The burden of proof is on claimant, and yet Mr. Staron was imprecise on the stand and evasive as to his Sikanib testimony. As quoted earlier, Staron twice modified the critical portions of conversations with Larry Fink as "he seemed to indicate" and when asked if Dr. Agha gave a reason for his termination, answered, "I'm sure he did at the time and I don't recall specifically what it was."

The date of the Sikanib trial, which Staron contends triggered his cause of action was never given, except that claimant testified as follows: "I think it was maybe sometime in February or March," but then said he did not recall the year and when asked if it was the year he was terminated or the year before, answered the former - - but he was terminated on February 4, 2008 and his last day was February 15. Staron was also unsure of the period of time between his work at Gilbane and when he started with RBSD.

Claimant testified that he did not discuss with anyone at RBSD that he was going to testify in the Sikanib case, except somewhat oddly: "it was [Sikanib's lawyer] Michael Galina that called me about that case, and I don't discuss - - I didn't discuss that with anyone, really."

Tortious interference with business relations (or prospective business relations as it is often cast) "is established where one party either utilizes wrongful or unlawful means to secure an economic advantage over, or acts for the sole purpose of inflicting intentional harm upon, another" (Zinter Handling, Inc. v General Elec. Co. 101 AD3d 1333, 1337 [3d Dept 2012], citing NBT Bancorp v Fleet/Norstar Fin. Group, 215 AD2d 990 [3d Dept 1995], affd 87 NY2d 614 [1996]). The First Department has explained that necessary to a claim of tortious interference with prospective business relations is that "defendant's conduct was motivated solely by malice or to inflict injury by unlawful means, beyond mere self-interest or other economic considerations . . ." (Shared Communications Services of ESR, Inc. v Goldman Sachs & Co., 23 AD3d 162, 163 [2005]).

Given this standard, claimant has not met the burden of proving his case by a preponderance of the credible evidence. It might be noted that as the case names indicate, both [*5]parties are invariably businesses, not individuals,^[FN6] although an oft-cited case in which the plaintiff was an individual at-will employee does not afford Mr. Staron legal support either (Lawrence v Union of Orthodox Jewish Congregations of Am., 32 AD3d 304 [1st Dept 2006]).

In view of the foregoing, the Clerk of the Court is directed to dismiss the claims of Frank Staron. All objections or motions that have not yet been ruled upon are deemed denied.

LET JUDGMENTS BE ENTERED ACCORDINGLY DISMISSING CLAIM NOS. 116369 AND 117218.