Feehan v Consolidated Edison Co. of N.Y., Inc., 2024 NY Slip Op 02753 [227 AD3d 522]

May 16, 2024

Appellate Division, First Department

[*1]

Andrew Feehan, Appellant,

v

Consolidated Edison Company of New York, Inc., Respondent.

Advocates for Justice Chartered Attorneys, New York (Richard Soto of counsel), for appellant.

Littler Mendelson P.C., New York (Sylvia Jeanine Conley of counsel), for respondent.

Order, Supreme Court, New York County (Lori S. Sattler, J.), entered February 24, 2023, which granted defendant’s motion to dismiss the complaint and denied plaintiff’s motion for leave to file a second amended complaint, unanimously affirmed, without costs.

The motion court properly granted defendant’s motion to dismiss the amended complaint, which asserted a single cause of action for prima facie tort, because plaintiff has failed to plead that “disinterested malevolence was the sole motivation” for defendant’s conduct ( AREP Fifty-Seventh, LLC v PMGP Assoc., L.P. , 115 AD3d 402 , 403 [1st Dept 2014]; see also Burns Jackson Miller Summit & Spitzer v Lindner , 59 NY2d 314, 333 [1983]). Rather, the amended complaint alleges that defendant demoted him after its Office of Diversity and Inclusion (ODI) issued a report finding that plaintiff had engaged in workplace discrimination ( see Pandian v New York Health & Hosps. Corp. , 54 AD3d 590 , 591 [1st Dept 2008]). Plaintiff’s allegation that the ODI report was based on faulty evidence is insufficient to show that defendant relied on it solely to harm his career ( see id. ). Moreover, he fails to show how the documents incorporated into the amended complaint support his claim.

The motion court properly denied plaintiff’s motion to amend the pleadings, as the proposed amendment is conclusory and “palpably insufficient” ( see 16 W. 8th LLC v Gluckman , 222 AD3d 449 , 449-450 [1st Dept 2023]; see Princes Point, LLC v AKRF Eng’g, P.C. , 94 AD3d 588 [1st Dept 2012]). Concur—Webber, J.P., Kern, Shulman, Rodriguez, Pitt-Burke, JJ..