Koffel v Cook 2024 NY Slip Op 31694(U) May 14, 2024 Supreme Court, New York County Docket Number: Index No. 157596/2022 Judge: J. Machelle Sweeting Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. J. MACHELLE SWEETING PART 62 Justice ---------------------------------------------------------------------------------X INDEX NO. 157596/2022 QUINCY KOFFEL, MOTION DATE 01/20/2023 Plaintiff, MOTION SEQ. NO. 001 -v- SABRINA COOK, JEFFREY GAMILS, JAY MILLER, in their individual and official capacities, CITY OF NEW YORK, DECISION + ORDER ON NEW YORK CITY DEPARTMENT OF EDUCATION MOTION
Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NY St Cts Elec Filing (“NYSCEF”) document number (Motion 001) 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 were read on this motion to/for DISMISSAL .
Quincy Koffel (“plaintiff”) brings this action against defendants the City of New York
(“City”); the New York City Department of Education (“DOE”); Sabrina Cook (“Cook”), Jeffrey
Gamils (“Gamils”) and Jay Miller (“Miller”) (hereinafter referred to together in their individual
capacities as the “individual defendants”). Plaintiff alleges that defendants conspired to defame
her. Plaintiff further asserts that the individual defendants tortiously interfered with her contracts
with DOE-approved third-party vendors and affected her prospective economic opportunities of
working with those same vendors in the future.
Defendants move to dismiss the complaint under Civil Practice Law and Rules (“CPLR”)
CPLR 3211 (a) (1), (5) and (7).
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 1 of 19 Motion No. 001
1 of 19 [* 1] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
BACKGROUND FACTS
Unless noted otherwise, the facts below are taken from the Complaint, and are accepted as
true for purposes of this motion (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 416
[2001]).
Plaintiff alleges that she provided different services to DOE schools for approximately 20
years as an independent contractor by contracting with DOE-approved vendors (NYSCEF Doc
No. 2, complaint, ¶¶ 18-19, 21-22). Some of the services that plaintiff and the approved vendors
provided included, among other things, professional development for teachers and other staff,
student engagement, and curriculum development (id., ¶ 20).
Plaintiff alleges that she was able to work for DOE because she had passed all required
background checks performed by the Office of Personnel Investigation (“OPI”), which is the
division at DOE responsible for clearing persons to work for DOE’s Galaxy database (id., ¶¶ 23,
41). Plaintiff alleges that she was and is currently listed as a Person Not on Budget (“PNOB”) at
multiple schools (id.). Generally, if there is a problem code associated with a person’s PNOB
status, or if there is a revocation of the clearance, the Galaxy database will red flag and drop such
individual from the PNOB system. That individual is then automatically removed from the DOE’s
Galaxy database and the schools are immediately alerted to such status change (id., ¶ 46). Plaintiff
alleges that the determination to remove someone’s PNOB status is solely made by OPI (id.).
Plaintiff is also the founder and president of multiple DOE-approved vendors (id., ¶ 26).
In 2019, the principal of the School for Tourism Hospitality (“STH”) allegedly contacted plaintiff
concerning a vacancy at the school (id., ¶ 25). Cook, who was the deputy superintendent at the
time, allegedly told plaintiff that she wanted her husband to fill the vacant position at STH by
securing his employment through plaintiff’s companies (id., ¶ 26). STH’s principal, however,
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 2 of 19 Motion No. 001
2 of 19 [* 2] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
allegedly informed plaintiff that the current superintendent would likely frown on hiring Cook’s
husband based on nepotism and a conflict of interest DOE (id., ¶ 27).
In December 2019, Cook was promoted to superintendent. This promotion allegedly
caused plaintiff to worry that Cook would use her new position to retaliate against her if she refused
to hire her husband (id., ¶ 29). Nonetheless, plaintiff ultimately decided not to hire Cook’s husband
pursuant to DOE’s rules (id.).
Plaintiff alleges that, beginning in April 2021, defendants Cook, Miller, and Gamils
conspired to prevent plaintiff from working in DOE schools, through deceit and duplicity, by
deactivating multiple vendors that she contracted with in the DOE system (id., ¶¶ 31-32, 37).
Miller’s Email and Phone Call
On June 15, 2021, Miller sent an email to certain vendors stating: “The DOE has become
aware of what appears to be a relationship between you, your entities and other entities that were
operated by an individual name [sic] Quincy Koffel” (id., ¶ 33).
In July 2021, Miller and multiple DOE representatives had a phone call with one of the
vendors that employed plaintiff. During this call, Miller allegedly stated that plaintiff was problem
coded and was ineligible to work as an independent contractor (id., ¶ 34). Miller then allegedly
told the vendor that it had been deactivated as an approved vendor as a result of employing
plaintiff, that plaintiff was not to seek employment with other vendors, and that any vendor that
employed plaintiff would be deactivated by DOE (id.). Plaintiff alleges that, when making this
statement, Miller was acting in concert with defendants Cook and Gamils (id., ¶ 35). Yet, plaintiff
alleges that she was not actually problem coded in any DOE system, and defendants’ deactivation
of the vendors that plaintiff worked for served as a de facto problem code because it restrained
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 3 of 19 Motion No. 001
3 of 19 [* 3] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
plaintiff’s economic opportunities within the DOE (id., ¶ 37). Plaintiff alleges that Miller, the
Chief Administrator of the Division of Contracts and Purchasing at DOE, failed to verify the
claims, allegedly made to him by Cook and/or Gamils, that plaintiff was problem coded by OPI or
that she was no longer permitted to work at DOE (id., ¶¶ 5, 36).
Gamils’ Email
On October 6, 2021, Gamils, allegedly at Cook’s direction, sent an email to the principals
of four schools where plaintiff had previously worked (id., ¶¶ 38, 40). The email stated:
Good afternoon,
I have been notified by the Office of Personal Investigations (OPI) that a vendor/volunteer by the name of Quincy Koffel is currently active on your [G]alaxy as Person Not on Budget [PNOB]. This individual is subject to a substantiated SCI report and currently has a problem code banning her presence in our buildings or doing any business with the DOE. This problem code was effective as of 3/12/2020. Please be advised that this person must to [sic] be deleted from PNOB on [G]alaxy and she is not permitted to volunteer or do any business with the DOE. The system should have made her ineligible automatically but apparently there is a data entry error somewhere in the system.
I need to confirm with OPI when this correction is made. If possible, please update me as to when she is removed from your Galaxy. Please feel free to contact me with any questions (id., ¶ 41).
Plaintiff alleges that Gamils and Cook were aware the information was false because
plaintiff was not problem coded in Galaxy and was not banned from entering DOE buildings or
doing business with DOE (id., ¶¶ 42-43). Plaintiff alleges that Gamils and Cook intentionally
misled the principals in order to retaliate against her (id., ¶¶ 44-45). The email sent by Gamils and
Cook allegedly prevented plaintiff from continuing her career with DOE, caused her economic
harm, and resulted in her loss of an internship at the Bronx High School for Visual Art (id., ¶ 48).
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 4 of 19 Motion No. 001
4 of 19 [* 4] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
This Action
On September 7, 2022, plaintiff commenced this action against all defendants. In her first
cause of action, plaintiff alleges that defendants tortiously interfered with contract when they
deactivated the DOE-approved vendors she contracted with. In her second cause of action,
plaintiff alleges that defendants tortiously interfered with prospective economic advantage by
intentionally communicating materially false and harmful information to DOE personnel. Finally,
in her third cause of action, plaintiff alleges that defendants defamed her by publishing false
information about her status at DOE. In response to the complaint, defendants filed the current
motion to dismiss.
LEGAL STANDARD FOR A MOTION TO DIMISS
“On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that
it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima
facie, that the time in which to sue has expired” (Benn v Benn, 82 AD3d 548, 548 [1st Dept
2011][internal quotation marks and citation omitted]).
Under CPLR 3211(a)(7), the movant has the burden to demonstrate that the complaint,
construed liberally in favor of the plaintiff, states no legally cognizable cause of action (Leon v
Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mut. Life Ins. Co. of N.Y., 98 NY2d 314,
326 [2002]. Plaintiff is accorded “the benefit of every possible favorable inference” (Goshen, 98
NY2d at 326[internal quotation marks and citation omitted]). “Whether the plaintiff will ultimately
be successful in establishing [its] allegations is not part of the calculus” (Greystone Funding Corp.
v Kutner, 121 AD3d 581, 583 [1st Dept 2014][internal quotation marks and citation omitted]).
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 5 of 19 Motion No. 001
5 of 19 [* 5] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
On a “CPLR 3211(a)(1) motion to dismiss on the ground that the action is barred by
documentary evidence, such motion may be appropriately granted only where the documentary
evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a
matter of law” (Goshen, 98 NY2d at 326; see also Art & Fashion Group Corp. v Cyclops Prod.,
Inc., 120 AD3d 436, 438 [1st Dept 2014]). “In order to prevail on a CPLR 3211 (a) (1) motion,
the documents relied on must definitively dispose of plaintiff's claim” (Blonder & Co., Inc. v
Citibank, N.A., 28 AD3d 180, 182 [1st Dept 2006]). “If the documentary proof disproves an
essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (1) is warranted even
if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause
of action” (Kolchins v Evolution Mkts., Inc., 128 AD3d 47, 58 [1st Dept 2015], affd 31 NY3d 100
[2018]). “Judicial records, such as judgments and orders, would qualify as ‘documentary,’ as
should the entire range of documents reflecting out-of-court transactions, such as contracts, deeds,
wills, mortgages, and even correspondence” (Amsterdam Hospitality Group, LLC v Marshall-Alan
Assoc., Inc., 120 AD3d 431, 432 [1st Dept 2014] [internal quotation marks and citations omitted]).
Further, correspondence, such as emails, suffice as documentary evidence for purposes of CPLR
3211(a)(1) (id. at 433); see also Kolchins, 128 AD3d at 4).
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 6 of 19 Motion No. 001
6 of 19 [* 6] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
DISCUSSION
A. Claims Against the City
In her opposition papers, plaintiff consents to the dismissal of all her claims against the
City. Accordingly, all claims against the City are dismissed.
B. The Defamation Claim Against DOE, Miller, Gamils and Cook
A defamatory statement is one that “tends to expose a person to public contempt, hatred,
ridicule, aversion or disgrace” (Thomas H. v Paul B., 18 NY3d 580, 584 [2012]). To prevail in a
defamation claim, a plaintiff must show “(1) a false statement that is (2) published to a third party
(3) without privilege or authorization and that (4) causes harm, unless the statement is one of the
types of publications actionable regardless of harm” (Stepanov v Dow Jones & Co., Inc., 120 AD3d
28, 34 [1st Dept 2014]).
The Defamation Claim Against Miller
As a preliminary matter, plaintiff withdrew her defamation claim against Miller for the
alleged defamatory statements he made in 2021. Accordingly, the third cause of action for
defamation against Miller is dismissed.
The Defamation Claim Against Cook, Gamils and DOE
Turning to the remaining defamation claim against Cook and Gamils, plaintiff alleges in
her complaint that they intentionally and recklessly disregarded the truth and misled principals by
stating that plaintiff was no longer permitted to work with DOE and was problem coded. She
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 7 of 19 Motion No. 001
7 of 19 [* 7] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
asserts that Gamils and Cook conspired to retaliate against her because she refused to hire Cook’s
husband. As to DOE, plaintiff seeks to hold DOE liable under the doctrine of respondeat superior.
In their motion to dismiss, defendants argue that plaintiff’s claim for defamation should be
dismissed because the documentary evidence conclusively establishes that the statements are true
or substantially true and are protected by a qualified privilege.
“Truth is an absolute defense to a cause of action based on defamation” (Silverman v Clark,
35 AD3d 1, 12 [1st Dept 2006] [citations omitted]). “’If an allegedly defamatory statement is
‘substantially true,’ a claim of libel is ‘legally insufficient and ... should [be] dismissed’” (Franklin
v Daily Holdings, Inc., 135 AD3d 87, 94 [1st Dept 2015], quoting Biro v Conde Nast, 883 FSupp2d
441, 458 [SDNY 2012]). “[A] statement is substantially true if the statement would not ‘have a
different effect on the mind of the reader from that which the pleaded truth would have produced’”
(id.).
The documentary evidence submitted by defendants does not conclusively show that
plaintiff was problem coded or banned from doing business with DOE when Gamils made the
statements. On February 10, 2020, the Special Commissioner of Investigation for the New York
City School District (“SCI”) issued a report regarding their investigation into numerous DOE
principals and the plaintiff (NYSCEF Doc No. 13, Liu’s affirmation, exhibit B, p. 1). The report
concluded that the DOE principals and plaintiff by-passed DOE’s procurement requirements to
pay a non-DOE-approved vendor (id.). This SCI report only recommended that DOE cease doing
business with plaintiff and asked that SCI be notified if DOE takes any action with respect to
plaintiff (id., p. 8). Further, the email dated March 11, 2020 from Karen Antoine, the director of
trial units, merely indicated that DOE should terminate plaintiff’s work and problem code her
profile to ensure that a bar was placed to any and all opportunities for plaintiff with DOE (NYSCEF
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 8 of 19 Motion No. 001
8 of 19 [* 8] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
Doc No. 14, Liu’s affirmation, exhibit C, pp. 1-2). The email, however, does not conclusively
show that those actions against plaintiff were actually taken by DOE or when.
In fact, the sequence of events from the documents submitted are conflicting. Gamil’s
email at issue explicitly states that as late as October 2021, almost two years after the SCI
investigation was concluded and after Karen Antoine’s email, the Galaxy system failed to
automatically delete plaintiff as a PNOB due to errors in data entry. The documents thus show
that plaintiff was still active in the Galaxy system as late as October 2021. Further, the letter sent
to plaintiff by Miller on November 16, 2021, explicitly states that “due to the pandemic and the
shutdown of city schools at that point in time, a responsibility determination was rendered moot
as students were shifted to remote learning” (NYSCEF Doc No. 15, Liu’s affirmation, exhibit D,
p. 1). The same letter directed plaintiff to respond to the issues in the letter and emphasized that
the sufficiency of her response would be considered in connection with plaintiff’s ability to do
business with DOE. As argued by defendants, these documents do not conclusively show that
plaintiff was problem coded in the DOE system in March 2020.
Finally, the printout from OPI that was submitted by defendants does not qualify as
documentary evidence (NYSCEF Doc No. 16, Liu’s affirmation, exhibit E). “A paper will qualify
as ‘documentary evidence’ only if it satisfies the following criteria: (1) it is ‘unambiguous’; (2) it
is of ‘undisputed authenticity’; and (3) its contents are ‘essentially undeniable’” (VXI Lux Holdco
S.A.R.L. v SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019][citation omitted]). The printout
from OPI is ambiguous because it is unclear from this record, the year that the problem code went
into effect or what the other information in the screenshot represents. In any event, even if,
arguendo, this document qualified as documentary evidence, its contents do not utterly refute
plaintiff’s factual allegations, as the document merely shows that plaintiff was problem coded for
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 9 of 19 Motion No. 001
9 of 19 [* 9] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
the 2022-2023 school year (NYSCEF Doc No. 16), and there is no indication that she was problem
coded before that year or at the time the alleged defamatory statements were made.
Qualified privilege is another defense of defamation. “It is well established that even if a
statement is defamatory, a qualified privilege exists where the communication is made to persons
who share a common interest in the subject matter” (Silverman, 35 AD3d at 10 [citations omitted]).
“The rationale in applying the privilege in these circumstances is that ‘so long as the privilege is
not abused, the flow of information between persons sharing a common interest should not be
impeded’” (Silverman, 35 AD3d at 10 [citation omitted]). The common interest privilege has been
applied to, among other things, employees of an organization (Liberman v Gelstein, 80 NY2d 429,
437 [1992] [citations omitted]).
While statements can be protected by the common interest privilege, the defense can be
defeated by malice (Liberman, 80 NY2d at 437). “[I]t is the defamation plaintiff who ‘would have
the burden of showing that a statement is actionable because it was motivated by malice’ . . . in
order to negate the privilege” (Stega v New York Downtown Hosp., 31 NY3d 661, 673 [2018]
[citations omitted]). Plaintiff’s complaint thus must contain “sufficient allegations of malice to
withstand the motion to dismiss” when a defense of qualified privilege is raised (Park Knoll Assoc.
v Schmidt, 59 NY2d 205, 210 [1983]).
Under the common-law, “malice mean[s] ‘spite or ill will’” (Liberman, 80 NY2d at 437
[citations omitted]). However, under the “actual malice” standard established in New York Times
Co. v Sullivan, actual malice requires “knowledge that [the statement] was false or reckless
disregard of whether it was false or not” (Liberman, 80 NY2d at 438, quoting New York Times Co.
v Sullivan, 376 US 254 [1964]). The Court of Appeals recognizes that either the constitutional or
common-law standard suffices to “defeat a conditional privilege” (Liberman, 80 NY2d at 438).
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 10 of 19 Motion No. 001
10 of 19 [* 10] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
Further, “where the plaintiff can demonstrate that the communication made by the defendant was
not made in good faith but was motivated solely by malice, the protection provided by the qualified
privilege will be inapplicable” (Phelan v Huntington Tri-Vil. Little League, Inc., 57 AD3d 503,
505 [2d Dept 2008]). Malice “refers not to defendant’s general feelings about plaintiff, but to the
speaker’s motivation for making the defamatory statements” (Pezhman v City of New York, 29
AD3d 164, 168-169 [1st Dept 2006][internal quotation marks and citation omitted]).
Here, the alleged defamatory statements in Gamils’ email are protected by the common
interest privilege. Gamils and Cook were both employed by DOE when Gamils sent the email to
other DOE personnel. In this email, Gamils informed DOE employees of the substantiated
investigation against plaintiff, stated that she was problem coded and was not permitted to
volunteer or do any business with the DOE. Gamils’ email was, therefore, a communication of
information made between persons who shared a common interest in the subject matter. The DOE
school principals have a common interest in knowing whether independent contractors, like
plaintiff, went through the proper channels of DOE before providing services to their schools.
Since plaintiff had a long history of working with different DOE schools, other DOE personnel
would have a corresponding interest to ensure that DOE directives were being followed.
Plaintiff’s complaint does not sufficiently allege common-law malice to withstand the
defense of common interest privilege raised by defendants. Plaintiff has not pleaded sufficient
facts to show that “spite or ill will was the ‘one and only cause for the publication’ as [plaintiff]
must, to overcome the qualified privilege” (Loughlin v de Bary, 212 AD3d 557, 560 [1st Dept
2023]). As discussed, plaintiff alleges that Cook and Gamils conspired to defame plaintiff by
making the statements in Gamil’s email as part of a retaliation campaign against her. However,
the documentary evidence shows that the statements made in Gamils’ email were, at minimum,
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 11 of 19 Motion No. 001
11 of 19 [* 11] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
based on an independent SCI investigation against plaintiff that was substantiated against plaintiff,
which also recommended that DOE cease doing business with plaintiff. Thus, even if Cook and
Gamils harbored any personal animosity against plaintiff, their alleged ill will was not the “one
and only” reason for the publication of the statements in Gamils’ email and plaintiff cannot,
therefore, overcome the qualified privilege.
Nonetheless, plaintiff’s defamation claim against defendants Gamils and Cook survives
under actual malice. Plaintiff sufficiently alleges that the statements in Gamils’ email, which was
sent at the direction of Cook, were false because she was not problem coded in the DOE system;
her PNOB status was active despite the statements; she was approved for a social work internship
within DOE; and she was never told by OPI that her ability to work within DOE was revoked.
Plaintiff has sufficiently, and at minimum, alleged reckless disregard for the truth on the part of
Gamils and Cook.
As to DOE, plaintiff also sufficiently alleges facts of defamation under the doctrine of
respondeat superior. “[A]n employer may be vicariously liable for the tortious acts of its
employees only if those acts were committed in furtherance of the employer’s business and within
the scope of employment” (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]; see also Summors
v Port Auth. of N.Y. & N.J., 203 AD3d 558 [1st Dept 2022]). “Pursuant to this doctrine, the
employer may be liable when the employee acts negligently or intentionally, so long as the tortious
conduct is generally foreseeable and a natural incident of the employment” (Judith M. v Sisters of
Charity Hosp., 93 NY2d 932, 933 [1999]). Here, plaintiff sufficiently alleges that defendants
Gamils and Cook were acting within their scope of their employment when Gamils published the
email containing the statements about plaintiff (NYSCEF Doc No. 2, ¶ 51).
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 12 of 19 Motion No. 001
12 of 19 [* 12] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
For the foregoing reasons, defendants’ motion to dismiss the defamation claim against
DOE, Cook and Gamils is denied.
B. Tortious Interference With A Contract Claim Against Miller, Gamils and Cook
In her complaint, plaintiff alleges that one year prior to Miller’s deactivation of the DOE-
approved vendors with whom she contracted to work with, she held approximately 14 in-school
positions (NYSCEF Doc No. 2, ¶ 56). Plaintiff alleges that but for the individual defendants’
actions, the vendor contracts would have been renewed and she would have continued to provide
services for DOE and would have earned approximately $400,000 per year (id. at ¶¶ 56, 58).
“Tortious interference with contract requires the existence of a valid contract between the
plaintiff and a third-party, defendant's knowledge of that contract, defendant's intentional
procurement of the third-party's breach of the contract without justification, actual breach of the
contract, and damages resulting therefrom” (Lama Holding Co. v Smith Barney Inc., 88 NY2d 413,
424 [1996]; see also C.H.A. Design Export (H.K.) Ltd. v Miller, 191 AD3d 459 [1st Dept 2021]).
Further, to prevail, “a plaintiff must [also] allege that the contract would not have been breached
‘but for’ the defendant’s conduct” (Burrowes v Combs, 25 AD3d 370, 373 [1st Dept 2006][citation
omitted]; see also Lana & Samer, Inc. v Goldfine, 7 AD3d 300, 301 [1st Dept 2004]).
Applying the law to the facts at hand, in her opposition papers plaintiff argues that she is
asserting this claim against the individual defendants in their individual capacity only, and not
against the DOE. Thus, this court dismisses the tortious interference with a contract claim against
the DOE.
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 13 of 19 Motion No. 001
13 of 19 [* 13] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
As to the individual defendants, plaintiff fails to sufficiently plead a cause of action for
tortious interference with a contract. She failed to identify the specific, valid contracts she had
with DOE-approved vendors at the time that the individual defendants allegedly procured a breach,
and failed to allege, “in nonconclusory language, the essential terms of the parties’ contract,
including the specific provisions upon which liability is predicated” (Pitcock v Kasowitz, Benson,
Torres & Friedman, LLP, 80 AD3d 453, 454 [1st Dept 2011]; see also Influx Capital, LLC v
Pershin, 186 AD3d 1622, 1624 [2d Dept 2020]). Plaintiff alleges in general and in vague terms
that she provided services to DOE throughout the years and merely states that a year prior to
Miller’s deactivation of the DOE approved vendors, she had approximately 14 in-school positions.
In addition, “[i]n order for the plaintiff to have a cause of action for tortious interference of
contract, it is axiomatic that there must be a breach of that contract by the other party” (Jack L.
Inselman & Co., v FNB Fin. Co., 41 NY2d 1078, 1080 [1977]). By failing to identify valid
contracts she had with any third-party vendors, plaintiff has also failed to plead that the individual
defendants actually procured a breach.
Plaintiff’s tortious interference with a contract claim also fails because she does not
sufficiently allege that “but for” the individual defendants’ conduct, the contracts would not have
been breached (see 111 W. 57th Inv. LLC v 111 W57 Mezz Inv. LLC, 220 AD3d 435, 436 [1st Dept
2023]; Burrowes, 25 AD3d at 373). Plaintiff asserts that if it were not for the defendants’ actions,
the contracts with DOE and the vendors would have been renewed and secured (NYSCEF Doc
No. 2, ¶ 58). These statements are conclusory, however, especially when the documentary
evidence conclusively shows that an investigation against plaintiff was substantiated by SCI during
the relevant time (see Carlyle, LLC v Quik Park 1633 Garage LLC, 160 AD3d 476, 477 [1st Dept
2018] [“The relevant allegations were vague and conclusory and supported by ‘mere
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 14 of 19 Motion No. 001
14 of 19 [* 14] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
speculation’”][citation omitted]). This was an investigation that was conducted and concluded by
an objective body, who also recommended that DOE cease doing business with plaintiff and any
approved vendors with whom she was affiliated with as early as February 10, 2020. DOE thus
received this SCI recommendation before Miller and Gamils made the communications at issue.
In light of the foregoing, this court need not address defendants’ argument on economic
justification.
C. Tortious Interference With A Prospective Economic Advantage Against Miller, Cook, Gamils And The DOE
In her complaint, plaintiff alleges that the individual defendants intentionally
communicated false and harmful information to DOE principals and other personnel for the sole
purpose of retaliating against her for refusing to hire Cook’s husband (NYSCEF Doc No. 2, ¶ 66).
This allegedly interfered with plaintiff’s relationship with DOE because she could no longer
provide services to DOE schools. Plaintiff alleges that defendants’ actions caused plaintiff to lose,
on average, 14 to 20 projects per year and to lose average annual earnings of $400,000.
Defendants argue that the claim fails because plaintiff does not identify a business
relationship with a third party. They further argue that plaintiff does not sufficiently state a claim
against the individual defendants because DOE is not a third party and defendants are agents of
DOE in their official capacity. They also argue that defendants’ actions could not be motivated
solely by malice because DOE’s actions were in response to the SCI report and thus economically
justified.
To prevail on a cause of action for tortious interference with prospective economic
advantage, plaintiff must prove “(1) that it had a business relationship with a third party; (2) that
the defendant knew of that relationship and intentionally interfered with it; (3) that the defendant
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 15 of 19 Motion No. 001
15 of 19 [* 15] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
acted solely out of malice or used improper or illegal means that amounted to a crime or
independent tort; and (4) that the defendant's interference caused injury to the relationship with the
third party” (Amaranth LLC v J.P. Morgan Chase & Co., 71 AD3d 40, 47 [1st Dept 2009]
[citations omitted]).
“[P]laintiff must [also] show [a] more culpable conduct on the part of the defendant[s]”
(Carvel Corp. v Noonan, 3 NY3d 182, 190 [2004]). “The implication is that, as a general rule, the
defendant’s conduct must amount to a crime or an independent tort. Conduct that is not criminal
or tortious will generally be ‘lawful’ and thus insufficiently ‘culpable’ to create liability for
interference with prospective contracts or other nonbinding economic relations” (id.). If the
conduct is neither criminal nor independently tortious, plaintiff cannot recover unless an exception
applies (id.). “Such an exception has been recognized where a defendant engages in conduct ‘for
the sole purpose of inflicting intentional harm on plaintiffs”’ (id. [citation omitted]). “Tortious
interference with prospective economic relations [also] requires an allegation that plaintiff would
have entered into an economic relationship but for the defendant's wrongful conduct” (Vigoda v
DCA Prods. Plus Inc., 293 AD2d 265, 266 [1st Dept 2002]).
Here, plaintiff’s tortious interference with a prospective economic advantage claim fails
because she does not sufficiently allege that there is a but for cause between the individual
defendants’ alleged wrongful actions and DOE’s decision to terminate its relationship with the
DOE-authorized vendors and plaintiff.
Plaintiff has not alleged criminal conduct against any defendant and does not sufficiently
allege a but for cause between the defendants’ alleged wrongful actions and DOE’s decision to
cease working with plaintiff and the DOE-authorized vendors, as such allegations are conclusory.
While Gamils’ October 2021 email and Miller’s communication may have been a factor in DOE’s
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 16 of 19 Motion No. 001
16 of 19 [* 16] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
and its principals’ decisions to terminate their business relationship with plaintiff and the DOE-
authorized vendors, plaintiff fails to adequately plead that but for their alleged wrongful conduct
(see Gans v Wilbee Corp., 199 AD3d 564 [1st Dept 2021]; Merisel, Inc. v Weinstock, 117 AD3d
459, 460 [1st Dept 2014]), plaintiff’s relationship with DOE and the vendors would have
continued. Importantly, the documentary evidence shows otherwise. Further, “[h]aving failed to
demonstrate that the agreements with the [third party vendors] would have continued “but for”
defendants' actions [. . . ] the cause of action would also fail under the theory of tortious
interference with prospective business relations” (American Preferred Prescription v Health Mgt.,
252 AD2d 414, 418 [1st Dept 1998]).
For all these reasons, defendants’ motion to dismiss plaintiff’s tortious interference with a
prospective economic advantage is granted.
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 17 of 19 Motion No. 001
17 of 19 [* 17] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
CONCLUSION
This court has considered the parties’ remaining contentions and finds them unavailing.
For all the reasons set forth herein, it is hereby:
ORDERED that the branch of the motion to dismiss the complaint against defendant City
of New York is granted and the complaint is dismissed in its entirety against said defendant; and
it is further
ORDERED that the branch of the motion to dismiss the complaint against defendants
Sabrina Cook, Jeffrey Gamils, Jay Miller, and the New York City Department of Education is
granted to the extent of dismissing the third cause of action against defendant Jay Miller and
dismissing the first and second causes of action against each defendant, and the balance of the
motion is denied; and it is further
ORDERED that defendants Sabrina Cook, Jeffrey Gamils, Jay Miller, and the New York
City Department of Education shall each serve an Answer to the complaint within 20 days from
the date of service of this order with written notice of entry; and it is further
ORDERED that counsel for the moving party must serve a copy of this order with notice
of entry upon the Clerk of the Court and the Clerk of the General Clerk’s Office, who are directed
to mark the court’s records to reflect the change in the caption herein; and it is further
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 18 of 19 Motion No. 001
18 of 19 [* 18] FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 157596/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/14/2024
ORDERED that such service upon the Clerk of the Court and the Clerk of the General
Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on
Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-
Filing” page on the court’s website).
This is the Decision and Order of this court.
5/14/2024 $SIG$ DATE J. MACHELLE SWEETING, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED GRANTED IN PART X OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
157596/2022 KOFFEL, QUINCY vs. COOK, SABRINA ET AL Page 19 of 19 Motion No. 001
19 of 19 [* 19]