In a decision dated January 23, 2024, the Hon. Lizette Colon of Richmond County Supreme Court granted our pre-answer motion to dismiss the plaintiff’s complaint against our client, the Baron Hirsch Cemetery Association, Inc. (“BHCA”). The plaintiff, Rocco’s Landscaping & Concrete Service, LLC, was a contractor retained by BHCA to perform groundskeeping work at the cemetery. Ultimately, the lawsuit commenced by Rocco’s was ancillary to a separate lawsuit for the allegedly wrongful death of one of Rocco’s employees while performing groundskeeping work at the cemetery. In its complaint, Rocco’s set forth causes of action for intentional infliction of emotional distress, defamation and wrongful termination under New York’s whistleblower law. Judge Colon agreed with our argument that the plaintiff failed to state a cause of action for intentional infliction of emotional distress based on Rocco’s corporate status (i.e., a corporate entity cannot be distressed). The Judge also agreed with our argument that Rocco’s failed to state a cause of action for defamation since the allegedly defamatory statements were made in connection with the underlying lawsuit and, therefore, subject to an absolute privilege. Finally, the Judge agreed that Rocco’s failed to state a cause of action under New York’s whistleblower law since Rocco’s was not an employee of BHCA and does not meet the definition of a whistleblower under the statute. Further, the Court granted our request for an award of costs and sanctions for the plaintiff’s asserting and continuing of a patently frivolous action.
Rocco’s Landscaping and Concrete Serv., LLC v. Baron Hirsch Cemetery Assoc., Inc. et al., Index No.: 151682/2023 (Sup. Ct. Richmond Co., Jan. 23, 2024)