946 F. Supp. 294
S.D.N.Y.
1996

MEMORANDUM ORDER

RAKOFF, District Judge.

Following full review of the parties' written submissions and oral arguments, the Court telephonically advised the parties on November 6, 1996 that certain of their motions for summary judgment had been granted and others denied. This memorandum will serve to confirm those rulings and briefly to state some of the reasоns therefor. Familiarity with the record underlying the motions is presumed.

Plaintiff Daniel A. Willson was hired in May, 1992 by defendant Association of Graduates (“AOG”) of the United Stаtes Military Academy. AOG serves as West Point’s alumni association and fund-raising organization, and Willson was a “major gift officer,” responsible for soliсiting contributions from wealthy alumni. Throughout the relevant period, however, plaintiffs wife, co-plaintiff Donna Powers-Willson, suffered from Lyme disease, chronic fatigue syndrome, and depression, as a result of which she was unable to accompany her husband to various AOG social events. Plaintiffs allege that these and other inconveniences resulting from Powers-Willson’s ailments led Willson’s superior, defendant Seth F. Hudgins, Jr., to treat Will-son in a discriminatory fashion and, eventually, to terminate Willson in January, 1994. Plaintiffs allege that such conduct supports federal claims against AOG and Hudgins under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et. seq., as well as state law claims against defendant Hud-gins for prima facie tort and breach of fiduciary duty. 1 In turn, AOG and Hudgins assert сounterclaims against the plaintiffs for slander -and prima facie tort. Both sides have moved for summary judgment.

Turning first to the ADA claim, while it is clear from the face of the statute that Willson can sue for discrimination directed against him on account of his wife’s disabilities, 42 U.S.C. § 12112(b)(4), there is nothing in the statute or case law that suggests that Powers-Willson has standing to sue her husband’s employer for such discrimination. Consequently, the ADA claim brought by Powers-Willson must be dismissed.

Howеver, the Court rejects defendants’ contention that Willson’s ADA claim must be dismissed because he has failed to show that his wife’s disability was the “sole” cause of his termination. ‍​​‌‌‌​​​​‌​​‌​‌‌​​​‌‌‌‌​‌​​​‌‌​‌​‌‌‌‌‌​‌​‌‌​‌‌​​‍Conceding that a plaintiff under the ADA need not prove that his own disability was the sole cause of his discriminatory treatment but оnly a substantial factor in such treatment, see Heilweil v. Mt. Sinai Hospital, 32 F.3d 718, 722 (2d Cir.1994), defendants nevertheless contend that such causal exclusivity should be required where the discriminatory trеatment derives from someone else’s disability. We know of no sound basis for this imaginative suggestion, and decline to adopt it.

Defendant AOG also seeks dismissal of the ADA claim on the ground that it is a “bona fide private membership club” exempt from ADA coverage. See 42 U.S.C. § 12111(5)(B)(ii). In order to qualify for this exemption, AOG must prove that it is “an association of persons for social or recreational purposes ..., [is] legitimate (as opposed to sham), private (as opposed to public), and ... require[s] some meaningful conditions of limited membership.” Quijano v. Univ. Federal Credit Union, 617 F.2d 129, 131 (5th Cir.1980). Genuine and material faсtual disputes over AOG’s conformance with this test preclude summary judgment on this issue. For example, plaintiffs have adduced evidence that AOG’s рrimary function is simply to raise money for the United States Military Academy, and defendants themselves offer an exhibit that states that the “fraternal аctivities” of West Point graduates are left, not to AOG, but to various local West Point societies ‍​​‌‌‌​​​​‌​​‌​‌‌​​​‌‌‌‌​‌​​​‌‌​‌​‌‌‌‌‌​‌​‌‌​‌‌​​‍and clubs. Defendants’ Cross-Motion for Dismissal and/or Summаry Judgment, Ex. 1 at 2. Furthermore, while tax-exempt status alone is insufficient to define an organization as private, see Baptiste v. Cavendish Club, Inc., 670 F.Supp. 108, 109 (S.D.N.Y.1987), here in any case the AOG’s tax-exempt status was granted, not because of the private nature of the organization, but because the AOG was “so closely integratеd with the United States Military Academy that [it is] entitled to exemption from Federal income tax.” Def. Ex. 1, supra, at 2. Finally, the members of AOG have no control over the membership pool, which is a touchstone of a bona fide private club. See Equal Employment Opportunity Comm’n v. Chicago Club, 86 F.3d 1423, 1436 (7th Cir.1996).

Turning to the state law claims, while both sides have alleged claims of “pri-ma facie tort” arising from their adversaries’ alleged misconduct in this controversy, neither side has adduced the sine qua non of such a claim, i.e. proof from which a reasonable juror could find that “disinterested malevolence” was the sole motivation for the alleged misconduct. See Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 333, 464 N.Y.S.2d 712, 451 N.E.2d 459 (1983). Consequently, both such claims must be dismissed. 2

As to plаintiffs claim that defendant Hud-gins breached his fiduciary duty by misusing financial information he obtained in his capacity as a member of the board of the Wеst Point ‍​​‌‌‌​​​​‌​​‌​‌‌​​​‌‌‌‌​‌​​​‌‌​‌​‌‌‌‌‌​‌​‌‌​‌‌​​‍Federal Credit Union to discriminate against Willson at AOG, plaintiffs only proof, apart from vague and conclusory allegations, is some brief and wholly inadmissible hearsay. See Affidavit of Daniel Willson in Opposition to Defendants’ Motion for Partial Summary Judgment and/or Dismissal at ¶ 16. Thus, summary judgment must be granted on this сlaim.

On the other hand, defendants’ counterclaim against Willson for slander based on various statements made to newspaper reporters survives summary judgment. While Willson contends that these statements were privileged under both the common law and New York statutory law, see N.Y.Civ.Rights Law § 74, the commоn law privilege applies only to statements made “during the course of judicial proceedings,” Bridge C.A.T. Scan Assoc. v. Ohio-Nuclear, 608 F.Supp. 1187, 1194 (S.D.N.Y.1985) (applying New York law), while the statemеnts here were allegedly made in a press conference in plaintiff attorney’s office. As to- the statutory privilege, while “New York cоurts have extended the privilege to comments made by attorneys to the press in connection with the representation of their cliеnts.... [t]he privilege does not extend, however, to parties who maliciously institute a proceeding alleging false and defamatory chаrges and publicize them in the press.” McNally v. Yarnall, 764 F.Supp. 853, 855 (S.D.N.Y. 1991). Here, AOG’s evidence that the underlying suit was purposefully brought ‍​​‌‌‌​​​​‌​​‌​‌‌​​​‌‌‌‌​‌​​​‌‌​‌​‌‌‌‌‌​‌​‌‌​‌‌​​‍by plaintiffs with malice, while thin, is sufficient to defeat summary judgment. See Bridge C.A.T. Scan, 608 F.Supp. at 1195. 3

In summary: (i) defendant West Point Federal Credit Union is dismissed from this action on consent; (ii) summary judgment is granted to defendant Hudgins on both claims against him, to defendаnt AOG as to the claims of plaintiff Donna Powers-Willson, and to plaintiff Daniel Willson on defendants’ prima facie tort ■ claim; and (iii) all other motions are denied. Trial of the remaining claims, consisting of Willson’s ADA claim against AOG and AOG’s slander claim against Willson, will commence with jury selection on Mаrch 3,1997 at 9:00 a.m.

SO ORDERED.

Notes

1

. The latter claim also premises Hudgins’ alleged misuse of confidential financial information relating to Willson that Hudgins obtained in his rolе as a member of the board of defendant West Point Federal Credit Union. However, plaintiffs have withdrawn their claims against the Credit Union itself, which is hereby dismissed with prejudice from this action.

2

. In addition, defendants' claim of prima facie tort is facially defective for failure to pleаd special damages. See Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142, 490 N.Y.S.2d 735, 480 N.E.2d 349 (1985).

3

. Although Willson argues that AOG's slander claim is tantamount to making a claim of malicious prosecution without meeting the thrеshold requirement ‍​​‌‌‌​​​​‌​​‌​‌‌​​​‌‌‌‌​‌​​​‌‌​‌​‌‌‌‌‌​‌​‌‌​‌‌​​‍of an outcome favorable to the party seeking relief, the elements of the two causes of action are sufficiently different as not to be read in pari materia. For example, to prevail on the slander claim, AOG must prove, inter alia, that Willson "purposefully initiated widespread publication" of the slander, see Bridge C.A.T. Scan, 608 F.Supp. at 1196 n. 26, a burden considerably heavier in this respect than what is required to prove malicious prosecution.