Motion for Summary Adjudication in Clive Holmes, Reeta Holmes, Tawa Group Capital, Inc., The Silverfern Group Mgmt, Llc v. Brenda Soley Heath a/k/a BRENDA SOLEY a/k/a BRENDA HEATH a/k/a BRENDA HENRY a/k/a BRENDA RUSSELL a/k/a MAUREEN WILLIAMS a/k/a MAURINE WILLIAMS, Maureen Russell A/K/A MAUREEN WILLIAMS| Trellis.Law

On March 11, 2016 a Motion-Secondary was filed involving a dispute between Clive Holmes, Reeta Holmes, Tawa Group Capital, Inc., The Silverfern Group Mgmt, Llc, and Brenda Soley Heath A K A Brenda Soley A K A Brenda Heath A K A Brenda Henry A K A Brenda Russell A K A Maureen Williams A K A Maurine Williams, Brenda Soley Heath A K A Brenda Soley A K A Brenda Heath A K A Brenda Henry A K A Brenda Russell A K A Maureen Williams A K A Maurine Williams, Maureen Russell A K A Maureen Williams, Maureen Russell A K A Maureen Williams, for Torts - Other (Fraud) in the District Court of Queens County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS

______________________________________ .____________________________________________.

CLIVE HOLMES, REETA HOLMES, TAWA .

GROUP CAPITAL, INC., and THE SILVERFERN .

GROUP MGMT, LLC, : Index No.: 70

Plaintiffs,

-against-

BRENDA SOLEY HEATH a/k/a BRENDA SOLEY a/k/a

BRENDA HEATH a/k/a BRENDA HENRY a/k/a .

BRENDA RUSSELL a/k/a MAUREEN WILLIAMS a/k/a

MAURINE WILLIAMS and MAUREEN RUSSELL a/k/a

MAUREEN WILLIAMS,

Defendants.
:
__________________________________.

DEFENDANT BRENDA SOLEY HEATH'S MEMORANDUM O
IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGM

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Elissa Esq.
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PRELIMINARY STATEMENT

Pursuant to Section 3212 of the New York Civil Practice Law and Rules (“CPLR”),

Defendant Brenda Soley Heath (“Heath”) submits this memorandum of law in support of her

motion for partial summary judgment dismissing Plaintiffs’ first cause of action against Heath for

fraud, third cause of action against Heath for “disloyal employee,” fifth cause of action against

Heath for civil battery, sixth cause of action against Heath for breach of fiduciary duty, and seventh

cause of action against Heath for breach of contract.

Plaintiffs filed this case on March 11, 2016, in response to Heath filing a claim against

them for unpaid overtime and other violations of the New York Labor Law in connection with

their employment of her, over the course of five years, to care for their infant twins and later their

young son. The Amended Complaint asserts six claims against Heath and demands damages in

the amount of approximately four million dollars. 1 In short, as is pertinent to this motion, Plaintiffs

allege that Heath: (1) defrauded them by securing employment under the name and with the

credentials of her sister, Maureen Williams; (2) acted as a “disloyal employee” due to the alleged

fraud, due to her alleged use of social media during work hours, and due to her purported actions

in delaying the transition of the Holmes’ son from bottle-feeding to eating solid foods; (3)

committed a civil battery against Plaintiff Reeta Holmes; (4) breached fiduciary duties Plaintiffs

allege that Heath owed to them; and (5) breached a contract of employment between herself and

Plaintiffs.

The Court must summarily dismiss each of those causes of action at this stage due to

Plaintiffs’ failure to provide any evidence in support of one or more material elements of each.

First, their fraud claim must be dismissed because Plaintiffs cannot demonstrate, as a matter of

1
Plaintiffs also seek an award of attorneys’ fees and costs incurred in connection with litigating their claims,
notwithstanding the wholly common law nature of their claims that do not provide for fee shifting.

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law, justifiable reliance on any purported misrepresentation by Heath. Rather, the undisputed

evidence shows that the Holmeses knew Heath’s true name not later than January 2011, four

months after she was hired, and further shows that neither Reeta nor Clive Holmes made even

cursory inquiries to determine whether Heath indeed held the qualifications that the Holmeses

allege were presented to them in the name of Maureen Williams. Indeed, the Holmeses were so

unconcerned about the alleged misrepresentations to them that they continued to employ Heath for

nearly two more years, ending the employment relationship amicably in September 2012 while

paying her severance, and then rehiring her in January 2014.

Second, Plaintiffs’ disloyal employee claim fails because there is no evidence that Heath

committed theft or usurped corporate opportunities from Plaintiffs. A faithless servant/disloyal

employee claim is available only where an employee, for personal gain, diverts profits of the

enterprise, pursues business opportunities of the employer, or raids employees. The conduct

alleged by Plaintiffs in support of the disloyal employee claim, which is limited to Heath’s

purported misrepresentations outlined above, her supposed use of social media during work hours,

and her alleged delay in transitioning the Holmes’ child to solid food, simply does not amount to

a disloyal employee claim as a matter of law. As a result, this claim must be dismissed.

Third, Plaintiff Reeta Holmes’s claim for civil battery, which is premised on Heath’s

alleged intentional and unwanted contact with Reeta Holmes during an alleged argument between

them shortly before Reeta Holmes terminated Heath in October 2015, must be dismissed because

Reeta Holmes admitted at her deposition that contrary to the allegations in the Amended

Complaint, Heath did not make physical contact with her during the purported dispute. Because

such contact is a required element of a claim for civil battery under New York law, the claim must

be dismissed.

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Fourth, Plaintiff’s claim for breach of fiduciary duty likewise fails as a matter of law. In

New York, an employer-employee relationship does not give rise to fiduciary duties. As such, this

claim must be dismissed.

Finally, Plaintiffs’ claim for breach of contract must be dismissed. The undisputed

evidence shows that Heath was an at-will employee and as such, Plaintiffs cannot maintain a

breach of contract claim against her as there was no contract between them.

PROCEDURAL HISTORY

The pertinent procedural history of this case is set forth in the accompanying Affirmation

of Elissa Rossi, Esq. and Statement of Material Facts in Support of Defendant Brenda Soley

Heath’s Motion for Partial Summary Judgment (“Rossi Affirmation” or “Rossi Aff.”).

STATEMENT OF UNDISPUTED FACTS

The undisputed facts are set forth in narrative fashion in the accompanying Rossi

Affirmation and are incorporated herein by reference.

ARGUMENT

I. SUMMARY JUDGMENT STANDARD

“Any party may move for summary judgment in any action, after issue has been joined”

CPLR § 3212. “The motion shall be granted if, upon all the papers and proof submitted, the cause

of action or defense shall be established sufficiently to warrant the court as a matter of law in

directing judgment in favor of any party.” Id. “The proponent of a summary judgment motion

must make a prima facie showing of entitlement to judgment as a matter of law, tendering

sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v. New York

Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). “Once this showing has been made, the burden shifts

to the party opposing the motion to produce evidentiary proof in admissible form sufficient to

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establish the existence of material issues of fact that require a trial for resolution.” Moore v. 3

Phase Equestrian Ctr., 83 A.D.3d 677, 679 (2d Dep’t 2011).

CPLR § 3212(e) provides that, except in a matrimonial action, “summary judgment may

be granted as to one or more causes of action, or part thereof, in favor of one or more parties, to

the extent warranted, on such terms as may be just.” “A principal rationale of partial summary

judgment is to narrow the number of issues presented to the jury.” Rodriguez v. City of New York,

31 N.Y.3d 312, 324-325 (2018).

II. PLAINTIFF’S FIRST CAUSE OF ACTION AGAINST HEATH FOR FRAUD
MUST BE DISMISSED BECAUSE PLAINTIFFS CANNOT PRODUCE
EVIDENCE OF JUSTIFIABLE RELIANCE.

The elements of a cause of action seeking to recover damages for fraud are “a

representation of material fact, the falsity of that representation, knowledge by the party who made

the representation that it was false when made, justifiable reliance by the plaintiff, and resulting

injury.” Lunel Realty, LLC v. DiSanto Realty, LLC, 88 A.D.3d 661, 663-64 (2d Dep’t 2011) (citing

Centro Empresarial Cempresa S.A. v. America Movil, S.A.B. de C.V., 17 N.Y.3d 269, 276 (2011)).

Justifiable reliance does not exist where the facts alleged to have been misrepresented are “matters

[not] peculiarly within the party’s knowledge, and the other party has the means available to [it]

of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of

the representation . . . ” Schumaker v. Mather, 133 N.Y. 590, 596 (1892). In such circumstances,

the party claiming fraud must make use of the means available to it to discover the truth, and if it

fails to do so, that party “will not be heard to complain that [it] was induced to enter into the

transaction by misrepresentation.” Id.; see also Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 322

(1959). This rule applies particularly where the plaintiff who claims to have been defrauded is a

sophisticated business person or entity. DDJ Management, LLC v. Rhone Group, LLC, 15 N.Y.3d

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147, 154 (2010). “When the party to whom a misrepresentation is made has hints of its falsity, a

heightened degree of diligence is required of it.” Centro Empresarial Cempresa S.A., 17 N.Y.3d

at 279. The complaining party cannot reasonably rely on such representations “without making

additional inquiry to determine their accuracy.” Id.

With respect to this cause of action, Plaintiffs assert that Heath identified herself as her

sister, Maureen Williams, and presented to Plaintiffs credentials belonging to her sister as her own.

But as the undisputed evidence shows, contrary to the allegations in their pleading, the Holmeses

knew Heath’s real name and were provided with her government-issued identification documents

stating her real name shortly after hiring her. Rossi Aff. ¶¶ 13, 21, 22. The Holmeses also issued

paychecks to Heath in the name of Brenda Soley, the name on Heath’s identification documents,

by no later than January 2011. Rossi Aff. ¶ 22. Moreover, Clive Holmes admitted that Heath again

provided her government-issued identification to him in order for Clive Holmes to check Heath in

to a flight to Mexico with the Holmes family in 2012. Rossi Aff. ¶ 23.

Moreover, there is no evidence that either Reeta Holmes or Clive Holmes, the latter of

whom is a Harvard MBA who runs a multimillion-dollar investment business, made even a cursory

effort to resolve the conflict between Heath’s supposed representation to them that she was

Maureen Williams and Heath’s willing disclosure to them of her identity as Brenda Soley. Rossi

Aff. ¶ 24. As such, Plaintiffs cannot, as a matter of law, establish justifiable reliance, an an

essential element of their fraud claim, and that cause of action must be dismissed accordingly. See,

Orlando v. Kukielka, 40 A.D.3d 829, 832 (2d Dep’t 2007) (finding no justifiable reliance on

seller’s representations, as a matter of law, where sophisticated purchaser’s own audit showed

financial projections might be overstated).

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III. PLAINTIFFS’ THIRD CAUSE OF ACTION FOR “DISLOYAL EMPLOYEE”
AGAINST HEATH MUST BE DISMISSED BECAUSE HEATH NEITHER
COMMITTED THEFT NOR USURPED CORPORATE OPPORTUNITIES FROM
PLAINTIFFS.

“‘[A]n employee owes a duty of good faith and loyalty to an employer in the performance

of the employee’s duties.’” Island Sports Physical Therapy v. Burns, 923 N.Y.S.2d 156, 157 (2d

Dep’t 2011) (quoting 30 FPS Prods., Inc. v. Livolsi, 68 A.D.3d 1101, 1102 (2d Dep’t 2009)). “In

order to make out a claim of breach of the duty of loyalty in New York - - sometimes referred to

as the ‘faithless servant doctrine’ - - the employer plaintiff must show (1) that the employee’s

disloyal activity was related to ‘the performance of his duties; and (2) that the disloyalty

‘permeated the employee’s service in its most material and substantial part.’” Schanfield v. Sojitz

Corp., 663 F. Supp. 2d 305, 348 (S.D.N.Y. 2009) (quoting Phansalkar v. Anderson Weinroth &

Co., 344 F.3d 184, 200 (2d Cir. 2003)). “An agent is subject to a duty of loyalty towards his

principal, including the duty ‘not to compete with the principal concerning the subject matter of

his agency.’” Shaw Creations Inc. v. Galleria Enter., Inc., 918 N.Y.S. 2d 400, at *5 (Sup. Ct. N.Y.

Cty. 2010) (citing Restatement (Second) of Agency § 393); Wallack Freight Lines, Inc. v. Next

Day Express, Inc., 711 N.Y.S.2d 891, 891 (2000) (finding a question of fact for trial where

defendants were alleged to be operating competing business during time work for plaintiff).

Critically, the mere failure of an employee to perform assigned tasks is insufficient to give rise to

a cause of action alleging breach of the duty of loyalty; an employee’s misuse of the employer’s

resources to compete with the employer is instead required. Cerciello v. Admiral Ins. Brokerage

Corp., 936 N.Y.S. 2d 224, 226 (2d Dep’t 2011) (citations omitted) (dismissing faithless servant

counterclaim because defendants acknowledged that plaintiff did not compete with their business).

To that end, a faithless servant/disloyal employee claim usually results “in a personal gain

to the employee and losses to the employer and are generally premised upon conduct by which

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profits, business opportunities, the raiding of employees and other assets including confidential

and proprietary information of the employer are lost or diverted.” First Mfg. Co., Inc. v. Young, 3

N.Y.S. 3d 284, at *1 (Sup. Ct. Suffolk Cty. 2014) (citations omitted). Thus, a disloyal employee

claim “is available only where the employee has acted directly against the employer’s interests - -

as in embezzlement, improperly competing with the current employer, or usurping business

opportunities.” Veritas Capital Mgmt. L.L.C. v. Campbell, 82 A.D.3d 529, 530 (1st Dep’t 2011)

(citing Sullivan & Cromwell LLP v. Charney, 841 N.Y.S. 2d 222, at *5 (Sup. Ct. N.Y. Cty. 2007)).

Here, Plaintiffs premise their faithless servant claim on three allegations as to Heath’s

purportedly disloyal conduct: her alleged fraud as to her identity and qualifications; her use of

social media during working hours; and her purported refusal to transition the Holmes’ son from

bottle-feeding to solid food because to do so would hasten the end of her employment with the

Holmeses. First, because Plaintiffs fraud claim should be dismissed for the reasons stated above,

it cannot form the basis of Plaintiffs’ faithless servant claim. And even if that cause of action is

not dismissed, such conduct, even if true, does not constitute activity during the course of Heath’s

employment where she competed with Plaintiffs to their detriment and her business advantage,

where she embezzled anything from them, or where she usurped their business opportunities.

Second, neither Defendant Heath’s supposed use of social media during work hours, nor her

alleged refusal to transition the Holmes’ son from bottle feeding to solid food in order to prolong

the term of her employment, can support a faithless servant claim as a matter of law. Indeed, on

its face, none of this alleged conduct constitutes “competing with the principal concerning the

subject matter of the agency,” nor is it acting directly against the employer as in embezzlement or

usurping business opportunities. Heath, in preparing this brief, could not find a single case

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applying the faithless servant doctrine under similar circumstances. As such, the Court should

dismiss Plaintiffs’ faithless servant cause of action.

IV. PLAINTIFFS’ FIFTH CAUSE OF ACTION AGAINST HEATH FOR CIVIL
BATTERY AGAINST REETA HOLMES MUST BE DISMISSED BECAUSE THE
UNDISPUTED EVIDENCE ESTABLISHES THAT HEATH DID NOT MAKE
CONTACT WITH REETA HOLMES.

The elements of a cause of action for civil battery are bodily contact, made with intent, and

that is offensive in nature. Tillman v. Nordon, 4 A.D.3d 467, 468 (2d Dep’t 2004). In their

Amended Complaint, in support of this cause of action, Plaintiffs allege that on November 30,

2015, “Heath made physical contact with Reeta Holmes in an attempt to shove Reeta Holmes

backwards.” But at her deposition, Plaintiff Reeta Holmes testified that Heath did not make

contact with her in the course of the alleged altercation between them on November 30, 2015.

Rossi Aff. ¶ 27. As such, Plaintiffs cannot establish their battery claim against Heath as a matter

of law and this cause of action must be dismissed. Wyllie v. District Atty. of County of Kings, 2

A.D.3d 714, 719 (2d Dep’t 2003) (finding defendants entitled to summary judgment on battery

cause of action where it was undisputed that there was no physical contact with plaintiff).

V. PLAINTIFF’S SIXTH CAUSE OF ACTION AGAINST HEATH FOR BREACH OF
FIDUCIARY DUTY MUST BE DISMISSED BECAUSE THE EMPLOYER-
EMPLOYEE RELATIONSHIP IS NOT FIDUCIARY IN NATURE.

“The elements of a cause of action to recover damages for breach of fiduciary duty are (1)

the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly

caused by the defendant’s misconduct.” Rut v. Young Adult Inst., Inc., 901 N.Y.S. 2d 715, 717 (2d

Dep’t 2010) (citing Kurtzman v. Bergstol, 835 N.Y.S. 2d 644 (2d Dep’t 2007)). As to the first

element, “a fiduciary relationship arises when one has reposed trust and confidence in the integrity

and fidelity of another who thereby gains influence or assumes control and responsibility.” Cutler

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v. Ensage, Inc., 856 N.Y.S. 2d 23, at *7 (Sup. Ct. N.Y. Cty. 2007) (citations omitted). “In the

absence of an allegations [sic] sufficient to demonstrate a fiduciary relationship or any relationship

approaching privity between the parties, no claim of fiduciary duty will arise.” Id.

The undisputed facts establish that Plaintiffs cannot satisfy that first element of a cause of

action for breach of fiduciary duty under New York law as there is no evidence of any relationship

between Plaintiffs and Heath other than that of employer-employee. Rossi Aff. ¶ 20. But under

New York law, employees do not maintain a fiduciary relationship with their employer.

Schenkman v. N.Y. Coll. of Health Professionals, 815 N.Y.S.2d 159, 161 (2d Dep’t 2006) (“arms-

length, employer-employee relationship” does not give rise to a fiduciary relationship); accord

Rossetti v. Ambulatory Surgery Ctr. of Brooklyn, LLC, 5 N.Y.S.3d 373, 375 (1st Dep’t 2015)

(citing Bullmore v. Ernst & Young Cayman Is., 45 A.D.3d 461, 463 (1st Dept. 2007)) (same);

Rather v. CBS Corp., 886 N.Y.S.2d 121, 125 (1st Dep’t 2009) (“The law in this Department, and

indeed enunciated in every reported appellate-division-level case, is that employment relationships

do not create fiduciary relationships”); Kinsey v. Cendant Corp., 2004 WL 2591946, at *14-15

(S.D.N.Y. Nov. 16, 2004) (dismissing breach of fiduciary duty claim under New York law because

employer-employee relationship was insufficient to establish fiduciary relationship); Madera v.

Metropolitan Life Ins. Co., 2002 WL 1453827, at *8 (S.D.N.Y. July 3, 2002) (dismissing negligent

misrepresentation claim that depended on the existence of a fiduciary duty to satisfy special

relationship because under New York law, “[t]he employer-employee relationship is not fiduciary

in nature”). Thus, the Court should dismiss this cause of action.

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VI. PLAINTIFFS’ SIXTH CAUSE OF ACTION AGAINST HEATH FOR BREACH OF
CONTRACT MUST BE DISMISSED BECAUSE HEATH DID NOT HAVE A
CONTRACT WITH PLAINTIFFS THAT ALTERED THE AT-WILL
EMPLOYER-EMPLOYEE RELATIONSHIP.

The elements of a cause of action for breach of contract under New York law are the

existence of a contract, the plaintiff's performance under the contract, the defendant's breach of

that contract, and resulting damages. JP Morgan Chase v. J.H. Elec. of New York, Inc., 69 A.D.3d

802, 803 (2d Dep’t 2010). If there is no contract, there is no claim for breach of contract. Dinio v.

Olivar, 265 A.D.2d 371, 371 (2d Dep’t 1999) (dismissing employee’s breach of contract claim

where employer demonstrated that there was no contract).

Plaintiffs allege that they and Heath were parties to an agreement whereby Heath was to

provide childcare services to the Holmeses and that Heath breached this agreement by all of the

conduct alleged in the Amended Complaint. But Plaintiff Clive Holmes admitted that the

employer-employee relationship between Plaintiffs and Heath was at-will. Rossi Aff. ¶ 20.

Similarly, there is no evidence that the parties entered into any agreement that altered the at-will

relationship, or any contract of any other kind. As such, Plaintiffs’ claim for breach of contract

must be dismissed as they cannot establish the existence of a contract that would support a breach

of contract claim. See, e.g., Doynow v. Nynex Publ’g Co., 202 A.D.2d 388, 388 (2d Dep’t 1994)

(dismissing claim for breach of contract where there was no evidence establishing anything other

than at-will relationship between employer and employee).

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CONCLUSION

For the foregoing reasons, Defendant Brenda Soley Heath respectfully requests that the

Court grant her motion in itsentirety.

Dated: Garden City, New York
March 4, 2019

Respectfully submitted,

BORRELLI & ASSOCIATES, P.L.L.C.

Attorneys for Defendant Brenda Soley Heath

910 Franklin Avenue, Suite 200

Garden City, New York 11530

Tel. (516) 248-5550

Fax. (516) 248-6027

ELISSA ROSSI, ESQ.

ALEXANDER T. COLEMAN, ESQ.

MICHAEL J. BORRELLI, ESQ.

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PLEASE TAKE FURTHER NOTICE THAT, pursuant to CPLR § 2214, answering

affidavits, if any, are required to be served upon the undersigned at least seven days before the

return date.

Dated: Garden City, New York
March 4, 2019

Respectfully submitted,

BORRELLI & ASSOCIATES, P.L.L.C.

Attorneys for Plaintiff
910 Franklin Avenue, Suite 200

Garden City, New York 11530

Tel. (516) 248-5550

Fax. (516) 248-6027

ELISSA ROSSI, ESQ.

ALEXANDER T. COLEMAN, ESQ.

MICHAEL J. BORRELLI, ESQ.

To: All counsel via ECF

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Case Info

Judge

Timothy J. Dufficy Track Judge’s New Case

Case No.

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Document Filed Date

June 25, 2019

Case Filing Date

March 11, 2016

County

Parties

Brenda soley Heath a/k/a BRENDA SOLEY a/k/a BRENDA HEATH a/k/a BRENDA HENRY a/k/a BRENDA RUSSELL a/k/a MAUREEN WILLIAMS a/k/a MAURINE WILLIAMS Defendant
Brenda soley Heath a/k/a BRENDA SOLEY a/k/a BRENDA HEATH a/k/a BRENDA HENRY a/k/a BRENDA RUSSELL a/k/a MAUREEN WILLIAMS a/k/a MAURINE WILLIAMS Defendant
Clive Holmes Plaintiff
CONTINO, DAVID RALPH Attorney for the Defendants
DUFFY, CAITLIN Attorney for the Defendant
FRANZELLA, GIUSEPPE Attorney for the Plaintiff
MAGNUSON, KELLY ANNE Attorney for the Defendant
Maureen Russell A/K/A MAUREEN WILLIAMS Defendant
Maureen Russell A/K/A MAUREEN WILLIAMS Defendant
Reeta Holmes Plaintiff
TAWA GROUP CAPITAL, INC. Plaintiff
THE SILVERFERN GROUP MGMT, LLC Plaintiff
WEISS, ANDREW COLLIN Attorney for the Defendant
ELISSA ROSSI Attorney
TIANI COLEMAN Attorneys for Defendants
POOJA BHUTANI Attorney
MICHAEL BORRELLI Attorneys for Defendants
ALEXANDER COLEMAN Attorneys for Defendants
LINCOLN WALTERS Attorneys for Defendants
TRAVIS COLEMAN Attorney

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Motion-Secondary: Clive Holmes, Reeta Holmes, Tawa Group Capital, Inc., The Silverfern Group Mgmt, Llc v. Brenda Soley Heath a/k/a BRENDA SOLEY a/k/a BRENDA HEATH a/k/a BRENDA HENRY a/k/a BRENDA RUSSELL a/k/a MAUREEN WILLIAMS a/k/a MAURINE WILLIAMS, Maureen Russell A/K/A MAUREEN WILLIAMS

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