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Singer v. Beach Trading Co.

July 19, 2005

MARSHA SINGER, PLAINTIFF-APPELLANT,
v.
BEACH TRADING CO., INC. AND ELI HIZAMI A/K/A ELI HIZBO, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, PAS-L-2506-03.

The opinion of the court was delivered by: Fuentes, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

APPROVED FOR PUBLICATION

Argued June 7, 2005

Before Judges Kestin, Fuentes and Eichen.*fn1

In this appeal, we are required to consider whether an employer can be held liable for the tort of negligent misrepresentation in providing employment references.

We hold that an employer can be held liable for the negligent misrepresentation of a former employee's work history if: (1) the inquiring party clearly identifies the nature of the inquiry; (2) the employer voluntarily decides to respond to the inquiry, and thereafter unreasonably provides false or inaccurate information; (3) the person providing the inaccurate information is acting within the scope of his/her employment; (4) the recipient of the incorrect information relies on its accuracy to support an adverse employment action against the plaintiff; and (5) plaintiff suffers quantifiable damages proximately caused by the negligent misrepresentation.

Plaintiff, Marsha Singer, appeals from the order of the Law Division dismissing her complaint against her former employer, Beach Trading Company, Inc. (Beach Trading) and Eli Hizami, the customer service supervisor for Beach Trading. Plaintiff left Beach Trading to work for HRK Industries, Inc. (HRK). She was terminated from her position at HRK after Hizami, in response to an intentionally misleading telephone inquiry, erroneously told Henry Kasindorf, owner of HRK, that plaintiff was a customer service representative at Beach Trading, and not the Vice President of Daily Operations or a customer service supervisor.

The complaint alleged defamation, tortious interference and negligent misrepresentation. In granting summary judgment in favor of defendants, the motion judge did not apply the appropriate standard of review. Notwithstanding this legal error, we are satisfied that plaintiff's claims based on tortious interference and defamation cannot stand.

In his ruling dismissing her case, the motion judge did not mention or otherwise refer to plaintiff's claim for negligent misrepresentation. After conducting our own independent review of this issue, we are compelled to reverse and remand for further consideration by the trial court of the claim based on negligent misrepresentation.

I.

Plaintiff began her employment at Beach Trading, a/k/a Beach Camera, on July 1, 2001, in an unspecified management position. Beach Trading is a family operation, owned by Raymond Mosseri, with Albert Mosseri as vice president, and Solomon Mosseri as secretary-treasurer. On July 20, 2001, Albert Mosseri sent a company-wide e-mail introducing plaintiff as the Vice President of Daily Operations.

At an unspecified time, Albert Mosseri asked plaintiff to oversee the customer service department temporarily during the Christmas season. It is undisputed that her title and salary were not changed as a result of this assignment. When Hizami began working at Beach Trading in October 2001 as a customer service representative, plaintiff was working in the customer service department at a desk similar to the other customer service representatives. She continued working in that department until she left the company in June 2002.

On or about April 2002, plaintiff began looking for a new position outside Beach Trading. She responded to an employment posting for a customer service representative at HRK. Kasindorf offered plaintiff the position of customer service manager because, based on the professional experiences she listed on her resume, he believed she "might be overqualified" for the position of customer service representative.

By letter dated June 11, 2002, Kasindorf confirmed plaintiff's acceptance of the customer service manager position, commencing on June 17, 2002. This letter also indicated that plaintiff was entitled to a sixty-day severance package if she was terminated within the first year of employment.

There is a conflict in the record as to plaintiff's performance at HRK. Plaintiff claims that Kasindorf had told her he was "very pleased" with her work as manager, and he "felt that everyone was doing a better job." Kasindorf, on the other hand, has indicated that he was dissatisfied with plaintiff's performance as a manager, and claims that he advised plaintiff of his concerns.

Memoranda written by Kasindorf document incidents where plaintiff allegedly used poor judgment in resolving employee related conflicts. According to Kasindorf, as his dissatisfaction with her management skills grew, he began to question the "validity" of the representations plaintiff made in her resume. Finally, in an effort to allay his concerns, Kasindorf decided to contact the customer service department of Beach Trading in order to verify the accuracy of plaintiff's professional experiences.

Instead of forthrightly requesting that Beach Trading confirm or deny the employment history plaintiff had listed in her resume, Kasindorf decided to engage in a needless subterfuge, misrepresenting both his identity and the true nature of his call. Kasindorf's memorandum dated June 26, 2003, reveals his version of what transpired:

I spoke with several of the representatives in Beach Camera's Customer Service dept. and asked each of them if [plaintiff] was available to speak with me. They each replied that she was no longer with the firm. I then proceeded to ask what [plaintiff's] role at the company was and each of them told me that she was a Customer Service Representative. . . . I then asked to speak with the supervisor and was directed to Mr. Elie Hizbo. I questioned Elie Hizbo several times about [plaintiff's] role in the company and he clearly stated that he was the supervisor of the customer service department and she was never the supervisor of the department or a V.P. in the company and was just a Customer Service Representative. I then asked Elie Hizbo who the Customer Service Manager was and he gave me the name of the Customer Service Manager-Chris Diesel, who also confirmed that [plaintiff] did not have a supervisory role in the Customer Service Dept., nor was she a V.P. at the firm and that he was her manager and she was a Customer Service Representative.

According to Kasindorf's June 28, 2002 memo, he made additional calls to Beach Trading on June 27 and 28, each time confirming that plaintiff was a customer service representative.*fn2

At his deposition, Kasindorf admitted that he never asked to speak to Albert Mosseri or a corporate officer at Beach Trading about plaintiff. Although Hizami recalled receiving phone calls from a prospective employer inquiring about plaintiff, he could not recall any details about the calls.

According to his memo, Kasindorf terminated plaintiff's employment on June 28, 2002, "because she had been hired under fraudulent terms and she mis-represented her previous position on her resume." In contrast to these statements in his memo, Kasindorf testified in a deposition that he decided to fire plaintiff before calling Beach Trading. He had planned to use the alleged ...


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