### Pogil v KMPG, LLP 2024 NY Slip Op 30340(U) January 29, 2024 Supreme Court, New York County Docket Number: Index No. 150640/2021 Judge: Shlomo S. Hagler 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 01/30/2024 04:46 PM INDEX NO. 150640/2021 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 01/30/2024

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### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SHLOMO S. HAGLER Justice 

## -------------------X

BORIS POGIL, PART
INDEX NO. MOTION DATE 

### 150640/2021 04/10/2023 17

Plaintiff, MOTION SEQ. NO. 

### ---'--'0;;_;;0"""5
__-vKPMG, LLP, ANDREWJ ZIEGLER, SCOTT M MASAITIS, TONYA CHRISTIANSON, DAVID LIN, LENA HAIDYSH, LARA CZERWINSKI, SCOTT NOVICK Defendant. -------------------X DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 

### 005) 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87,88, 89,90, 91, 92,93, 94, 95, 96, 97,98, 99,100,101, 102,103,104,105,106,107,108,109,110,111,112,113,114,115,116,117,118,119,120,121,122, 123,124,125,126,127,128,129,130,131,132,133,134,135,136,137,138,139,140,141,142,143, 144,145,146,147,148,149,150,151,152,153,154,155,156,157,158,159,162 were read on this motion to/for 

### JUDGMENT-SUMMARY Defendants KPMG, LLP, Andrew Ziegler, Scott Masaitis, Tonya Christianson, David Lin, Lena Haidysh, Lara Czerwinski, and ScottNovick (collectively, "Defendants") move for summaryjudgment dismissing plaintiffBoris Pogil's claims for defamation, discrimination, and retaliation as against them. Plaintiffopposes this motion. FACTS 

### I. Plaintiff's Utilization and Performance PlaintiffBoris Pogil began working at KPMG LLP as a Senior Tax Associate onApril 2, 2018 (Defendant's Memorandum ofLawin Support ("Memo") [NYSCEF Doc. No. 82] at 2; 

### see also Amended Complaint ("Compl.") [NYSCEF Doc. No. 42] at 1 ). He worked in the NewYork Metro ("NYMetro") office in the Mergers & Acquisitions Tax ("M&A Tax") group (Memo at 2). NYMetro is within KPMG's Eastern Region 

### (see id). Plaintiffhad experience inM&ATax

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2 of 27 before being hired at KPMG and in 2019, hoped to be promoted (see 

### id; Masaitis Aff. [NYSCEF Doc. No. 77] 

## ,r 7). However, plaintiffmet with Defendant Scott Masaitis, a Principal at KPMG and the head ofthe Eastern Region, on August 23, 2019 where plaintiffwas told he would not be getting promoted (see Masaitis 

### Aff. 

## ff 1, 11). Masaitis gave plaintiffadvice to work hard and improve inhis performance so.that he may be considered for a promotion infiscal year (FY) 2020 (see 

### id 

## ,r 11). Atthis time plaintiff's Utilization was 57%, which was belowthe target of70% (see 

### id). Utilization "measures the hours worked that are chargeable to clients" and is the "most importantperformance metric for Senior[ Associates]" (Memo at 2). Senior Associates' Utilization is tracked on a weekly, monthly, and year-to-date basis (id. at 3). Forthe first quarter ofFY 2020, however, plaintiff"was the lowest utilized Senior Associate in NYMetro and the second lowest inthe Eastern Region" (Masaitis Aff. 

## ,r 13). In December 2019 plaintiffs year-to-date Utilization was 9.8%, the third worst among all M&ATax Senior Associates (see Lin Aff. [NYSCEF Doc. No. 79] 

## ,r 7; Ex. 2 to Lin Aff. [NYSCEF Doc. No. 80]). He was notified atthe end ofJanuary that he had the lowest year-to-date utilization among all SeniorAssociates in the NYMetro location (see Masaitis 

### Aff. 

## ,r 15). "When Associates and SeniorAssociates do nothave enough M&A Tax workto keep them busy, they are supposed to seek out and accept work from other Taxpractices" (Lin Aff. 

## ,r 9). Defendant David Lin is the National Resource Manager for the M&A Tax practice (see 

### id 

## ,r 1). He works with the Associates and Senior Associates inthe M&A Tax group to increase Utilization and decrease uncharged orunassigned time 

### (see 

### id 

## ,r 2). InNovember 2019 Defendant Linreached outto plaintiffvia email asking 

### him to work on a time-sensitive and important project inM&ATax, butplaintiffturned the opportunity down despite having poor Utilization and low chargeable hours 

### (see 

### id 

## ,r 5).

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3 of 27 Defendant Lin reached out again inJanuary 2020 to ask plaintiffifhe would be willing to work on a project within the Business Tax Services practice (see id 

## ,r 10). Plaintiffwas reluctant to accept the project because he was not sure he felt comfortable doing that specific type ofwork (see id). Later that day, Linreached out again offering plaintiffa different project within the
. Business Tax Services practice that would provide plaintiffwith 50 chargeable hours (see id 

## ,r 11). Plaintiffresponded via email that he wanted to pass on this opportunity but "I don'twantto let you down
... Ifyou cant [sic] find anyone else and they absolutely need me then I will do it" (Ex. 5 to LinAff.). Eventually, plaintiffresponded "Letme skip this then. I still have a few small deals onplate [sic] to keep me busy until biggerthings come in" (id.). Defendant Andrew Ziegler was a Managing Director at KPMG and served as plaintiffs People Management Leader starting in October 2019 (Ziegler Aff. [NYSCEF Doc. No. 75] 

## ,r,r 1- 2). OnFebruary 4, 2020, Ziegler and a nonparty partner inM&A Tax named Larry Piccolamet with plaintiffregarding his lowUtilization (id 

## 17). Ziegler "reiterated to Boris that he needed to be chargeable and to increase his Utilization" and that he should "take on available tax work,
even ifit was outside M&A Tax" (id.). Inthis meeting, Ziegler questioned why plaintiffhad not volunteered for a long-term projectthat would provide a high number ofchargeable hours (see id). Plaintiffresponded thathe did not wantto take the project since it was based in California and he had a wife and young child (see id). After this meeting, plaintiffapproached Lin and informed Lin that plaintiffwould ''take any work that comes in" (Lin Aff. 

## ,r 11). The next day, Lin informed plaintiffofanother opportunity inthe Business Tax Services practice that would "provide a lot ofchargeable hours" (id 

### 112). Plaintifftold Lin he would take
onthat project (id.). However, the following day, February 6, 2020, plaintifftold Lin that he changed his mind and "pulled out ofthe assignment" (Ex. 10 to Lin Aff.). He told Linthat he is

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4 of 27 "only-interested inM&A work" (id). Lin informed defendants Ziegler and Masaitis,

# as well as partnerLarry Piccola, ofthis via email (see id.). Plaintiffmessaged a coworkerthat day that he ''told [Lin] to take me offthe BTS stuff' and that he was "only going to do M&A work or study for my exams onmy down time
... whatever happens happens" (Ex. D to Abrams Aff. [NYSCEF Doc. No. 72]). Masaitis stated in his affidavit that he thought this constituted lowperformance and, because plaintiffwas aware ofhis lowUtilization, "he should not have been turning down available Tax work" (Masaitis 

### Aff. , 20). When Masaitis heard thatplaintiffhadpulled out of the Business Tax Services project onFebruary 6, 2020, he contacted the M&A Tax Human Resources Business Advisor saying that this behavior, in his opinion, warranted a Low Performance Memorandum ("LPM") (see 

### id, 21). "Thepurpose ofthe LPM is to identify in writing those areas where an employee's performance is falling short and recommend howto improve" (Memo at 7). This matter was referred to defendant Czerwinski in Human Resources, who worked withZiegler to monitorplaintiffs progress from February through April 2020 (see Czerwinski Aff. [NYSCEF Doc. No. 73111 3, 5). 

### II. Low Performance Memorandum Sometime in April 2020,1 a virtual meeting was conducted in connection withthe midyear, or "Interim" assessments ofemployees at and belowplaintiff's level inM&A Tax (Memo at 6). These assessment meetings are routine (see 

### id). Atthis time plaintiff's year-to-date Utilization was still 29% while the target was 70% and he was the lowest-utilized Senior Associate inM&A Tax at NYMetro 

### (see Masaitis Aff. 127; Ziegler Aff. 17; 

### see also Ex. 13 to

1 Defendant Masaitis describes the date ofthis meeting as April 21, 2020, in his affidavit, while defendant Czerwinski says it occurred on April 23 ofthat year in hers (see Masaitis Aff. 

## ,r 25; Czerwinski Aff. 

## ,r 6). Plaintiffin his affidavit states the meting occurred "inApril 2020" (PlaintiffAff. [NYSCEF Doc. No. 110]

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5 of 27 Lin Aff.). Plaintiffbelieves this metric is false (see Compl. 

## ,r 45). Defendants Masaitis, Ziegler, and Czerwinski, as well as nonparty Megan Charles, attended this virtual interim assessment meeting (see Czerwinski Aff. 

## ,r 6). Masaitis attested that at this meeting, the attendees discussed thatplaintiffs "extremely lowUtilization was unacceptable for an experienced SeniorAssociate. He should have beenin high demand ifM&A Tax professionals thought he had skills and abilities to assist" (Masaitis Aff. 

## ,r 28). The consensus following the virtual meeting was that plaintiffas well as three others
were to be identified as lowperformers (see 

### id. 

## ,r 28; Czerwinski Aff. 

## ,r 7). When an employee is designated as a lowperformer, a LPM is prepared for the employee to understand where he or she has been deficient inhis or her performance and recommended steps to improve (see Czerwinski Aff. 

## ,r,r 6-7). Consequently, a LPM was prepared for plaintiff(see id)
..Czerwinski provided Ziegler with a template LPM as it was Ziegler's responsibility to prepare plaintiffs LPM (see Ziegler Aff. 

## ,r 8). Ziegler was to "identify performance areas where Boris had weaknesses and provide guidance onhow he could improve" (id). While creating plaintiffs LPM, Ziegler spoke to several Partners and Managing Directors who had supervised plaintiffon various projects (see id 

## ,r,r 8-11). Partners and Managing Directors can give employees engagement reviews, called 'GPS's,' to "provide feedback onhowan employee

### has done on a particular project" 

### (id. 

## ,r 8). The GPS's reviewed by Ziegler ranged from "mediocre" to more positive and favorable, but speaking with the partners who supervised plaintiffon Tax-related projects revealed they had concerns about his performance (id 

## ,r,r 8-10). Using his "own experiences with Boris, as well as the feedback [he] received from others," Zieglerprepared plaintiffs LPM 

### (id 

## ,r 12). Czerwinski reviewed the LPM and it was ultimately reviewed and approved by her superior, Cynthia Carranza (see Czerwinski Aff. 

## ,r 8).

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6 of 27 The LPM was delivered to plaintiffin a call held on May 26, 2020, where defendants Ziegler and Czerwinski were also present (see id. 

### ,I 9). The LPM informed plaintiffthathis Impact Metric (one ofthe ways KPMGmeasures employee performance) for the fiscal yearto date "was 57% as comparedto the target for senior associates in M&A tax of80%" (Low Performance Memorandum, Ex. 1 to Czerwinski Aff. [NYSCEF Doc. No. 74]). Despite his low Utilization, the LPM indicated thatplaintiffhad ''turned down opportunities to work with other practices withinthe tax practice" (id). The LPM indicated some action steps plaintiffwas recommended to take to remedy his deficient performance and increase his chargeable hours to "atleast 70%" (id.). Czerwinski attested thatplaintiff"was very unhappy" with the LPM and "indicatedthat he intended to appeal it," so she let her superior knowthat an Ethics and Compliance investigation would likelyoccur (id 

### ,I 10). Beginning in April and into June and July, plaintiffwas working on a project for Bank of Americathat didnot involve M&A work and did not involve Tax work (see Memo at 8; Masaitis Aff. 

## ,r 38). From a conversation he had with defendant Tonya Christianson, plaintiffwas aware that although itboosted his chargeable hours, it did not help his utilizationbecause "his evaluation is based onhis work in M&A and we should not bring [the Bank ofAmericaproject] into the discussion" (Ex. 9 to Masaitis Aff. [NYSCEF Doc. No. 78]). 

## m. Ethics 

### & Compliance Investigation and Year-End Evaluation Because their work schedule follows the fiscal year, KPMG employees prepare year-end evaluations beginning in July (see Memo at 8). Around this time, the appeal from plaintiffs LPM was being investigated by the Ethics & Compliance group, which is "aninternal team responsible for investigating complaints" (id at 7). Joshua Ellis, an attorney, ledthe investigation and it was pending at the time theprocess ofyear-end evaluations was due to start

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### (see 

### id at 7-8). Defendant LenaHaidysh, the employee who took overhandling plaintiff's Hwnan Resources issues after Lara Czerwinski went on maternity leave, consulted withEllis regarding the investigation 

### (see Memo at 

### 8; Ex. J to Abrams Aff. at 50). She thentold Scott Novick, plaintiffs new People Management Leader, notto conduct a year-end evaluationfor plaintiff

### (see id). The outcome ofthe Ethics & Compliance investigation into the issuance of plaintiff's LPM "would be dispositive ofhis Year-End rating" (Memo at 8). In September 2020 the Ethics & Compliance investigation was completed and a report
was issued 

### (see Memo at 9; Ex. B to Abrams Aff. [NYSCEF Doc. No. 72]). The investigation "determined that [plaintiffs] allegations were unsubstantiated" (Ex. B to AbramsAff. at 9). Accordingly, the LPM stood and could be used in completing plaintiff's end-of-year evaluation 

### (see Memo at 9). This decision was explained in a "FY20 LowPerformance Justification Memo" written and issued by Haidysh_that stated, "Giventhe investigative findings, the decision was made that no further action would betaken andthe LPM will remain inplace'' (Memo at 9-10; Ex. C to Abrams Aff.). 

### IV. KPMG's Reduction-in-Force In July 2020, it was reported to the directors atthe M&A Tax division that because ofthe pandemic, KPMG leadership was planning to undertake a "majorreduction 

### in force" ("RIF'')
across all practice areas (Masaitis Aff. 

### 133). Specifically, M&A Tax was directed to reduce costs by $11,000,000 

### (see id.). M&ATax was given criteria by Human Resources for termination ofemployees inthe RIF which included "(a) anyone designated as a Low Performer; (b) elimination ofwhole sub-groups within a practice; or (c) anyone withhigh compensation relative to their contributionto the business" (Memo at 9).

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8 of 27 Defendant Masaitis attested that inM&A Tax, four individuals were identified as Low Performers and as such, "automatically went onthe RIF list" as they met a criterion given by HwnanResources (Masaitis Aff. 

## ,r 35). On August 14, 2020, M&A Taxprovided the first draft ofits RIF list to Human Resources (see id. 

## ,r 37). Plaintiffwas included onthis listbecause he
was a LowPerformer, but Masaitis attested that he also could have been included under criteria (c) because "his salary was very high compared to his contribution in the form ofchargeable work performed and did not meet any ofthe expectations" (id). Plaintiffwas terminated in the RIF on October 16, 2020 (see id 

## ,r 40). He was one ofabout 1,400 employees terminated 

### in the RIF (see id.). SUMMARYJUDGMENT STANDARD "[T]he proponent ofa motion for summaryjudgmentmust demonstrate that there are no material issues offact in dispute, and that it is entitled tojudgment as a matter oflaw" (Ostrov v Rozbruch, 91 AD3d 147, 152 [1st Dept2012]). "Failure to make suchprimafacie showing requires denial ofthe motion, regardless ofthe sufficiency ofthe opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [internal citations omitted]). Once a movant has met this burden, "the burden shifts to the opposing party to submitproof

### in admissible form sufficient to create a question offact requiring a trial" (Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept 2013]). "[l]t is insufficient to merely set forth averments offactual or legal conclusions" (Genger v Genger, 123 AD3d 445,447 [1st Dept 2014], quoting Schiraldi v U.S. Min. Prods., 194 AD2d 482,483 [1st Dept 1993]). Finally, evidence must be "construed 

### inthe lightmost favorable to the one moved against" (Kershaw, 114 AD3d at 82). Therefore, 

### ifthere is any doubt as to the existence ofa triable fact, the motion for summaryjudgmentmust be denied (Rotuba Extruders v Ceppos, 46 NY2d 223,231 [1978]).

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9 of 27 PROCEDURAL HISTORY Plaintiffsued KPMG LLP as well as seven individual defendants who were employed at KPMG. The complaint contained causes ofaction for defamation, discrimination, and retaliation. The defendants filed a motion to dismiss pursuant to CPLR 321 l(a)(7) where the court dismissed several statements from plaintiff's defamation cause ofaction that the court found to not be defamatory but otherwise did not dismiss the complaint. Defendants now bring this motionunder CPLR 3212 seeking dismissal ofthe remainder ofplaintiff's claims. DISCUSSION 

### I. Plaintiff's Defamation Claims To prevail on a claim ofdefamation, a plaintiffmust 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 a type that is actionable regardless ofharm under the law (Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]; see also Dillon v City of New York, 261 AD2d 34, 38 [1st Dept 1999]). Defamatory statements mustb~ pled with specificity as is required by CPLR 3016 (a). The plaintiffmust state ''the particular words complained of' as well
as ''the time, place, and manner ofthe false statement and specify to whom it was made" (Dillon, 261 AD2d at 38 [internal quotations omitted]). Defamatory statements canbe eitherper se orper quod. "Where the defamatory statement is [defamatory]per se the plaintiffcan recover damages withoutpleading and proving 'special harm,'" but ifthe statement is defamatory ''per quod, the plaintiffcan only recover damages if [he] pleads and proves such 

### harm" (Ava vNYP Holdings, Inc., 64 AD3d 407, 412 n. 3 [Ist Dept 2009] [internal citations omitted]). Ifa plaintifffails to showthat the defamatory statements fall into one ofthe four categories ofdefamationperse, he mustprove special
.

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10 of 27 damages 

### (see Nolan v State, 158 AD3d 186, 195 [1st Dept 2018]). One such category of statements that can be defamatory

### per se are those that**''tend □**  to injure another inhis trade, business, orprofession" 

### (Davydov v Youssefi, 205 AD3d 881,882 [2d Dept 2022]). Defamatory statements are false statements offact in which "there is no constitutional value" 

### (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 380 [1977]). As such, truth "provides
a complete defense to defamation claims" 

### (Dillon, 261 AD2d at 39). The plaintiffbears the burden ofestablishing the falsity ofthe statement 

### (Rinaldi, 42 NY2d at 379-80). Similarly, expressions ofpure opinion are not defamatory under the law and are deemed privileged, "no matter how offensive" the statement 

### (Bacon v Nygard, 189 AD3d 530, 530 [1st Dept 2020]; 

### Stega v New York Downtown Hosp., 31 NY3d 661, 674 [2018]). However, "an opinion that implies that it is based upon facts whichjustify the opinionbut are unknown to those reading or hearing it
... is a mixed opinion" and is actionable as defamation 

### (Bacon, 189 AD3d at 530 [internal citations and quotations omitted]). Distinguishing between statements offact and opinion is a question oflaw for the courts, and the "dispositive inquiry" is whether a reasonable person could have concluded that the statement at issue was "conveying facts about the plaintiff' 

### (id at 530-531 [quoting 

### Gross v New York Times Co., 82 NY2d 146, 152 (1993)]). 

### An essential element ofa defamation claim is that the statement was published to a third party 

### (see Stepanov, 120 AD3d at 34). "Publication" requires communication ofthe statement to
someone otherthan the plaintiffhimself

### (see Gaccione v Scarpinato, 137 AD3d 857, 858 [2d Dept 2016]). A claim ofdefamation will fail ifthe plaintifffails to allege that the statements
were made to a third party 

### (Richards v Security Resources, 187 AD3d 452,453 [1st Dept 2020]). "[A]n employer has the right, withoutjudicial interference, to assess an employee's performance on thejob" 

### (Williams v Varig BrazilianAirlines, 169 AD2d 434,438 [1st Dept

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11 of 27 1991]). This right is based onthe common interest privilege, a qualified privilege thatprotects communications "made by one personto another upon a subjectin whichbothhave an interest" 

### (id; see also Richards, 187 AD3d at 453). Accordingly, internal employment reviews canbe protected speech and not defamatory either as anexpression ofopinion orbecause ofthis
common interest privilege 

### (see Dillon, 261 AD2d at 38). Memorandaregarding employee performance have routinely been upheld as non-defamatory expressions ofopinion 

### (see, e.g., Williams, 169 AD2d at 438; 

### Panghat v New YorkDowntown Hosp., 85 AD3d 473,474 [1st Dept 2011]; 

### Falk vAnesthesiaAssoc. of Jamaica, 228 AD2d 326,328 [1st Dept 1996]; 

### Sanderson v Bellevue Maternity Hosp., 259 AD2d 

### 888, 889-90 [3d Dept 1999]). Plaintiffclaimed several statements with varying levels ofspecificity inparagraphs 92- 114 ofhis Amended Complaintthathe alleges constitute defamation. Priorto this summary judgmentmotion, defendants filed a motionto dismiss under CPLR 321 l(a)(7). At oral arguments held onMarch 31 and June 8, 2022, the court dismissed several individual statements
as not defamatory 

### (see generally Ex. L and Ex. M to Abrams Aff.). Each remaining statement pied with enough specificity is not defamatory based ontruth, opinion, lack ofpublication, or privilege and accordingly, defendants are entitled to summaryjudgment dismissing plaintiffs defamation claims. Specific defamatory statements 

### "Damagedour reputation with client" (Compl. 

## ,r 101) Plaintiffalleged that defendant Lin and nonparty Ellis made this statement ''to one of KPMG's clients" (Compl.

## ,r IOI(i)). Defendants argue that there is no evidence that such a statement was ever made to a client or any other third party, and even so, plaintiffdid not specify to whom the statement was made as is required under CPLR 3016 

### (see Memo at 12-14).

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12 of 27 Defendants further argue thatthe statement comes from the Investigation Report andthe Justification Memo, wherein the statement is put into further context: by accepting andthen withdrawing from a project, plaintiff, according to a witness, "damagedthe Firm's reputation with the client" (id at 16; Ex. C to Abrams Aff.). Defendants argue that this was an opinion based on facts communicated to the recipient ofthe statement in the very sentence, and thus is not defamatory (see Memo at 16). In opposition, plaintiffargues thatthe defendants did not "give a single example ofhow Plaintiffpurportedly damaged the firm's reputation" and moreover, defendants Lin and Haidysh could notrecall making and/orrecording this statement (Opp. at 3-5). Plaintiffargues this warrants an "adverse credibility finding" (Opp. at 4). Plaintifffurther argues that the qualified privilege does not apply because a client is a third party without a common interest inplaintiff's performance buthas failed to specify the third party at any stage ofthis litigation. Even an adverse credibility finding would not overcome the fact thatthe plaintiffbore the original bmden ofproving that the statement was communicatedto any client or anyone outside KPMG, andthis required level ofspecificity is notmet inthe Amended Complaint (see Richards, 187 AD3d at 453). At the summaryjudgment stage, defendants showedthatthe statement was made intwo internal memoranda seen oniy by KPMG employees who share a
common interest inplaintiffs work product and performance (Memo at 13-14). Met once again with an opportunity to show communication to parties outside KPMG, plaintiffdid not provide evidence sufficient to refute the contention thatthe statement was not made to anyone outside KPMG. Providingworkproduct that is not "well thought-out, reviewed from a tax technical and critical thinkingstandpoint" (Compl. 

## ,r 105)

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13 of 27 Defendants argue that this statement is a non-defamatory expression ofopinion regarding plaintiffs performance 

### (see Memo at 16). In opposition, plaintiffargues that his "excellent reviews that support him for manager, coupled with the investigator's determination that there
were no performance issues, more than raises a triable issue offact" (Opp. at 7). Intheirreply, defendants note that this statement is found in the LPM under a heading entitled "Action steps for performance development" (Ex. 1 to Czerwinski Aff.; Reply [NYSCEF Doc. No. 151] at 4). Defendants argue that directions to the employee and suggestions to improve their performance are opinion and are not defamatory 

### (see Reply at 4). Defendants cite 

### Locke vAston, in which the First Department dismissed a plaintiffs cause ofaction for defamation because "defendant's statements that plaintiffdid 'substandard' work and the manuscript was 'notup to standard' are constitutionally protected opinion" 

### (Locke vAston, 

### I AD3d 160, 160 [1st Dept 2003]). Defendants are correct intheir argument that directives to employees are not defamatory. Not only were they stated in an internal memorandum seen only by those with an interest in plaintiffsperformance, butthese suggestions to improve performance within such a memorandum are opinion and are not actionable 

### (see Williams, 169 AD2d 434; 

### Panghat, 85 AD3d at 474). 

### Not having "awareness andcontrol of all thefacts on a givenproject" (Compl. , 106A) Defendants similarly argue that this statement, found in the LPM, is an opinion about the employee's performance and a directive to the employee and is not defamatory 

### (see Memo at 16; Reply at 4). Defendants' argument is correct for the reasons stated above and this statementis not defamatory.

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14 of 27 Plaintiff didriot always follow up on assignments, delegateda lot to associates, anddid not take ownership (Compl. 

## ,r 114) Defendants argue thatthis is another example ofprotected opinion about an employee's performance (see Memo at 16). Moreover, this statement was made in the internal investigation report. Plaintiffdoes not mention this statement inhis opposition. Forthe reasons stated above, defendants are correct in their argument that this is opinion about plaintiffs performance and,
even ifnot, such statement is protected by the common interest privilege. "Boris has struggled in variousperformance areas including time management, technical, delegation, andengagementmanagementskills" (Compl. 

### ,i 107) Defendants argue that this statement is an opinion by an employer regarding an employee's performance and was made in an internal memorandum (see Memo at 16). In opposition, plaintiffargues thatthe statement is false and, in any event, defendant Haidysh "admits to not making any efforts to verify this statement" (Opp. at 7). However, as this statement is an expression ofopinion about plaintiffsperformance there are no facts that Haidysh was required to "verify." Moreover, the statement was made inthe Justification Memo,
a memorandum prepared specifically for plaintiff, and there is no evidence that this statement
was published to anyone outside ofM&A Tax orHuman Resources at KPMG who lacked a
common interest. Plaintiff"charg[ed] more hours than the associates" (Compl. 

### ,i 100) Defendants argue that this statement does not constitute defamation because Ziegler made this statement directly to plaintiff, and plaintiffnever met his burden ofproving that this statement was made to a third party (see Memo at 13). In opposition, plaintiffspeculates that this statement "imputes fraud onto the Plaintiff' because the Ethics & Compliance committee

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15 of 27 investigated it for "Improper charging oftime" even though, according to plaintiff, Ziegler charged more hours thanplaintiffhimself(Opp. at 7-8). In refuting the argument plaintiffposes in his Opposition, defendants note that this language of"improper charging oftime" was in a statement made by plaintiffhimselfabout Ziegler, and plaintiffwas not the one investigated for "improper charging oftime" (Reply at 5). Defendants also note that the Courtpreviously found this statement to not be defamatory at the motion to dismiss stage and dismissed the plaintiffs argument that the statement "imputed fraud" onhim (Memo at 13 n. 5). Even assuming 

### arguendo that this statement was i;iot dismissed at the CPLR 3211 stage, this statement can be dismissed at the summaryjudgment stage. Defendants correctly argue that plaintiffnever sufficiently showed that the statement was made to anyone otherthan the plaintiff himself. Plaintifftherefore never metthe publication requirement to sufficiently support a claim ofdefamation. 

### Plaintiff's "low impact metric" andlow Utilization (Compl., 93) Defendants argue that this statement is not defamatory because it was true. Defendants argue that the language came from the LPM, which states, Your FY20 Impact Metric through February 29, 2020 was 29.1% as compared to your peers in the [Business Unit] which is 58.3% on average. Despite your low Impact Metric, you have turned down opportunities to work with otherpractices within the tax practice. Ex. 1to Czerwinski Aff. [NYSCEF Doc. No. 74]. Although the burden is onthe plaintiffto prove the falsity ofthe statement; defendants proffer a Utiliz.ation spreadsheet for the month ofFebruary depicting the Utiliz.ation ofeach M&A Tax Senior Associate to bolster its argument that the statement is true. In this spreadsheet, plaintiff's Utilization was the second lowest onthe list of 113 Senior Associates at 29.1% 

### (see Ex. 12 to Lin Aff. [NYSCEF Doc. No. 79]).

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16 of 27 In opposition, plaintiffargues that he should have beenjudged on Impact Metric and not Utilization alone (see Opp. at 9). He also argues that defendants pursued a "fake Low Performance memorandum" despite plaintiffs high impact metric and Utilization (id.). Moreover, plaintiffargues that Human Resources had said there was "nothing inhis current file" that "indicates that there is an issue with his work product," which is consistent withthe fact that his utilization for the month ofFebruary alone was 90% (id.). Plaintiffs arguments in opposition are to no avail. First, as defendants correctly note in theirreply, even ifthe management focused onthe wrong metric, it is irrelevant because the comments at issue were "about Utilization, and they were true" (Reply at 6). Next, although plaintiffis correct that his Utilization was 90% for the month ofFebruary, the statement specifically explains that the 29.1

### % figure is his Utilization for the fiscal year-to-date. As such,
even though plaintiffhad improved his Utilization during the month ofFebruary, the calculations that his fiscal year-to-date Utilization was the second lowest among senior associates inM&A Tax were true at the time the statement was made and is therefore not defamatory. Finally, it is worth noting that an employee's Utilization relates to time spent on a project, and the quality of his orher work product is not a relevant factor when calculating Utilization. Plaintiff had57 late ormissing timesheets as

### of April30, 2020 (Compl. 

## 1 102) Defendants argue that this statement was true because it was based onKPMG's records at the time (see Memo at 15). Further, the statement was made in the LPM which was delivered to plaintiffand falls inside the common interest privilege. Plaintiffdoes not refute this inhis opposition by arguing its falsity. As such, the statement is not defamatory and is dismissed.

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17 of 27 Ziegler's statements toplaintiff to "communicate anddiscuss all offers for new work, and do notdecline any opportunities before speakingwithyour managementgroup to see 

### if workcan be accommodated" (Compl., 103) andZiegler's statement toplaintiff that "you needto work towards betterdaily schedulingmanagementandtime management soyou can respond to supervisor requests more quickly andyou shouldavoidreferringyour supervisors to the staff personyou are working with on theproject" (Compl, 104) Defendants argue that these are not "statements" that are subjectto a claim ofdefamation (Memo at 12 n. 4). These communications are instructions about improving plaintiff's performance and were found in theLPM directed to plaintiff. Plaintiffdoes not argue otherwise inhis opposition. Forthe reasons stated above, defendants are correctthat instructions

### to an employee to improve performance such as these are not defamatory. Forthe foregoing reasons, each individual statement pled with sufficient specificity is not defamatory oris not actionable as defamatory because ofprivilege and each must be dismissed. Plaintiff's other defamation arguments When a defendant argues that a statement falls under the common interestprivilege, such privilege "may be dissolved ifplaintiffcan demonstrate that defendant spoke with malice" (Liberman v Ge/stein, 80 NY2d 429, 437 [1992]). "Actual malice is not supported" ifallegations ofsuch malice "rest solely on surmise and conjecture"(Dillon, 261 AD2d at 40). Common law malice can be proven by a showing of"spite or ill will" while the standard for constitutional malice is "reckless disregard for the truth" (Liberman, 80 NY2d at 434, 438 ["[W]e have recognized that the constitutional as well as the common-law standard will suffice to defeat a conditional privilege"]). Plaintiffhas shown neither. His only arguments inhis opposition are "examples" that "Ziegler admitted that his Lowperformance memorandum was 'hardto piece

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18 of 27 together"' and that "Defendants refused to withdraw the LowPerformance memorandum even though Human Resources said it should never be issued" (Opp. at 10-11). These arguments amount to conjecture and do notprove at all that defendants acted with 

### ill will or with reckless disregard ofthe falsity ofa statement. Moreover, defendants showed that many ofthe statements
were either true or were made withthe intention ofproviding suggestions for plaintiff's improvement. Asplaintiffcannotprove malice in either form, the common-interestprivilege applies. Next, because none ofthe statements are actionable, the argument about special damages need not be discussed. Even ifplaintiffhad adequately shown that a statement constituted defamation, he failed to prove defamationper se because he could not establishthat any ofthe statements fell within any ofthe four categories ofdefamationper se..As such, he would need to plead special damages to prove defamationper quod. Inhis opposition plaintiffargues thathe suffered ''mental anguish'' which can constitute special damages (Opp. at 12-13). Plaintiffcites Nolan v State of New York, which, as defendants point out in their reply, does not support plaintiff's positionthat intangible emotional distress can cause special damages (158 AD3d 186 [1st Dept 2018]). The First Department inNolan held that the Supreme Court erred in failing to dismiss plaintiff's defamation claim when "she only suffered intangible damage in the form of emotional distress" and thus was not able to "sustain her general defamation claim, which requires allegations ofspecial damages" (id at 191). Plaintiff's failure to prove actual damages
as a result ofthe allegedly defamatory statements requires dismissal. On the basis ofthe foregoing, defendant's motion for summaryjudgment dismissing plaintiff's defamation claims is granted as alleged against all defendants.

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19 of 27 II. Plaintiff's Discrimination Claims Plaintiffclaims he was unlawfully discriminated against for his gender and caregiver status pursuantto the New York City Human Rights Law (Admin. Code ofthe City ofNY,§§ 8- 107 [1] [a]; [7]) (NYCHRL) and the New York State Human Rights Law (Exec. Law§§ 296 [1]; [7]) (NYSHRL). Under the NYCHRL and NYSHRL, discrimination claims are evaluatedunder the standard set forth inthe US Supreme Court case McDonnell Douglas Corp. v Green (411 US 792 [1973]).2 Underthis framework, a plaintiffalleging employment discriminationbears the initial burden ofproving aprima facie case ofdiscrimination. To meetthis burden, the plaintiff must establish that: (1) he is a member ofa protected class; (2) he was qualified to hold the position; (3) he was terminated or suffered an adverse employment action; and (4) "the discharge
or other adverse action occurred under circumstances giving rise to an inference of discrimination" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; Melman v Montefiore Medical Center, 98 AD3d 107, 113-14 [1st Dept2012]). Ifthat is met, the burden then shifts to the employer who must rebut the presumption ofdiscrimination by "clearly setting forth, through the introduction ofadmissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision" (Ferrante vAmericanLung Assn., 90 NY2d 623,629 [1997]; Melman, 98 AD3d at 115). Finally, the burden shifts backto the plaintiff to prove that the reasons givenby the defendant "were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination
was the real reason" (Forrest, 3 NY3d at305).

2 As will be explained infra, to be awarded summaryjudgmentunder the City Human Rights Law, the defendant bears the burden ofshowing that nojury could reasonably find the defendant liable under the McDonnell Douglas standard orthe newer "mixed-motive" framework (Bennett v Health Mgmt. Systems, Inc., 92 AD3d 29, 41 [ lst Dept 2011]).

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20 of 27 Defendants argue that plaintiffhas not made aprima facie showing because he "has no competent evidence that Defendants discriminated against himbecause he is male orbecause he has a child'' (Memo at 19). Plaintiff, in opposition, argues that he has raised an "inference of discrimination" by demonstrating that he was treated less favorably than other similarly situated employees (Opp. at 14). Plaintiffoffers examples of"similarly situated" female employees at KPMG with childcare responsibilities. For such examples to support aprima facie case of discrimination, the other employees mustbe "similarly situated in all material respects" (Shah v Wilco Systems, 27 AD3d 169, 177 [1st Dept 2005] [internal quotation marks omitted]). Moreover, "[w]hile their circumstances do not have to be identical, there should be a reasonably close resemblance offacts and circumstances" (id [internal quotation marks omitted]). Inhis Amended Complaint, plaintiffalleges that similarly situated women at KPMG
were treated more favorably than him because they "were not issued Low Performance evaluations" and "didnot have theirperformancejudged onutilization" (Compl.

## fl 127-28). In further support ofthis contention, plaintiffstates inhis oppositionthat these women were similarly situated to plaintiffbecause ''they are all staffin Plaintiff's M&Apractice" and "are subject to the same workplace standards, same reviewperiod, same promotion standards, same disciplinary procedures, and share common supervision" (Opp. at 17). First, plaintiffcompares himselfto fellow employees Nellie Cohen and AngelaNorton. However, as defendants point out, they were both Managers, not SeniorAssociates, and were not sufficiently "similarly situated" because theirjob titles and roles differed (see Shah, 27 AD3d at 177 [rejecting plaintiff's argumentthat he, a Junior Systems Administrator, and his supervisor, a Systems Administrator, were similarly situated because their "roles and responsibilities differed"]; see also Herskowitz v State, 2023 WL 8939015 at *3 [1st Dept Dec. 28, 2023]

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21 of 27 [finding plaintiffand another employee were not similarly situated because they "had different jobtitles and duties"]). Moreover, Utilization is a metric used for Senior Associates, butnot employees atthe management level (see Reply at 13). Even ifthey were similarly situated in their roles at KPMG, defendants argue that Ms. Cohen was terminated in the RIFjustlike plaintiff, so he fails to show disparate treatment (see Memo at 21). Defendants further argue that Ms. Norton was employed not by US-based KPMG LLP, but KPMG Australia, and was on a one-year rotation in the United States, which make her and plaintiff's situations incomparable (see id). Because plaintiffdid not establish that he.was similarly situated to Ms. Cohen and Ms. Norton "in all material respects," comparing his treatment to theirs does not raise an inference of discrimination 

### (Shah, 27 AD3d at 177). Plaintiffalso compares himselfto Senior Associates Choyce Garcia and Tess Tomasello. Plaintiffargues that Ms. Tomasello "was given a reduced workload arrangement, and Ziegler admitted that he did notjudge her onutilization even though she was 19% utilized" (Opp. at 18). Defendants note inresponse that Ms. Tomasello was on a leave ofabsence from May 2019 through July 2020. Because she was not working, she could notperform chargeable work and had no Utilization goal to meet (see Memo at 21). Since plaintiffwas working and had a Utilization goal to meet during this time period, he and Ms. Tomasello were not similarly 

# . . situated. Plaintiffargues that Ms. Garcia was treated differently because she was "notbeing judged onlowutilization due to childcare, whereas Plaintiffwas issued a LowPerformance Memorandum because he did not relocate to San Francisco [and] used the COVID-19 charge code due to childcare" (Opp. at 17). Defendants argue that Ms. Garcia's pre-pandemic Utilization was 55% as ofFebruary 29, 2020, while plaintiffs Utilization was at 29% (Reply at 12; Ex. 12 to Lin 

### Aff.). Even ifMs. Garcia had lowutilization during the pandemic due to

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22 of 27 childcare responsibilities, her Utilization was nearly twice plaintiffs in the pre-pandemic period and did notwarrant a LPM. The July 2020 RIF was based onperformance and utilization factors from this pre-pandemic period and "UtilizationinJuly 2020 had nothing to do with Plaintiffs inclusion inthe RIF" (Reply at 12). Accordingly, plaintiffand Ms. Garcia are not similarly situated. The evidence proffered by plaintiffto establish thathe was discriminated against does not give rise to an "inference ofdiscrimination" because plaintiffcould not show any employees under materially similar circumstances who were treated more favorably than plaintiff. As such, plaintiffdid notmake out a

### primafacie case ofdiscrimination under the

### McDonnell-Douglas standard. Even assuming plaintiffdid meethis burden, defendants offer legitimate, · nondiscriminatory reasons for terminating plaintiff's employment in the RIF. Defendants argue thatplaintiffhad been designated as a LowPerformer based onhis Utilization and his performance 

### (see id). Plaintiffshould have had a high Utilization compared to Senior Associates but instead was often the lowest or second lowest. "Despite this, he refused assignments that would have allowed him to significantly increase his Utilization. Worse, after committing to take
on whatever work was assigned, and specifically committing to the BTS project inFebruary, Plaintiffreneged" (id. at 19-20). Plaintiff, as a recipient ofa LPM inthe relevant time period, fell into one ofthe categories ofemployees designated by KPMG's Human Resources department (and none ofthe individual defendants) as eligible to beterminated in the RIF. He was one of 1400 employees who were terminated inthis RIF (id at 20). "There is no question that a reduction in force undertaken for economic reasons is a nondiscriminatory basis for employment terminations" 

### (Hudson v Merrill Lynch & 

### Co., Inc., 138 AD3d 511,515 [1st Dept 2016]).

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23 of 27 Defendants submitted sufficient evidence showing that plaintiffwas included inthe RIF because ofhis low utilization and otherwise poorperformance (see id at 515-16 [finding that plaintiff's inclusion in a reduction inforce was nondiscriminatory, even more so when defendants submitted evidence that plaintiff's performance was weakest among those with the
same position and employed for the same amount oftime]). By showing that plaintiffwas included in a company-wide RIF based onhis lowpre-pandemic utilization, defendants mettheir burden ofshowing a legitimate and nondiscriminatory reason for plaintiffs termination (see Masaitis Aff. 

## ,r,r 34, 37; Ex. 10 to Masaitis Aff. [NYSCEF Doc. No. 78]). Finally, the burden shifts backto plaintiffto showthat the reasons proffered by the defendant are pretextual and the termination was in·fact based on discriminatory factors due to his gender and parental status. Under the "mixed-motive" framework that is appropriate for claims under the NYCHRL, the standard atthis stage is somewhat different (Melman v Montefiore Medical Center, 98 AD3d 107, 113 [1st Dept 2012]). Plaintiffneed only showthat triable issues offact exist that discrimination was one of the motivating factors ofplaintiff's termination (see Williams v New York CityRous. Auth., 61 AD3d 62, 78 n. 27 [1st Dept 2009]). There must be no genuine dispute ofmaterial fact under both the mixed-motive framework and the McDonnell Douglas framework to warrant summaryjudgment under the NYCHRL. Plaintiffargues that there is an issue offact as to defendants' defense ofa legitimate business decision because at one point, defendants state the reason plaintiffwas terminated was due to "material downturn in KPMG's business," while in another document, cited as Plaintiff's Exhibit 44, it is noted that "Overallbillable hours and net sales increased" (Opp. at 23). In response, defendants argue thatplaintiff's opinion that a reduction in force was unnecessary fails to establish a triable issue offact, citingAlvarado v Hotel Salisbury, Inc. (38 AD3d 398 [1st

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24 of 27 Dept 2007] [holding that plaintiffs argument that defendants' decision to have a RIF was "contrary to sound business or economic policy" was insufficient to establishpretext]). Defendants also note that the exhibit referenced by Plaintiffwas from KPMG International, while the former came from KPMG LLP, and both are "legally distinct and separate" entities (Reply at 9). Consequently, showing that one such entity was having economic growth does not
mean the same for another KPMG entity. Withthis argument plaintiffdid not meet his burden of establishing pretext or creating an issue offact asto defendants' cited nondiscriminatory reasons for the termination. Another ofplaintiff's arguments in an attempt to showpretext is that the defendants were punishing him for his use ofthe COVID-19 charge code, a time code where employees could "bill time they could not work because ofpandemic-related issues," including childcare necessitated by school closure orillness (Memo at 6). Plaintiffargues that "[t]here is no evidence that any ofthe women were penalized for using the COVID charge code due to family obligations" (Opp. at 18). Plaintiff's evidence that the defendants "had a problem" with plaintiffs use ofthe charge code was Haidysh's statement that "We could potentially retain Boris on [the Bank ofAmericaproject] on a month-to-month basis. Ifwe compel himto return to M&A, I could see him ending up using COVID time code and not being productive onhis core work anyway" (Reply at 14; Opp. at 18). Plaintiffessentially asks the court construe this statement as defendants "penalizing" plaintifffor using the charge code. Defendants argue that Haidysh was simply opining to E&C investigator Ellis, based onplaintiff's previous performance, that "even ifthey required him to take on M&A work, he might not end up doing it anyway, so they may as well leave him on BOA" (Reply at 14-15).

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25 of 27 Plaintiffalso offers evidence ofan email conversation where plaintiffnotified defendant Novick that he wanted to continue working onthe Bank ofAmericaproject instead ofan M&A project because it was more flexible with time than the M&Aproject. Czerwinski saidto Novick that "we might want to accommodate this COVID-based accommodation request, especially if M&A work remains low" (id at 19). In response, Novick notified Czerwinski that he would ''really like to discuss with [her]" (id). Plaintiffattempts to argue that Novick "really want[ing] to discuss" plaintiff's accommodation situation with Czerwinski is evidence ofthe fact that "Novick and KPMG had a serious problem with Plaintiffusing the COVID charge code due to childcare responsibilities" (id at 20). Plaintiff's arguments that these statements showthathe
was terminated for his use ofthe charge code due to his childcare responsibilities are huge leaps oflogic that do not create a sufficient issue offact nor demonstrate pretext. Finally, plaintiffargues thathe was the only employee who did not receive a year-end evaluation. Plaintiffargues that the Ethics & Compliance investigation into his LPM was "purposefully ended two days after the year-end evaluations took place" so that plaintiffwould not be evaluated onhis year-end performance and only onthe interim assessment (Opp. at 21). Plaintiffoffers no evidence ofthis besides mere speculation and evidence ofEllis's deposition testimony thathe "do[es]n'trecall" what specific investigative steps were taken inJuly, August,
or September (id at 22). These reasons are similarly leaps oflogic and are not evidence sufficient to raise a question offact. Plaintiffoffers no evidence that he was the only person not to receive a year-end evaluation nor that the investigationreport was held up specifically to prevent plaintifffrom receiving one. Moreover, the year-end evaluation or lackthereofwas immaterial to plaintiff's termination because, as previously mentioned, the interim assessments

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26 of 27 (from which came plaintiffs LPM) were the assessments used to help decide who was terminated inthe RIF. Plaintiffdid notprovide evidence to demonstrate that there are triable issues offact that the reasons proffered by defendants were pretextual or even that the decision to terminate plaintiffwas partially motivated by gender and/or childcare status discrimination. As such, defendants have met their burden for summaryjudgment onplaintiffs discrimination claims. 

### III. Plaintiff's Retaliation Claims Finally, plaintiffraises a cause ofaction for retaliation. Plaintiffdoes not state any action that would have led to termination due to retaliation. To make out a claim for retaliation under the NYCHRL, a plaintiffmust showthat (1) Ohe has engaged inprotected activity, (2) [his] employerwas aware that []he participated in such activity, (3) []he suffered an adverse employment action based upon [his] activity, and (4) there is a causal connection between the protected activity and the adverse action. Forrest, 3 NY3 at 313. Defendants argue that plaintiffcannot showretaliation as he did not engage in a ''protected activity" and there is no evidence that defendants took any action against 

### him as a result ofa protected activity (Memo at 23). Defendants argue thatthe only complaint plaintiff made was t<? challenge his LPM, whichhe did not assert he received due to any protected characteristics. "Filing a grievance complaining ofconduct otherthan unlawful discrimination is not a protected activity subjectto a retaliation 

### claim" under eitherthe NYCHRL orNYSHRL (Pezhman v City of New York, 47 AD3d 493,494 [1st Dept. 2008] [citing Forrest, 3 NY3d at 313]). Plaintiffargues that he mentioned inthe Ethics & Compliance complaintthat he is "not
sure if [he is] being discriminated against for having a child that I need to take care ofduring the

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27 of 27 pandemic" (Opp. at23). Even ifthis single remarkrose to the level ofa protected activity, plaintiffcannotprove a causal connection between the investigation and his inclusion in the RIF. Defendants argue that the lowperformer rating occurred before he made the complaint, and the lowperformer designation is what caused himto be terminated in the RIF. He cannot otherwise prove that itwas the complaintthat caused him to be included in the RIF and not the LPM 

### (see Memo at 23-24). The fact that the RIF occurred after plaintiffhad already filed his Ethics & Compliance investigation alone "does not create an issue offact as to causality" 

### (Forrest, 3 NY3d at 313). Because plaintiffcannot pointto any other evidence to raise an issue offact as to causation, he did not sufficiently make out a claim for retaliation under the NYSHRL or eventhe
more lenient NYCHRL. Therefore, defendants are awarded summaryjudgmentonplaintiff's retaliation claims. Accordingly, 

### it is hereby ORDERED that defendants' motion is granted andplaintiff's complaint is dismissed as against all defendants. The clerk.shall enterjudgmentaccordingly.

01/29/2024 DATE CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED

### □ DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

150640/2021 POGIL, BORIS vs. KPMG, LLP Motion No. 005 SHL()MOS.HAGLER,J,s.c. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDl:R FIDUCIARY APPOINTMENT

### □ OTHER

### □ REFERENCE

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