Daub v. Future Tech Enterprise, Inc.

• Decision Date: 08 September 2009
• Docket Number: 2008-07886.
• Citation: 65 A.D.3d 1004,2009 NY Slip Op 06397,885 N.Y.S.2d 115
• Parties: WILLIAM DAUB, Appellant, v. FUTURE TECH ENTERPRISE, INC., et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

65 A.D.3d 1004

885 N.Y.S.2d 115

2009 NY Slip Op 06397

WILLIAM DAUB, Appellant, v. FUTURE TECH ENTERPRISE, INC., et al., Respondents, et al., Defendants.

2008-07886.

Appellate Division of the Supreme Court of New York, Second Department.

Decided September 8, 2009.

In an action, inter alia, to recover damages for breach of contract, wrongful termination of employment, fraud, and conversion, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Kerins, J.), dated January 16, 2008, which granted the motion of the defendants Future Tech Enterprise, Inc., Future Tech Services, Inc., Insource America, Inc., Robert Venero, and Tracy Venero pursuant to CPLR 3211 (a) (7) to dismiss the second, third, and seventh causes of action.

Ordered that the order is affirmed, with costs.

The plaintiff was employed by the defendant Future Tech Enterprise, Inc. (hereinafter Future Tech), as a sales representative until his employment was terminated in November 2006. The plaintiff alleges, inter alia, that prior to commencing employment with Future Tech, he entered into an oral employment agreement with the defendant Robert Venero, owner and president of Future Tech, and Future Tech's vice-president, setting forth the terms of his employment. The plaintiff also alleges that he was assured that he "would be working for [Future Tech] for a very long time" and that, partially based on that representation, he left his prior employment.

The plaintiff commenced this action alleging, inter alia, a cause of action sounding in wrongful termination of employment (second cause of action), and in fraud (third cause of action), as well as a cause of action to recover damages for conversion (seventh cause of action). Future Tech, along with the defendants Future Tech Services, Inc., Insource America, Inc. Robert Venero, and Tracy Venero (hereinafter collectively the defendants) moved to dismiss those causes of action and the Supreme Court granted their motion.

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the complaint must be liberally construed, giving the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Mitchell v TAM Equities, Inc., 27 AD3d 703, 704 [2006]). In addition to accepting the allegations contained in the complaint as true, the Supreme Court may consider any factual submissions made in opposition to a motion to dismiss in order to remedy pleading defects (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144 [2002]; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409 [2001]; Alsol Enters., Ltd. v Premier Lincoln-Mercury, Inc., 11 AD3d 493 [2004]). However, "[a] complaint containing factual claims that are flatly contradicted by documentary evidence should be dismissed" (Well v Yeshiva Rambam, 300 AD2d 580, 581 [2002]).

Applying these principles here, the Supreme Court properly granted the motion to dismiss the second, third, and seventh causes of action.

The second cause of action alleging wrongful termination of employment was properly dismissed since New York does not recognize a cause of action in tort for abusive or wrongful discharge of an at-will employee (see Lobosco v New York Tel. Co./NYNEX, 96 NY2d 312, 316 [2001]; Murphy v American Home Prods. Corp., 58 NY2d 293, 297 [1983]; Paisley v Coin Device Corp., 5 AD3d 748, 750 [2004]). Absent an express agreement which establishes that employment is for a fixed duration, an employment relationship is presumed to be at-will and can be freely terminated by either party at any time, for any reason or for no reason (see Lobosco v New York Tel. Co./NYNEX, 96 NY2d at 316; Matter of De Petris v Union Settlement Assn., 86 NY2d 406, 410 [1995]; Sabetay v Sterling Drug, 69 NY2d 329, 333 [1987]; Miller v Huntington Hosp., 15 AD3d 548 [2005]; Chazen v Person/Wolisky, Inc., 309 AD2d 889 [2003]). The plaintiff failed to allege that the oral employment agreement established a fixed duration of employment.

The plaintiff failed to allege that, at the time that his employment commenced with Future Tech, he was made aware of any written policy limiting Future Tech's right to discharge an employee (see Matter of De Petris v Union Settlement Assn., 86 NY2d at 410; Matter of Hanchard v Facilities Dev. Corp., 85 NY2d 638 [1995]; Murchison v Community Counseling & Mediation Servs., 228 AD2d 657, 658 [1996]). Furthermore, a copy of Future Tech's employee handbook submitted by the plaintiff in opposition to the motion clearly established that the plaintiff's employment with Future Tech was at will.

With respect to the third cause of action, a fraud cause of action does not lie where...