Freiman v. Jm Motor Holdings Nr 125–139 Llc

• Decision Date: 29 March 2011
• Citation: 82 A.D.3d 1154,920 N.Y.S.2d 189,2011 N.Y. Slip Op. 02622
• Parties: Bruce FREIMAN, respondent,v.JM MOTOR HOLDINGS NR 125–139, LLC, et al., appellants.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1154

920 N.Y.S.2d 189

2011 N.Y. Slip Op. 02622

Bruce FREIMAN, respondent,

v.JM MOTOR HOLDINGS NR 125–139, LLC, et al., appellants.

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

March 29, 2011.

Grunwald & Seman, P.C., Garden City, N.Y. (Karl C. Seman and John K. Moss, P.C., of counsel), for appellants.Sapir & Frumkin LLP, White Plains, N.Y. (William D. Frumkin of counsel), for respondent.REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and PLUMMER E. LOTT, JJ.

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Westchester County (Liebowitz, J.), entered March 12, 2010, which denied, as premature, their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

On or about July 2, 2007, the plaintiff commenced employment as the general manager of the defendants' newly opened car dealership in New Rochelle. After the defendants terminated his employment on October 22, 2007, the plaintiff commenced this action to recover damages for breach of contract, fraudulent inducement, and fraudulent concealment. The plaintiff alleged that he was employed under a nine-month employment agreement and asserted, inter alia, that, to induce him to leave his former position at another dealership, the defendants misrepresented both his and the new dealership's financial prospects.

Prior to the completion of discovery, the defendants moved for summary judgment dismissing the complaint. The defendants argued that the plaintiff's express written acknowledgments established that he was employed “at-will” and that the fraud allegations were patently insufficient, as they derived from his cause of action alleging breach of contract and were based on stated opinions or projections, rather than assertions of fact. The Supreme Court denied the motion for summary judgment, finding that the issues were “impossible to resolve” in the midst of discovery. We reverse.

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the breach of contract cause of action based on the plaintiff's written acknowledgments that he was an at-will employee, which the plaintiff did not deny executing ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324–325, 508 N.Y.S.2d 923, 501 N.E.2d 572). In opposition, the plaintiff failed to raise a triable issue of fact ( see Monheit v. Petrocelli Elec. Co., Inc., 73 A.D.3d 714, 715, 900 N.Y.S.2d 412; Devany v. Brockway Dev., LLC, 72 A.D.3d 1008, 1009, 900 N.Y.S.2d 329; McGimpsey v. J. Robert Folchetti & Assoc., LLC, 19 A.D.3d 658, 659, 798 N.Y.S.2d 498).

The Supreme Court also should have granted those branches of the defendants' motion which were for summary judgment dismissing the causes of action alleging fraudulent inducement and fraudulent concealment. The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not make any material...