Monsanto v. Electronic Data Systems Corp.

• Decision Date: 06 June 1988
• Citation: 529 N.Y.S.2d 512,141 A.D.2d 514
• Parties: Remile MONSANTO, Respondent-Appellant, v. ELECTRONIC DATA SYSTEMS CORPORATION, et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 512

529 N.Y.S.2d 512

141 A.D.2d 514

Remile MONSANTO, Respondent-Appellant, v. ELECTRONIC DATA SYSTEMS CORPORATION, et al., Appellants-Respondents.

Supreme Court, Appellate Division,

Second Department.

June 6, 1988.

Breed, Abbott & Morgan, New York City (Eric M. Nelson and Jean R. Weinberg, of counsel), for appellants-respondents.

Leed & Morelli, Carle Place (Steven Morelli, of counsel), for respondent-appellant.

Before THOMPSON, J.P., and WEINSTEIN, EIBER and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for slander, the defendants appeal from (1) so much of an order of the Supreme Court, Nassau County (Brucia, J.), dated April 8, 1987, as denied that branch of their motion which was to dismiss the fifth cause of action asserted in the complaint, and (2) so much of an order of the same court dated September 25, 1987, as, upon reargument, adhered to the original determination, and the plaintiff cross-appeals from so much of the order dated April 8, 1987, as granted that branch of the defendants' motion which was to dismiss the first, second, and sixth causes of action asserted in the complaint.

ORDERED that the defendants' appeal from so much of the order dated April 8, 1987, as denied their motion to dismiss the fifth cause of action is dismissed, as that part of the order was superseded by the order dated September 25, 1987, made upon reargument; and it is further,

ORDERED that the order dated April 8, 1987, is affirmed insofar as cross-appealed from, on the law; and it is further,

ORDERED that the order dated September 25, 1987 is reversed insofar as appealed from, the defendants' motion to dismiss the fifth cause of action is granted and the provision of the order dated April 8, 1987, denying that branch of the motion is vacated; and it is further,

ORDERED that the defendants are awarded one bill of costs.

The court erred in declining to dismiss the plaintiff's fifth cause of action sounding in conspiracy. A claim of conspiracy does not constitute a substantive tort and may be alleged only to connect a defendant to an otherwise actionable tort ( see, Alexander & Alexander v. Fritzen, 68 N.Y.2d 968, 969, 510 N.Y.S.2d 546, 503 N.E.2d 102; Noble v. Creative Tech. Servs., 126 A.D.2d 611, 613, 51 N.Y.S.2d 51). Insofar as the complaint alleges that the defendants conspired to terminate the employment of the plaintiff, the conspiracy claim is not actionable since New York does not recognize a common-law tort theory of liability based upon wrongful discharge of an "at will" employee ( see, Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86; Noble v. Creative Tech. Servs., supra ). Nor can the conspiracy claim be permitted to stand on the theory that it links the individual defendant to the employment discrimination claims asserted against the corporate defendant under the Human Rights Law (Executive Law § 297). A discrimination claim under the Human Rights Law is an action created by statute, which did not exist at common law, and therefore cannot give rise to tort liability ( see, Murphy v. American Home Prods. Corp., supra, at 297, 307, 461 N.Y.S.2d 232, 448 N.E.2d 86). The conspiracy claim must be dismissed for the additional reason that a corporate employee is not individually subject to discrimination suits under the Human Rights Law "if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others" ( Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 473 N.E.2d 11).

The second cause of action for breach of contract and wrongful termination was properly dismissed. Reference to the governing employment contract signed by the plaintiff reveals that the parties did not agree to a fixed term of employment, but rather that "the employment relationship and this agreement may be terminated by either party at any time". It is well settled that where the term of employment is not fixed by a contract, the employee is deemed to be "at will" and the employer may terminate the employment of the "at will" employee "at any time and for any reason or for no reason" (see, Buffolino v. Long Is. Sav. Bank, 126 A.D.2d 508, 509, 510 N.Y.S.2d 628; see also, O'Connor v. Eastman Kodak Co., 65 N.Y.2d 724, 492 N.Y.S.2d 9, 481 N.E.2d 549; Murphy v. American Home Prods. Corp., supra ).

We find untenable the plaintiff's contention that the express choice-of-law provision embodied in the employment contract should not be given effect since Texas decisional law is allegedly violative of an undefined public policy of this State. In fact, the rule of contract regarding an "at-will" employee under Texas law is indistinguishable from the New York rule ( see, Reynolds Mfg. Co. v. Mendoza, 644 S.W.2d 536, 538-539 [Tex.] ).

In his second cause of action the plaintiff attempts to circumvent an express contractual provision contained in the employment contract by alleging that the defendants breached a provision contained in the "EDS Manager's Guide" which, according to the...