Radnay v. Schor

• Decision Date: 22 January 1964
• Citation: 41 Misc.2d 789,246 N.Y.S.2d 492
• Parties: Sylvia RADNAY, Plaintiff, v. Morris SCHOR, Defendant.
• Court: New York Supreme Court

Page 492

246 N.Y.S.2d 492

41 Misc.2d 789

Sylvia RADNAY, Plaintiff, v. Morris SCHOR, Defendant.

Supreme Court, Special Term, Queens County, Part I.

Jan. 22, 1964.

Meyer Schiff, New York City, for plaintiff.

Max Steinberg, New York City, for defendant.

HAROLD TESSLER, Justice.

Defendant moves to dismiss each of the three causes of action contained in the second amended complaint pursuant to paragraphs 5 and 7 of subdivision (a) of Rule 3211 of the Civil Practice Law and Rules.

The first cause of action is based upon alleged fraud in inducing plaintiff to accept a lesser amount of remuneration, the second upon a breach of an employment contract and the third upon the theory of quantum meruit. For the purposes of this motion the court, as it must, assumes the truth of the allegations contained in the complaint as hereinafter set forth.

While defendant is a person duly licensed to practice dentistry, plaintiff is not. The latter had been employed by defendant as an 'anaesthesioligist and dental assistant' from June 1954 to February 1957, when she voluntarily left said employment due to physical reasons. Defendant suffered a heart attack during the summer of 1957 and was unable to practice his profession or manage his office. Plaintiff and defendant thereafter entered into an oral agreement (plaintiff's memorandum, p. 12) under which the plaintiff was employed as an 'anaesthesioligist, office manager and director' of defendant's office. She was to receive $100 per week plus $100 per month 'together with a monthly bonus of 50% of the net proceeds of such dental office after deduction for overhead'. Each month from 'September or October, 1957' to January 29, 1962, defendant fraudulently represented the overhead to be the sum of $4,750 with the intent to deceive plaintiff and defraud her of her 'rightful share of 50% of the monthly net proceeds after deduction for overhead.' (Emphasis supplied.) Plaintiff relied thereon and was damaged during the aforesaid period in the sum of $50,000 (first cause of action).

The aforesaid oral agreement also forms the basis of plaintiff's second cause of action. Plaintiff contends that the defendant breached said employment contract 'in that he failed, neglected and refused to pay the plaintiff the entire monthly bonus of 50% of the net proceeds of such dental office after deduction of the real and true monthly overhead of such dental office.' As a result thereof she was damaged in the sum of $50,000--the identical sum plaintiff seeks in her first cause of action.

In the court's opinion the aforesaid oral agreement, upon which the first and second causes of action are based, is violative of section 61.5(b)(1) of Title 8 of the Official Compilation of Codes, Rules and Regulations of the State of New York promulgated by the Commissioner of Education pursuant to section 207 of the Education Law. The former section, in pertinent part, reads as follows:

'Dental advertising and unprofessional conduct. * * *

* * *

* * *

'(b) In the administration of the law, the following conduct is deemed unprofessional conduct:

'(1) Directly or indirectly in any manner or by any means splitting any fee or any charge with any person or persons, or participating therein.'

'In a case of this kind the law will not look at the equities. The parties have deliberately placed themselves in a position where one or the other will inevitably be hurt; their position is one of their own making, and the law will not help them out of their difficulty, but will leave them where they have placed themselves.' (Sturm v. Truby, 245 App.Div. 357, 362, 282 N.Y .S. 433, 439.) "The objection, that a contract is immoral or...