Schenkman v. New York College of Health Professionals
| Decision Date | 09 May 2006 |
| Docket Number | 2005-01637.,2005-05795. |
| Citation | 2006 NY Slip Op 03758,815 N.Y.S.2d 159,29 A.D.3d 671 |
| Parties | FAYE SCHENKMAN et al., Appellants, v. NEW YORK COLLEGE OF HEALTH PROFESSIONALS et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order dated January 3, 2005 is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the order dated May 12, 2005 is reversed insofar as appealed from, on the law and as an exercise of discretion, without costs or disbursements, and that branch of the plaintiffs' motion which was for leave to replead the third cause of action is granted; and it is further Ordered that the plaintiffs' time to serve and file an amended complaint is extended until 20 days after service upon them of a copy of this decision and order.
As alleged in the complaint, the plaintiffs are former employees of the defendant New York College of Health Professionals (hereinafter the College). At all relevant times, the individual defendants, Donald Spector and King Cheek, acted, respectively, as Chairman of the Board and President of the College. The plaintiffs' employment was terminated in November 2002. In their first cause of action, asserting a claim for breach of contract, the plaintiffs allege that the defendants promised them a severance package in exchange for their agreement to continue working until the end of the fall 2002 semester. The plaintiffs each performed their part of the bargain, but the defendants allegedly failed to pay them in accordance with the promised severance package. The second cause of action is based on the same operative facts, but asserts claims based on breach of fiduciary duty and constructive fraud. The third cause of action is predicated on certain defamatory statements allegedly made by the individual defendants or their agents, and the fourth cause of action alleges the creation of a hostile work environment in violation of Executive Law § 296.
In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must accept as true the facts alleged in the complaint and afford the plaintiffs the benefit of every possible favorable inference in determining whether the complaint states any legally cognizable cause of action (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]).
The Supreme Court correctly determined that the second cause of action failed to state a claim for breach of fiduciary duty or constructive fraud. Contrary to the plaintiffs' contention, they failed to plead any facts demonstrating how the arm's length, employer-employee relationship between the defendants and the plaintiffs gave rise to any fiduciary duty (cf. Cuomo v Mahopac Natl. Bank, 5 AD3d 621, 622 [2004]; Wiener v Lazard Freres & Co., 241 AD2d 114, 121-122 [1998]; Michnick v Parkell Prods., 215 AD2d 462 [1995]). Moreover, the plaintiffs did not plead any viable fraud-based claim, since the only fraud charged related to a breach of contract (see Marshel v Farley, 21 AD3d 935 [2005], lv denied...
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