Silver v. Mohasco Corp.
| Decision Date | 05 May 1983 |
| Citation | 462 N.Y.S.2d 917,94 A.D.2d 820 |
| Parties | , 35 Fair Empl.Prac.Cas. (BNA) 197 Ralph H. SILVER, Appellant-Respondent, v. MOHASCO CORPORATION et al., Respondents-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Vladeck, Waldman, Elias & Engelhard, New York City (Sheldon Engelhard, New York City, of counsel), for appellant-respondent.
Bouck, Holloway, Kiernan & Casey, Albany (Francis J. Holloway, Albany, of counsel), for respondents-appellants.
Before MAHONEY, P.J., and MAIN, MIKOLL, YESAWICH and WEISS, JJ.
Cross appeals from an order of the Supreme Court at Special Term, entered April 26, 1982 in Saratoga County, which partially granted defendants' motion to dismiss the complaint by dismissing the first, second, third, fifth, seventh, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth causes of action and by dismissing the fourth cause of action except as it relates to defendant Mohasco Corporation.
Plaintiff Ralph Silver was employed, as a senior marketing economist, by defendant Mohasco Corporation (hereinafter Mohasco) from July 15, 1974 to August 29, 1975, and he initiated the instant lawsuit by service of a summons in November, 1977 as a consequence of his dismissal from that post. In his initial complaint, which contained 15 causes of action, he named as defendants Mohasco and several individual officials of Mohasco, and Mohasco and the individual defendants responded by filing separate motions to dismiss the complaint. Subsequently, in two separate decisions and orders, Special Term (Hughes, J.) dismissed a majority of the causes of action against all of the defendants while granting plaintiff leave to replead some of the dismissed causes of action, and upon plaintiff's appeal of the orders to this court, we affirmed Special Term's rulings without opinion (Silver v. Curren, 75 A.D.2d 1030, 427 N.Y.S.2d 897).
Plaintiff next filed an amended complaint containing 14 causes of action, and defendants filed a joint motion to dismiss this complaint. At Special Term (Harlem, J.), the court granted defendants' motion to the extent of dismissing the first, second, third, fifth, seventh, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth causes of action and also the fourth cause of action except insofar as it relates to defendant Mohasco. These cross appeals ensued with plaintiff appealing from Special Term's order in its entirety and defendants appealing from that part of the order which denied them a complete dismissal of the complaint as requested in their motion.
Considering plaintiff's first two causes of action, they relate to his alleged employment contract with Mohasco, and plaintiff asserts in the first action that Mohasco and certain of its officials made fraudulent representations to him regarding his position prior to his acceptance thereof and in the second action that he was promised a permanent post so that his termination constituted a breach of the contract. Since he makes no allegation that the parties to the alleged contract contemplated any definite term or specific period of time for his employment, however, his alleged contract was at most a contract terminable at will (Chase v. United Hospital, 60 A.D.2d 558, 400 N.Y.S.2d 343). That being so, such a contract would provide no basis for either of the first two causes of action, and they were properly dismissed (see Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983); Myers v. Coradian Corporation, App.Div., 459 N.Y.S.2d 929 (1983)).
For his third cause of action, plaintiff alleges fraudulent conduct on the part of Mohasco and its employees in representing to plaintiff that, subsequent to his termination, they would tell prospective employers that he had resigned and had not been dismissed and then failing to perform on their alleged promises. He has not buttressed his claim with any meaningful evidentiary support indicating that defendants had a present intention to deceive him when they made the alleged misrepresentations, however, and consequently, this claim is insufficient to plead a cause of action in fraud (see Bailey v. Diamond Int. Corp., 47 A.D.2d 363, 367 N.Y.S.2d 107).
Regarding the fifth, seventh, ninth and eleventh causes of action, plaintiff alleges that defendants conspired to commit libel and slander against him. Upon pleading a conspiracy, however, he had the burden of asserting an "adequately common action for a common purpose by common...
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