Ullmann v. Norma Kamali, Inc.

• Decision Date: 15 September 1994
• Citation: 616 N.Y.S.2d 583,207 A.D.2d 691
• Parties: Bernt ULLMANN, Plaintiff-Respondent, v. NORMA KAMALI, INC., et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 583

616 N.Y.S.2d 583

207 A.D.2d 691

Bernt ULLMANN, Plaintiff-Respondent, v. NORMA KAMALI, INC., et al., Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

Sept. 15, 1994.

Before MURPHY, P.J., and ROSENBERGER, ROSS, RUBIN and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Carol Arber, J.), entered October 14, 1993, which, inter alia, denied the defendants' motion to dismiss the complaint, unanimously reversed, on the law, the motion is granted and the complaint is dismissed, with costs. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint, with costs.

The Supreme Court erred in denying the defendants' motion to dismiss the complaint alleging causes of action for breach of contract, fraud, defamation, failure to pay wages under Labor Law § 198, discrimination based on religion and prima facie tort. Although on a motion to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the facts pleaded are presumed to be true and are accorded every favorable inference, where, as here, the allegations consist of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, they are not entitled to such consideration (Mark Hampton, Inc. v. Bergreen, 173 A.D.2d 220, 570 N.Y.S.2d 799, lv. denied 80 N.Y.2d 788, 587 N.Y.S.2d 284, 599 N.E.2d 688 citing, inter alia, Roberts v. Pollack, 92 A.D.2d 440, 444, 461 N.Y.S.2d 272).

The plaintiff was discharged by defendant after only eight days of employment. The defendants introduced an employment application which, in bold print directly above the signature line, stated "I UNDERSTAND AND AGREE THAT IF HIRED, MY EMPLOYMENT IS FOR NO DEFINITE PERIOD AND I MAY BE TERMINATED AT ANY TIME WITHOUT CAUSE OR PRIOR NOTICE". The plaintiff's signature, which, for the first time in opposition to the motion to dismiss he claimed he did not recognize, appears on the application.

The plaintiff's unsubstantiated allegation of oral assurances of employment by the defendants fails to support the breach of contract cause of action. Any vague oral assurances of the nature alleged are insufficient to overcome the presumption that employment is terminable at will in the absence of an express limitation in an employment contract, or other document, personnel policy or procedural handbook (Sabetay v. Sterling Drug, 69 N.Y.2d 329, 514 N.Y.S.2d 209, 506 N.E.2d 919; Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86; Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441; Kosson v. Algaze, 203 A.D.2d 112, 610 N.Y.S.2d 227; Scordo v. Scaturro Supermarkets, 160 A.D.2d 932, 554 N.Y.S.2d 658; Diskin v. Consolidated Edison Co., 135 A.D.2d 775, 522 N.Y.S.2d 888, lv. denied 72 N.Y.2d 802, 530 N.Y.S.2d 554, 526 N.E.2d 45).

Since the causes of action for fraudulent misrepresentation, defamation, failure to pay wages under the Labor Law, and prima facie tort merely constitute an improper attempt by the plaintiff to circumvent the traditional at-will employee rule, they must be dismissed (see, Murphy v. American Home Prods. Corp., supra, at 297, 303-304, 461 N.Y.S.2d 232, 448 N.E.2d 86). "A failure to perform promises of future acts is merely a breach of contract to be enforced by an action on the contract. A cause of action...