Vardi v. Mutual Life Ins. Co. of New York

• Decision Date: 05 January 1988
• Citation: Vardi v. Mutual Life Ins. Co. of New York, 523 N.Y.S.2d 95, 136 A.D.2d 453 (N.Y. App. Div. 1988)
• Parties: Etzion VARDI, et al., Plaintiffs-Appellants, v. The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 95

523 N.Y.S.2d 95

136 A.D.2d 453

Etzion VARDI, et al., Plaintiffs-Appellants, v.The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, et al Defendants-Respondents.

Supreme Court, Appellate Division First Department.

Jan. 5, 1988.

M.L. Levine, New York City, for plaintiffs-appellants.

D.A. Ross, New York City, for defendants-respondents.

Before KUPFERMAN, J.P., and ROSS, ASCH and SMITH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Burton Sherman, J.) entered September 4, 1986 which granted defendant's motion to dismiss(CPLR 3211(a)(7)) the third, fourth, seventh, eighth, eleventh, twelfth and sixteenth through twenty-third causes of action, unanimously modified on the law, to reinstate the third and eleventh causes of action, and otherwise affirmed, without costs.

Plaintiff, Etzion Vardi, brought this action for breach of contract, defamation, misrepresentation, tortious interference with a contract and intentional infliction of emotional distress against his former employer, The Mutual Life Insurance Company of New York (hereinafter "MONY"), certain of its subsidiaries, and several individual company officials.Plaintiff commenced his employment as a Field Underwriter with MONY pursuant to a December 1, 1974"Lifetime Plan Contract" which provided that MONY could terminate the contract for cause immediately, or, when termination was "without cause," upon thirty days' notice.Plaintiff executed a second "Lifetime Plan Contract," dated January 1, 1979, which contained a similar termination clause.By a letter agreement dated December 28, 1979, plaintiff became a supervisor of the Seskin Agency.In September 1985plaintiff received notification of his promotion to Agency Manager of MONY's Woodbury Agency.The letter agreement contained a termination clause similar to the one found in the "Lifetime Plan Contract."Other relevant contracts entered into by plaintiff were: (1) two October 1, 1985 General Agent's Contracts with MONY Life Insurance Company of America (hereinafter "MONY Life"), and MONY Legacy Life Insurance Company(hereinafter "MONY Legacy"), two MONY subsidiaries; (2) an October 1, 1985"Agency Coordinator" contract with MONY Securities Corp., another subsidiary; and (3) a contract with MONY Credit Corp., another subsidiary.The letter agreement for the Agency Coordinator position with MONY Securities Corp. provided for termination at any time upon notice.

Plaintiff was terminated soon after MONY discovered a refund check for a cancelled policy made out to one Peter Harris, who had endorsed it over to plaintiff, who had in turn endorsed it and deposited it in his account.Plaintiff's bank refused to accept this check and a replacement check was issued directly to plaintiff and endorsed into his own account.Upon questioning, Harris allegedly did not recall applying for such a large policy, paying half a year's premium or authorizing anyone else to pay the premium on his behalf.He further allegedly claimed that his signatures on the application and the endorsement on the first check were forgeries.Plaintiff explained that he had suggested the trial policy to Harris as part of an investment strategy and had himself advanced the initial premium.He denied any forgeries and any attempt to defraud MONY.Nevertheless, MONY discharged him for cause, effective immediately, on November 15, 1985.

Prior to answering the complaint defendants moved, pursuant to CPLR 3211(a)(7), to dismiss: (1) the third, seventh, eleventh, sixteenth and seventeenth causes of action for breach of contract; (2) the fourth, eighth, and twelfth causes of action for misrepresentation, (3) the eighteenth, twentieth, twenty-second and twenty-third causes of action for defamation; and (4) the ninteenth and twenty-first causes of action for tortious interference with a contract and intentional infliction of emotional distress, respectively.

The motion court granted the motion to the extent of dismissing the third, fourth, seventh, eighth, eleventh, twelfth and sixteenth through twenty-third causes of action.The trial court determined that the third, seventh, eleventh, sixteenth and seventeenth causes of action were essentially for wrongful discharge and were legally insufficient, as a New York employer is free to terminate an at-will employee, like plaintiff, at any time, for any reason as long as such action does not violate any constitutional or statutory provision, or any express limitation in the employment contract.The court rejected as "disingenuous"plaintiff's contention that since no grounds existed for his termination for cause, he should have been given thirty days' notice.The fourth,...