Wegman v. Dairylea Co-op., Inc.

• Citation: 376 N.Y.S.2d 728,50 A.D.2d 108
• Parties: Gerald J. WEGMAN, Appellant, v. DAIRYLEA COOPERATIVE, INC., et al., Respondents.
• Decision Date: 12 December 1975
• Court: New York Supreme Court Appellate Division

Page 728

376 N.Y.S.2d 728

50 A.D.2d 108

Gerald J. WEGMAN, Appellant, v. DAIRYLEA COOPERATIVE, INC., et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

Dec. 12, 1975.

Carroll & Carroll, Syracuse, for appellant (John B. Carroll, Syracuse, of counsel).

Bond, Schoeneck & King, Syracuse, for respondents Dairylea Coop., Cox, Vandenbord, Donnan, Redmond, Dennis and Schusterbauer (John M. Freyer, Syracuse, of counsel).

Nottingham, Paltz, Coughlin, Cerio, Conhan & Engel, Syracuse, for respondent Woods (Richard L. Engel, Syracuse, of counsel).

William B. Rosbrook, Syracuse, for respondent Thompson.

Ali & Gerber, Syracuse, for respondent Carter.

Melvin & Melvin, Syracuse, for respondent Weinblatt.

James F. Lawler, Syracuse, for respondent Race.

Before MOULE, J.P., and CARDAMONE, SIMONS, MAHONEY and DEL VECCHIO, JJ.

MOULE, Justice Presiding.

The questions presented on this appeal concern the legal sufficiency of plaintiff's amended complaint, specifically with respect to six of his seven causes of action as well as the validity of an order directing plaintiff to strike certain allegations in his first cause of action as scandalous and prejudicial.

Since this appeal is from a motion to test the legal sufficiency of the complaint, all of the allegations contained in that complaint are deemed to be true. The question is not whether a cause of action can be proved but whether one has been stated and, in determining that question, the complaint should be interpreted in a fair and reasonable manner (Williams v. Williams, 23 N.Y.2d 592, 298 N.Y.S.2d 473, 246 N.E.2d 333; Dulberg v. Mock, 1 N.Y.2d 54, 150 N.Y.S.2d 180, 133 N.E.2d 695).

Plaintiff alleges in his complaint against Dairylea Cooperative, Inc. (Dairylea) and eleven of its present and former directors and employees that he was employed by Dairylea from April, 1971 until March 21, 1973 and that throughout that time Dairylea was engaged in the illegal standardization of milk products. He further alleges that he was pressured by various officers and directors to assist in this process. Due to his repeated refusal to authorize and participate in the illegal standardization, plaintiff claims that on March 21, 1973 his employment was prematurely terminated.

This action was commenced on April 29, 1974 by service of a summons and complaint. Three causes of action were set forth. Defendants moved for dismissal on the ground that the complaint failed to state a cause of action. On June 12, 1974, pursuant to an order of the Onondaga County Supreme Court, plaintiff served an amended complaint. This complaint set forth seven causes of action. The first four causes of action contained in plaintiff's amended complaint were directed against Dairylea and claimed breach of contract, retaliatory discharge, fraudulent hiring and exemplary damages. The remaining three were directed against the individual defendants and were for wrongful conspiratorial interference with plaintiff's employment, prima facie tort and exemplary damages.

Dairylea and all the individual defendants then moved to strike certain scandalous and prejudicial matters and also moved for dismissal of plaintiff's second through seventh causes of action under CPLR 3211(a)(7). Certain individual defendants, who were nonresidents, also contested the validity of the court's long arm jurisdiction. On February 4, 1975 an order was entered pursuant to a decision of Supreme Court, Onondaga County, striking various portions of the amended complaint as scandalous and prejudicial and dismissing plaintiff's second, third and fourth causes of action against Dairylea as well as plaintiff's fifth, sixth and seventh causes of action against the individual defendants. Since the order dismissed all of the causes of action against the nonresident defendants, no decision was made as to the validity of the long arm jurisdiction.

CPLR 3024(b) provides that '(a) party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading.' Although the statute uses the word 'unnecessarily,' it is generally held that the test under this section is whether the allegation is relevant, in an evidentiary sense, to the controversy and, therefore, admissible at trial (see McKinney's CPLR Practice Commentary, C3024:4, p. 407). The allegations in question here relating to Dairylea's apparent violation of numerous statutes and regulations prohibiting the adulteration of milk are contained in plaintiff's breach of contract cause of action against Dairylea. In order to sustain this cause of action at the pleading stage and to present a prima facie case at trial, plaintiff need not allege or prove the reason for his discharge. Plaintiff's burden extends only to proving the existence of an employment contract for a specified term, discharge before expiration of that term and resulting damages (Felsen v. Sol Cafe Mfg. Corp. et al., 24 N.Y.2d 682, 301 N.Y.S.2d 610, 249 N.E.2d 459 (1969)). It is then incumbent upon defendant to prove justification for the discharge. Although it is conceivable that the issue of milk adulteration will come forth in the ensuing trial, to insert that issue in the pleading stage is not necessary for the sufficiency of plaintiff's cause of action and it may instill undue prejudice in the jury.

As Special Term correctly pointed out, a decision to strike these allegations does not preclude plaintiff from raising that issue at the trial stage if it becomes relevant as a defense to a claim of justifiable discharge (Schachter v. Massachusetts Protective Association, Inc., 30 A.D.2d 540, 291 N.Y.S.2d 128). Thus, there is no prejudice to plaintiff as a result of the order, whereas if these allegations were not stricken prejudice may result to defendant. Since a motion to strike under CPLR 3024(b) is properly addressed to the discretion of the court, it can not be said that, under the facts of this case, the court abused that discretion (Mark v. Prentice, 19 Misc.2d 907, 193 N.Y.S.2d 891; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., 3024.13).

The second cause of action asserted by plaintiff in his complaint was for retaliatory discharge against the corporate defendant. Since this tort action is not presently recognized in New York, its applicability here raises an issue of first impression for this court.

Case law in New York has consistently held that an employee who was wrongfully discharged has but two remedies against his employer: '(1) he may treat the contract of hiring as continuing, though broken by the master, and may recover damages for the breach' or '(2) he may rescind the contract, in which case he may sue on a quantum meruit for services actually rendered' (36 N.Y.Jur., Master and Servant, § 54). A breach of contract does not give rise to a tort action (Stella Flour and Feed Corp. v. National City Bank of N.Y., 285 App.Div. 182, 136 N.Y.S.2d 139, affd. 308 N.Y. 1023, 127 N.E.2d 864), in the absence of special additional allegations of wrongdoing (North Shore Bottling v. Schmidt & Sons, 22 N.Y.2d 171, 179--180, 292 N.Y.S.2d 86, 91--93, 239 N.E.2d 189, 193--194; Albemarle Theatre v. Bayberry Realty Corp., 27 A.D.2d 172, 277 N.Y.S.2d 505). In order for plaintiff to justify this cause of action under existing case law, there must be a breach of duty separate and distinct from the breach of contract (Potter v. New York, Ontario and Western Ry. Co., 233 App.Div. 578, 253 N.Y.S. 394, affd. 261 N.Y. 489, 185 N.E. 708). Plaintiff in this case, however, does not allege such a breach of duty.

Plaintiff's attempt to state a tort cause of action is without merit. The only case cited in support of its applicability concerns the termination of an employee at will (Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425). Tort protection was necessary in that situation since the employee was subject to discharge without cause. The same does not hold true for the plaintiff here. By incorporating the first nine paragraphs of his previous cause of action, he reasserts in his tort claim the existence of a contract of employment and a breach thereof. Thus plaintiff was not subject to discharge in the absence of just cause. Since plaintiff's rights are fully protected by his action on the contract and since the tort of retaliatory discharge, as set forth in Frampton, is inapplicable to the fact situation here, the court was justified in dismissing this cause of action.

Plaintiff's third cause of action against the corporate defendant alleged fraud or deceit in inducement of the employment contract. In dismissing it the trial court reasoned that '(t)he alleged false...