| Nelson v Capital Cardiology Assoc., P.C. |
| 2012 NY Slip Op 05776 [97 AD3d 1072] |
| July 26, 2012 |
| Appellate Division, Third Department |
| Mark J. Nelson, Appellant, v Capital Cardiology Associates, P.C.,et al., Respondents. |
—[*1] Nixon Peabody, LLP, Albany (Daniel J. Hurteau of counsel), for respondents.
Egan Jr., J. Appeal from that part of an order of the Supreme Court (McDonough, J.), enteredApril 20, 2011 in Albany County, which partially granted defendants' motion to dismiss theamended complaint.
Plaintiff is a licensed physician and a former employee and shareholder of defendant CapitalCardiology Associates, P.C. (hereinafter CCA); at all times relevant, the individual defendantsalso were shareholders in CCA, as well as members of its executive committee. While affiliatedwith CCA, plaintiff and his wife became representatives of "Take Shape for Life" (hereinafterTSFL)—a health and wellness business designed to help people lose weight through theassistance of "health coaches." According to plaintiff, he received assurances from certain of theindividual defendants that his participation in TSFL would not be in conflict with his obligationsto CCA. In addition to developing his own TSFL business, plaintiff subsequently agreed to assistCCA in setting up such a program through its wellness center.
Approximately one year after plaintiff began his involvement with TSFL, questions aroseregarding the income that he and his wife were receiving from this business venture (rumored tobe roughly $600,000)—income allegedly generated at a point in time when CCA's ownTSFL business purportedly was operating at a loss. Apparently believing that plaintiff may havediverted either patients or funds from CCA to his own business in order to achieve such [*2]earnings, CCA's executive committee demanded that plaintiffdisclose certain personal financial information. Dissatisfied with plaintiff's response in thisregard, the executive committee subsequently adopted a resolution in January 2009 requiringplaintiff to, among other things, either turn over all revenues generated by his TSFL business toCCA, terminate his business interest in TSFL or resign from CCA. Plaintiff elected to resigneffective April 1, 2009.
Plaintiff thereafter commenced this action against CCA and certain of its shareholdersalleging, insofar as is relevant here, that defendants tortiously interfered with his prospectivecontractual relations with CCA and breached section 3 (a) of the underlying shareholderagreement by refusing to repurchase his shares in CCA upon his resignation and tender certain"additional payments" due under the terms of that agreement. Defendants moved to dismiss theamended complaint for, among other things, failure to state a cause of action. Supreme Courtpartially granted defendants' motion, dismissing a portion of plaintiff's first cause of action anddismissing plaintiff's second, fourth and fifth causes of action in their entirety. This appeal byplaintiff ensued.[FN1]
We affirm. On a motion to dismiss for failure to state a cause of action, we must "afford thepleadings a liberal construction, accept the facts alleged therein as true, accord the plaintiff thebenefit of every possible inference and determine whether the facts alleged fit within anycognizable legal theory" (Matter ofUpstate Land & Props., LLC v Town of Bethel, 74 AD3d 1450, 1452 [2010]). Insofar asis relevant here, plaintiff's breach of contract claim alleges that defendants violated the terms ofthe shareholder agreement by refusing to tender certain additional payments (in the form ofbonuses and a share of CCA's accounts receivable) purportedly due thereunder. The flaw inplaintiff's analysis on this point is that the shareholder agreement expressly provides that"compensation and other terms, conditions and provisions of employment" shall be governed bya separate contract, i.e., an employment agreement to be entered into between the individualshareholders and CCA.[FN2]As the shareholder agreement does [*3]not—by its ownterms—govern the "additional payments" sought by plaintiff, defendants cannot be said tohave breached that agreement by failing to tender the sums allegedly due. Accordingly, SupremeCourt properly dismissed this portion of plaintiff's breach of contract claim.
As for plaintiff's cause of action against the individual defendants for tortious interferencewith his prospective business relations with CCA, it is true—as defendants point out andSupreme Court found—that "New York does not recognize a cause of action for the. . . abusive or wrongful discharge of an at-will employee, and this rule cannot becircumvented by casting the cause of action in terms of tortious interference with employment"(McHenry v Lawrence, 66 AD3d650, 651 [2009], lv denied 15 NY3d 703 [2010]). However, an at-will employeenonetheless may assert such a cause of action "where he or she can demonstrate that thedefendant utilized wrongful means to effect his or her termination" (id.; see LockheedMartin Corp. v Aatlas Commerce, Inc., 283 AD2d 801, 803 [2001]; Murray v SYSCOCorp., 273 AD2d 760, 761 [2000]). Such "wrongful means," in turn, "must amount to acrime or an independent tort" (Ullmannglass v Oneida, Ltd., 86 AD3d 827, 830 [2011] [internalquotation marks and citation omitted]), e.g., "physical violence, fraud or misrepresentation, civilsuits and criminal prosecutions, and some degrees of economic pressure" (Guard-Life Corp. vParker Hardware Mfg. Corp., 50 NY2d 183, 191 [1980]; accord Carvel Corp. v Noonan, 3 NY3d 182, 191 [2004]).Persuasion alone will not suffice (see NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d614, 624 [1996]; Jabbour v Albany Med. Ctr., 237 AD2d 787, 790 [1997]).
Although plaintiff alleges that the individual defendants employed various means designedto, among other things, discredit him and dupe him into believing that CCA's TSFL business wasoperating at a loss, plaintiff's assertions in this regard—even if liberallyconstrued—fall far short of actionable fraud with respect to those defendants. Additionally,although plaintiff indeed has asserted that the individual defendants were, in essence, out to gethim, these "conclusory allegations of malicious motives on defendants' part [are] insufficient toavoid dismissal of this cause of action" (Ullmannglass v Oneida, Ltd., 86 AD3d at 830).Accordingly, Supreme Court's order is in all respects affirmed.
Mercure, J.P., Rose, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: Plaintiff, as so limited by hisbrief, appeals only the dismissal of his cause of action for tortious interference with prospectivebusiness relations and the partial dismissal of his breach of contract claim.
Footnote 2: Although the cited employmentagreement does not appear in the record on appeal, the language of the shareholder agreementcertainly suggests that there indeed is a separate written contract governing plaintiff'scompensation. If this is true, such agreement would bar plaintiff's implied contract claim (see generally Peter Lampack Agency, Inc. vGrimes, 93 AD3d 430, 431 [2012] [no cause of action for an implied contract lies wherethere is a written contract covering the same subject matter]). Assuming—for purposes ofthis motion—that no such written agreement exists (or that it exists but does not speak tothe additional payments sought by plaintiff), we still are not persuaded that plaintiff has stated aclaim for breach of an implied contract in this regard. The mere fact that plaintiff was paid anannual bonus in the past does not—standing alone—demonstrate his entitlement tosuch moneys upon his departure from CCA. Nor is the February 2009 email sent to plaintiff byCCA's then chief financial officer sufficient to state a cause of action in this regard. Notably, theemail expressly provides that "nothing contained herein should be construed as a guarantee ofany amount whatsoever," and it is clear that "[t]here can be no valid claim of implied contract. . . where the purported contract indicates a lack of intent to be bound" (Azimut-Benetti S.p.A. v Magnum Mar.Corp., 55 AD3d 483, 484 [2008]).