| Barcellos v Robbins |
| 2008 NY Slip Op 03572 [50 AD3d 934] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Lorraine Barcellos, Respondent, v John Robbins et al.,Appellants. |
—[*1] Joel Field, White Plains, N.Y., for respondent.
In an action to recover damages for tortious interference with employment, the defendantsappeal from so much an order of the Supreme Court, Richmond County (McMahon, J.), datedMay 4, 2007, as denied their motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint forfailure to state a cause of action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendants' motion to dismiss the complaint is granted.
An employee who does not work under an agreement for a definite term of employment is anat-will employee who may be discharged at any time with or without cause (see Robertazzi vCunningham, 294 AD2d 418 [2002]; Thawley v Turtell, 289 AD2d 169 [2001];Michnick v Parkell Prods., 215 AD2d 462 [1995]). New York does not recognize a causeof action for the tort of abusive or wrongful discharge of an at-will employee (see Lobosco vNew York Tel. Co./NYNEX, 96 NY2d 312 [2001]; Murphy v American Home Prods.Corp., 58 NY2d 293 [1983]; Priore v New York Yankees, 307 AD2d 67 [2003];Howley v Newsday, Inc., 215 AD2d 729 [1995]). Moreover, this rule cannot becircumvented by casting the cause of action in terms of tortious interference with employment(see Smalley v Dreyfus Corp., 10NY3d 55 [2008]; Horn v New York Times, 100 NY2d 85 [2003]; Ingle vGlamore Motor Sales, 73 NY2d 183 [1989]).
Here, the plaintiff alleged no injury separate and distinct from the termination of her at-willemployment. Inasmuch as the length of employment is not a material term of at-willemployment, [*2]a party cannot be injured merely by thetermination of her employment. Absent injury independent of termination, the plaintiff cannotrecover damages for what is, in essence, an alleged wrongful discharge claim in the guise of atort claim against her fellow employees and supervisor (see Smalley v Dreyfus Corp., 10 NY3d 55 [2008]; Ingle vGlamore Motor Sales, 73 NY2d 183 [1989]; Marino v Vunk, 39 AD3d 339, 340 [2007]). The plaintiff'sconclusory allegations that the defendants made "false and malicious" statements in their"libelous" campaign against her, without more, were insufficient to place their actions outside ofthe scope of their employment (seeMarino v Vunk, 39 AD3d 339, 340 [2007]; Lobel v Maimonides Med. Ctr., 39 AD3d 275, 276 [2007]; Negron v JP Morgan Chase/ChaseManhattan Bank, 14 AD3d 673, 674 [2005]; Kosson v "Algaze," 203 AD2d112, 113 [1994], affd 84 NY2d 1019 [1995]).
Accordingly, the Supreme Court should have granted the defendants' motion pursuant toCPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action. Skelos, J.P.,Angiolillo, Leventhal and Belen, JJ., concur. [See 15 Misc 3d 1130(A), 2007 NY Slip Op50921(U).]