| Daub v Future Tech Enter., Inc. |
| 2009 NY Slip Op 06397 [65 AD3d 1004] |
| September 8, 2009 |
| Appellate Division, Second Department |
| William Daub, Appellant, v Future Tech Enterprise, Inc.,et al., Respondents, et al., Defendants. |
—[*1]
Ruskin Moscou Faltischek, Uniondale, N.Y. (Douglas J. Good of counsel) forrespondents.
In an action, inter alia, to recover damages for breach of contract, wrongful termination ofemployment, fraud, and conversion, the plaintiff appeals from an order of the Supreme Court,Suffolk County (Kerins, J.), dated January 16, 2008, which granted the motion of the defendantsFuture Tech Enterprise, Inc., Future Tech Services, Inc., Insource America, Inc., Robert Venero,and Tracy Venero pursuant to CPLR 3211 (a) (7) to dismiss the second, third, and seventhcauses of action.
Ordered that the order is affirmed, with costs.
The plaintiff was employed by the defendant Future Tech Enterprise, Inc. (hereinafter FutureTech), as a sales representative until his employment was terminated in November 2006. Theplaintiff alleges, inter alia, that prior to commencing employment with Future Tech, he enteredinto an oral employment agreement with the defendant Robert Venero, owner and president ofFuture Tech, and Future Tech's vice-president, setting forth the terms of his employment. Theplaintiff also alleges that he was assured that he "would be working for [Future Tech] for a verylong time" and that, partially based on that representation, he left his prior employment.
The plaintiff commenced this action alleging, inter alia, a cause of action sounding inwrongful termination of employment (second cause of action), and in fraud (third cause ofaction), as well as a cause of action to recover damages for conversion (seventh cause of action).Future Tech, along with the defendants Future Tech Services, Inc., Insource America, Inc.,Robert Venero, and Tracy Venero (hereinafter collectively the defendants) moved to dismissthose causes of action and the Supreme Court granted their motion.
On a motion to dismiss pursuant to CPLR 3211 (a) (7), the complaint must be liberallyconstrued, giving the plaintiff the benefit of every favorable inference (see Leon vMartinez, 84 NY2d 83, 87-88 [1994]; Mitchell v TAM Equities, Inc., 27 AD3d 703, 704 [2006]). Inaddition to accepting the [*2]allegations contained in thecomplaint as true, the Supreme Court may consider any factual submissions made in oppositionto a motion to dismiss in order to remedy pleading defects (see 511 W. 232nd Owners Corp.v Jennifer Realty Co., 98 NY2d 144 [2002]; Sokoloff v Harriman Estates Dev.Corp., 96 NY2d 409 [2001]; AlsolEnters., Ltd. v Premier Lincoln-Mercury, Inc., 11 AD3d 493 [2004]). However, "[a]complaint containing factual claims that are flatly contradicted by documentary evidence shouldbe dismissed" (Well v Yeshiva Rambam, 300 AD2d 580, 581 [2002]).
Applying these principles here, the Supreme Court properly granted the motion to dismissthe second, third, and seventh causes of action.
The second cause of action alleging wrongful termination of employment was properlydismissed since New York does not recognize a cause of action in tort for abusive or wrongfuldischarge of an at-will employee (see Lobosco v New York Tel. Co./NYNEX, 96 NY2d312, 316 [2001]; Murphy v American Home Prods. Corp., 58 NY2d 293, 297 [1983]; Paisley v Coin Device Corp., 5 AD3d748, 750 [2004]). Absent an express agreement which establishes that employment is for afixed duration, an employment relationship is presumed to be at-will and can be freelyterminated by either party at any time, for any reason or for no reason (see Lobosco v NewYork Tel. Co./NYNEX, 96 NY2d at 316; Matter of De Petris v Union SettlementAssn., 86 NY2d 406, 410 [1995]; Sabetay v Sterling Drug, 69 NY2d 329, 333[1987]; Miller v Huntington Hosp.,15 AD3d 548 [2005]; Chazen v Person/Wolisky, Inc., 309 AD2d 889 [2003]). Theplaintiff failed to allege that the oral employment agreement established a fixed duration ofemployment.
The plaintiff failed to allege that, at the time that his employment commenced with FutureTech, he was made aware of any written policy limiting Future Tech's right to discharge anemployee (see Matter of De Petris v Union Settlement Assn., 86 NY2d at 410;Matter of Hanchard v Facilities Dev. Corp., 85 NY2d 638 [1995]; Murchison vCommunity Counseling & Mediation Servs., 228 AD2d 657, 658 [1996]). Furthermore, acopy of Future Tech's employee handbook submitted by the plaintiff in opposition to the motionclearly established that the plaintiff's employment with Future Tech was at will.
With respect to the third cause of action, a fraud cause of action does not lie where the onlyfraud alleged relates to an alleged breach of a contract (see Tiffany at Westbury Condominium v Marelli Dev. Corp., 40 AD3d1073, 1076-1077 [2007]; Ross vDeLorenzo, 28 AD3d 631, 636 [2006]). For a fraud cause of action, "[a] present intentto deceive must be alleged and a mere misrepresentation of an intention to perform under thecontract is insufficient to allege fraud" (WIT Holding Corp. v Klein, 282 AD2d 527, 528[2001]). The Supreme Court properly granted that branch of the defendants' motion which was todismiss the third cause of action sounding in fraud since the plaintiff failed to sufficiently pleadthat there was a misrepresentation of material fact which was collateral to the contract andserved as an inducement for the contract (see WIT Holding Corp. v Klein, 282 AD2d at528).
A cause of action alleging conversion should be dismissed when the plaintiff does not allege"legal ownership or an immediate right of possession to specifically identifiable funds and thatthe defendant exercised an unauthorized dominion over such funds to the exclusion of theplaintiff's rights" (Whitman RealtyGroup, Inc. v Galano, 41 AD3d 590, 592 [2007]). Moreover, the mere right to paymentcannot be the basis for a cause of action alleging conversion since the essence of a conversioncause of action is the "unauthorized dominion over the thing in question" (Fiorenti v CentralEmergency Physicians, 305 AD2d 453, 454-455 [2003], quoting Independence DiscountCorp. v Bressner, 47 AD2d 756, 757 [1975]; see Selinger Enters., Inc. v Cassuto, 50 AD3d 766 [2008]).
Since the seventh cause of action is based upon an alleged contractual right to paymentwhere the plaintiff never had ownership, possession, or control of the disputed funds, theSupreme Court properly granted that branch of the motion which was to dismiss the seventhcause of action to recover damages for conversion, as the plaintiff failed to state a cause of action(see Castaldi v 39 Winfield Assoc.,30 AD3d 458 [2006]). Rivera, J.P., Florio, Dickerson and Austin, JJ., concur.