| McHenry v Lawrence |
| 2009 NY Slip Op 07234 [66 AD3d 650] |
| October 6, 2009 |
| Appellate Division, Second Department |
| Loretta McHenry, Appellant, v Bruce A. Lawrence et al.,Respondents. |
—[*1] Jackson Lewis LLP, Melville, NY. (Roger H. Briton and David R. Ehrlich of counsel), forrespondents.
In an action, in effect, to recover damages for tortious interference with employment, theplaintiff appeals from so much of an order of the Supreme Court, Kings County (Rothenberg, J.),dated April 9, 2008, as granted that branch of the defendants' motion which was pursuant toCPLR 3211 (a) (7) to dismiss the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action, in effect, to recover damages for tortious interferencewith employment against the defendants Tyiesha S. Gainey, Mary Frances G. Marino, ChristineL. Fontaine, and Joy F. Campanelli, her former coworkers, along with Bruce A. Lawrence, herformer supervisor, and Ann V. Lecky, a human resources administrator for her former employer.The defendants moved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss the complaint, andthe Supreme Court granted that branch of the motion.
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 Murphy vAmerican Home Prods. Corp., 58 NY2d 293 [1983]). New York does not recognize a causeof action for the tort of abusive or wrongful discharge of an at-will employee, and this rulecannot be circumvented by casting the cause of action in terms of tortious interference withemployment (see Smalley v DreyfusCorp., 10 NY3d 55 [2008]; Horn v New York Times, 100 NY2d 85 [2003];Ingle v Glamore Motor Sales, 73 NY2d 183 [1989]; Barcellos v Robbins, 50 AD3d 934, 935 [2008]).
Nevertheless, an at-will employee may assert a cause of action alleging tortious interferencewith employment where he or she can demonstrate that the defendant utilized wrongful means toeffect his or her termination (see e.g. Murray v SYSCO Corp., 273 AD2d 760 [2000]). Insuch cases, the plaintiff is required to show: " (1) the existence of a business relationshipbetween the plaintiff and a third party; (2) the defendants' interference with that businessrelationship; (3) that the defendants acted with the sole purpose of harming plaintiff or useddishonest, unfair, improper or illegal means that amounted to a crime [*2]or an independent tort; and (4) that such acts resulted in the injuryto the plaintiff's relationship with the third party" (Schorr v Guardian Life Ins. Co. of Am., 44 AD3d 319, 323[2007]).
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a causeof action, the court must accept as true the facts alleged in the complaint and submissions inopposition to the motion, and accord the plaintiff the benefit of every possible favorableinference (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144,151-152 [2002]; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001];Leon v Martinez, 84 NY2d 83, 87 [1994]). Contrary to the plaintiff's contention, thecomplaint consisted only of bare legal conclusions and conclusory allegations that the defendantsacted with malice, which, without more, were insufficient to place their actions outside of thescope of their own employment (seeMarino v Vunk, 39 AD3d 339, 340-341 [2007]; Negron v JP Morgan Chase/Chase Manhattan Bank, 14 AD3d 673[2005]). Further, the defendant former coworkers were acting within the scope of theiremployment when they brought their concerns about the plaintiff's behavior and ability toperform her job to the attention of the managing attorney and the human resources administrator.Accordingly, the Supreme Court properly granted that branch of the defendants' motion whichwas pursuant to CPLR 3211 (a) (7) to dismiss the complaint. Skelos, J.P., Covello, Leventhaland Roman, JJ., concur.