| Peterec-Tolino v Harap |
| 2009 NY Slip Op 09637 [68 AD3d 1083] |
| December 22, 2009 |
| Appellate Division, Second Department |
| John L. Peterec-Tolino, Appellant, v Edward Harap et al.,Respondents. |
—[*1] Filippatos PLLC, New York, N.Y. (Parisis G. Filippatos of counsel), forrespondents.
In an action, inter alia, to recover damages for defamation, intentional infliction of emotionaldistress, and prima facie tort, the plaintiff appeals from an order of the Supreme Court, QueensCounty (Nelson, J.), dated April 16, 2008, which granted the defendants' motion to dismiss thecomplaint pursuant to CPLR 3211 (a) (7).
Ordered that the order is affirmed, with costs.
In the complaint, the plaintiff alleged that the defendants terminated his employment as anelectrical worker on a construction project at the Dalton School of Music in Manhattan. Healleged that, in his termination notice, the defendant Edward Harap called him "unproductive"and stated that he threatened his supervisor. The plaintiff acknowledged in the complaint that hehad trouble doing his work because he had asthma and a crooked spine. He stated causes ofaction alleging, inter alia, defamation, intentional infliction of emotional distress, and prima facietort. The defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure tostate a cause of action. The Supreme Court granted the motion, and the plaintiff now appeals.
In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR3211 (a) (7), the allegations in the complaint should be accepted as true, and the motion shouldbe granted only if the facts as alleged do not fit within any cognizable legal theory (see Leonv Martinez, 84 NY2d 83, 87-88 [1994]).
The Supreme Court properly granted the defendants' motion to dismiss the complaint. Theplaintiff failed to plead the elements necessary for any of his stated causes of action.Specifically, he failed to allege how he suffered damages from the defendants' alleged actions,besides the loss of his job. New York law has long held that "where an employment is for anindefinite term it is presumed to be a hiring at will which may be freely terminated by eitherparty at any time for any reason or even for no reason" (Murphy v American Home Prods.Corp., 58 NY2d 293, 300 [1983]). The plaintiff cannot use a different cause of action torecover damages for his entirely lawful termination (see e.g. Abeles v Mellon Bank Corp.,298 AD2d 106 [2002]).[*2]
The plaintiff's remaining contentions are not properlybefore this Court. Skelos, J.P., Eng, Leventhal and Chambers, JJ., concur.