| Garner v China Natural Gas, Inc. |
| 2010 NY Slip Op 02095 [71 AD3d 825] |
| March 16, 2010 |
| Appellate Division, Second Department |
| James A. Garner, Appellant-Respondent, v China NaturalGas, Inc., et al., Respondents-Appellants, et al., Defendants. |
—[*1] Greenberg Freeman, LLP, New York, N.Y. (Michael A. Freeman of counsel), forrespondents-appellants.
In an action, inter alia, to recover damages for violation of Labor Law § 740, theplaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, NassauCounty (Winslow, J.), dated August 18, 2008, as granted those branches of the motion of thedefendants China Natural Gas, Inc., Qinan Ji, and Dan Chang which were to dismiss the causesof action alleging violations of Labor Law § 740, defamation, and fraud pursuant to CPLR3211 (a) (1) and (7) insofar as asserted against them, and, in effect, converted that branch of themotion which was to dismiss the cause of action alleging breach of contract pursuant to CPLR3211 (a) (1) and (7) into a motion for summary judgment pursuant to CPLR 3212 andconditionally awarded summary judgment dismissing that cause of action insofar as assertedagainst those defendants, and the defendants China Natural Gas, Inc., Qinan Ji, and Dan Changcross-appeal, as limited by their brief, from so much of the same order as conditioned the awardof summary judgment dismissing the cause of action alleging breach of contract insofar asasserted against them upon certain conditions, and denied that branch of their motion which wasfor an award of an attorney's fee pursuant to Labor Law § 740 (6).
Ordered that the order is modified, on the law, by deleting the provision thereof, in effect,converting that branch of the motion of the defendants China Natural Gas, Inc., Qinan Ji, andDan Chang which was to dismiss the cause of action alleging breach of contract pursuant toCPLR 3211 (a) (1) and (7) insofar as asserted against them into a motion for summary judgmentpursuant to CPLR 3212 and conditionally awarding summary judgment dismissing that cause ofaction insofar as asserted against them, and substituting therefor a provision granting that branchof those defendants' motion which was to dismiss the cause of action alleging breach of contractpursuant to CPLR 3211 (a) (7); as so modified, the order is affirmed insofar as appealed andcross-appealed from, without costs or disbursements.
The plaintiff alleged that the defendants China Natural Gas, Inc., Qinan Ji, and Dan Chang(hereinafter the defendants) retaliated against him after he insisted that they correct certaindocuments filed with the Securities and Exchange Commission that contained material omissionsand misstatements. The alleged retaliatory action included threats, pressuring the plaintiff toresign his position as an independent [*2]member of the Board ofDirectors of the defendant corporation, withholding compensation, and failing to issue stockoptions according to the terms of the parties' written agreement. In his complaint, the plaintiffasserted causes of action alleging violations of Labor Law § 740, defamation, breach ofcontract, and fraud.
Although the defendants' motion was made pursuant to CPLR 3211, the Supreme Court, ineffect, converted that branch of the motion which was to dismiss the cause of action allegingbreach of contract into a motion for summary judgment pursuant to CPLR 3212. This was error(see Mihlovan v Grozavu, 72 NY2d 506 [1988]; Bowes v Healy, 40 AD3d 566 [2007]). Thus, this Court will applyto the entire complaint the standards applicable to a motion to dismiss pursuant to CPLR 3211(see Neurological Servs. of Queens,P.C. v Farmingville Family Med. Care, PLLC, 63 AD3d 703, 704 [2009]).
In assessing a motion to dismiss made pursuant to CPLR 3211 (a) (7), the facts pleaded arepresumed to be true and are accorded every favorable inference (see Riback v Margulis, 43 AD3d1023 [2007]). However, bare legal conclusions, as well as factual claims flatly contradictedby the record, are not entitled to any such consideration (id.).
Contrary to the plaintiff's contention, the Supreme Court did not err in granting that branchof the defendants' motion which was to dismiss the Labor Law causes of action insofar asasserted against them. The allegations were insufficient to establish that the plaintiff was anemployee of the defendant corporation as that term is defined in Labor Law § 740 (1) (a)(see Salimi v New York MethodistHosp., 45 AD3d 559 [2007]; Edward M. Stephens, M.D., F.A.A.P. v Prudential Ins.Co. of Am., 278 AD2d 16 [2000]; cf. Kraus v New Rochelle Hosp. Med. Ctr., 216AD2d 360 [1995]). Moreover, the complaint does not allege a violation which would threatenthe health or safety of the public at large (see Remba v Federation Empl. & GuidanceServ., 76 NY2d 801 [1990]; Pipia vNassau County, 34 AD3d 664 [2006]; Easterson v Long Is. Jewish Med. Ctr.,156 AD2d 636, 637 [1989]; Leibowitz v Bank Leumi Trust Co. of N.Y., 152 AD2d 169[1989]).
Since the plaintiff asserted causes of action pursuant to Labor Law § 740, "he waivedother causes of action relating to the alleged retaliatory [action]" (Deshpande v TJH Med. Servs., P.C.,52 AD3d 648, 651 [2008]). Accordingly, those branches of the defendants' motion whichwere to dismiss the causes of action alleging defamation and fraud insofar asserted against themwere properly granted, as they arose out of or related to the same underlying claim of retaliation.Likewise, the Supreme Court should have granted that branch of the defendants' motion whichwas to dismiss the cause of action alleging breach of contract insofar as asserted against them,without condition (see Hayes v StatenIs. Univ. Hosp., 39 AD3d 593, 594 [2007]; Pipia v Nassau County, 34 AD3d at665; Bordan v North Shore Univ. Hosp., 275 AD2d 335, 336 [2000]).
Contrary to the defendants' contention, the Supreme Court providently exercised itsdiscretion in denying that branch of the motion which was for an attorney's fee (see KeyBank of N.Y. v Anton, 241 AD2d 482, 484 [1997]; Bankers Fed. Sav. Bank v Off W.Broadway Devs., 224 AD2d 376, 378 [1996]; cf. Gorgone v Capozzi, 238 AD2d 308[1997]).
The parties' remaining contentions are without merit. Covello, J.P., Angiolillo, Lott andRoman, JJ., concur.