| Monheit v Petrocelli Elec. Co., Inc. |
| 2010 NY Slip Op 03884 [73 AD3d 714] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Mark Monheit, Appellant, v Petrocelli Electric Co., Inc., etal., Respondents, et al., Defendant. |
—[*1] Goetz Fitzpatrick LLP, New York, N.Y. (Michael R. Fleishman of counsel), for respondentsPetrocelli Electric Co., Inc., Leonard Copicotto, and Nick Rozakis. David Henry Sculnick, New York, N.Y., for respondents Allran Electric of New York, Inc.,and Platinum Maintenance Services Corp. Norman Rothfeld, New York, N.Y., for respondent Raymond Melville.
In an action, inter alia, to recover damages for breach of an employment agreement, and for ajudgment declaring, among other things, that the defendants interfered with the plaintiff'scontractual relations, the plaintiff appeals from an order of the Supreme Court, Orange County(Alessandro, J.), dated January 21, 2009, which granted the motion of the defendant RaymondMelville, the separate motion of the defendants Allran Electric of New York, Inc., and PlatinumMaintenance Services Corp., and the separate motion of the defendants Petrocelli Electric Co.,Inc., Leonard A. Copicotto, and Nick Rozakis, for summary judgment dismissing the complaintinsofar as asserted against each of them.
Ordered that the order is affirmed, with one bill of costs payable to the respondentsappearing separately and filing separate briefs, and the matter is remitted to the Supreme Court,Orange County, for the entry of a judgment making appropriate declarations in accordanceherewith.
The defendants Allran Electric of New York, Inc. (hereinafter Allran), and PlatinumMaintenance Services Corp. (hereinafter Platinum) made a prima facie showing of entitlement tojudgment as a matter of law (see generally Alvarez v Prospect Hosp., 68 NY2d 320,324-325 [1986]). They demonstrated that the plaintiff's oral agreement with Allran was an at-willemployment agreement. New York adheres to the traditional common-law rule that absent anagreement establishing a fixed duration, an employment relationship is presumed to be a hiringat will, terminable at any time by either party (see Horn v New York Times, 100 NY2d85, 90-91 [2003]; Matter of De Petris v Union Settlement Assn., 86 NY2d 406, 410[1995]; Daub v Future Tech Enter.,Inc., 65 AD3d 1004, 1005 [2009]; Trakis v Manhattanville Coll., 51 AD3d 778, 780 [2008]). Onlytwo recognized exceptions to this rule exist, and neither is applicable herein (see Horn v NewYork Times, 100 NY2d at 96; Wieder v Skala, 80 NY2d 628, 638 [1992]). Here,Allran and Platinum submitted evidence demonstrating that the oral agreement contained nofixed duration. Their evidence further established that the plaintiff was denied a union transfer tothe superintendent position at Allran because he was ineligible for that position. He also wasdenied a transfer to the alternative position as a project manager at Allran because of a unionpolicy according priority to unemployed project [*2]managersholding union cards. At the time the plaintiff sought a transfer, there were 22 such unemployedproject managers. In opposition to the prima facie showing of Allran and Platinum, the plaintifffailed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted themotion of those defendants for summary judgment dismissing the complaint insofar as assertedagainst them.
In addition, in his separate motion, the defendant Raymond Melville made a prima facieshowing of entitlement to judgment as a matter of law dismissing the complaint insofar asasserted against him, as did the defendants Petrocelli Electric Co., Inc., Leonard A. Copicotto,and Nick Rozakis, in their separate motion seeking the same relief. In opposition, the plaintifffailed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted thosemotions as well.
The plaintiff's remaining contentions either are without merit or do not require reversal.
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Orange County, for the entry of a judgment making appropriate declarations (seeLanza v Wagner, 11 NY2d 317, 329 [1962], appeal dismissed 371 US 74, [1962],cert denied 371 US 901 [1962]). Rivera, J.P., Florio, Miller and Austin, JJ., concur.