| Baer v Complete Off. Supply Warehouse Corp. |
| 2011 NY Slip Op 08312 [89 AD3d 877] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Ira Baer, Appellant, v Complete Office Supply WarehouseCorp., Doing Business as International Coffee Systems, Inc., etal., Respondents. |
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Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Kevin Schlosser and Michael J.Antongiovanni of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.),dated April 19, 2010, as granted those branches of the defendants' motion which were pursuant toCPLR 3211 (a) (7) to dismiss the fourth, fifth, sixth, seventh, eighth, and ninth causes of action insofaras asserted against the defendant Complete Office Supply Warehouse Corp., doing business asInternational Coffee Systems, and granted those branches of the defendants' motion which werepursuant to CPLR 3211 (a) (1) and (7) to dismiss the fourth, fifth, sixth, seventh, eighth, ninth, andtwelfth causes of action insofar as asserted against the defendant Mark Cordovi.
Ordered that the order is affirmed insofar as appealed from, with costs.
In May 2007 the plaintiff and the defendant Complete Office Supply Warehouse Corp., doingbusiness as International Coffee Systems (hereinafter Complete), entered into an employmentagreement. Specifically, Complete hired the plaintiff, an experienced coffee and beverage services andproducts salesman, as its director of business development. The agreement contained, inter alia, adescription of the plaintiff's duties, work locations, and hours, as well as a provision allowing Completeto terminate the plaintiff's employment for cause if, among other things, he breached any of the materialprovisions of the agreement. An exhibit annexed to the agreement set forth the details of the plaintiff'scompensation and contained an additional termination clause. It provided that Complete had cause toterminate the plaintiff's employment if he failed to meet certain gross sales goals for new customers. In aletter dated May 22, 2009, the defendant Mark Cordovi, Complete's president, terminated theplaintiff's employment on the ground that he consistently failed to meet the performance thresholds.
In July 2009 the plaintiff commenced this action against Complete and Cordovi. Thereafter, thedefendants moved pursuant to CPLR 3211 (a) (7) to dismiss the fourth, fifth, sixth, seventh, eighth,ninth, and twelfth causes of action insofar as asserted against Complete, and pursuant to CPLR 3211(a) (1) and (7) to dismiss the complaint insofar as asserted against Cordovi. In the order appealedfrom, the Supreme Court, inter alia, granted those branches of the defendants' motion which werepursuant to CPLR 3211 (a) (7) to dismiss the fourth, fifth, sixth, seventh, eighth, [*2]and ninth causes of action insofar as asserted against Complete, andthose branches of the defendants' motion which were pursuant to CPLR 3211 (a) (1) and (7) to dismissthe fourth, fifth, sixth, seventh, eighth, ninth, and twelfth causes of action insofar as asserted againstCordovi. We affirm the order insofar as appealed from.
The Supreme Court properly determined that the fourth cause of action failed to state a cause ofaction alleging fraudulent inducement against the defendants. The plaintiff failed to adequately plead thatthe defendants harbored a present intent to deceive him but, rather, alleged only that theymisrepresented their intention to perform in the future under the contract (see J.M. Bldrs. & Assoc., Inc. v Lindner,67 AD3d 738, 741-742 [2009]; MaÑas v VMS Assoc., LLC, 53 AD3d 451, 453-454 [2008]).
Moreover, the Supreme Court properly granted that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (7) to dismiss the fifth cause of action alleging breach of the covenant ofgood faith and fair dealing. As pleaded, the fifth cause of action is duplicative of the cause of actionalleging breach of contract (see Barker vTime Warner Cable, Inc., 83 AD3d 750, 752 [2011]; Deer Park Enters., LLC v Ail Sys., Inc., 57 AD3d 711, 712 [2008]).
The Supreme Court also properly granted those branches of the defendants' motion which werepursuant to CPLR 3211 (a) (7) to dismiss the sixth cause of action alleging negligent misrepresentation,the seventh cause of action alleging breach of fiduciary duty, the eighth cause of action to impose aconstructive trust and for an accounting, and the ninth cause of action alleging constructive fraud againstthe defendants. Contrary to the plaintiff's contention, the complaint failed to plead facts demonstratingthe existence of a special, confidential, or fiduciary relationship (see Schenkman v New York Coll. of Health Professionals, 29 AD3d671, 672 [2006]; Vitale v Steinberg, 307 AD2d 107, 108-110 [2003]; WIT HoldingCorp. v Klein, 282 AD2d 527, 528-529 [2001]).
Further, the plaintiff failed to state a cause of action for holding Cordovi personally liable on thetheory that he induced Complete's alleged breach of the plaintiff's employment agreement. "A corporateofficer is not personally liable for causing the corporation to terminate an employment contract unlesshis activity involves individual separate tortious acts" (Robbins v Panitz, 61 NY2d 967, 969[1984] [internal quotation marks omitted]; see Stern v H. DiMarzo, Inc., 77 AD3d 730, 731 [2010]). The acts andomissions attributed to Cordovi "were committed in his capacity as a corporate officer, and the plaintiff[] failed to adequately allege independent torts" (Kats v East 13th St. Tifereth Place, LLC, 73 AD3d 706, 708 [2010]).Accordingly, the Supreme Court properly granted that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (7) to dismiss the twelfth cause of action against Cordovi.
The plaintiff's remaining contentions either are without merit or have been rendered academic byour determination. Dillon, J.P., Belen, Roman and Miller, JJ., concur.