| Cerciello v Admiral Ins. Brokerage Corp. |
| 2011 NY Slip Op 09577 [90 AD3d 967] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Daniella Cerciello, Appellant, v Admiral InsuranceBrokerage Corp. et al., Respondents. |
—[*1] Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y. (Anthony J. Genovesi, Jr.,of counsel), for respondents.
In an action, inter alia, to recover damages for discrimination in employment on the basis ofsex in violation of Executive Law § 296 and Administrative Code of the City of New York§ 8-107, the plaintiff appeals from an order of the Supreme Court, Kings County (Bayne,J.), dated October 29, 2010, which denied her motion pursuant to CPLR 3211 (a) (7) to dismissthe counterclaims for failure to state a cause of action.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion pursuantto CPLR 3211 (a) (7) to dismiss the counterclaims for failure to state a cause of action is granted.
The plaintiff commenced this action in 2010, alleging causes of action under the New YorkState and New York City Human Rights Laws for hostile work environment, sexual harassment,and retaliation (see Executive Law § 296; Administrative Code of City of NY§ 8-107). In their answer, the defendants asserted two counterclaims. First, they sought theimposition of sanctions for frivolous litigation conduct under CPLR 8303-a and Rules of theChief Administrator of the Courts (22 NYCRR) § 130-1.1. Second, they sought recoveryof wages paid to the plaintiff during her last year of employment on the ground, essentially, thatthe plaintiff failed to perform the tasks of employment, but instead used the time and resources ofher employer to pursue other employment opportunities unrelated to the business of thedefendants. The plaintiff moved pursuant to CPLR 3211 (a) (7) to dismiss the counterclaims forfailure to state a cause of action. The Supreme Court denied the motion on the ground that"issues of fact exist." We reverse.
On a motion to dismiss a complaint or counterclaim pursuant to CPLR 3211 (a) (7) forfailure to state a cause of action, "the court must afford the pleading a liberal construction, acceptall facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possibleinference, and determine only whether the facts as alleged fit within any cognizable legal theory"(Breytman v Olinville Realty, LLC,54 AD3d 703, 703-704 [2008]; seeEBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Leon v Martinez,84 NY2d 83, 87 [1994]; East HamptonUnion Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 125 [2009],affd 16 NY3d 775 [2011]; Smith v Meridian Tech., Inc., 52 [*2]AD3d 685, 686 [2008]). Thus, a motion to dismiss pursuant toCPLR 3211 (a) (7) will not succeed if, taking all facts alleged as true and according them everypossible inference favorable to the nonmoving party, the complaint or counterclaims state insome recognizable form any cause of action known to our law (see Leon v Martinez, 84NY2d at 87-88; Fisher v DiPietro,54 AD3d 892, 894 [2008]; Clementv Delaney Realty Corp., 45 AD3d 519, 521 [2007]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker,LLP, 38 AD3d 34, 38 [2006]).
Since New York does not recognize an independent cause of action for the imposition ofsanctions under either CPLR 8303-a or Rules of the Chief Administrator of the Courts (22NYCRR) § 130-1.1 (see Schwartzv Sayah, 72 AD3d 790, 792 [2010]; Greco v Christoffersen, 70 AD3d 769, 770-771 [2010]; YankeeTrails v Jardine Ins. Brokers, 145 Misc 2d 282, 283 [1989]), the Supreme Court should havegranted that branch of the plaintiff's motion which was to dismiss the defendants' counterclaimseeking the imposition of sanctions.
The second counterclaim also was subject to dismissal. Insofar as it may be read as allegingfraud, "[w]here a cause of action or defense is based upon . . . fraud. . . the circumstances constituting the wrong shall be stated in detail" (CPLR 3016[b]; see Black Car & Livery Ins., Inc. vH&W Brokerage, Inc., 28 AD3d 595 [2006]). Here, the defendants did not allege anymisrepresentation. In any event, a cause of action alleging fraud does not arise merely because aparty did not perform contractual duties (see Rocchio v Biondi, 40 AD3d 615, 617 [2007]; Sforza vHealth Ins. Plan of Greater N.Y., 210 AD2d 214 [1994]; Ullmann v Norma Kamali,Inc., 207 AD2d 691, 693 [1994]). The defendants' second counterclaim also fails insofar as itmay be read as seeking damages for breach of fiduciary duty. Certainly, employees owe a duty ofloyalty and good faith to their employer in the performance of their duties (see Island Sports Physical Therapy vBurns, 84 AD3d 878 [2011]; 30FPS Prods., Inc. v Livolsi, 68 AD3d 1101, 1102 [2009]; Whalen v ContractingPlumbers Coop. Restoration Corp., 104 AD2d 879 [1984]). However, the mere failure of anemployee to perform assigned tasks does not give rise to a cause of action alleging breach of thatduty. Rather, the employee's misuse of the employer's resources to compete with the employer isgenerally required (see Island Sports Physical Therapy v Burns, 84 AD3d at 878; cf.Bon Temps Agency v Greenfield, 184 AD2d 280 [1992]). Here, the defendants acknowledgethat the plaintiff did not compete with their business. Finally, insofar as the counterclaim may beread as alleging a breach of an implied contract, it fails as well. "In the absence of a specialagreement, an employer may not recover back wages or equivalent drawings paid during a periodof completed employment" (Kleinfeld v Roburn Agencies, Inc., 270 App Div 509, 511[1946]; cf. Nationwide Mut. Ins. Co. v Timon, 9 AD2d 1018 [1959]; Pease Piano Co.v Taylor, 197 App Div 468 [1921], affd 232 NY 504 [1921]). Thus, the SupremeCourt should have granted that branch of the plaintiff's motion which was pursuant to CPLR3211 (a) (7) to dismiss the second counterclaim for failure to state a cause of action.
The plaintiff's remaining contention is not properly before this Court, as it is raised for thefirst time on appeal. Rivera, J.P., Balkin, Eng and Austin, JJ., concur.