| Eden v St. Luke's-Roosevelt Hosp. Ctr. |
| 2012 NY Slip Op 05076 [96 AD3d 614] |
| June 21, 2012 |
| Appellate Division, First Department |
| Robert Eden, Appellant-Respondent, v St.Luke's-Roosevelt Hospital Center et al., Respondents-Appellants. |
—[*1] Kornstein Veisz Wexler & Pollard, LLP, New York (Marvin Wexler of counsel), forrespondents-appellants.
Order, Supreme Court, New York County (Debra A. James, J.), entered January 25, 2010,which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismissthe breach of contract cause of action based on an oral promise as against defendant St.Luke's-Roosevelt Hospital Center, the Labor Law §§ 191 and 198 (1-a) cause ofaction as against the individual defendants, and the fraud, accounting, and breach of fiduciaryduty causes of action as against St. Luke's, and denied the motion as to the accounting and breachof fiduciary duty causes of action as against the individual defendants, unanimously modified, onthe law, to grant the motion as to the accounting and breach of fiduciary duty causes of action asagainst the individual defendants, and otherwise affirmed, without costs. Order, same court andJustice, entered October 22, 2010, which, upon reargument, granted the motion as to the fraudcause of action as against the individual defendants and the Labor Law §§ 191 and198 (1-a) cause of action as against St. Luke's, unanimously affirmed, without costs.
The cause of action for breach of an oral four-year contract as against St. Luke's is precludedby the written contract and by the Statute of Frauds (see Foster v Kovner, 44 AD3d 23, 26 [2007]).
The fraud cause of action is duplicative of the breach of contract cause of action (see Financial Structures Ltd. v UBSAG, 77 AD3d 417, 419 [2010]). It fails as against St. Luke's for the additional reasonthat plaintiff could not reasonably rely on the promise of a title and compensation that was atvariance with the terms of the subsequent written contract (see Daily News v Rockwell Intl.Corp., 256 AD2d 13, 14 [1998], lv denied 93 NY2d 803 [1999]).
As a professional earning more than $900 a week (Labor Law § 190 [7]), plaintiff is"expressly excluded" from the protections of Labor Law § 191 (see Pachter v Bernard Hodes Group,Inc., 10 NY3d 609, 616 [2008]).
The breach of fiduciary duty and accounting causes of action fail against all defendants,because there was no fiduciary relationship between plaintiff and any of them. Neither anagreement by an employer to share profits with an employee as compensation for the latter'sservices nor a contract "of mere hiring and providing for compensation in a particular manner[*2]supposedly tending to induce greater energy and faithfulnesson the part of the employee" creates a fiduciary relationship between the employer and employee(Vitale v Steinberg, 307 AD2d 107, 109-110 [2003] [internal quotation marks omitted]).Plaintiff's assertions of a joint venture between himself and the individual defendants wereconclusory and, in any event, allege merely a profit-sharing arrangement.
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Tom, J.P., Andrias, Friedman, Moskowitz and Renwick, JJ. [Prior CaseHistory: 2010 NY Slip Op 30138(U).]