| Webb v Greater N.Y. Auto. Dealers Assn., Inc. |
| 2014 NY Slip Op 09121 [123 AD3d 1111] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1]
| Maureen Webb, Appellant, v Greater NewYork Automobile Dealers Association, Inc., Respondent. |
Claire Pare, Belle Harbor, N.Y., for appellant.
Putney, Twombly, Hall & Hirson LLP, New York, N.Y. (James E. McGrath IIIand Valerie J. Bluth of counsel), for respondent.
In an action, inter alia, to recover damages for employment discrimination on thebasis of sex in violation of Executive Law § 296 and breach of contract, theplaintiff appeals from an order of the Supreme Court, Queens County (Hart, J.), enteredApril 23, 2013, which granted the defendant's motion pursuant to CPLR 3211 (a) todismiss the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the defendant's motion which was pursuant to CPLR 3211 (a) todismiss the third cause of action, and substituting therefor a provision denying thatbranch of the motion; as so modified, the order is affirmed, with costs to theplaintiff.
The Supreme Court properly granted those branches of the defendant's motion whichwere pursuant to CPLR 3211 (a) to dismiss the first and second causes of action, allegingviolations of title VII of the Civil Rights Act of 1964 (42 USC, ch 21,§ 2000e et seq.) (hereinafter title VII) and the New York StateHuman Rights Law (Executive Law § 296) (hereinafter NYSHRL),respectively, based on the doctrine of res judicata (see CPLR 3211 [a] [5]). TheSupreme Court correctly concluded that a prior action commenced by the plaintiffagainst the defendant, which asserted the same causes of action, was dismissed for theplaintiff's failure to obtain personal jurisdiction over the defendant and neglect toprosecute, and that the order of dismissal entered in that action adequately set forth theconduct of the plaintiff that constituted the neglect and demonstrated a general pattern ofdelay in proceeding (see CPLR 205 [a]). Accordingly, the court properlyconcluded that the plaintiff could not avail herself of CPLR 205 (a), which provides that,under certain circumstances, an action that has been dismissed, albeit not on the merits,may be recommenced within six months after its dismissal (see generally Marrero v CrystalNails, 114 AD3d 101 [2013]). In light of that determination, the court properlydetermined that the title VII and NYSHRL causes of action asserted in the instant actionwere time-barred (see Andrea vArnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects,P.C. [Habiterra Assoc.], 5 NY3d 514, 520 [2005]; Markoff v South NassauCommunity Hosp., 61 NY2d 283, 288 [1984]).
However, the Supreme Court erred in granting that branch of the defendant's motionwhich was pursuant to CPLR 3211 (a) to dismiss the third cause of action, which soughtto recover damages for breach of contract. The defendant argued before the SupremeCourt that the plaintiff [*2]failed to state a cause of actionto recover damages for breach of contract (see CPLR 3211 [a] [7]). Inconsidering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the courtmust accept the facts as alleged in the complaint as true, accord the plaintiff the benefitof every possible favorable inference, and determine only whether the facts as alleged fitwithin any cognizable legal theory (see Nonnon v City of New York, 9 NY3d 825, 827 [2007];Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Paolicelli v Fieldbridge Assoc., LLC, 120 AD3d 643, 644[2014]). Here, the plaintiff sufficiently pleaded a cause of action sounding in breach ofcontract by alleging all of the essential elements of such a claim: the existence of acontract, the plaintiff's performance pursuant to that contract, the defendant's breach ofits contractual obligations, and damages resulting from that breach (see Canzona v Atanasio, 118AD3d 841, 842 [2014]; Neckles Bldrs., Inc. v Turner, 117 AD3d 923, 924 [2014]).Although the plaintiff is presumed to be an at-will employee who may not maintain abreach of contract cause of action based on an alleged wrongful termination ofemployment (see Minovici vBelkin BV, 109 AD3d 520, 522 [2013]; Wood v Long Is. Pipe Supply, Inc., 82 AD3d 1088, 1089[2011]; Lerman v Medical Assoc. of Woodhull, 160 AD2d 838, 839 [1990]), theplaintiff's breach of contract cause of action is not based on her alleged constructivedischarge from employment but, rather, seeks to recover unpaid, agreed-to compensationfor services actually rendered. Her at-will status does not bar such a claim (see Miloscia v B.R. GuestHoldings, LLC, 94 AD3d 563, 564 [2012]; Arbeeny v Kennedy Exec. Search, Inc., 71 AD3d 177,182-183 [2010]). Since the plaintiff adequately alleged a cause of action to recoverunpaid compensation by asserting that she performed her obligations as an employee andwas not paid for that performance, the third cause of action remains viable.
There is no merit to the defendant's contention that, pursuant to regulationspromulgated by the United States Department of Labor, it was not required tocompensate the plaintiff for her final days of work because her last work week was lessthan five days long (see 29 CFR 541.602 [b] [6]). Hall, J.P., Cohen, Hinds-Radixand LaSalle, JJ., concur.