From Casetext: Smarter Legal Research

DiLacio v. New York City District Council of United Brotherhood of Carpenters & Joiners of America

Appellate Division of the Supreme Court of New York, Second Department
Jan 11, 2011
80 A.D.3d 553 (N.Y. App. Div. 2011)

Opinion

No. 2009-11287.

January 11, 2011.

In an action to recover damages for wrongful termination of employment and defamation, the defendants appeal from so much of an order of the Supreme Court, Putna m County (O'Rourke, J.), dated October 15, 2009, as denied that branch of their motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7).

O'Dwyer Bernstein, LLP, New York, N.Y. (Joy K. Mele of counsel), for appellants.

Sarcone Law Firm, PLLC, White Plains, N.Y. (John A. Sarcone III of counsel), for respondent.

Before: Balkin, J.P., Leventhal, Chambers and Sgroi, JJ.


Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was to dismiss the complaint is granted.

Since the plaintiff was an employee at will, his allegation that the defendants violated their duty to terminate his employment "only in good faith and with fair dealing" fails to state a cognizable cause of action under New York law (see Murphy v American Home Prods. Corp., 58 NY2d 293, 300; Riccardi v Cunningham, 291 AD2d 547). Under New York law, "absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired" ( Murphy v American, Home Prods. Corp., 58 NY2d at 305). However, contrary to the plaintiffs contentions, his termination was not statutorily proscribed ( see Dilacio v New York City Dist. Council of the United Bhd. of Carpenters Joiners of Am., 593 F Supp 2d 571).

The plaintiff's defamation claim also should have been dismissed. The termination letter containing the phrase "severe dereliction of duty" was not published to anyone other than the plaintiff himself ( see Weidman v Ketcham, 278 NY 129, 131 [1938]; Hochberg v Nissen, 180 AD2d 435) and no particular text from the status report addressed to the "Brothers and Sisters of Local 157" was set forth in the plaintiffs complaint pursuant to the strict pleading requirements of CPLR 3016 (a) ( see CPLR 3016 [a]; Gill v Pathmark Stores, 237 AD2d 563, 563).

To the extent that the plaintiff now seeks either leave to amend the complaint or leave to replead, the issue is not properly before this Court, as the plaintiff did not cross-move for this relief before the Supreme Court ( see Rinaldi v Rochford, 77 AD3d 720; 99 Cents Concepts, Inc. v Queens Broadway, LLC, 70 AD3d 656, 659).


Summaries of

DiLacio v. New York City District Council of United Brotherhood of Carpenters & Joiners of America

Appellate Division of the Supreme Court of New York, Second Department
Jan 11, 2011
80 A.D.3d 553 (N.Y. App. Div. 2011)
Case details for

DiLacio v. New York City District Council of United Brotherhood of Carpenters & Joiners of America

Case Details

Full title:GEORGE DILACIO, JR., Respondent, v. NEW YORK CITY DISTRICT COUNCIL OF…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 11, 2011

Citations

80 A.D.3d 553 (N.Y. App. Div. 2011)
2011 N.Y. Slip Op. 175
914 N.Y.S.2d 309

Citing Cases

Agosta v. Fast Sys. Corp.

The court declines to consider FAST's request for summary judgment on the plaintiffs' causes of action,…

Wells Fargo Bank, N.A. v. Yanes

Appelate Division, Second Department case law has warned about the need for cross motions when seeking…