Opinion
No. 5523/09.
2012-01-5
Catalin MINOVICI a/k/a Alin Minovici and Laura Minovici, Plaintiffs, v. BELKIN BV, Belkin Ltd. and Belkin International, Defendants.
Emanuel F. Saris, Esq., Hyde Park, Attorney for Plaintiffs. James E. Nelson, Esq., Van Dewater & Van Dewater, LLP, Poughkeepsie, Attorneys for Defendants.
Emanuel F. Saris, Esq., Hyde Park, Attorney for Plaintiffs. James E. Nelson, Esq., Van Dewater & Van Dewater, LLP, Poughkeepsie, Attorneys for Defendants.
Jay P. Warren, Esq., Bryan Cave, LLP, New York, Attorneys for Defendants.
JAMES D. PAGONES, J.
The defendants move for an order pursuant to CPLR Rules 3211(a)(1) and 3211(a)(7) dismissing the plaintiffs' complaint in its entirety. The plaintiffs oppose the instant application. For the reasons set forth more fully herein, it is ordered that the defendants' motion is granted and the plaintiffs' complaint is dismissed in its entirety.
This action was commenced by the plaintiffs to recover for damages they suffered as a result of the defendants' alleged breach of contract, fraud, and intentional infliction of emotional distress. Plaintiff Catalin Minovici alleges he entered into an employment agreement on or about July 21, 2008 with the defendants that required he and his family relocate from Dutchess County, New York, to the Netherlands. According to the allegations contained in the plaintiffs' complaint, the employment agreement was to continue “without any specific date for termination.” The plaintiffs also allege defendant Belkin BV offered and agreed to provide plaintiff Catalin with a monthly automobile allowance, reimbursement for the cost of temporary accommodation for a period of one month, and a monthly housing allowance that would continue for a maximum of two (2) years. Subsequent to relocating to the Netherlands but prior to the scheduled commencement of plaintiff Catalin's employment, plaintiff Catalin was notified that the position he had been hired to fill was no longer available, effectively terminating his employment.
It is well settled that on any motion pursuant to CPLR Rule 3211, the court “must take the allegations (of the complaint) as true and resolve all inferences which reasonably flow therefrom in favor of the pleader.” (Cron v. Hargro Fabrics, Inc., 91 N.Y.2d 362, 366 [1998].) A motion to dismiss a cause of action pursuant to CPLR § 3211(a)(1) may be granted only if the “documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim.” (Fontanetta v. Doe, 73 AD3d 78 [2nd Dept.2010], quoting Fortis Fin. Servs. V. Fimat Futures USA, 290 A.D.2d 383 [1st Dept.2002].) To dismiss a cause of action pursuant to CPLR Rule 3211(a)(7) on the ground that the plaintiffs have failed to state a cause of action, the court must liberally construe the complaint and accept all facts as alleged therein to be true, accord the plaintiffs the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (Fishberger v. Voss, 51 AD3d 627 [2nd Dept.2008].)
PLAINTIFFS' FIRST AND SEVENTH CAUSES OF ACTION
The plaintiffs' first cause of action sounds in breach of contract and the seventh cause of action requests a declaration of the rights, duties, statue and legal relations between plaintiff Catalin and the defendants arising out of the provisions of their employment contract.
It is well settled that no cause of action for breach of contract will arise where the contract is one for employment at will. (Lerman v. Medical Assocs. of Woodhull, P.C., 160 A.D.2d 838 [2nd Dept.1990].) “In order for an employee to prevail on an action for breach of an employment contract, he must show that the contract was for a specified duration, or that he expressly conditioned acceptance of the job on the employer's assurance that he would not discharge him without cause.” ( Id. at 838).
By the plaintiffs' own admissions, plaintiff Caitlin and defendant Belkin BV “entered into an agreement by which defendant BELKIN BV employed plaintiff as Information Systems Director ... to begin on July 21, 2008 and to continue without a specific date for termination.” The subject employment agreement confirms the durational scope asserted by the plaintiffs and specifically provides that it will continue “for an indefinite period of time.” The employment agreement also provides that either party may terminate the employment within the first two months with immediate effect and without serving any notice. The court finds that the subject employment agreement presumptively created an at-will employment relationship. Therefore, in order to state a cause of action for breach of the employment agreement the plaintiffs necessarily must allege that the acceptance of employment was expressly conditioned on the defendants' representation that plaintiff Catalin would not be discharged without cause.
The complaint is devoid of any allegations by the plaintiffs that acceptance of the job was expressly conditioned on an assurance that plaintiff Catalin would not be discharged without cause. Instead, in opposition to the defendants' motion, the plaintiffs argue that the offer to pay a housing allowance created a calculable period of time that contradicts the at-will employment presumption. The plaintiffs' reliance on the offer to pay a housing allowance to rebut the at-will presumption is misplaced. The defendants' offer to pay a housing allowance for a certain period was incidental to plaintiff Catalin's employment and does not serve to fix the duration of plaintiff's employment for a two year period of time. ( See, Chase v. United Hosp., 60 A.D.2d 558 [1st Dept.1977].)
The plaintiffs also contend that a prior agreement dated May 1, 2008 entered into between plaintiff Catalin and defendant Belkin Ltd ., which provided for plaintiff's employment with Belkin Ltd. in the United Kingdom, fixed the period of time for plaintiff Catalin's employment. Notwithstanding that the plaintiffs make no mention of this agreement in their complaint, it remains that the Belkin Ltd. contract does not change the at-will character of the employment agreement with Belkin B.V. The alleged agreement with Belkin Ltd. was necessarily superceded by the employment agreement with Belkin B .V. because plaintiff Catalin could not have simultaneously performed the employment obligations contained in each agreement. Moreover, plaintiffs' counsel represented that “the United Kingdom contract was replaced by the Netherlands contract”.
Finally, the plaintiffs' assertion that a breach of the employment agreement occurred as a result of defendant Belkin B.V.'s reduction of plaintiff Catalin's position and salary pursuant to a letter dated July 11, 2008 is insufficient to defeat the defendants' motion to dismiss in view of the court's determination that the employment agreement between the parties created an at-will relationship. Where employment is at-will, an employer remains free to change the terms of employment at any time. ( See, Marino v. Oakwood Care Ctr., 5 AD3d 740 [2nd Dept.2004].) The plaintiffs' remaining contentions are also without merit. Therefore, it is ordered that the plaintiffs' first and seventh causes of action are dismissed.
PLAINTIFFS' SECOND, THIRD AND FOURTH CAUSES OF ACTION
Plaintiffs' second cause of action for fraud, third cause of action for “malice and punitive damages” and fourth cause of action for “lost opportunities”, must also be dismissed for failure to state a cause of action.
New York courts have consistently held that:
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 N.Y.2d 293, 305, 448 N.E.2d 86, 461 N.Y.S.2d 232 [1983] ). Thus, either the employer or the employee generally may terminate the at-will employment for any reason, or for no reason. In the decades since Murphy, we have repeatedly refused to recognize exceptions to, or pathways around, these principles (internal citation omitted). (Smalley v. The Dreyfus Corp., 10 NY3d 55, 58 [2008].)
The plaintiffs' second, third and fourth causes of action are all based on the same injury allegedly suffered as a result of the defendants' breach of contract. The plaintiffs contend their damages should be considered separate from plaintiff Catalin's termination because, inter alia, he forewent other employment opportunities based upon his employment with Belkin B.V. and the relocation costs the plaintiffs incurred in moving from the United States to the Netherlands were incurred prior plaintiff Catalin's termination. However, the alleged injury suffered by the plaintiffs only became such as a result of plaintiff Catalin's termination. ( But see, Stewart v. Jackson–Nash, 976 F.2d 86 [2d Cir.1992] [finding that the plaintiff had suffered separate and distinct injury when the defendant law firm failed to secure environmental law client and develop environmental law department because the plaintiff's professional objective to specialize in environmental law and damage to her career potential were caused by firm's fraudulent misrepresentations].) Because the plaintiffs failed to allege an injury separate and distinct from the termination of plaintiff Catalin's at-will employment, no cause of action for fraudulent inducement has been stated. Moreover, the plaintiffs cannot be said to have reasonably relied upon the defendants' promise not to terminate the at-will employment contract and their fraudulent inducement cause of action is no more than a breach of contract claim in the guise of a tort. ( Id. at 59). Therefore, it is ordered that the plaintiffs' second, third and fourth causes of action is dismissed.
PLAINTIFFS' FIFTH CAUSE OF ACTION
The plaintiffs' fifth cause of action is based on fair dealing and bad faith. The plaintiffs contend the defendants breached an implied covenant of good faith and fair dealing in relation to the employment contract.
An at-will employee cannot challenge his termination based on a purported breach of the covenant of good faith and fair dealing. ( Flynn v. Rabbi Haskel Lookstein Middle School of Ramaz, 2009 N.Y. Slip Op 30817U [NY Sup.Ct.2009] citing Murphy v. American Home Products Corp., 58 N.Y.2d 293 [1983].) Therefore, the plaintiffs have failed to state a cause of action and the fifth cause of action is dismissed.
PLAINTIFFS' SIXTH CAUSE OF ACTION
The plaintiffs' sixth cause of action sounds in intentional infliction of emotional distress.The tort of intentional infliction of emotional distress consists of four components: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. (Bernat v. Williams, 81 AD3d 679 [2nd Dept.2011].) It is well-settled law in New York that “where an employment is for an indefinite term it is presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or even for no reason.” (Peterec–Tolino v. Harap, 68 AD3d 1083 [2nd Dept.2009] quoting Murphy v. American Home Prods. Co., 58 N.Y.2d 293, 300 [1983].) A plaintiff will not be permitted to use a different cause of action to recover damages for his entirely lawful termination. ( Id. at 1084).
Here, the genesis of the plaintiffs' cause of action is the termination of plaintiff Catalin's employment. Because plaintiff Catalin was an at-will employee, the termination of his employment cannot, as a matter of law, serve as a basis for a claim for intentional infliction of emotional distress. The plaintiffs' appeal to the emotions of the court is insufficient to breathe life into otherwise factually and legally deficient causes of action. Therefore, it is ordered that the plaintiffs' sixth cause of action is dismissed.
The Court read and considered the following documents upon this application:
PAGES NUMBERED
1. Notice of Motion.........................1–2
Affirmation–Warren.........................1
Exhibits.........................A–B
Memorandum of Law.........................1–19
2. Affirmation–Saris.........................1–5
Affidavit–Catalin “Alin” Minovici......1–4
Exhibits.........................A–K
Memorandum of Law.........................1–22
3. Reply Memorandum of Law.........................1–26
4. Sur–Reply Affirmation
–Saris.........................1–6
This document was not considered as there is no provision in the CPLR for a sur-reply submission.
The foregoing constitutes the decision and order of the Court.