Opinion
June 14, 1994
Appeal from the Supreme Court, New York County (Burton Sherman, J.).
"Although on a motion addressed to the sufficiency of a complaint, the facts pleaded are presumed to be true and accorded every favorable inference * * * nevertheless, `allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration.'" (Mark Hampton, Inc. v. Bergreen, 173 A.D.2d 220, lv denied 80 N.Y.2d 788, quoting Roberts v. Pollack, 92 A.D.2d 440, 444.)
The first cause of action for breach of contract arising as a result of plaintiff's discharge was properly dismissed since plaintiff failed to establish that he was employed by the defendants for a fixed duration pursuant to a written contract of employment or that there was an express limitation in the individual contract of employment on his employers' right to terminate that employment of indefinite duration. Thus, the plaintiff was therefore an at-will employee whose employment was freely terminable by either party at any time for any reason or even for no reason (see generally, Sabetay v. Sterling Drug, 69 N.Y.2d 329).
The IAS Court also properly dismissed plaintiff's breach of contract cause of action, while allowing his second cause of action, for statutory retaliatory discharge under the New York Human Rights Law, to proceed, since statutory restrictions on the right to discharge may provide a statutory right to relief for discharged employees as an alternative to unviable contract and tort claims (see, e.g., Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 306-307; cf., e.g., Connolly v. Macklowe Real Estate Co., 161 A.D.2d 520).
Nor did the IAS Court err in dismissing the fifth cause of action of the plaintiff's amended complaint alleging that the defendants had libeled plaintiff when ASI President, Richard Atkins, issued an interoffice memorandum informing office staff of the plaintiff's discharge, since the memorandum, when taken in context, neither constitutes libel per se, by imputing to the plaintiff that he committed a crime (Angel v. Levittown Union Free School Dist. No. 5, 171 A.D.2d 770, 772), nor impugnes his competence as a professional (Kraus v. Brandstetter, 167 A.D.2d 445, 446). Nor, when considered in the context of the entire publication and tested in terms of its effect upon the average listener or reader, is the memorandum susceptible of a defamatory connotation (Park v. Capital Cities Communications, 181 A.D.2d 192, 195, lv dismissed in part and denied in part 81 N.Y.2d 879).
In dismissing the sixth cause of action of the plaintiff's amended complaint, alleging that the MacMillan defendants had breached a common law fiduciary duty independent of the employment agreement and imposed upon them as a matter of social policy by terminating the plaintiff's employment, the IAS Court correctly recognized that New York does not recognize tort claims for abusive or wrongful discharge by at-will employees, whether denominated as breach of an implied covenant of good faith and fair dealing or prima facie tort, which, as here, merely constitute an improper attempt by the plaintiff to evade the traditional at-will rule by recasting that cause of action in another guise (see, Ingle v. Glamore Motor Sales, 73 N.Y.2d 183, 188-189).
The seventh cause of action of the plaintiff's amended complaint, purporting to set forth a cause of action against the MacMillan defendants for tortious interference with contractual relations, was also properly dismissed since the tort of interference with an employment contract cannot lie against parties, such as the MacMillan defendants herein, which admittedly were not strangers to the plaintiff's employment agreement (Koret, Inc. v. Christian Dior, S.A., 161 A.D.2d 156, 157, lv denied 76 N.Y.2d 714), and since the plaintiff cannot evade the traditional at-will rule, that there is no cause of action in New York for abusive or wrongful discharge, by recasting that wrongful discharge claim as one for tortious interference (Ingle v. Glamore Motor Sales, supra).
Concur — Carro, J.P., Rosenberger, Kupferman, Nardelli and Tom, JJ.