Opinion
February 1, 1988
Appeal from the Supreme Court, Suffolk County (Brown, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which adhered to the original determination with respect to that branch of the motion which was to dismiss the second cause of action of the complaint and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The oral licensing agreement alleged by the plaintiff contained no provision for its termination. It was therefore terminable at will upon reasonable notice (see, A.S. Rampell, Inc. v Hyster Co., 3 N.Y.2d 369, 382). As such, there existed the possibility that it could be performed within one year, and therefore no writing was required to evidence it (see, Suslak v Rokeach Sons, 269 App. Div. 779, affd 295 N.Y. 799). We note that due to the terminable nature of the contract as alleged, it is incumbent upon the plaintiff to prove not only the contract's existence, but also that the alleged breach of the contract was in fact a breach rather than a mere termination of the contract.
The second cause of action of the complaint, alleging that the president of the defendant company had tortiously induced the alleged breach of the contract, must be dismissed. None of the plaintiff's factual assertions reflect the commission by that defendant of an independent tort, separate and distinct from his actions as president of the corporate defendant (see, Citicorp Retail Servs. v Wellington Mercantile Servs., 90 A.D.2d 532; Turntables, Inc. v M.B. Plastics Corp., 31 A.D.2d 792). Rubin, J.P., Kooper, Sullivan and Harwood, JJ., concur.