Potito v. Fashion Fusion

Full title: YVONNE POTITO, Plaintiff, v. FASHION FUSION, Luo Dezhi a/k/a Henry Luo…

Court: Supreme Court of the State of New York, New York County

Date published: Dec 3, 2007

2007 N.Y. Slip Op. 34208 (N.Y. Sup. Ct. 2007)

Opinion

0600563/2007.

December 3, 2007.

DECISION/ORDER

ROLANDO T. ACOSTA, Supreme Court Justice.

The following documents were considered in reviewing defendants' motion to dismiss plaintiff's complaint:

Papers Numbered Notice of Motion, Affirmation in Support, Affidavits 1, 2, 3 (Ex. 1-5), 6 Memorandum of Law in Support 7 Affirmation in Opposition, Affidavit in Opposition 8, 9 (Ex. A) Memorandum of Law in Opposition 10 (Exhibits) Reply Memorandum of Law

Plaintiff Yvonne Potito commenced this action against defendants on or about February 22, 2007 alleging causes of action for breach of contract, promissory estoppel, fraud, libel and libel per se. Specifically, plaintiff alleges that defendants Fashion Fusion and Luo Dexhi, as her employer, breached a two year oral agreement by terminating her employment prior to the expiration of the alleged contract term. In addition, plaintiff claims that defendants defamed her based upon two (2) inter-office e-mails dated December 18, 2006, which contained false information as to why plaintiff's employment was terminated, thus damaging her reputation. Defendants in turn bring the present motion to dismiss plaintiff's complaint in its entirety pursuant to C.P.L.R. § 3211(a)(5) and (7), and GOL § 5-701(a)(1). Defendants' motion is granted.

Plaintiff does not dispute that the parties never executed a written employment contract. Rather, plaintiff asserts that she and Fashion Fushion had a two year oral employment agreement, which she was assured by Fashion Fusion would be reduced to writing. However, she claims that she was terminated before the contract could be executed. The Statute of Frauds, as codified by GOL § 5-701(a)(1), provides that every agreement is void unless it is in writing and if by its terms it cannot be performed within one year. Here, plaintiff alleges that her employment with defendant was to be for two years, and therefore necessarily could not have been performed within one year. Thus, plaintiff's claim of "[o]ral assurances of a [two-year] term of employment, even if established, are void and unenforceable under the statute of frauds."Cunnison v. Richardson Greenshields Securities, Inc., 107 A.D.2d 50 (1^st Dept. 1985); see also Sladden v. Rounick, 59 A.D.2d 882 (1^st Dept. 1977) (complaint based upon oral contract of employment of two years' duration unenforceable).

Plaintiff's claim for promissory estoppel and fraud likewise fail. Plaintiff alleges in her complaint that she was fraudulently induced to work for defendants based upon their assurance that she would be given a written contract for a two year duration. However, such a claim is merely redundant of plaintiff's breach of contract cause of action wherein plaintiff claims she was prematurely terminated and cannot withstand defendant's motion to dismiss, for "[a] cause of action for fraud does not arise when the only fraud charged relates to the breach of a contract." Tesoro Petroleum Corp. v. Holborn Oil Co., 108 A.D.2d 607 (1^st Dept. 1985). Thus "although plaintiff's [third] cause of action alleges "fraud" in the inducement of the employment contract by claiming that defendant "never intended to employ plaintiff for a period of two years", that cause of action essentially is a restatement of her first cause of action for breach of contract and is unable to withstand defendants' challenge to its insufficiency in law." Chase v. United Hospital, 60 A.D.2d 558 (1^st Dept. 1977) (internal citations omitted).

Where, as here, the statute of frauds bars the enforcement of oral employment contracts, New York courts have been reluctant to allow plaintiffs to utilize the doctrine of promissory estoppel. Croce v. Hirsch, 1991 WL 95397 (S.D.N.Y.). This is so because a plaintiff's ability to escape the requirements of the statute of frauds by pleading promissory estoppel would in essence render the statute of frauds a nullity. "An oral promise cannot be relied upon to estop a plea of Statute of Frauds unless the circumstances are 'such as to render it unconscionable to deny' the oral promise upon which the promisee has relied. Id. at *3. (Internal citations omitted). The facts of this case do not render defendants' decision to terminate plaintiff as unconscionable. Indeed, unconscionable action must be greater that defendants' failure to perform the oral promise, which is the crux of plaintiff's argument for her promissory estoppel claim. See Philo Smith Co. v. USLIFE Corp., 554 F.2d 34 (2nd Cir. 1977).

Plaintiff's causes of action for libel and libel per se are also dismissed. The basis for plaintiff's claim for defamation against defendants are based upon two separate interoffice e-mails dated December 18, 2006. Initially it should be noted that these e-mails were responses to an earlier e-mail sent by plaintiff on December 15, 2006. These e-mails were sent to Fashion Fusion employees expressing her disappointment with the company. A review of the e-mails sent by defendants demonstrate that they were not libelous. Rather, they were sent in the context of explaining to Fashion Fusion employees why plaintiff was fired, and represented the company's opinion as to why her termination was justified. See Gross v. New York Times Co., 82 N.Y.2d 146 (1993). Indeed, the second e-mail sent by defendants was to clarify the first confusing e-mail that the company suspected the plaintiff stole from the company. See Parks v. Steinbrenner, 131 A.D.2d 60 (1^st Dept. 1987) (statements are "pure opinion" and fall outside of defamation if it is a statement of opinion, and if it is accompanied by a recitation of facts upon which it is based). Accordingly, based upon the foregoing, it is hereby

ORDERED that defendants' motion to dismiss the complaint in its entirety is GRANTED; and it is further

ORDERED that the caption is amended to reflect and incorporate the related matter of Fashion Fusion, Inc. and Luo Dezhi a/k/a Henry Luo, 106276/07, and the amended caption will read as follows: and it is further

ORDERED that the Clerk of this Court and the Clerk of Trial Support Office (Room 158), upon service on each of them of a copy of this order with notice of entry, shall mark their records to reflect the amendment.

This constitutes the Decision and Order of the Court.