SALESCARE INC v. 10 (2023)

Order, Supreme Court, New York County (Louis L. Nock, J.), entered April 6, 2022, which, to the extent appealed from as limited by the briefs, granted the motions of defendant Auburn and defendants SEIU 1199 National Benefit Fund and 1199 SEIU Funds (collectively, SEIU Funds) to dismiss the first through fourth and sixth causes of action pursuant to CPLR 3211(a)(1) and (7), unanimously affirmed, without costs.

Plaintiff ShareCare entered into a contract with defendant Auburn, pursuant to which its principal, plaintiff Parker, would provide information technology services to Auburn's client, the SEIU Funds.  Plaintiffs allege that SEIU Funds breached an oral agreement concerning the type of work that Parker would be asked to do, and then improperly terminated the contract.

Plaintiffs' breach of contract claim against Auburn was properly dismissed because the agreement between the parties was at-will and therefore terminable at any time and for any reason (see Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 333, 514 N.Y.S.2d 209, 506 N.E.2d 919 [1987]).  Plaintiffs' allegation that there was an implied promise to allow plaintiffs to complete their project at SEIU Funds is belied by the contract's provision that the term of the agreement was “as required” and that it could be terminated by the client, SEIU Funds.  Plaintiffs' claim that Auburn breached the implied covenant of good faith and fair dealing was properly dismissed as duplicative of the breach of contract claim (see Logan Advisors, LLC v. Patriarch Partners, LLC, 63 A.D.3d 440, 443, 879 N.Y.S.2d 463 [1st Dept. 2009]).  Additionally, plaintiffs' assertion that they were entitled to be assigned specific responsibilities related to Parker's expertise had no basis in the terms of the contract (see D & L Holdings v. Goldman Co., 287 A.D.2d 65, 73, 734 N.Y.S.2d 25 [1st Dept. 2001]).

Plaintiffs' breach of contract claim against SEIU Funds was properly dismissed because there was no written contract between those parties and the alleged oral agreement between the parties concerning work to be assigned to Parker was vague and failed to allege which specific terms of the oral contract SEIU Funds violated (see Matter of Sud v. Sud, 211 A.D.2d 423, 424, 621 N.Y.S.2d 37 [1st Dept. 1995];  see also Kolchins v. Evolution Mkts., Inc., 31 N.Y.3d 100, 106, 73 N.Y.S.3d 519, 96 N.E.3d 784 [2018]).  Since there was no contract between plaintiffs and SEIU Funds, plaintiffs also cannot assert a claim for breach of the implied covenant of good faith and fair dealing against those defendants (see Parkmerced Invs., LLC v. WeWork Cos. LLC, 217 A.D.3d 531, 532, 192 N.Y.S.3d 4 [1st Dept. 2023]).  Plaintiffs also failed to adequately plead that they were third-party beneficiaries of a purported contract between SEIU Funds and Auburn (see Alicea v. City of New York, 145 A.D.2d 315, 317–318, 534 N.Y.S.2d 983 [1st Dept. 1988]).  Plaintiffs' unjust enrichment claim against SEIU Funds fails because there was a contract governing plaintiffs' compensation, so that recovery on a theory based on a matter covered by the contract is precluded (see IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 142, 879 N.Y.S.2d 355, 907 N.E.2d 268 [2009]).

The court also properly dismissed plaintiffs' defamation claim and related business disparagement claim against SEIU Funds.  With respect to the claim that plaintiffs' supervisor said that Parker was “insubordinate,” plaintiffs failed to identify the employee to whom the supervisor made the alleged statement (see BDCM Fund Adviser, L.L.C. v. Zenni, 98 A.D.3d 915, 917, 952 N.Y.S.2d 104 [1st Dept. 2012];  Bell v. Alden Owners, Inc., 299 A.D.2d 207, 208, 750 N.Y.S.2d 27 [1st Dept. 2002], lv denied 100 N.Y.2d 506, 763 N.Y.S.2d 812, 795 N.E.2d 38 [2003]).  The second alleged defamatory statement, that an individual said that plaintiff Parker was fired, was not defamatory because it was true (see Rosenberg v. Metlife, Inc., 8 N.Y.3d 359, 370, 834 N.Y.S.2d 494, 866 N.E.2d 439 [2007]).  In addition, because that claim was defamation per quod, plaintiffs were required to allege special damages and failed to do so (see Franklin v. Daily Holdings, Inc., 135 A.D.3d 87, 93, 21 N.Y.S.3d 6 [1st Dept. 2015];  Harris v. Hirsh, 228 A.D.2d 206, 209, 643 N.Y.S.2d 556 [1st Dept. 1996], lv denied 89 N.Y.2d 805, 653 N.Y.S.2d 917, 676 N.E.2d 499 [1996]).

We have considered plaintiffs' remaining claims and find them unavailing.