BARCELLOS v. ROBBINS (2008)

In an action to recover damages for tortious interference with employment, the defendants appeal from so much an order of the Supreme Court, Richmond County (McMahon, J.), dated May 4, 2007, as denied their motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' motion to dismiss the complaint is granted.

 An employee who does not work under an agreement for a definite term of employment is an at-will employee who may be discharged at any time with or without cause (see Robertazzi v. Cunningham, 294 A.D.2d 418, 742 N.Y.S.2d 115;  Thawley v. Turtell, 289 A.D.2d 169, 736 N.Y.S.2d 2;  Michnick v. Parkell Prods., 215 A.D.2d 462, 626 N.Y.S.2d 265).   New York does not recognize a cause of action for the tort of abusive or wrongful discharge of an at-will employee (see Lobosco v. New York Tel. Co./ NYNEX, 96 N.Y.2d 312, 727 N.Y.S.2d 383, 751 N.E.2d 462;  Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86;  Priore v. New York Yankees, 307 A.D.2d 67, 761 N.Y.S.2d 608;  Howley v. Newsday, Inc., 215 A.D.2d 729, 627 N.Y.S.2d 85).   Moreover, this rule cannot be circumvented by casting the cause of action in terms of tortious interference with employment (see Smalley v. Dreyfus Corp., 10 N.Y.3d 55, 853 N.Y.S.2d 270, 882 N.E.2d 882;  Horn v. New York Times, 100 N.Y.2d 85, 760 N.Y.S.2d 378, 790 N.E.2d 753;  Ingle v. Glamore Motor Sales, 73 N.Y.2d 183, 538 N.Y.S.2d 771, 535 N.E.2d 1311).

 Here, the plaintiff alleged no injury separate and distinct from the termination of her at-will employment.   Inasmuch as the length of employment is not a material term of at-will employment, a party cannot be injured merely by the termination of her employment.   Absent injury independent of termination, the plaintiff cannot recover damages for what is, in essence, an alleged wrongful discharge claim in the guise of a tort claim against her fellow employees and supervisor (see Smalley v. Dreyfus Corp., 10 N.Y.3d 55, 853 N.Y.S.2d 270, 882 N.E.2d 882;  Ingle v. Glamore Motor Sales, 73 N.Y.2d 183, 538 N.Y.S.2d 771, 535 N.E.2d 1311;  Marino v. Vunk, 39 A.D.3d 339, 340, 835 N.Y.S.2d 47).   The plaintiff's conclusory allegations that the defendants made “false and malicious” statements in their “libelous” campaign against her, without more, were insufficient to place their actions outside of the scope of their employment (see Marino v. Vunk, 39 A.D.3d 339, 340, 835 N.Y.S.2d 47;  Lobel v. Maimonides Med. Ctr., 39 A.D.3d 275, 276, 835 N.Y.S.2d 28;  Negron v. JP Morgan Chase/Chase Manhattan Bank, 14 A.D.3d 673, 674, 789 N.Y.S.2d 257;  Kosson v. Algaze, 203 A.D.2d 112, 113, 610 N.Y.S.2d 227, affd. 84 N.Y.2d 1019, 622 N.Y.S.2d 674, 646 N.E.2d 1101).

Accordingly, the Supreme Court should have granted the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.