George DiLacio, Jr., respondent, v. New York City District Council of United Brotherhood of Carpenters & Joiners of America, et al., appellants. (2011)

Argued-December 17, 2010

DECISION & ORDER

In an action to recover damages for wrongful termination of employment and defamation, the defendants appeal from so much of an order of the Supreme Court, Putnam County (O'Rourke, J.), dated October 15, 2009, as denied that branch of their motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7).

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

Since the plaintiff was an employee at will, his allegation that the defendants violated their duty to terminate his employment “only in good faith and with fair dealing” fails to state a cognizable cause of action under New York law (see Murphy v American Home Prods.   Corp., 58 N.Y.2d 293, 300;  Riccardi v. Cunningham, 291 A.D.2d 547).   Under New York law, “absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired” (Murphy v American, Home Prods.   Corp., 58 N.Y.2d at 305).   However, contrary to the plaintiff's contentions, his termination was not statutorily proscribed (see Dilacio v N.Y. City Dist. Council of the United Bhd. of Carpenters, 593 F Supp 2d 571).

The plaintiff's defamation claim also should have been dismissed.   The termination letter containing the phrase “severe dereliction of duty” was not published to anyone other than the plaintiff himself (see Weidman v. Ketcham, 278 N.Y. 129, 131;  Hochberg v. Nissen, 180 A.D.2d 435) and no particular text from the status report addressed to the “Brothers and Sisters of Local 157” was set forth in the plaintiff's complaint pursuant to the strict pleading requirements of CPLR 3016(a) (see CPLR 3016[a];  Gill v. Pathmark Stores, 237 A.D.2d 563, 563).

To the extent that the plaintiff now seeks either leave to amend the complaint or leave to replead, the issue is not properly before this Court, as the plaintiff did not cross-move for this relief before the Supreme Court (see Rinaldi v. Rochford, 77 AD3d 720;  99 Cents Concepts, Inc. v. Queens Broadway, LLC, 70 AD3d 656, 659).

BALKIN, J.P., LEVENTHAL, CHAMBERS and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court