Reset A A Font size: Print


Decided: February 23, 2012

Before: PETERS, J.P., LAHTINEN, KAVANAGH, STEIN and GARRY, JJ. Edward E. Kopko, Ithaca, for appellant. Nixon Peabody, L.L.P., Rochester (Colleen D. Holland of counsel), for respondent.

Appeal from an order of the Supreme Court (Mulvey, J.), entered March 24, 2011 in Tompkins County, which, among other things, granted defendant's motion to dismiss the complaint.

Plaintiff was hired by defendant as a business office supervisor in March 2008 and was appointed an officer of the corporation by defendant's board of directors in May 2010. At the time of plaintiff's hire and throughout the entirety of his employment, the employee manual in effect provided that all employee relationships, such as plaintiff's, that are not based on a contract for a fixed term “[are] terminable at the will of either the employee or [defendant], at any time, with or without cause.” From May 2010 through August 2010, plaintiff became concerned that certain financial documents were not being filed in a timely fashion and repeatedly spoke to Sophia Darling, his immediate supervisor and defendant's chief financial officer, about her need to timely file such documents. By letter dated August 26, 2010, Darling terminated plaintiff's employment with defendant on the ground that he repeatedly engaged in disrespectful and insubordinate conduct towards her in violation of defendant's Code of Conduct.

Plaintiff then commenced this action alleging that defendant breached an implied employment contract by terminating him in violation of defendant's Whistleblower Policy and that Darling removed him from his position as an officer of defendant in violation of Not–For–Profit Corporation Law § 714. Shortly thereafter, defendant's board of directors passed a resolution removing plaintiff from his position as an officer. Defendant moved to dismiss the complaint for failure to state a cause of action, and plaintiff cross-moved to amend his complaint and to compel discovery. Supreme Court granted defendant's motion and denied plaintiff's cross motion, prompting this appeal.

We affirm. It is well settled that, “absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party” (Sabetay v. Sterling Drug, 69 N.Y.2d 329, 333 [1987]; see Lobosco v. New York Tel. Co./NYNEX, 96 N.Y.2d 312, 316 [2001]; Matter of De Petris v. Union Settlement Assn., 86 N.Y.2d 406, 410 [1995]; Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 300–301 [1983] ). This presumption may be rebutted by proof establishing that “the employer made the employee aware of its express written policy limiting its right of discharge and that the employee detrimentally relied on that policy in accepting the employment” (Matter of De Petris v. Union Settlement Assn., 86 N.Y.2d at 410; see Weiner v. McGraw–Hill, Inc., 57 N.Y.2d 458, 465–466 [1982]; Fitzgerald v. Martin–Marietta, 256 A.D.2d 959, 960 [1998]; Novinger v. Eden Park Health Servs., 167 A.D.2d 590, 591 [1990], lv denied 77 N.Y.2d 810 [1991] ). Notably, “[t]he requirements for such an implied contract of employment have been strictly construed, and the successful plaintiff must sustain an ‘explicit and difficult pleading burden’ “ (Preston v. Champion Home Bldrs., 187 A.D.2d 795, 796–797 [1992], quoting Sabetay v. Sterling Drug, 69 N.Y.2d at 334–335; see Matter of LaDuke v. Hepburn Med. Ctr., 239 A.D.2d 750, 753 [1997], lv denied 91 N.Y.2d 802 [1997] ).

Here, even accepting as true the facts alleged in the complaint and submissions in opposition to the motion and according plaintiff the benefit of every favorable inference, as we must on a motion to dismiss the complaint (see Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 178 [2011]; Berry v. Ambulance Serv. of Fulton County, Inc., 39 AD3d 1123, 1124 [2007] ), we find that plaintiff has failed to state a cause of action for breach of an implied contract. It is undisputed that the Whistleblower Policy1 had not been implemented until several months after plaintiff began employment with defendant. As such, Supreme Court correctly found that the essential element of detrimental reliance in accepting employment was lacking (see Matter of De Petris v. Union Settlement Assn., 86 N.Y.2d at 410; Matter of LaDuke v. Hepburn Med. Ctr., 239 A.D.2d at 753; see also Kelley v. New York State Martin Luther King, Jr. Commn. & Inst. for Nonviolence, 229 A.D.2d 629, 631 [1996]; Novinger v. Eden Park Health Servs., 167 A.D.2d at 592). Further, plaintiff did not allege that he forsook any other employment opportunities in reliance upon defendant's Whistleblower Policy or because of what he believed to be defendant's termination policy. Nor is the quality of plaintiff's service relevant in determining whether the presumption of at-will employment has been overcome (see Matter of LaDuke v. Hepburn Med. Ctr., 239 A.D.2d at 754). Moreover, neither his “special duties and liabilities” as an officer nor his promotion to defendant's management team supports a finding of inducement under these circumstances (see Matter of Le Brun v. Maguire, 12 AD3d 1007, 1009 [2004]; Fitzgerald v. Martin–Marietta, 256 A.D.2d at 960–961; D'Avino v. Trachtenburg, 149 A.D.2d 401, 402 [1989], lv denied 74 N.Y.2d 611 [1989] ). Accordingly, plaintiff's claim for breach of an implied employment contract was properly dismissed.

With respect to his cause of action pursuant to Not–For–Profit Corporation Law § 714, plaintiff alleged that he was improperly removed from his position as an officer since only the board of directors, not Darling alone, had the authority to remove him. However, Darling's termination letter states only that plaintiff's “employment status” was being terminated and makes no mention of his status as an officer. On November 4, 2010, following the commencement of this action, defendant's board of directors removed plaintiff as an officer. Consequently, no controversy remains with respect to any purported improper actions taken by Darling relating to plaintiff's status as an officer, and this cause of action is therefore moot (see Stuart v. Board of Directors of Police Benevolent Assn. of N.Y. State Police, 74 A.D.2d 957, 958 [1980] ).

Finally, while leave to amend pleadings is generally freely given (see CPLR 3025[b] ), denial is appropriate where the proposed amendment is wholly devoid of merit (see Thomas Crimmins Contr. Co. v. City of New York, 74 N.Y.2d 166, 170 [1989]; Trupia v. Lake George Cent. School Dist., 62 AD3d 67, 68 [2009], affd 14 NY3d 392 [2010]; Peebles v. Peebles, 40 AD3d 1388, 1390 [2007], lvs dismissed 9 NY3d 892 [2007], 10 NY3d 893 [2008] ). Here, the proposed amended complaint sought to add a cause of action alleging that the board of directors had breached the implied contract of employment established by the Whistleblower Policy when it removed plaintiff from his position as an officer in November 2010. However, since the Whistleblower Policy did not create an implied contract of employment, the proposed amendment was without merit and Supreme Court did not abuse its discretion in denying plaintiff's cross motion (see Saratoga Assoc. Landscape Architects, Architects, Engrs. & Planners, P.C. v. Lauter Dev. Group, 77 AD3d 1219, 1222 [2010]; Trupia v. Lake George Cent. School Dist., 62 AD3d at 69).

ORDERED that the order is affirmed, with costs.


1.  This policy, implemented by defendant in an effort to ensure “compli[ance] with the highest standards of financial reporting and lawful and ethical behavior,” provides that defendant “will not knowingly, with the intent to retaliate, take any action harmful to any person, including interference with lawful employment or livelihood, for reporting a [c]omplaint in good faith pursuant to this policy.”



Copied to clipboard