You are here: / “At Will” Clause in Employment Contract Precluded Action Based Upon Pro...

Search Results

/ , , , , ,

“At Will” Clause in Employment Contract Precluded Action Based Upon Promissory Estoppel, Fraud and Negligent Representation/Criteria for Tortious Interference With Contract and Prima Facie Tort Not Met

The Third Department affirmed the dismissal of a complaint brought by a doctor against the hospital where he was employed and the doctor who supervised him.  The plaintiff was hired pursuant to an agreement which included an “at will” clause allowing termination without cause upon 60 days notice. Plaintiff was terminated upon 90 days notice. Plaintiff sued the hospital for promissory estoppel, fraud, and negligent representation.  Plaintiff sued his supervisor [Hussain] for tortious interference with contract and prima facie tort:

Plaintiff’s claims against the hospital all required a showing that, among other things, he reasonably relied on any alleged promises or misrepresentations made to him by the hospital … .  In this regard, we note that “[w]here, as here, ‘a plaintiff is offered only at-will employment, he or she will generally be unable to establish reasonable reliance on a prospective employer’s representations'” … . * * * Inasmuch as any oral assurances made by the hospital as to the security of plaintiff’s position could not have altered the at-will nature of the employment contract, the hospital established its prima facie entitlement to judgment as a matter of law dismissing the claims against it, shifting the burden to plaintiff “‘to establish the existence of material issues of fact which require a trial of the action’”… . * * *

… [A] claim of tortious interference with contract requires (1) the existence of a valid contract between a plaintiff and a third party, (2) a defendant’s knowledge of such contract, (3) the intentional inducement of a breach of that contract, and (4) damages … .  Significantly, as the contract here was terminable at will, plaintiff was also required to “show that [Hussain] employed wrongful means, such as fraud, misrepresentation or threats[,] to effect the termination of employment”… .No such showing was made here. * * *

“[Prima facie tort] requires a showing of an intentional infliction of harm, without excuse or justification, by an act or series of acts that would otherwise be lawful . . . and that malevolence was the sole motivating factor” … .  Considering plaintiff’s acknowledgment that Hussain prevented him from examining patients as a result of complaints made by patients who wanted to be treated by Hussain and not plaintiff, plaintiff could not establishthat Hussain’s actions were motivated solely by “disinterested malevolence”… . Hobler v Hussain…, 516381, 3rd Dept 11-7-13

 

/ ,

Bond Resolution for Upgrades to School District Buildings Does Not Constitute a School-District Debt—Petitioner Did Not Have Standing to Challenge School District’s Environmental Impact Determination

In a full-fledged opinion by Justice Spain, the Third Department determined that a bond resolution for the upgrading of school district buildings did not violate the school district’s constitutional and statutory debt limit and the petitioner did not have standing to challenge the school district’s State Environmental Quality Review Act (SEQRA) finding that the upgrading did not have a negative environmental impact.  The court held the bonds need not be included in the debt until they are sold, i.e., until the bonds are actually issued:

…[F]or purposes of the debt limit, “contract indebtedness” and “existing indebtedness” include only bonds that have been actually issued – i.e., sold – at that time, and exclude the value of bonds that have merely been authorized for future issuance. * *

…[P]etitioner lacks standing to challenge the School District’s SEQRA determination and process … .  Standing, even to raise environmental challenges, is not automatic and must be alleged and, when disputed, proven …; this petitioner failed to do.  To the extent that petitioner relies on the proximity of his property to one of the buildings scheduled for repurposing … to raise an inference of injury sufficient to confer standing, under our decisional law a distance of over 1,000 feet “is not close enough to give rise to the presumption that the neighbor is or will be adversely affected by the proposed project” … .  Further, petitioner failed to alleged or identify any actual injury or direct harm that he will suffer, environmental or otherwise, if the facilities project is undertaken that is distinct from the harm experienced by the general public… . Matter of O’Brien v NYS Commissioner of Education, 515382, 3rd Dept 11-7-13

 

/ ,

Material Breach and Abandonment of Subcontract Waived Notice of Termination and Opportunity to Cure and Warranted Cost-to-Complete Damages

The First Department explained the criteria for cost-to-complete damages for a subcontractor’s breach before completion of performance.  The court noted that plaintiff was not entitled to overpayment damages in addition to the cost-to-complete damages because receipt of both would amount to a double recovery:

Defendants are entitled to cost-to-complete damages because plaintiff materially breached and abandoned the subcontract, and waived any right to notice of termination or an opportunity to cure. The subcontract explicitly provides that time is of the essence, that plaintiff’s delay or failure to meet scheduling requirements warrants termination, and that plaintiff must perform work even if the parties dispute that work’s characterization, yet plaintiff repeatedly failed to timely perform and complete work, despite defendant E-J Electric Installation Co.’s repeated demands … . Among other material breaches, plaintiff repudiated the subcontract by abandoning the work site when only 73.49% of plaintiff’s work was complete … . Accordingly, plaintiff waived any right to notice of termination … .

It is well-settled that if a subcontractor breaches before completing performance, the contractor is entitled to recover reliance, or cost-to-complete damages from the subcontractor… . Kleinberg Elec Inc v E-J Elec Installation Co, 2013 NY Slip Op 07256, 1st Dept 11-7-13

 

/

Amendment of Summons and Complaint to Fix Misnamed Party Allowed

In affirming the Supreme Court’s allowing a summons and complaint to be amended to include a misnamed party [Enigma Management] which shared the same address and counsel and provided the same services as the named defendant, the Third Department wrote:

The showing required by plaintiffs in support of their motion pursuant to CPLR 305 (c) included “that the intended but misnamed defendant was fairly apprised that it was the party the action was intended to affect [and that it] would not be prejudiced” … .  Here, plaintiffs’ proof established, among other things, that service occurred at the shared address of defendant and Enigma Management, defendant and Enigma Management essentially acted as one in asserting identical causes of action against plaintiffs, both claimed to have done laboratory work for plaintiffs, they had the same counsel and they used a variety of names in their billing and correspondence.  There is no prejudice to Enigma Management in permitting the amendment.  MVP Health Insurance Company v Enigma Diagnostic Corporation, 515660, 3rd Dept 11-7-13

 

/

“Assessor’s Formula” for Determining Property Tax Assessment for Golf Course Approved

In a full-fledged opinion by Justice Dickerson, the Second Department affirmed Supreme Court’s approach to the determination of real property tax assessments for a private, not-for-profit golf course.  The country club challenged the tax assessment imposed by the respondents (the board of assessors, et al). After a trial, Supreme Court adopted the assessment method used by the country club’s expert, called the “assessor’s formula,” rather than the respondents’ “triple net lease” method (which had previously been approved by the Second Department).  The opinion has an extensive description and discussion of the valuation techniques used by both experts and ultimately determined there is no reason to rigidly mandate that a particular valuation technique be used in all cases:

Contrary to the appellants’ contentions, we conclude that there is no basis to categorically preclude the application of this approach [the “assessor’s method] to the valuation of golf courses. Further, under the circumstances of this case, we conclude that the methodology employed by the Country Club yielded a fair market value, and we discern no reason to disturb the Supreme Court’s determination on appeal. Matter of Hempstead Country Club v Board of Assessors, 2013 NY Slip Op 07178, 2nd Dept 11-6-13

 

/ ,

Criteria for Taxpayer Lawsuit Against School District for Misuse of Public Property Not Met; Failure to Serve Notice of Claim Fatal

In reversing Supreme Court, the Second Department determined that the failure to serve a notice of claim upon the school district (in a tort action) required dismissal and the criteria for a taxpayer suit against the district under General Municipal Law 51 had not been met:

Pursuant to Education Law § 3813, a plaintiff commencing a tort action against a school district must serve a notice of claim upon the school district. “Service of a notice of claim is a condition precedent to bringing an action against a school district or a board of education'”… . * * *

“A taxpayer suit under General Municipal Law § 51 lies only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes'” … .. Further, to establish “common-law taxpayer standing,” a plaintiff must demonstrate that he or she is “personally aggrieved by those actions in a manner different in kind and degree from the community generally” and that “the failure to accord [him or her] standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action”… . Fauvell v Miglino, 2013 NY Slip Op 07150, 2nd Dept 11-6-13

 

/

Failure to Identify Industrial Code Violation in Pleadings Not Fatal/Supervisory Criteria for Labor Law 200(1) Action Explained

In reversing Supreme Court, the Second Department determined summary judgment should not have been granted to the defendants on the Labor Law 241(6) and 200(1) causes of action.  Plaintiff was injured when he prevented himself from falling because of a missing plank on a scaffold.  The court noted that the plaintiff’s failure to identify the breach of an Industrial Code provision in the complaint and bill of particulars was not fatal to the 241(6) claim (the allegation of a specific code violation was subsequently provided). And the court explained the criteria for liability under Labor Law 200(1):

Although a plaintiff asserting a Labor Law § 241(6) cause of action must allege a violation of a specific and concrete provision of the Industrial Code …, a failure to identify the Code provision in the complaint or bill of particulars is not fatal to such a claim … . The plaintiff’s belated allegations that the defendants third-party plaintiffs violated 12 NYCRR 23-5.1(c), 23-5.1(e)(1), 23-5.1(f), and 23-5.3(f) involved no new factual allegations, raised no new theories of liability, and caused no prejudice to the defendants third-party plaintiffs …. The defendants third-party plaintiffs were put on sufficient notice that the cause of action alleging violations of Labor Law § 241(6) related to missing scaffold planks through the plaintiff’s bill of particulars and deposition testimony. Thus, they cannot reasonably claim prejudice or surprise. * * *

Where, as here, a plaintiff’s claim arises out of alleged defects or dangers in the methods or materials of the work, to prevail on a Labor Law § 200 cause of action, the plaintiff must show that the defendant “had the authority to supervise or control the performance of the work” … . “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … . “[T]he right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence”… . Klimowicz v Powell Cove Assoc, LLC, 2013 NY Slip Op 07158, 2nd Dept 11-6-13

 

/ ,

Police Officer (a Passenger in a Police Car) Who Was Injured by Underinsured Driver Was Covered By Police-Officer-Driver’s (Private) Underinsured Motorist Endorsement

In a full-fledged opinion by Justice Hall, the Second Department determined that a police car is a “motor vehicle” within the meaning of an uninsured/underinsured motorist endorsement in a [State Farm] policy held by the driver.  The plaintiff, a police officer, was injured in an automobile accident with an underinsured driver. The question was whether the State Farm policy held by the driver of the police car, another police officer, could be financially responsible under the uninsured/underinsured endorsement in the driver’s policy.  The Second Department held that the driver’s underinsured endorsement covered the injured (police-officer) passenger.  The question at issue was whether the exclusion of “police vehicle” from the definition of “motor vehicle” in Vehicle and Traffic Law 388(2) applied.  The court ruled it did not and determined the operative definition of “motor vehicle” in this context was in Vehicle and Traffic Law 125:

Contrary to State Farm’s contention, VTL § 125, instead of VTL § 388(2), should be used to define the term “motor vehicle,” as it appears in the uninsured/underinsured motorist endorsement. VTL § 125 is a general provision that defines the relevant terminology for the entire VTL. In fact, VTL § 388(2) acknowledges this by incorporating by reference the VTL § 125 definition of “motor vehicle.” Additionally, it has been recognized that uninsured motorist coverage extends to all “motor vehicles,” as defined by VTL § 125 (…Insurance Law § 5202[a]…).

Police vehicles fall within the definition of a “motor vehicle” under VTL § 125 because they constitute a “vehicle operated or driven upon a public highway which is propelled by any power other than muscular power,” and they do not fall within any of the exclusions provided in the statute. Thus, the police vehicle at issue here falls within the definition of a “motor vehicle” under the uninsured/underinsured motorist endorsement.  Matter of State Farm Mut Auto Ins Co v Fitzgerald, 2013 NY Slip Op 07186, 2nd Dept 11-6-13

 

/

Burden of Proof for Relocation with Child Not Met

In reversing Family Court, the Second Department determined there was not a sound and substantial basis for granting the mother’s request to return to South Africa with the couple’s child.  The court explained the analytical criteria for relocation:

A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child’s best interests … . In determining whether relocation is appropriate, the court must consider a number of factors, which include “each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements”… . In assessing these factors, “no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome” … . However, “the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern” … . “In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests” … .

… [T]he record is devoid of evidence that he has ever harmed the child or directed his anger toward her, and many of the incidents described by the mother involved the father’s suicidal ideation and infliction of harm upon himself. Significantly, the court-appointed psychologist found that the father was currently emotionally and mentally stable, and at low risk of neglectful or abusive behavior toward the child. Moreover, the record shows that the mother sought permission to relocate primarily because she feels lonely and isolated in the United States, and not to escape domestic violence … . The record also establishes that the father consistently exercises his right to visit the child twice a week, and that he desires to spend more time with her …. Further, there is no economic necessity for the proposed relocation because the mother has been steadily employed as a payroll analyst for more than six years.  Matter of Francis-Miller v Miller, 2013 NY Slip Op 07177, 2nd Dept 11-6-13

 

/ ,

Child Qualified as “Special Immigrant;” Abandoned by One Parent

In reversing Family Court, the Second Department determined the subject child, Brenda, qualified as a “special immigrant” who could apply for lawful permanent residency in the US because she had been abandoned by one (not both) of her parents:

Pursuant to 8 USC § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 US Stat 5044) and 8 CFR 204.11, a “special immigrant” is a resident alien who, inter alia, is under 21 years of age, is unmarried, and has been legally committed to, or placed under the custody of, an individual appointed by a State or juvenile court. Additionally, for a juvenile to qualify for special immigrant juvenile status, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law (see 8 USC § 1101[a][27][J][i]…), and that it would not be in the juvenile’s best interests to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101[a][27][J][ii]; 8 CFR 204.11[c][6]…).

Brenda is under the age of 21 and unmarried. Inasmuch as the Family Court placed Brenda under her mother’s custody, Brenda has been “legally committed to, or placed under the custody of . . . an individual or entity appointed by a State or juvenile court” within the meaning of 8 USC § 1101(a)(27)(J)(i)…). Based upon our independent factual review, we find that the record, which includes a detailed affidavit from Brenda, fully supports Brenda’s contention that, because her father neglected and abandoned her, reunification with her father is not a viable option … . Contrary to the Family Court’s determination, the fact that Brenda’s mother did not also neglect and abandon her does not preclude the issuance of the order requested … . Lastly, the record reflects that it would not be in Brenda’s best interests to be returned to El Salvador… .  Matter of Maria PEA v Sergio AGG, 2013 NY Slip Op 07168, 2nd Dept 11-6-13

For a similar case with the same result, see Matter of Karen C, 2013 NY Slip Op 07170, 2nd Dept 11-6-13

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy